COPPER WELD STEEL COMPANY

OSHRC Docket No. 5110

Occupational Safety and Health Review Commission

February 18, 1975

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: A decision of Review Commission Judge John S. Patton, dated September 30, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i).

The respondent contested a citation under the Occupational Safety and Health Act of 1970 n1 alleging a violation of 29 U.S.C. 654(a)(1). Respondent was found in violation of the general duty clause for using bottomless slag pots. We find no prejudicial error and therefore affirm the Judge's decision.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 29 U.S.C. 651 et seq., 84 Stat. 1590.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

CONCURBY: CLEARY

CONCUR:

CLEARY, COMMISSIONER, concurring: I concur in the affirming of the Judge's decision holding that the employer was in violation of section 5(a)(1) of the Act for using a type of bottomless slag pot that had been abandoned by the steel industry in general about 20 years ago and the penalty assessment of $900. The Judge reached this result on the basis of the employer's personal knowledge of the hazard. Brennan [*2] v. O.S.H.R.C. & Vy Lactos Laboratories, 494 F.2d 460 (8th Cir. 1974).

Although the Judge committed no prejudicial error, he nevertheless erred. He erred in concluding that the Secretary of Labor had failed to prove industry recognition of the hazard presented by the bottomless slag pots. The evidence relating to industry recognition of the hazard consisted of hearsay testimony by the compliance officer concerning conversations that he had with representatives of other steel companies. The Judge excluded this evidence as to industry recognition because of its hearsay character. The exclusion of the testimony was plain error. Rule 72 of the Commission's Rules of Procedure (29 CFR 2200.72) provides in effect that hearings before the Commission are to be in accordance with the formal adjudication requirements of the Administrative Procedure Act, and only "insofar as practicable" shall the hearings be governed by the rules of evidence. Hearsay evidence is clearly admissible in formal hearings under the Administrative Procedure Act when it is reliable or has probative force. See section 556(d) od Title 5, United States Code. It seems to me that when hearsay [*3] evidence is admissible under section 556(d), it is not "practicable" to exclude it under the Commission's Rule 72. The hearsay rule is a "child of the jury system," in Thayer's phrase, and should not be applied in our hearings.

I consider the compliance officer's testimony to have probative value in showing industry recognition of the hazard presented by bottomless slag pots, and I consider it sufficient to have established such industry recognition. B & K Paving Co., No. 59 (September 5, 1974) (Cleary, Commissioner, concurring). Cf. Richardson v. Perales, 402 U.S. 389, 407 (1971), wherein the Supreme Court held that reliable and probative hearsay testimony alone may be sufficient to support an evidentiary finding. See Annot. 6 ALR Fed. 76, 92 (1971); McCormick, Evidence 851 (2d ed. 1972). But even if corroboration were needed, the numerous instances recited in the record of employee and union complaints about the slag pot provides it.

[The Judge's decision referred to herein follows]

PATTON, JUDGE: This case is before the undersigned Judge on the complaint of the Secretary of Labor, United States Department of Labor, hereinafter referred to as complainant, [*4] versus Copperweld Steel Company, hereinafter referred to as respondent, alleging that respondent has violated section 5(a)(1) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. 651 et seq. ). Hearing was held before the undersigned Judge on July 11, 1974, at Youngstown, Ohio. Mr. William Curphey appeared as counsel for the complainant and Mr. Thomas Letson appeared as counsel for respondent. Local Union 2243 of the United Steelworkers of America intervened and participated in said hearing. Mr. Donald Maffitt, president of said Local Union, represented the intervenor. All three parties have submitted briefs.

LAW AND ISSUES OF THE CASE

It was alleged by the complainant that on or about September 27, 1973, respondent violated section 5(a)(1) of the Act by failing to furnish its employees working in the melt shop department of respondent's steel mill, a place of employment that was free from recognized hazards that were likely to cause death or serious physical harm to its employees in that the open bottomed slag pot was not of sufficient strength to withstand the heat of molten slag and the bumping required in positioning the pot for refilling. [*5] It was stated that the hazard could be prevented by providing a suitable closed bottom slag pot for the work being performed. The issue, therefore, arises as to whether using a so-called "open bottom slag pot" containing steel being melted created a hazard to employees and, if so, if the hazard was a "recognized hazard" as said term is used in the Act.

EVIDENCE IN THE CASE

It was stipulated at the hearing that respondent is an employer engaged in interstate commerce; that respondent employs approximately 2,400 employees daily and that respondent's total business per year consists of a dollar volume in excess of $180,000,000. It was further stipulated that respondent has been previously cited for violations of the Occupational Safety and Health Act. The respondent stated at the time the stipulation was made that none of the prior citations had anything to do with the area of operation constituting the alleged violations. The respondent is engaged in the production of steel, making all of its steel from scrap metal. As described by Mr. Jeyrl Wright, supervisor of process metallurgy in the primary division for the respondent, the respondent used electric furnaces which are large [*6] holding pots. Electric power is supplied to them that generates heat which melts the metal. There are holding vats for the steel once it is molten. The top of the pot is called a "roof." The roof is removable, rises up and swings aside. In that way, there is access to the furnace for large items. In the back a door lowers and rises for entrance to the furnace for test sampling and looking in and general operation procedures. There is a tapping spout. The first operation is to remove the roof and place the steel in the furnace with a large charging bucket. The metal consists of old automobiles, hulks, bundles of stampings, turnings from machine shops and many other forms of metal stock. The company starts off with said raw material which is steel scrap and converts it into a saleable product. The furnace is filled as full as possible, the power is turned on and then it is melted down. More scrap is added during the melting process. The full weight is approximately 80 tons. Once the furnace is full of unmelted scrap the roof is closed, the power is turned on to the electrodes and an arc is generated between the carbon electrodes and the steel scrap. The scrap [*7] is melted by conduction heat through the scrap and the radiation in the arc which was described as similar to getting a suntan or sunburn. Mixing materials are added, such as lime. When it has melted down there is a molten layer of composition covered with slag. The slag serves the purpose of refining and also provides insulation for the steel. He stated that since the slag is floating on top of the steel the furnace has a tilting mechanism which may cause it to tilt back 15 degrees and the slag runs off the top of the batch. The temperature in melting the steel varies from 2,800 degrees Fahrenheit to 3,000 degrees Fahrenheit. It was stated that some other companies go as high as 3,200 degrees Fahrenheit. Steel normally in respondent's plant is tapped at a temperature from 2,850 degrees to 2,950 degrees Fahrenheit. What is described as a bottomless slag pot comes without a bottom and a bottom is made by the following procedure. Dolomite, a material made up of lime and magnesium oxide, is put in a slag pot and as soon as the first heat is poured, it generates enough heat so the dolomite cinders gather and harden, making a non-metallic bottom on a slag pot. Dolomite is often [*8] used in patching refractory walls. It is possible to make several heats of steel without the patch necessarily coming apart. The way a bottom is made in a bottomless pot was also testified to by other witnesses. Dolomite was put in every time such pot was emptied. When the pot is filled with slag it is raised by crane and taken to the area where pots are dumped. This area is approximately 75 to 100 feet east of the furnace. An employee having a job title called second helper has the duty of emptying and replacing the slag pots. The pots weigh from 7,000 to 10,000 pounds. They are about seven feet tall and about six and one-half to seven feet wide. The pots are dumpted by turning them a half turn and bumping them against a big weight to break the slag and steel loose. Some pots would only require one or two bumps to break loose and at times it would require 25 to 40 bumps. If it is not in proper line it may be nudged slightly to spin the pot and get the eye in position. The company has four furnaces and four pots. It requires approximately three and a half to four hours or longer to heat and melt the metal. There is one box for each furnace and the pot is already [*9] placed at the furnace. If the crane is available the employees will generally empty the pot right after they "cap the heat." Otherwise, they will let it remain until the crane becomes available. When there is bad quality scrap creating a good deal of high sulfur it may be necessary to place more lime in it to reduce the sulfur and the slag pots fill quicker. In this evant, it is necessary to empty it with molten slag in it before it is tapped. Mr. Lloyd R. Bluedorn, who operates a crane and is financial secretary for the intervenor, stated that they normally received a signal from the third helper to dump the pot. It requires lifting of a platform and beneath the platform is the pot. It is hooked up by the second or third helper and securely fastened. A siren is blown, the pot is raised and taken to a designated area where they proceed to the dumping area. The second helper then prepares the furnace for the next heat. The crane operator lowers a small block and a man will hook up the cable assembly that is used to attach the pot for dumping. The pot is positioned directly in line with the block. Slag pots or even ladles in the refractory at times will have or develop leaks [*10] that will cause metal to come out. There was some testimony that approximately two and one-half hours is the usual time from cold steel to molten state. The employees have discretion as to when to dump the pot and no supervisor goes around telling them to do so. The slag pot is emptied about once a shift and if the pot is red hot it is possible to wait until it is cooled some. At one time it was common practice to use a bottomless pot but 25 years ago companies ceased doing so. Since the practice ended a quarter century ago, only the pot involved in the accident in this case was ever used by the company as a bottomless pot. The respondent secured a pot which would not fit and, therefore, they had the bottom taken out and welded in a smaller one. They took dolomite and sealed the edges to keep it from coming out. The pot at No. 6 had a hole about two feet in diameter in the bottom, the bottom having been removed. They put dolomite in the hole and thereby made a bottom for it. They had to put dolomite in every time the pot was dumped. This pot was used with the bottom out for about six or seven weeks. On September 27, 1973, a Mr. Balut, who was a second helper [*11] working for the respondent on the No. 6 furnace, was emptying the slag pot. While he was trying to hook the cable to the pot, the bottom of the pot came out and Mr. Balut was very severely burned, later dying of his burns. This occurred about 7:30 p.m. It was apparent that the slag pot was extremely hot because it was cherry red. According to Mr. Harold Strope, while Mr. Balut was hooking the pot up the whole bottom fell out. He ran about 15 feet toward Mr. Strope, turned around, ran back toward the pot, flame went up and Mr. Strope could no longer see him. Mr. Harry Plummer, who has a melter at furnace No. 6, stated that on said date he, Mr. Plummer, tapped furnace No. 6 at approximately 7:00 p.m., which means he brought the ladle over to the spout side of the furnace, putting the ladle in to hold and tipping the spout into the ladle. He took the temperature, went back to the perimeter, checked the temperature, wrote it down, checked the heat out and went back to his office. He then went to a restaurant. While in the restaurant an employee came in and told him that Mr. John Balut had been burned. The witness stated that since he had just tapped the furnace he, at the time, [*12] could not understand how it happened. He went to the hospital and helped the nurse minister to Mr. Balut. He then went to the scene of the accident and saw that the pot had "let go" and slag had gone onto the floor, burning Mr. Balut's clothing. He stated that Mr. Balut could have waited for two and one-half hours to dump the pot. He stated that at times when it is extremely red hot, a helper will put it down and let it cool and it is up to the employee to determine when to pour it.

There was considerable evidence that the company had been warned by the union and by its employees that the bottomless pot was unsafe. Mr. Don Maffitt, president of the Local Union, stated that at the time of negotiating the contract he was treasurer and shop steward of the union. This was in 1971. He stated that the condition of slag pots was brought up in negotiations and the company agreed to purchase new ones to replace damaged pots. He stated that this provision was put in the contract because of the poor condition of the slag pots at the time and their poor condition prior to that time. They felt they could not get it done in the absence of a commitment in the contract. He stated [*13] that some slag pots were replaced following execution of the contracts. He stated there was no periodic or preventive maintenance as to the pots. He stated that the condition of slag pots was frequently mentioned at safety meetings of the company. The union complained that the bottomless slag pot was dangerous and should not be used. Mr. Charles Manyak, a supervisor with the company, stated he attended safety meetings and that he was told that the slag pot at No. 6 furnace was in bad condition. There was a large hole in the bottom of the slag pot and it was too dangerous to turn and hook up and dump. He made a written report to this effect. He stated that he tried to get something done about it because it was too dangerous to dump. A safety gram, which was a report of investigation of the accident with recommendations made by Mr. Herb Bollenbacher, in charge of safety for the company, recommended that the company should insure that slag pots have metal bottoms, should require the use of fire retardant clothing while they were working with slag pots that were loaded with slag and that the company should attain additional slag pots. This was received in evidence as complainant's [*14] Exhibit No. 5. Both the meetings of September 14 and 18, 1973, between the union and the company ended with the statement "have work done or steps will be taken to invoke section 14(c)." Section 14(c) of the contract permits employees to be relieved of job duties if there is an issue of safety. Section 14(c), however, was not invoked. The danger of the slag pots and the need for something to be done was mentioned at a number of meetings. The employees frequently complained about the slag pots. Not only did the employees who were working with the slag pots and the union state that it was a hazardous condition which should have been attended to but several company supervisors made the same statement. Mr. Herbert K. Bollenbacher, supervisor of safety, testified that with the knowledge he had of the accident substitution of a bottomed slag pot rather than a bottomless slag pot was a step which should be considered in order to try to prevent this from ever happening again. He also stated that retardant clothing should be worn and they should obtain more slag pots. Mr. Fred Jones, shift superintendent for the respondent, testified that prior to the accident he wanted the [*15] slag pot at furnace No. 6 repaired because he felt it was an unsafe condition.

The supervisors called the matter to the attention of the company. Mr. Fred Jones, shift superintendent, testified that Mr. Plummer would come to him or to the maintenance supervisor with complaints about the slag pots and, although he was not sure whether Mr. Plummer came to him about furnace No. 6 he knew that others did and he took the request to the melt shop's superintendent and to the maintenance department.

Mr. Charles Manyak signed a written complaint saying "slag pots at No. 6 furnace in bad condition. Large hole in bottom of slag pot. Too dangerous to turn, hook up and dump." Notwithstanding these numerous requests for something to be done, the respondent made no attempt to remedy the situation. Mr. John Giaurtis, a machine operator who was chairman of the union safety committee, testified that the majority of the plant was cooperative as to safety but the melt shop was a problem. Mr. Roger Wade who was on the committee for the melt shop and worked in the melt shop at the pouring pit stated that in the melt shop there was a problem of getting anything repaired unless the repairs were imperative [*16] to production. He stated that production was the main thing and that they had problems as far as safety was conderned. He testified the company was lackadaisical in repairing anything unless it was geared to production. He stated that the slag pot in question was discussed at various meetings and they discussed replacing it or getting it repaired. He testified there had been quite a few fatalities in the melt shop although they were not related to the slag pot. He stated that he believed after the accident the company did weld a new bottom in said slag pot. Mr. James Dunaway, crane operator in the melt shop, stated that the respondent engaged in preventive maintenance only when equipment got so bad they couldn't use it. Mr. Harold Strope testified that notwithstanding the fact said slag pot had a hole in the bottom, the company did nothing about it. Mr. Robert Kennedy, who was a motor inspector apprentice for respondent, testified that in practice the company treated as an insubordinate act requiring disciplinary act, an employee relying on Section 14(c) of the contract. He was a committeeman in the union and on the grievance committee. He stated that the company [*17] did purchase several new slag pots after the contract was executed and that the pot at furnace No. 6 was one of the ones purchased. He stated that men hesitated to complain because of fear of disciplinary action. He stated there were occasions in which pots were repaired when the employees brought it to his attention and he brought the problem to management's attention. Mr. Plummer testified that he tried to get the things done the men requested and specifically ask that the slag pot on No. 6 be repaired, that others talked about the need to repair it at safety meetings going back as far as February of 1972. He stated that they tried to get a new bottom welded on but that this was never done. He stated that it was more difficult to get maintenance in the melt shop than anywhere else. He stated the respondent told him that they had to buy it and "you took a heck of a time." Mr. Jones stated that although he took the request to both the melt shop superintendent and to the maintenance department, they did nothing about it. He stated that although Mr. Plummer was requesting maintenance and he was requesting it, no one was doing anything about it.

The complainant attempted to present [*18] evidence as to the opinion of other companies as to the hazard in using bottomless pots. The undersigned Judge ruled that while said testimony could be received as an explanation of why the compliance officer recommended the issuance of complaint, it could not be received as substantive evidence of the opinion of other companies as to slag pots because it was entirely hearsay and the persons making said statements where not available for cross-examination. There was no competent evidence in the record as to whether it was a recognized hazard throughout the industry.

The evidence was to the effect that the bottomless pot which resulted in the accident was the only one that had been used in over 25 years. Mr. Plummer stated that at one time it was common practice to use bottomless pots but that this was in the early 1940's and it had not been common practice to use bottomless pots for many years. Since the practice changed, the pot used at furnace No. 6 was the only bottomless pot he had seen. Mr. Lewis Young, who had worked for the company for 22 years stated that he had never seen or heard of a bottomless slag pot other than the one on furnace No. 6. Mr. Harold Strope [*19] testified that he had worked for the respondent 15 years and had never seen an open slag pot before. It was testified that bottomless pots were used by The Timken Roller Bearing Company over 20 years ago. They tapped once a day when using bottomless pots. Sometimes they did it more frequently. There was no other evidence as to use of bottomless pots by other companies. Mr. Charles Manyak testified that he had seen slag pots break out in the hole but not while they were being turned. He has seen pots both with and without bottoms break out. Mr. James Dunaway, crane operator in the melt shop, testified that he had never seen a bottom drop out of a bottomless pot as happened that night. Mr. Plummer testified that he had never seen a pot break out either open or closed bottom. On ther other hand, Mr. Fred Jones testified that he had seen several break out when slagging and running slag into the slag pot but never saw one break out while moving it with the crane. Mr. Dunaway testified the night of the accident he did not see any extra pot available. He stated he had seen them use the pit rather than a pot and dump the furnace in a pit. It was the employee's option what pot [*20] to use. The time to dump is also the employee's discretion. There was testimony that the pot on furnace No. 9 which was adjoining might have been available. The slag pot that was used, however, had been placed in furnace No. 6 pit by the previous crew and was already there. If it had been replaced, approximately 13 to 15 minutes would have been consumed in replacing it with the slag pot from furnace No. 9. It was testified that Mr. Balut as a worker was the best.

EVALUATION OF THE EVIDENCE

It would appear that the above facts establish that a hazard did exist. A number of employees working with the slag pot complained that a bottomless slag pot was unsafe and that something should be done about it. The union repeatedly requested that something be done about said slag pot. It is particularly significant that even the safety director and the shift superintendent were of the opinion that the slag pot was unsafe and shift superintendent Jones testified that he wanted it repaired because he felt it was an unsafe condition. This overwhelming weight of opinion that the operation was unsafe would appear to establish the complainant's position that use of a bottomless slag [*21] pot did create a hazard. It will also be noted that superintendent Jones stated that he had seen several slag pots break out before when slagging and running the slag into the slag pit. The fact that he had never seen one break out while moving with the crane would not alter the fact that his experience of seeing several break out while in the pit was an indication that they could not be relied upon and that there was real danger of a molten material escaping. In view of the fact that the slag had been heated to between 2,850 and 2,950 degrees Fahrenheit the consequences of such an accident were so serious as to require the company to take some action and not to use a pot which could break out. It is the position of the respondent that another pot was available on furnace No. 9 which was not in use and that the employee, therefore, is to blame for using said pot.

This defense would appear to be without merit. It apparently was not uncommon for a slag pot to be emptied. This is not an isolated instance of an employee taking action not expected or disobeying instructions but the employee followed a course of action that was apparently frequently followed. A defense of contributor [*22] negligence such as would exist in a negligence damage suit is, of course, not pertinent to this proceeding. If the respondent permitted employees to work with dangerous material which was defectively contained, the fact that the employee might have had a choice under the circumstances to have done otherwise does not absolve the respondent of responsibility. A respondent has the obligation to see that its employees avoid hazards where at all possible. Under the facts of this case, it is apparent that a hazard did exist which could at least have been greatly minimized by the use of a bottomed slag pot rather than using a bottomless slag pot.

This case is not, however, brought under a standard issued by the Department of Labor, but is brought under section 5(a)(1) of the Act. Even though a hazard does exist, it is necessary under said section that it be a "recognized hazard" for the respondent to be in violation of section 5(a)(1) of the Act. The evidence does not establish that the use of bottomless slag pots was a hazard recognized throughout the industry. The record simply is silent so far as competent evidence of said fact is concerned. The attempt of the complainant [*23] to introduce evidence as to what the compliance officer had been told was excluded insofar as it might be considered substantive evidence of the facts related. This Judge is of the opinion that said action was correct and was not error because to have admitted said evidence would have violated the hearsay evidence rule and would have deprived the respondent of the privilege of cross-examination. This Judge is of the opinion, however, that it is not required that the hazard be recognized throughout the industry but if it is affirmatively established that the hazard was recognized by the respondent the requirement that it be a recognized hazard has been met. In the case of Secretary of Labor v. Occupational Safety and Health Review Commission and Vy Lactos Laboratories, Inc., 494 F.2d 460 (1974), the United States Court of Appeals for the Eighth Circuit stated:

In the early stages of this appeal, it appeared the issue would be whether or not an employer's actual knowledge of a hazard would make that hazard "recognized" for purposes of the general duty clause. In oral argument, however, Vy Lactos conceded that actual knowledge of a hazard on the part of an employer would [*24] satisfy the general duty clause requirement of recognition.

Although this issue would have been one of first impression, it is understandable that respondent so willingly conceded the point even a cursory examination of the Act's legislative history clearly indicates that the term recognized was chosen by Congress not to exclude actual knowledge, but rather to reach beyond an employer's actual knowledge to include the generally recognized knowledge of the industry as well.

The issue, therefore, arises as to whether the respondent had actual knowledge of the hazard prior to the date of said accident. There can be no doubt from a study of the record that the respondent did have such knowledge. At least as long ago as February of 1972, the union was protesting the condition of the slag pots. The record establishes that from the time of the arrival of the slag pot used on furnace No. 6 in a bottomless condition, a large number of employees who were required to work with or around said slag pot earnestly protested its use on the grounds that it created a hazard. At numerous safety meetings, this was pointed out to the respondent and the union in various meetings with the [*25] respondent insisted that something be done about the matter. Even supervisors of the respondent earnestly insisted that something be done and the result was a complete failure of action by the respondent. It was testified that it was more difficult to get maintenance in the melt shop than anywhere else. It was also testified that in other areas of the respondent's business it was possible to get safety matters attended to but there were rpoblems in getting anything done in the melt shop. It was testified that the respondent would do something about safety conditions only in the event the unsafe condition was affection production. Whether the last statement actually is a fact or not, it seems quite definitely established that the respondent did fail to take any action after being repeatedly advised by many persons over a considerable period of time that a hazardous condition existed. These employees were dealing with molten steel heated to nearly 3,000 degrees Fahrenheit. Such a perilous situation would appear to require the utmost caution and safety measures. The hazard, therefore, was definitely a recognized hazard as said term is used in the Act.

A penalty in the amount [*26] of $900 is proposed. This Judge is of the opinion that in view of the very dangerous condition created and the failure of the respondent upon being repeatedly placed on notice to do something about it and the fatality that occurred as a result, said penalty in the amount of $900 is justified. No other current use of bottomless slag pots is established. The only evidence of a specific company using slag pots was used by the company over 20 years ago. There is evidence in the record that use of bottomless pots was fairly prevelant in the early 1940's which would be over 30 years ago. Apparently it has been almost completely abandoned. Regardless of the reason for abandoning the bottomless pots, the respondent has resorted to use of an instrumentality that is not currently used in the industry with unfortunate results.

FINDINGS OF FACT

1. Respondent is a corporation with a manufacturing plant at Warren, Ohio.

2. At all times relevant hereto respondent was an employer engaged in interstate commerce.

3. Respondent employed approximately 2,400 employees daily and respondent's total business was an annual volume in excess of $180,000,000.

4. Respondent has been cited [*27] previously for violation of the Occupational Safety and Health Act of a different nature from the violations herein alleged.

5. Respondent is engaged in the business of making steel from scrap metal.

6. On or about September 27, 1973, respondent used a bottomless slag pot with the creation by respondent of a temporary bottom.

7. The temporary bottom to the bottomless slag pot was unsafe and subject to falling out.

8. The respondent was, over a period of many months, repeatedly placed on notice of the unsafe condition of said slag pot by employees, by the union representative of said employees and by company supervisors.

9. The respondent made no attempt to remedy said hazardous conditions and retained said bottomless slag pot.

10. On or about September 27, 1973, an employee of respondent working as a second helper was burned to death when the bottom of the slag pot fell out while the slag pot was being emptied by said employee.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act.

2. Knowledge of the hazard by respondent constituted a "recognized hazard" as [*28] said term is used in section 5(a)(1) of the Act.

3. Respondent by using said bottomless slag pot let its employees work with a recognized hazard in violation of section 5(a)(1) of the Act

ORDER

It is therefore ORDERED that:

Respondent was on or about September 27, 1973, in violation of section 5(a)(1) of the Act by permitting its employees to work with a bottomless slag pot. A penalty in the amount of $900 is assessed for said violation. The requirement that respondent immediately abate said violation is approved.