SOUTHERN RAILWAY COMPANY

OSHRC Docket No. 5960

Occupational Safety and Health Review Commission

October 28, 1975

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Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

  CLEARY, COMMISSIONER: On October 4, 1974, Judge James D. Burroughs rendered his decision and order affirming a citation for a serious violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §   651 et seq. (hereinafter "the Act").   On October 31, 1974, Commissioner Moran directed review of the Judge's decision.   Submissions were invited on the following issues:

(1) Did the Judge rule correctly on respondent's defense that it was not subject to the Act as a result of the provisions of 29 U.S.C. §   653(b)(1)?

(2) Does the evidence establish a violation of 29 U.S.C. §   654(a)(1) as alleged in the citation?

(3) Did complainant comply with the requirements of 29 U.S.C. §   659(c) that when "an employer notifies the Secretary that he intends to contest a citation . . . the Secretary shall immediately advise the Commission of such notification?"

(4) Did the Judge rule correctly on respondent's defense that the citation was invalid because it was not issued with reasonable promptness as required by 29 U.S.C. §   658(a)?

With regard to issue (1), the Judge anticipated the Commission [*2]   decision in Southern Pacific Transport Co., No. 1348 (November 15, 1974).   Respondent did not show that another federal agency has exercised statutory authority over the specific working conditions at issue, and the Judge's decision is therefore affirmed.   We only note that section 4(b)(1) n1 is not jurisdictional, and is in the nature of an exemption that must be proved as an affirmative defense.   See Idaho Travertine Corp., No. 1134 (September 30, 1975) and cases cited therein.

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n1 29 U.S.C. section 653(b)(1).

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With regard to issue (3), inasmuch as respondent claimed no prejudice, we find no error in the Judge's decision, and it is affirmed.   See Bill Echols Trucking Co., No 1589 (February 20, 1974) (Administrative Law Judge), on remand from 487 F.2d 230   (5th Cir. 1973). Similarly, with respect to issue (4) respondent has shown no prejudice, and therefore the motion to dismiss was properly denied.   See Coughlan Constr. Co., Inc., Nos. 5303 & 5304 (October 28, 1975) (lead and concurring [*3]   opinions).

With respect to the question of whether respondent violated section 5(a)(1), n2 we find no prejudicial error in the Judge's decision and it is affirmed.   Respondent claims that because it followed the standard industry practice by using the blue flag -- blue light law, it fulfilled its duty under section 5(a)(1).   We reject this theory.   Though the level of hazard recognition required by the "general duty" clause is measured against industry experience and employer knowledge, National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1265 n.32 (D.C. Cir. 1973) and Brennan v. O.S.H.R.C. & Vy Lactos Laboratories, Inc., 494 F.2d 460 (8th Cir. 1974), an abatement order under section 5(a)(1) may require that work practices and safety precautions be upgraded to a feasible level which is above that considered customary or "reasonable" by an industry.   National Realty & Constr. Co., Inc., v. O.S.H.R.C., supra at 1265 n.34, 1266 n.37. n3

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n2 29 U.S.C. section 654(a)(1).

n3 None of the cases cited by respondent hold to the contrary.   See Vy Lactos Laboratories, Inc., No. 31 (February 21, 1973), rev'd 494 F.2d 460 (8th Cir. 1974), citation aff'd on remand (June 10, 1974); Arnold Hansen, d/b/a Hansen Brothers Logging, No. 141 (October 13, 1972) (unpreventable, unforseeable employee misbehavior); R.J.H. Contractors, Inc., No. 969 (February 21, 1973) (Administrative Law Judge) (no showing of a hazard); ITT Rayonier, Inc., No. 874 (May 31, 1973) (Administrative Law Judge) (unforseeable employee misbehavior).   See generally, National Realty & Constr. Co., Inc., 489 F.2d 1257, 1266 n.36 (D.C. Cir 1973).

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Prevention of hazards from recurrent, forseeable employee disobedience may necessitate safety measures in addition to simple enforcement of disciplinary rules.   See Brennan v. O.S.H.R.C. & Hanovia Lamp Div., Canrad Precision Industries, 502 F.2d 946 (3d Cir. 1974).

Men do not discard their personal qualities when they go to work.   Into the job they carry their intelligence, skill, habits of care and rectititude.   Just as inevitably they take along their tendencies to carelessness . . . .   In bringing men together, work brings these qualities together . . . [and] creates occasions for lapses into carelessness . . . .

  Hartford Accident & Indemnity Co. v. Cardillo, 112 F.2d 11, 15 (D.C. Cir.), cert. denied 310 U.S. 649 (1940). We reject the claim that because employees are careless or even disobedient, the employer's general duty ends.   The question is not one of "contributory negligence"; rather, the question is whether the employees' misconduct is so unforseeable that injury is unpreventable and the employer's duty is thereby unachievable.   Clearly, this hazard will be made   [*5]   more preventable by the use of derailers; also, the employee behavior here was quite forseeable and even recurrent.   Accordingly, the Judge's disposition of this matter was correct, n4 and is affirmed.

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n4 We note that there was significant evidence that not all of the "bumping" hazards were due solely to the employees failure to follow the blue flag -- blue light law.   See Tr. 69-76.   There was testimony that locomotives might move and bump other locomotives when their brakes would come unlocked from loss of air pressure; the locomotive may also malfunction and lunge or leap in an unexpected direction.   The Judge apparently attached no importance to this evidence.   If credited, this evidence would have allowed the Judge to find a violation without reference to the actions of employees.   We consider this point significant but we need not resolve it in view of the correctness of the Judge's legal conclusion.

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DISSENTBY: MORAN

DISSENT:

  MORAN, COMMISSIONER, dissenting: The citation for failure to comply with 29 U.S.C. §   654(a)(1)   [*6]   should be vacated for two reasons.   First, the railroad industry is excluded from the jurisdiction of the Occupational Safety and Health Act of 1970 by virtue of 29 U.S.C. §   653(b)(1).   See my separate opinion in Secretary v. Belt Railway Company of Chicago, 20 OSAHRC 568 (1975). Second, the issuance of the citation did not conform with the mandatory requirement of the Act that each citation shall be issued "with reasonable promptness." 29 U.S.C. §   658(a).

Although the inspection which initiated this case occurred on July 16, 1973, the citation was not issued until October 25, 1973.   Thus, the delay between inspection and issuance of the citation was 98 days longer than Congress intended.

  On April 22, 1975, the United States Court of Appeals for the Seventh Circuit correctly rejected the Commission's rule on "reasonable promptness" and implied that the Commission should adopt a new rule thereon.   Brennan v. Chicago Bridge and Iron Company, 514 F.2d 1082 (7th Cir. 1975). Six months have elapsed since that decision was rendered, and the Commission still has not announced a definitive rule in regard to this problem.

In this and two other recent decisions, n5 [*7]   the Commission has affirmed the delayed issuance of citations on the ad hoc basis of finding no prejudice to the employers.   Of course, such action does not establish a rule of general application.   Is prejudice the test that the Commission will apply in all cases irrespective of the length of the delay in issuing the citation? n6 Such a rule would be regrettable because it permits employee exposure to hazardous working conditions for excessive periods of time. n7 Regardless, however, the Commission should announce a general rule so that the parties will be provided with the necessary guidelines for the orderly disposition of future cases.

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n5 Secretary v. Coughlan Construction Company, Inc., 20 OSAHRC 641 (1975); Secretary v. Underhill Construction Corp., 20 OSAHRC 534 (1975).

n6 When Congress mandated that, in the absence of exceptional circumstances, each citation was to be issued within 72 hours after a violation is detected by an inspector, it did not relieve the complainant from complying therewith when a cited employer does not establish that he is prejudiced by a longer delay.   Staff of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 1191 (Comm. Print 1971).

n7 An employer is not required to abate a hazardous condition until a citation is served upon him.   Secretary v. Pleasant Valley Packing Co., 2 OSAHRC 185, 188-189 (1973).

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In my opinion, the rule should require the Secretary of Labor to strictly comply with the congressional mandate.   Accordingly, I would sua sponte vacate those citations which are not issued within 72 hours after a violation is detected by an inspector unless the complainant establishes that the delay in excess thereof was due to exceptional circumstances.   My rationale for such a rule is set forth in greater detail in Secretary v. Underhill Construction   Corp., supra; Secretary v. Plastering, Inc., 8 OSAHRC 150 (1974); and Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974).

[The Judge's decision referred to herein follows]

BURROUGHS, JUDGE: This is a proceeding under section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., 84 Stat. 1590 (hereinafter referred to as the Act).   Respondent seeks review of a citation for serious violation and a non-serious citation issued to it on October 25, 1973, by the complainant, pursuant to section 9(a) of the Act.   Review is also sought of the penalty proposed, in a notification of proposed penalty [*9]   issued on October 25, 1973, for the serious violation.

The citations resulted from the inspection on July 16, 1973, of a maintenance facility maintained by respondent at 34 Scruggs Street, Chattanooga, Tennessee.   The inspection was conducted jointly with the Federal Railroad Administration.

The respondent, by letter dated November 15, 1973, and received on November 19, 1973, timely advised complainant that it desired to contest the citations and penalty proposed for the serious violation. No penalty was proposed for the non-serious violation.   The notice of contest also advised that respondent maintains that section 4(b)(1) of the Act exempts it from standards promulgated by the complainant under section 6 of the Act.

The citation for serious violation alleges that respondent violated section 5(a)(1) of the Act.   The alleged violation of section 5(a)(1) was described as follows:

Employer failed to furnish each of the employees in his employment a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.   Failure to provide derail blocks at the fuel racks to prevent locomotives from striking locomotives [*10]   being worked on.

A penalty of $700 was proposed for the alleged violation.

The non-serious violation alleges that respondent violated section 5(a)(2) of the Act by failing to comply with the regulation published at 29 CFR 1903.2.   The alleged violation was stated as follows:   Employer failed to post and keep posted the OSHA notice as prescribed.

A complaint was received in the case on January 14, 1974.   The answer was received on January 30, 1974.   Respondent's answer denies that the complainant or the Commission has jurisdiction of this proceeding.   This denial is premised on respondent's belief that section 4(b)(1) of the Act exempts it from the provisions of the Act.   Respondent's answer also requested dismissal of the case for the reason that complainant did not timely transmit the notice of contest to the Commission.   The notice of contest was received by complainant on November 19, 1973, and was transmitted to the Commission by letter dated January 2, 1974.

On February 15, 1974, a motion to dismiss for the reason that the Department of Labor and the Commission have no jurisdiction of railway safety under section 4(b)(1) of the Act was received from the respondent.   [*11]   The motion was referred to a Judge of the Commission and was formally denied by order issued on April 2, 1974.

The case was scheduled for hearing on June 11, 1974.   On June 7, 1974, a letter was received from D. D. Palmer, Secretary, Local Union 311, International Brotherhood of Electrical Workers, indicating a desire of the union to participate in the proceedings.   The hearing was held as scheduled on June 11, 1974, in Chattanooga, Tennessee.   The General Chairman, International Brotherhood of Electrical Workers, appeared on behalf of Local 311, and the petition to intervene was granted pursuant to Rule 21 of the Commission's Rules of Procedure.

Respondent orally renewed its motion to dismiss for lack of jurisdiction at the commencement of the hearing.   The motion was denied with the proviso that if either of the alleged violations were covered by regulations promulgated by the Secretary of Transportation, then the Act would not apply to that specific alleged violation.   The ruling recognized that the complainant is preempted in the enforcement of the Act only to the extent the Secretary of Transportation has promulgated regulations covering the operations which complainant seeks [*12]   to regulate.   This ruling is consistent with that rendered by this Judge in a case covering the respondent's maintenance and repair facility located in Spartanburg, South Carolina.   See Secretary of Labor v. Southern Railway Company, Docket No. 5566 (review ordered June 21, 1974).

  Respondent filed a written motion to dismiss at the hearing seeking to have the case dismissed because of the complainant's failure to forward its notice of contest to the Commission within seven days of receipt as required by Commission Rule 32.   The notice of contest was received by complainant on November 19, 1973, and was transmitted to the Commission by letter dated January 2, 1974.   This means a total of 44 days elapsed between the time complainant received the notice of contest and the date it was transmitted to the Commission.

The motion was denied in accordance with the decision of the United States Court of Appeals, Fifth Circuit, in the case of Brennan v. Occupational Safety and Health Review Commission and Bill Echols Trucking Co., 487 F.2d 230 (1973). In that case the notice of contest was received by complainant on September 6, 1972, and was not forwarded to the Commission [*13]   until October 16, 1972.   The delay in transmitting the notice of contest was viewed by the Commission as a flagrant failure to comply with Rule 32, and the citation and notification of proposed penalty were vacated.   The Fifth Circuit reversed the Commission and indicated that at least a finding of prejudice to the employer must precede the dismissal for violation of a procedural rule.   Respondent's motion was denied with the proviso that it could be renewed if respondent was able to show it was prejudiced by the delay.   No such evidence was ever introduced by the respondent.

Respondent also moved to dismiss the proceeding for the reason that complainant failed to comply with section 9(a) of the Act by failing to issue the citation "with reasonable promptness." The motion was based on the Commission's decision in Secretary of Labor v. Chicago Bridge and Iron Company, 6 OSAHRC 244 (1974) (Appeal filea, 7th Cir., March 18, 1974).   The motion was denied.   The issue was raised for the first time at the commencement of the hearing and there was no showing when the decisional process ended and the ministerial tasks commenced.   There was also no showing as to the absence of exceptional [*14]   circumstances which might preclude the applicability of the 72-hour rule.

  JURISDICTION AND ISSUES

Respondent admits that it is a Virginia corporation engaged in interstate railway service, but has denied that it is engaged in a business affecting commerce within the meaning of section 3(5) of the Act.   (Par. II, Complaint and Answer; Tr. 125).   It further denies that it is subject to the provisions of the Act for the reason that section 4(b)(1) of the Act exempts it from the provisions of the Act.   (Par. I, Answer)

The respondent's claim of exemption under section 4(b)(1) has been denied, and the operations of respondent are such that it is deemed to be an employer affecting commerce within the meaning of section 3(5) of the Act.   This determination is consistent with the respondent's stipulation in Docket No. 5566 that it is an interstate rail carrier engaged in a business affecting commerce within the meaning of the Act.

The resolution of the following issues are pertinent to a disposition of this case:

1.   Did respondent violate section 5(a)(1) of the Act by failing to install derailers on spur tracks two and three?

2.   Did respondent violate section 5(a)(2) of   [*15]   the Act by its failure to comply with the regulation published at 29 CFR 1903.2?

3.   If respondent violated section 5(a)(1) of the Act, was the violation a serious violation within the meaning of section 17(k) of the Act?

4.   What penalties, if any, should be assessed for any violations?

FINDINGS OF FACT

The evidence of record has been carefully considered and evaluated in its entirety.   The facts hereinafter set forth are specifically determined in resolving the issues in this case:

1.   Respondent is a Virginia corporation engaged in the operation of an interstate railway system (Par. II, Complaint and Answer).

2.   On July 16, 1973, the complainant, through a duly authorized compliance officer, conducted an inspection at respondent's   maintenance facility located in Chattanooga, Tennessee.   The inspection was conducted jointly with the Federal Railroad Administration and resulted from an employee complaint in regard to the refueling racks.

3.   The facility in Chattanooga makes repairs and refuels locomotives operating within the respondent's railway system.   Approximately 125 to 150 locomotives are serviced at the fuel racks every 24-hour period.   A total of approximately [*16]   450 employees are employed by respondent at the facility.

4.   At the time of complainant's inspection, respondent did not have an OSHA notice posted.   (Par. IV(a), Complaint and Answer)

5.   Spur tracks at the Chattanooga facility lead off the main line so that the locomotives can be serviced on them.

6.   Spur tracks two and three have maintenance pits located beneath them from which employees work on the locomotives. The pit on track two is 60 feet long, 4 feet wide, and 58 inches deep.   The pit on track three is 75 feet long, 4 feet wide, and 58 inches deep.   Each of the pits have one stairway for ingress and egress.

7.   Locomotives are refueled on the spur tracks, and the tracks are commonly referred to as the fuel racks.   Inspections and minor repairs are made underneath the locomotives at the maintenance pits on the tracks.

8.   Switches are located on both ends of the tracks that lead to spur tracks two and three.   The spur tracks are approximately 250 to 300 yards long and run in a north-south direction.

9.   At the time of the inspection, the spur tracks were graded toward the pits, and respondent was in the process of making major repairs to the spur tracks to eliminate [*17]   the grade.

10.   Employees inspecting or working on the motors of the locomotives from the maintenance pits often have portions of their bodies above the pits and inside the bottom of the locomotives. In some instances they are standing on a ladder while performing their jobs on the locomotives. It is essential that they place portions of their bodies above the top of the pits and under the locomotives in order to perform the required maintenance.

11.   The vision of an employee working under a locomotive in the maintenance pits is blocked so that he cannot see a car or   another locomotive approaching the locomotive on which he is working.   It is also very difficult to hear an approaching locomotive, since other locomotives are running in the general area of the maintenance pits.

12.   At the time of the inspection, employees working on the locomotives were protected by a blue light or blue flag rule to prevent the locomotives from being struck while maintenance was being performed on them.

13.   The blue lights were installed on a pedestal base four feet high at each end of the pits. Portable blue flags were at either end of the tracks.

14.   There was no physical protection [*18]   on the spur tracks to prevent the locomotive from being bumped or struck by other railroad cars or locomotives while maintenance was being performed on it.   Derailers were not used on spur tracks two and three at the time of the inspection. (Par IV(b), Complaint and Answer)

15.   The blue flag and blue light rule is designed to indicate to anyone seeing them that someone is working underneath the unit that they are placed in front and back of or beside.   They warn approaching traffic of possible hazards that might be encountered by employees.

16.   The blue flag and blue light rule is universally recognized by railroad employees as a mandatory warning that maintenance is being performed on that locomotives and that no one is to come into the area to couple up or approach the stationary locomotive.

17.   The current labor agreement in effect between the respondent and various shop-craft organizations, including the International Brotherhood of Electrical Workers, contains provisions with respect to safety of employees.   (Ex. 2) Rule 55 of the current agreement provides: (Ex. 2)

No employee will be required to work under a locomotive or car without being protected by proper signals.   [*19]   Workmen assigned to perform the work shall place the blue flag by day or blue light by night, which will not be removed except by the men required to place them.   When the nature of the work to be done requires it, locomotives or cars will be placed over a pit, if available.

18.   Rule 55 is a general rule and is recognized throughout the railroad industry, regardless of the geographic area in which any particular railroad may operate.   (Exs. 3, 4)

  19.   Rule 26 of respondent's operating rules provides: (Ex. A)

A blue signal, displayed at one or both ends of an engine, car, or train, indicates that workmen are under it; when thus protected it must not be coupled to or removed.   Each class of workmen will display the blue signals and the same class of workmen are alone authorized to remove them.   Other equipment must not be placed on the same track so as to obstruct the view of the blue signals, without first notifying the workmen.

When emergency repair work is to be done under cars in a train and a blue signal is not available, the enginemen and trainmen will be notified and protection must be given by the train and engine employees to those engaged in making repairs.   [*20]  

The respondent, by notice dated October 10, 1969, advised all employees of the blue flag rule and stated categorically that any employee found guilty of removing a flag placed by someone else would be dismissed.   (Ex. A)

20.   On May 4, 1972, the manager of the diesel shop issued the following memorandum to all general foremen: (Ex. A)

Attached is copy of my bulletin dated October 10, 1969, in connection with the Blue Flag Law which I want each of you to read very carefully.   Undoubtedly some of you do not fully understand the Blue Flag Law or maybe you just plain do not give a damn.   I want to make it perfectly clear that the next infraction of the Blue Flag Law will mean the job of the one violating it.   We cannot expect other people to comply with our Safety Rules as long as some of you continue to violate them.

The memorandum was issued because someone ran over a blue flag.

21.   Failure of an employee to observe the blue flag and blue light rule subjects him to disciplinary action by the respondent.

22.   No railroad safety rule in existence at the time of the inspection required the use of derailers to protect employees while they were working on a locomotive or other [*21]   unit.

23.   Even though respondent employed the blue light and blue flag system as a warning that locomotives on the maintenance pits were being worked on, locomotives did from time to time get bumped while employees were working under them.

24.   On several occasions, employees informed the general foreman that locomotives were being bumped or moved while they were over the maintenance pits and men working underneath them.

  25.   Approximately eight or nine months prior to complainant's inspection, electricians working on the locomotives from the maintenance pits approached the manager of the diesel shop, through the local chairman of Local 311, IBEW, and requested that derailers be installed on spur tracks two and three to provide employees protection from being bumped by another locomotive.

26.   The diesel shop manager indicated he would investigate and see if the situation warranted derailers. Employees contacted the diesel manager at least four times about the problem and were advised that the derailers were on order.   The diesel manager advised them that the maintenance people had jurisdiction over the tracks and would have to install the derailers.

27.   The manager [*22]   of the diesel shop recognized the dangers involved to anyone working on the locomotives from the maintenance pits. He had been promised by respondent's track supervisor that derailers would be installed.

28.   Respondent's diesel shop manager was aware of one occasion when a locomotive was coupled up while maintenance was being performed on it at the pits. The blue flag had been placed in an incorrect place.   Disciplinary action was taken in the case.

29.   Derailers have been used by respondent to protect employees at other locations within the Chattanooga facility.

30.   Subsequent to the inspection of July 16, 1973, respondent installed derailers on spur tracks two and three.

31.   On July 26, 1973, respondent issued the following bulletin: (Ex. C)

Derails are being installed on north and south ends of Tracks 2 and 3 of Fuel Rack.   When working under a locomotive when placed on Inspection Pit, these derails must be placed in derail position and blue flag placed in center of track at the derail that the locomotive is on.   It will be the responsibility of the man who places the flag and derail to remove them when he has completed the work assignment that necessitated placing derail [*23]   and blue flag. Anyone failing to comply with any part of this bulletin will be subject to disciplinary action.

32.   Respondent has had no employees to report any injuries they have incurred while working from the pits on spur tracks two and three.

  33.   Paragraph 34 of the pamphlet Cement Mill Yards and Railroads published by the National Safety Council, Inc., provides, in part as follows: (Ex. 1)

Cars placed on a siding, in a building, or on a trestle, should be protected so that the engine cannot come in and hook onto them without warning, thereby endangering the men who may be working in the cars.   A derailer ahead of the car will safeguard the workmen. Another protective feature is the use of a blue flag by day, or a blue lantern at night, placed between the rails ahead of and behind the car.   A car protected in this manner should not be moved until the flag or lantern has been removed by the person who originally placed them.

34.   In determining a proposed penalty for the alleged serious violation of section 5(a)(1) of the Act, complainant commenced with an unadjusted penalty of $1,000.   A reduction of 30-percent was allowed for previous history (20-percent)   [*24]   and good faith (10-percent).   No reduction was allowed for size.

LAW AND OPINION

I Alleged Violation of Section 5(a)(1).

Section 5(a)(1) of the Act provides as follows:

Each employer shall furnish to each of his employees employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

Complainant contends that respondent violated section 5(a)(1) of the Act by failing to provide derailers on spur tracks two and three to prevent locomotives from being accidentally struck or moved while being serviced or repaired by employees of respondent.

Locomotives operating within the respondent's railway system receive maintenance and repairs at respondent's Chattanooga facility.   Spur tracks two and three lead off the main line and are used to service the locomotives. These two tracks are approximately 250 to 300 yards long.   A maintenance pit is located under each of the tracks. The pits are 4 feet wide and 58 inches deep.   The pit on track two is 60 feet long and the one on track three is 75 feet long.

Inspection and minor repairs are made underneath the locomotives at the maintenance pits.   [*25]   Employees performing the inspections and minor repairs often have portions of their bodies   above the pits and inside the lower part of the locomotives. It is necessary that employees place portions of their bodies inside the bottom of the locations to perform their assigned duties. In most instances, employees stand on a ladder and interject their head and arms up inside the locomotive.

When employees were working on a locomotive, at the time of the inspection, they were protected by a blue flag or blue light safety rule to prevent the locomotives from being struck while maintenance was being performed on them.   This rule was the only protection afforded employees against locomotives being accidentally struck while they were performing maintenance on them.   Complainant submits that the blue flag or blue light rule was inadequate to insure protection of employees and that derailers should have been installed.

The blue flag and blue light rule is designed to indicate to anyone seeing them that someone is working underneath the unit.   This rule is universally recognized by railroad employees as a warning that they are not to come into the area to couple up or approach the [*26]   stationary locomotive. The rule is contained in the labor agreement between the respondent and the various unions representing its employees.   The operating rules of respondent incorporate the blue flag rule.   Operating Rule 26 provides, in part, as follows:

A blue signal, displayed at one or both ends of an engine, car, or train, indicates that workmen are under it; when thus protected it must not be coupled to or removed.   Each class of workmen will display the blue signals and the same class of workmen are alone authorized to remove them.   Other equipment must not be placed on the same track so as to obstruct the view of the blue signals, without first notifying the workmen.

The safety rule is clear and unambiguous in its language.   There is no excuse for employees not following it.

The blue flag or blue light rule is the only safety rule designed and recognized by the railroads as affording protection to employees working on locomotives. Respondent contends that it enforced the rule and that it had thereby furnished a safe place for its employees to work.   The record is clear that respondent did attempt to vigorously enforce the blue flag or blue light rule and that any [*27]   employees caught violating the rule were subjected to disciplinary action or dismissal.

  In spite of respondent's efforts to enforce the blue flag safety rule, locomotives still were bumped or moved while employees were performing maintenance on the locomotives at the pits. Employees apparently violated the rule with some frequency, and the safety rule failed to accomplish its avowed purpose.   It was not an effective deterrent.   As a result of the violations of the rule, employees approached the manager of the diesel shop and requested that derailers be installed on spur tracks two and three to provide greater protection to employees working on the locomotives. Derailers had been used by respondent to protect employees at other locations within the Chattanooga facilities.   The diesel shop manager indicated he would investigate and ascertain if the situation warranted the installation of derailers. He recommended derailers be installed and they were ordered.   Delay was experienced in having them installed because respondent's maintenance personnel had jurisdiction over the tracks and had to install the derailers.

Under section 5(a)(1) of the Act, the complainant must   [*28]   prove (1) that the employer failed to render its workplace free of a hazard which was (2) recognized and (3) causing or likely to cause death or serious physical harm. Actual occurrence of hazardous conduct is not, by itself, sufficient to sustain a violation.   Feasible measures to reduce the likelihood that the hazard would occur must be demonstrably establish.   Section 5(a)(1) only requires the elimination of preventable hazards. National Realty and Construction Company, Inc. v. Occupational Safety and Health Review Commission, 489 F.2d 1257 (D.C. Cir. 1973). Actual knowledge of a hazard on the part of an employer satisfies the general duty clause requirement of recognition.   Secretary of Labor v. Occupational Safety and Health Review Commission and Vy Lactos Laboratories, Inc., 494 F. 2d 460 (8th Cir. 1974).

Respondent's expressed safety policy prohibited the bumping of any locomotives while they were receiving maintenance at the pits. If employees had adhered to and followed the blue flag and blue light rule, employees in the pits would have been protected.   However, it should have been apparent to respondent that the blue flag and blue light rule failed to prevent [*29]   the instances of hazardous conduct to which employees in the pits were exposed.   The   hazardous conditions created for employees in the pits must be placed squarely upon the employees failing to follow prescribed rules.   The rule did not work because employees failed to make it work.   No safety policy can protect employees against their own apathy or carelessness.

The hazard in this case evolved from the continual bumping of locomotives while they were being worked on at the maintenance pits. Evidence firmly supports the conclusion that the bumping of locomotives while they were in the maintenance pits was not simply a rare occurrence but a common practice.   The record contains substantial evidence that the hazard was recognized by the respondent.   Employees working in the pits brought the matter to the attention of the diesel plant manager on at least four separate occasions.   The manager of the diesel shop testified that he recognized the dangers involved to anyone working on the locomotives from the maintenance pits. He conceded that it was always possible that locomotives might get away and go into a flagged area.   He was also personally aware of one situation where [*30]   a locomotive was coupled up while maintenance was being performed on it at the pits. Thus, respondent had actual knowledge of the hazard involved.

Since respondent was aware that the employees in the pits were not adequately protected by the blue flag or blue light rule, in spite of respondent's attempt to vigorously enforce the rule, it should have explored the possibility of alternative methods of protecting those employees.   Derailers were used in other areas of the facility to protect employees and respondent's diesel plant manager, after being advised of the hazardous situation by maintenance pit personnel, concluded that derailers were feasible as a means of affording greater protection to employees working in the pits. Thus, respondent recognized that the hazard which employees were exposed to in the maintenance pits was preventable and that derailers were a reasonable precautionary step to protect employees from the hazard created by employees ignoring the blue flag or blue light rule.

The only remaining question concerns the nature of the injury that might have been incurred in the event of an accident.   Employees had to interject their head, chest, and arms inside the [*31]   lower portion of the locomotives to perform their assigned duties.   In some instances, they had to more or less wedge their bodies inside the locomotives. In the event a locomotive was struck with some force while employees had portions of their bodies inside the lower portion of the locomotives, it seems likely that death or serious physical harm could result.

The employees often used high-voltage leads in performing their duties, and in most instances, were standing on ladders while working on the locomotives. There was little space inside the locomotives to maneuver.   Employees would have no warning of a bumping since their vision to the outside would be blocked.   These factors would tend to increase the likelihood of a serious injury, i.e., one that is likely to cause death or serious physical harm.

In concluding that there was a violation, it is recognized that employees of respondent must bear responsibility for failing to follow the blue flag and blue light rule.   They were obviously careless in adhering to company operating rules.   Such conduct reflects a careless disregard for fellow employees.   While section 5(b) of the Act imposes a duty on employees to obey [*32]   safety rules, final responsibility for compliance with the Act remains with the employer.   Under the facts of this case, the installation of derailers was a feasible measure that respondent could have undertaken to improve the safety of employees.

II Alleged Violation of 29 CFR 1903.2(a)

Section 1903.2(a) of 29 CFR provides:

Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administration, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act, and that for assistance and information, including copies of the Act and of specific safety and health standards, employees should contact the employer or the nearest office of the Department of Labor.

Complainant alleges that respondent failed to post the OSHA notice as required by the regulation.

Respondent admitted in its answer that it had not posted the notice. The compliance officer testified that he was informed the notice was not posted.   This is all the evidence appearing in the record on the issue.   This is insufficient to establish the violation.   The regulation requires the posting of a notice "to be furnished [*33]   by the Occupational Safety and Health Administration." There has   been no showing that the notice had been furnished to the respondent prior to the inspection. An employer has to comply only after the notice is furnished.   The establishing that the notice was furnished prior to the inspection is a necessary element of complainant's proof.   See Secretary of Labor v. Colonial Craft Reproductions, Inc., 1 OSAHRC 933 (1972), and Secretary of Labor v. LaSala Contracting Company, Inc., 2 OSAHRC 976 (1973). Complainant has failed to meet its burden on the issue.

NATURE OF SECTION 5(a)(1) VIOLATION

Complainant contends that the violation of section 5(a)(1) of the Act was a serious violation within the meaning of section 17(k).   This section provides as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise [*34]   of reasonable diligence, know of the presence of the violation.

Section 17(k) requires two findings prior to determining that a violation constitutes a serious violation. These are: (1) substantial probability that death or serious physical harm could result from the violation, and (2) that the employer knew or with the exercise of reasonable diligence could have known of the presence of the violation.

In Secretary of Labor v. Natkin and Company, 2 OSAHRC 1472 (1973), the Commission stated that the occurrence of an accident because of an existing hazard in violation of the Act need not be substantially probable in order for a violation to be serious.   An accident must simply be possible.   Serious and non-serious violations "are distinguished on the basis of the seriousness of injuries which experience has shown reasonably likely to occur."

The record is clear that the "recognized hazard" was likely to cause death or serious physical harm and that it was a serious violation under section 17(k) of the Act.   Section 5(a)(1) uses the phrase "likely to cause death or serious physical harm," whereas section 17(k) uses the phrase "substantial probability that death   or [*35]   serious physical harm could result." These terms are synonymous in view of the Commission's determination that the requirement of "substantial probability" is satisfied if an accident is simply possible.   Section 17(k) further provides that the violation is not serious if the employer is both unaware of the facts constituting the violation and even with reasonable diligence could not have known of it.   The finding that respondent recognized the hazard satisfies this requirement of section 17(k).   The determination that the hazard was likely to cause death or serious physical harm in determining a violation of section 5(a)(1) applies equally to section 17(k).

PENALTY DETERMINATION

The Commission is required by section 17(j) of the Act to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty.   Secretary of Labor v. Nacirema Operating Company, Inc., 1 OSAHRC 33 (1972). In Nacirema, the Commission stated that the four criteria to be considered in assessing penalties cannot always be given equal weight.   [*36]   The principal factor to be considered is the gravity of the offense.   In determining the gravity of a violation, several elements must be considered, including but not necessarily limited to the following: (1) the number of employees exposed to the risk of injury, (2) the duration of the exposure, (3) the precautions taken against injury, if any, and (4) the degree of probability of occurrence of an injury.   Secretary of Labor v. National Realty and Construction Company, Inc., 1 OSAHRC 731 (1972), reversed on another issue, 489 F.2d 1257 (D.C. Cir. 1973).

The complainant proposed a penalty of $700 for the violation of section 5(a)(1) of the Act.   This penalty is deemed excessive.   The principal cause of the hazard to which employees in the maintenance pits were exposed emanated from fellow employees.   The record is convincing that respondent tried to vigorously enforce the blue flag or blue light safety rule.   There is no evidence that respondent's management was aware of the particular hazard and the extent of the violation of the blue flag rule until eight or   nine months prior to the inspection. At that time, the matter was brought to the attention of the diesel [*37]   shop manager. He investigated the matter and recommended the installation of derailers.

The respondent cannot be deemed unresponsive to the safety of its employees.   Its principal fault in this matter is the delay of several months prior to the installation of the derailers. The derailers had to be ordered and installed by personnel of the maintenance department, which was not under the control of the diesel shop manager. This undoubtedly accounted for some of the delay.

The blue flag rule did afford some protection when employees observed it.   The extend the rule was violated is not fully delineated by the record.   It is clear that enough violations occurred so that the violation of the rule was not a rare occurrence.   There is no indication that employees working in the maintenance pits reported fellow employees for violation of the blue flag rule so that respondent could take disciplinary action.   There is no evidence to indicate that respondent did not attempt to vigorously enforce the blue flag rule.

After consideration of the factors specified by section 17(j) of the Act, with emphasis on the gravity of the violation, it is concluded that a penalty of $200 should be assessed [*38]   for the violation.

CONCLUSIONS OF LAW

1.   The respondent was at all times material hereto engaged in a business affecting commerce within the meaning of section of 3(5) of the Act.

2.   Respondent is not exempt from the jurisdiction of the Act by virtue of the provisions of section 4(b)(1) of the Act since there has been no exercise of authority by the Secretary of Transportation to cover the working conditions covered in this proceeding.

3.   The respondent was at all times material hereto subject to the requirements of the Act.   The Commission has jurisdiction of the parties and of the subject matter herein.

4.   Respondent violated section 5(a)(1) of the Act by failing to provide derailers on spur tracks two and three.

  5.   Respondent did not violate section 5(a)(2) of the Act for failure to comply with the regulation published at 29 CFR 1903.2(a) since there has been no showing that the required notice was furnished to respondent prior to the inspection.

6.   The violation of section 5(a)(1) of the Act was a serious violation within the meaning of section 17(k).

7.   A penalty of $200 is assessed for the violation of section 5(a)(1).

ORDER

Upon the basis of the foregoing [*39]   findings of fact and conclusions of law, it is

ORDERED:

(1) That the citation for serious violation issued to respondent on October 25, 1973, is affirmed:

(2) That the non-serious citation issued to respondent on October 25, 1973, is vacated; and

(3) The notification of proposed penalty issued to respondent on October 25, 1973, is modified to assess a penalty of $200 for the serious violation of section 5(a)(1), and that the notification is affirmed as modified.