Before Barnako, Chairman; MORAN and CLEARY, Commissioners.


Following an inspection of Respondent’s worksite in Pueblo, Colorado, Respondent

received citations alleging one serious and four nonserious violations. On April 1, 1975, Judge

John J. Morris vacated all citations but one alleging a failure to erect guardrails on a runway in

violation of 29 C.F.R. 1926.500(d)(2). The Judge affirmed that citation and assessed a penalty of


Commissioner Moran directed review on the following issue:

‘What was the authority for an increase of the penalty for the § 1926.500(d)(1)

[sic] charge from the $30 proposed by the Secretary of Labor to the $200 assessed

by the Judge.’

Neither Complainant nor Respondent petitioned for review or briefed the issue directed for


The Commission has earlier decided that where neither party requests review of an

Administrative Judge’s decision, we will not consider the case on the basis of issues raised sua

sponte, in the absence of a compelling public interest, Abbott—Sommer, Inc., Docket No. 9507,

BNA 3 OSHC 2032, CCH OSHD para. 20,428 (Feb. 17, 1976); Singer Furniture Co., Docket

No. 7134, BNA 3 OSHC 2079, CCH OSHD para. 20,481 (Mar. 5, 1976). We thus decline to

pass on the issue raised or on any other aspect of the Judge’s decision. Although the decision is

therefore affirmed, it is not binding as precedent, Penn-Dixie Industries, Inc., Docket No. 8718



and 8380–P, BNA 4 OSHC 1209, CCH OSHD para. 20, 703 (May 14, 1976). However, it is a

guide in the growing body of occupational safety and health law.




DATE: OCT 21, 1976

MORAN, Commissioner, Dissenting:

The issue in this case and the majority’s disposition thereof is identical to that in

Secretary v. Brand Insulations Inc., OSAHRC Docket No. 8685, September 15, 1976. For the

reasons expressed in my dissenting opinion in that case, it is wrong for my colleagues to refuse

to address the directed issue and to affirm a penalty in excess of that proposed by complainant.

My colleagues disposition of the case sub judice on the basis of party disinterest is

inconsistent with their affirmance of an increased penalty. They look the other way at the fact

that neither party sought an increase in the proposed penalty before the Judge, but rely on similar

disinterest in refusing to remedy the injustice of the increased penalty on this employer who, no

doubt, from his experience below justifiably feared that even a greater penalty might result if he

attempted to contest this matter further. Such hypocrisy reflects unfavorably on the Commission,

and I shall not join therein.

Furthermore, the doubletalk in the majority opinion is as ridiculous as it is wrong. Their

blind adherence to rote has resulted in the convolution of reasoning illustrated in this decision. If

the Judge’s decision has no precedential value, how can it be ‘a guide in the growing body of

occupational safety and health law’? What is the standing of the ill-conceived precedent

established by Messrs. Barnako and Cleary which sanctions an increase in proposed penalties?

See, e.g., Secretary v. Worcester Pressed Steel Company, 20 OSAHRC 737 (1975). Does their

failure to rely on their own precedent mean that they now doubt the validity thereof? These

questions arise because my colleagues have forgotten that their sole function is to adjudicate

cases. 29 U.S.C. § 651(b)(3).

Since this decision does not cover all matters included in Judge Morris’ decision, the


same is attached hereto as Appendix A.












Thomas E. Korson, Esq., Office of Associate Regional

Solicitor of Denver, Colorado,

for the Secretary of Labor,

Thomas E. Jagger, Esq., of Pueblo, Colorado,

for the Respondent.

Hearing conducted June 20, 1974 in Pueblo, Colorado; Judge John J. Morris presiding.

April 1, 1975

Morris, Judge, OSAHRC:

Citation number 1 issued by complainant’s area director on November 26, 1973 alleged a

serious violation of Public Law 91–596, Section 5(a)(1) by State, Inc. (State) in the basic oxygen

furnace department (BOF) of C. F. & I. Corporation (CF&I). The above public law, now codified

at 29 U.S.C. 654(a)(1) provides as follows:

(a) Each employer—

(1) shall furnish to each of his employees employment and a place of employment

which are free from recognized hazards that are causing or are likely to cause

death or serious physical harm to his employees;

The complainant herein proposed a civil penalty in the amount of $650 and described the

violation in the following terms:

On October 31, 1973 the employer failed to furnish his employees working on the



installation of a basic oxygen furnace dust collection system at the CF&I plant,

Pueblo, Colorado a place of employment which was free from recognized hazards

that were causing or were likely to cause death or serious physical harm to its

employees in that: He did not remove employees from their working areas on

elevated structural steel while the furnace charging operations were in progress

thus exposing employee to a hazardous exposure to flame and extreme heat

during possible eruption of combustible material.

In this proceeding for an adjudication pursuant to 29 U.S.C. 659(c) under the

Occupational Safety and Health Act of 1970 (29 U.S.C. 651 (et seq.) respondent asserts that it

did not violate the general duty clause. In part respondent argues the facts fail to establish the

existence of a recognized hazard. The assertions require a review of the facts which basically

involve two occasions:

On August 29, 1973 an explosion similar to a sonic boom shattered windows in a trailer

100 yards from the BOF building. Smoke rose from the building (Tr. 77, 80–81, 89, 135). Water

in the furnace caused this explosion during the tapping of the slag material (Tr. 92, 136; compl’s.

ex. 4). The tapping occurs prior to a charging for a heating of metal that is to follow (Tr. 32;

compl’s. ex. 4). The described incident was apparently due to a leak in the spark box cooler

elbow allowing a small amount of water to enter the furnace (compl’s. ex. 4). The CF&I

superintendent indicated that explosions due to slag and water reactions are not uncommon in

steel making shops (Tr. 66–67; compl’s. ex. 4). 4). Immediately after the explosion State

employees received directions from their foreman to leave the job (Tr. 77). They remained off

two days until assured by the CF&I engineer that there existed no chance of a reoccurrence of

such an explosion (Tr. 77–80, 87; compl’s. ex. 4). At the same time respondent subcontractor

and CF&I agreed that State employees would discontinue work over any operating furnace (Tr.

95). Between the August 29 explosion and the incident at bar a minor explosion occurred without

resultant damage nor concern to State supervisory personnel (Tr. 58, 80, 91–92). Prior to August

29 State employees, when working over an operating furnace, maintained what was described as

a fire watch (Tr. 85). The fire observer kept the area clear of persons who might walk under

debris falling from the roof. (Tr. 29, 30, 36, 37, 44, 46, 59, 84.) Further the watcher advised State

employees when CF&I charged the furnace. In addition the observer placed ‘KEEP OUT,

DANCER’ signs on the charging floor (Tr. 44, 45, 65). After August 29, respondent no longer

maintained the fire watch (Tr. 95–96).



On October 31, 1973 State employees replaced roof sheets (Tr. 9–11). Employees Baca

and Cassus worked over the non-operating furnace (180 feet above ground level); employee

Lancaster, on the same line as Baca and Casaus, relayed signals to the rig operator (Tr. 14, 16,

17, 19, 20, 94; compl’s. ex. 1). The nearest State employee (estimated by various methods) was

from 135 feet to in excess of 900 feet from the operating furnace (Tr. 91–101, 162). The

rectangular BOF building, 1200 feet long and 300 feet wide, towers 140 feet in height (Tr. 124).

On October 31 there was no fire watch because respondent’s supervisory personnel believed that

State iron workers at the far south end from the north furnace were sufficiently removed from the

charging of the metal (Tr. 31, 91, 96). The charging process occurs when scrap and hot metal are

combined in the furnace (Tr. 32, 136, compl. ex. 4). At that point in time a swish sound ushered

a large blast of fire up through the operating furnace (Tr. 89, 101). Employee Lancaster fought

the fire on his coveralls (Tr. 12, 13, 19, 21–22); Baca and Casaus lay dead on the operating floor

(Tr. 6, 13, 83).

As noted in National Realty and Construction Company v. Occupational Safety and

Health Review Commission 489 F.2d 1257 (1973), l.c. 1265:

A recognized hazard is a condition that is known to be hazardous and is known

not necessarily by each and every individual employer, but is known taking into

account the standard of knowledge in the industry. In other words whether or not

a hazard is ‘recognized’ is a matter for objective determination; it does not depend

upon whether the particular employer is aware of it.

Complainant must prove an employer awareness of a condition of danger or a general awareness

in the industry. Secretary v. Pratt and Whitney Aircraft, OSAHRC Docket No. 130 (January

1975) Rev. Comn. The instant case fails to establish that the described processes or incidents

constituted such a recognized hazard. The facts do not even support a duplication of similar

explosions. The August 29 explosion occurred during a tapping of the slag (Tr. 92, 136, compl.

ex. 4). The more severe explosion occurred October 31 during the charging of the furnace. The

two work activities are unrelated. The proof is lacking and the citation and proposed penalty

therefor are to be vacated.

Citation number 2, item 1 alleges a nonserious violation of 29 CFR 1926.25(a) in the

following respects:

Failure to keep work areas, passageways and stairs cleared of debris, on the tip

top level and the Lange floor walkway. This condition constituted tripping



The foregoing standard promulgated by complainant pursuant to his statutory grant of authority

reads as follows.

§ 1926.25 Housekeeping.

(a) During the course of construction, alteration, or repairs, form and scrap lumber

with protruding nails, and all other debris, shall be kept cleared from work areas,

passageways, and stairs, in and around buildings or other structures.

Metal plates scattered about the tip top area (Tr. 107). Pennington, an employee of State who

accompanied the compliance officer stated that 4 State employees used the level (Tr. 108). The

debris consisted of some lines and waste material between the work area and the entrance (Tr.

116). The cluttered walkway on the lange level consisted of boards, angle irons, pails, cardboard

boxes, and excelsior paper (Tr. 130). CF&I also used this area (Tr. 130). On cross-examination

the compliance officer acknowledged an inability to identify the lange floor walkway as an area

used by State employees (Tr. 133).

Citation 2, item 2 alleges that respondent violated 29 CFR 1926.350(a)(9) in the

following respects:

Failure to properly secure oxygen cylinder on walkway at the Lange floor level—

elevator. This offered an exposure to employees to hazard or danger if tipping

caused breakage or rupture of cylinder or damage to valves.

The foregoing standard promulgated by complainant reads as follows:

§ 1926.350 Gas welding and cutting.

(a) Transporting, moving and storing compressed gas cylinders.

(9) Compressed gas cylinders shall be secured in an upright position at all times

except, if necessary, for short periods of time while cylinders are actually being

hoisted or carried.

When the crane moved near the catwalk it caused two uncapped unsecured oxygen bottles to

jiggle (Tr. 109, 119). If the neck snaps an oxygen bottle can become an unguided missle (Tr.

109). It was determined that these were oxygen cylinders by virtue of their color coding (Tr.


125). They were identified as being used by CF&I (Tr. 131, 132).

Citation number 2, item 3 coupled with a proposed civil penalty of $30, alleges that

respondent violated 29 CFR 1926.402(d)(1) in the following respects:

Protection was not provided by individual housing or an enclosure type

protection, against accidental contact of employees with 440V Transformer

supplying electric welding machines at the tip-top level of the basic oxygen

furnace. This condition thus provided a hazard to employees of electrical burns or


The foregoing standard reads as follows:

§ 1926.402 Equipment installation and maintenance.

(d) Transformers. (1) Energized transformers and other related electrically

energized equipment over 150 volts to ground shall be protected so as to prevent

accidental contact with any person. Protection shall be provided by individual

integrated housing or by an enclosure, such as an electrical substation fence,

which accommodates a group of such equipment. Metallic enclosures shall be


The evidence established broken casing and exposed wiring on the 440V transformer (Tr.

107). The transformer with uninsulated wires connected to an electric welding machine (Tr. 108,

118, 126). The compliance officer did not know who identified the transformer area as one used

by State employees (Tr. 183).

Citation number 2, item 4, with a proposed civil penalty of $30 alleges a nonserious

violation of 29 CFR 1926.500(d)(2) in the following respects:

The footwalks, elevated approximately 40 feet above the ground level, where

workmen can pass beneath, did not have standard guard rails and toe boards on 3

sides of the footwalk structure. Scrap materials, hand-tools and other materials

could be kicked or knocked off onto personnel passing beneath. This is also

required to additionally protect employees from falls while they are on the


The foregoing standard as promulgated by complainant states as follows:

§ 1926.500 Guardrails, handrails, and covers.

(d) Guarding of open-sided floors, platforms, and runways. (2) Runways shall be

guarded by a standard railing, or the equivalent, as specified in paragraph (f) of



this section, on all open sides, 4 feet or more above floor or ground level.

Wherever tools, machine parts, or materials are likely to be used on the runway, a

toeboard shall also be provided on each exposed side.

An employee of respondent was installing railings on the stairway that leads to the tier. (Tr. 111,

115) The area without guardrails and toeboards was identified as one being used by State

employees by its foreman (Tr. 134).

Respondent contends complainant failed to establish exposure to State personnel in

connection with the alleged nonserious citations. Respondent’s correct analysis of the evidence

requires the vacation of items 1, 2 and 3. As to item 1 (debris in the tip top area) State employee

Pennington identified the area as one used by State. However, Pennington was referred to as only

an employee. The extent of his authority to bind respondent by an admission was not established.

As to items 2 and 3 (gas cylinders and uninsulated wires) the total record fails to establish

employee exposure (Tr. 183). As to item 4 (guardrails) respondent’s millwright foreman

identified this as an area used by State; further State employees were working in the area (Tr.

111, 115, 134). An admission by a foreman at a jobsite that an area under the foreman’s

jurisdiction is used by employees is entitled to evidential admissibility as an admission of the

principal. McCormick on Evidence, Section 267; Rule 801, Rules of Evidence, Public Law 93–

595. Exposure to employees can be established by circumstantial evidence as in Secretary v.

Chicago Bridge and Iron Company, OSAHRC Number 224, December, 1974 Rev. Comn. As to

item 4 respondent’s additional contention that it did not create the violative condition and should

therefore not be responsible is without merit. The Commission has consistently held that the fact

that the immediate employer did not create the hazard is no defense when his employees are

exposed, Secretary v. R. H. Bishop 8 OSAHRC 931; Secretary v. Chicago Bridge and Iron, cited

supra. The proposed civil penalty of $30 as to item 4 constitutes an inadequate sanction. The

gravity is apparent as the unguarded level was 30 to 35 feet above ground (Tr. 111). A civil

penalty of $200 for item 4 of citation 2 follows Review Commission policy as expressed in

Secretary v. Dixie Electric, Inc. 5 OSAHRC 201.


1. Respondent employer does business in several states (Tr. 5–6, 10–11).

2. The record fails to establish that respondent’s employees were exposed to a recognized

hazard. (Totality of the record)



3. The record fails to establish employees exposure to the alleged violation of citation

number 2, items 1, 2 and 3. (Totality of record)

4. An unguarded runway without guardrails or toeboards used by respondent’s employees

exposed them to a fall of 30 to 35 feet (Tr. 111, 115, 134).


1. Respondent is and was at all times relevant to the issues herein engaged in a business

affecting commerce within the meaning of 29 U.S.C. 652 (Facts 1).

2. Respondent is and was at all times herein mentioned an employer within the meaning

of 29 U.S.C. 652(5) and subject to 29 U.S.C. 654(a)(1) and (2) and the standards promulgated

under 29 U.S.C. 655. (Facts 1)

3. Respondent did not violate 29 U.S.C. 654(a)(1) and citation 1 and the proposed penalty

of $650 therefor should be vacated (Facts 2)

4. Respondent did not violate items 1, 2 and 3 of citation 2 and said items and all

proposed penalties therefor should be vacated (Facts 3).

5. Respondent violated item 4 of citation 2 and said citation should be affirmed; the

proposed civil penalty of $30 should be vacated and a penalty of $200 should be assessed. (Facts



Based on the foregoing findings of fact and conclusions of law it is hereby ORDERED

and ADJUDGED as follows:

1. Citation number 1 for the alleged serious violation of Public Law 91–596, section

5(a)(1) [29 U.S.C. 654(a)(1)] is vacated.

2. The proposed civil penalty of $650 for the violation alleged in the preceding paragraph

is vacated.

3. Citation number 2:

Item Standard Allegedly Violated Proposed Penalty

1 29 CFR 1926.25(a) None

2 29 CFR 1926.350(a)(9) None

3 29 CFR 1926.402(d)(1) $30

is vacated.

4. Citation number 2, item 4 for the alleged violation of 29 CFR 1926.500(d)(2) is



5. The proposed civil penalty of $30 for the violation established in the preceding

paragraph is vacated and a civil penalty of $200 is assessed.

So ordered in the City and County of Denver, Colorado.

John J. Morris


April 1, 1975