SECRETARY OF LABOR,

Complainant,

v.

BETHLEHEM STEEL CORPORATION,

Respondent.

UNITED STEELWORKERS OF

AMERICA, LOCAL UNION 6787,

Authorized Employee
Representative.

OSHRC Docket No. 79-2597

_ORDER_

This matter is before the Commission on a Direction for Review entered
by former Chairman Robert A. Rowland on April 12, 1982. The parties have
now filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing
in the Stipulation and Settlement Agreement, we conclude that this case
raises no matters warranting further review by the Commission. The terms
of the Stipulation and Settlement Agreement do not appear to be contrary
to the Occupational Safety and Health Act and are in compliance with the
Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement
Agreement into this order. This is the final order of the Commission in
this case. See 29 U.S.C. §§ 660(a) and (b).

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: _October 12, 1990_

------------------------------------------------------------------------

ELISABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

BETHLEHEM STEEL CORPORATION,

Respondent.

OSHRC Docket No. 79-2597

*STIPULATION AND SETTLEMENT AGREEMENT*

In full settlement and disposition of the instant matter, it is hereby
stipulated and agreed by and between complainant, the Secretary of
Labor, and respondent, Bethlehem Steel Corporation, as follows:

1. This case is before the Commission upon respondent's contest of a
citation which, as amended by the Secretary's complaint and by motion,
alleged willful violation of the general duty clause, 29 USC §654(a)(1).
The citation was affirmed by the Commission's administrative law judge,
and a penalty of $10,000 was assessed. (Decision and order of March 11,
1982.)

2. The Secretary hereby amends the proposed citation to reclassify the
violation of the general duty clause from Type of Violation "Willful" to
Type of Violation "Section 17 of the Occupational Safety and Health Act."

3. The Secretary hereby amends the proposed penalty to $6,500.

4. Respondent hereby withdraws its notice of contest to the citation and
to the notification of proposed penalty as amended above.

5. Respondent states that it has already taken steps to bring itself in
compliance with 29 CFR 1910.147 at its Burns Harbor, Indiana facility
and that such steps will be completed within 60 days from the date of
this agreement.

6. Respondent agrees to submit to the OSHA Area Office $6,500 in full
and complete payment of the penalty within 30 days of the date of this
Agreement.

7. Respondent certifies that a copy of this Stipulation and Settlement
Agreement was posted at the workplace on the ____day of August, 1990, in
accordance with Rules 7 and 100 of the Commission's Rules of Procedures.
In addition, a copy of this Stipulation and Agreement was served, by
postage prepaid first class mail, on Mr. Paul E. Gipson, Jr., USWA Local
6787, 1086 N. Max Mochal Highway, Chesterton, Indiana, on the ____day of
August, 1990.

8. This Stipulation and Settlement Agreement is made to avoid further
protracted litigation and shall not be construed as an admission by
respondent of fault or liability in any other case, cause or proceeding
whatsoever other than one arising under the Occupational Safety and
Health Act.

9. Complainant and respondent will bear their own litigation costs and
expenses.

Dated this _31_ day of August, 1990.

Bethlehem Steel Corporation

Robert P. Davis
Solicitor

Cynthia A. Attwood
Associate Solicitor for
Occupational Safety and Health

Donald S. Bauman, Esq.

Daniel J. Mick
Counsel for Regional
Trial Litigation

------------------------------------------------------------------------

SECRETARY OF LABOR,

Complainant,

v.

BETHLEHEM STEEL CORPORATION,

a Corporation,

Respondent.

OSHRC Docket No. 79-2597

_DECISION AND ORDER_

Appearances:

T. TIMOTHY RYAN, Esq., Solicitor of Labor
HERMAN GRANT, Esq., Regional Solicitor,
JAMES BOWERS, Esq., Office of the Solicitor,
Chicago, Illinois, for Raymond J. Donovan, Secretary
of Labor, U.S. Department of Labor, Complainant.

JACK D. SHOFFNE Esq., for Bethlehem Steel Corporation,
Respondent.

BOBRICK, Judge

This proceeding was commenced pursuant to Section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. 651, _et seq.,_
(hereinafter referred to as the Act), wherein Respondent, Bethlehem
Steel Corporation, contested a Citation issued by Complainant, Raymond
J. Donovan, Secretary of Labor, U.S. Department of Labor. The Citation
charged Respondent with a serious violation of the general duty clause
of the Act, 29 U.S.C. 654(a)(1), Section 5 (a) (1).[[1/]] The Citation,
as amended in the Complaint, alleged that Respondent had violated
Section 5(a)(1)

"by failing to furnish to employees of the Respondent employment and a
place of employment which were free from recognized hazards that were
causing or were likely to cause death or serious physical harm to
employees of the Respondent in that: employees were not prevented from
working on equipment without having positive control of the sources of
power to the equipment and, where applicable, positive control of the
materials in process by the equipment through the installation by the
employee of the employee's personal padlock or equivalent device in such
a manner as to prevent the unexpected application of power to the
equipment or the unexpected exposure of the materials in process in that
the employer failed to implement or use an effective lockout procedure
or equivalent positive protection for minor repairs or adjustments to
lance port seals on #3 Hood in the Basic Oxygen Furnace (BOF) Area. The
Flag and Tag Procedure utilized by the employer for above-mentioned
minor repairs and adjustments did not provide such positive control."

Trial in this matter was begun February 21, 1980. On April 21, 1980, the
Complainant, at the conclusion of his case, presented a Motion to Amend
the Complaint and Citation wherein the characterization of the Citation
was to be changed from serious to willful-serious, as defined by Section
17(a) of the Act (Tr. 1035). After argument was afforded each party, the
Motion to Amend was allowed with leave granted Respondent to recall all
witnesses who had given testimony that may have related to those
substantive matters giving rise to the amendment, and allowing
Respondent to expand upon its cross examination of these witnesses as it
believed necessary (Tr. 1122-1124). Respondent declined to recall any
witnesses (Tr. 1786, 1787). The trial was concluded in June, 1980. This
matter is now ready for decision.

_FACTS OF THE CASE_

Respondent is a corporation engaged in the steelmaking industry,
operating a large steelmaking facility in Burns Harbor, Indiana. Steel
products made at Respondent's facility are shipped outside the State of
Indiana. On April 3, 1979, pursuant to an employee complaint, an
Occupational Safety and Health Compliance Officer was detailed by
Complainant to Respondent's workplace to conduct a safety inspection
(Tr. 872-874, 949, Ex. C-4). The subject of the safety inspection was "a
safety procedure utilized by the Respondent at its Number 3 Basic Oxygen
Furnace to protect employees who might be performing repair or
inspection work on its furnaces from the hazards associated with the
inadvertent start-up of the furnace machinery". The inadvertent start-up
of machinery could expose employees to the possibility of death or
serious physical harm since their work placed them in close contact to
the machinery and equipment comprising the Basic Oxygen Furnace
(hereinafter referred to as BOF).

The investigation specifically concerned itself with the alleged
inadequacy of Respondent's "Flag and Tag Rule", a work safety rule
designed to prevent inadvertent activation of opened and tagged out
power switches controlling the flow of power to equipment and machinery
located on the BOF. As a result of the investigation, the Complainant
concluded that Respondent's Flag and Tag Rule was an insufficient means
to protect employees from the hazards associated with inadvertent
start-up of the equipment when the employees were performing repair or
inspection work. Accordingly, a Citation was issued alleging a violation
of the general duty clause of the Act. The abatement provisions of the
Citation required that Respondent utilize a positive lockout system on
main power cutout switches which isolate sources of power from the
equipment under repair. This would essentially require that employees
use personal padlocks issued by the employer to lock the power switch in
the open position. Respondent contested the Citation maintaining that
its Flag and Tag Rule was an effective means to prevent inadvertent
start-ups at its Number 3 BOF and further that the padlock lockout
system was not feasible and presented other hazards.

The cited area, which is representative of the three basic oxygen
furnaces operated by Respondent, consists of a large multi-story steel
structured building housing a tiltable metal melting furnace (Tr.
1150-1151, Ex. C-1). The furnace is open at the top having a large work
platform area just above its opening. The work platform makes up one
story of the steel building. Located at the work platform area are two
vertically situated I-beam type structures (approximately 70 feet in
length) which act as a carriage for a large oxygen carrying pipe
referred to as a "lance". Auxiliary equipment is also contained within
the building and consists of teeming cars used to carry scrap metal to a
scrap box, a teeming ladle car used for carrying away the molten metal
and a teeming car used to transport the slag away from the furnace (Ex.
C-1).

The BOF essentially starts its operation with the furnace rotating to a
tilt position, the opening of the furnace is set at an angle and in line
with a scrap box hopper. The BOF is then charged with scrap metal after
which it rotates back to the upright position. Heat is then applied to
the furnace.

During the heating process the lance is slewed from its parked position
at the side of the work platform, traversely moving toward the opening
in the work platform over the top of the furnace, finally being
positioned at a point somewhere above the center of the opening to the
furnace. The lance, at the appropriate time, is progressively lowered
into the furnace to a point where the bottom of the lance is a set
distance above the molten metal (Tr. 21-27, 1150-1155, 1165). Two large
semi-circular metal plates, referred to as "lance port seals", move
across the top of the furnace and surround the lance, thereby sealing
the furnace (Ex. C-2, C-3). Oxygen is then introduced into the metal
melting process. Once the metal is melted, the lance port seals are
opened and the lance withdrawn through the seals into its upper position
and slewed to its parked position. The furnace is rotated and tilted so
that the molten metal can be tapped from the furnace. Lastly, the
furnace is again rotated and tilted so that the slag in the bottom of
the furnace is allowed to pour from the furnace into the slag pots.

The control and operation of all three of Respondent's BOF's, which
include the slewing and lowering of the lance, the activation of the
lance port seals, the tilting and rotating of the furnace, and
introduction of oxygen through the lance, is done from a control room
located at the side of the Number 2 BOF some 200 feet distant from the
Number 3 BOF. The control room is referred to as the "Pulpit" and the
operator is known as the "Pulpit Operator". The pulpit operator monitors
a panel which contains various lights that show whether electrical power
is going to the various motors that tilt and rotate the furnace and slew
and lower the lance (Tr. 20-27). The pulpit operator can observe the
immediate area at each of the lance port seals by means of a black and
white TV monitor (Tr. 34-38). However, the visual resolution. of the TV
screen leaves much to be desired in its ability to clearly discern
employees who might be working at the lance port seal area (Tr. 43, 78,
83, 84).

Approximately every three months the furnace must be completely rebuilt
and the larger components of the furnace repaired or overhauled. This
takes about four and one half to twelve days, and is referred to by
Respondent as "relining" (Tr. 1136-1139, 1181, 1437). All other repair
work (occurring when the BOF is in operation) is referred to as minor
repair work (Tr. 108, 145). Employees regularly throughout the work week
perform repair work on or around the three furnaces. This includes work
on the lance port seals and on components around the top of the furnace
as well as work on the teeming cars and ladles (Tr. 102-107, 143, 174,
Ex. C-7). The job of performing repair work to the lance port seals and
other components of the furnace can become hazardous by reason of the
possibility of inadvertent activation of either the lance drive motors
or furnace tilt motors. This is true even though the employees who are
to perform the repair work are to first isolate power going to those
motors driving the equipment at the BOF. Isolation of power is done by
having main power electrical switches placed in the open position, or
pneumatic or hydraulic valves closed, thereby disrupting the flow of
power to the motors driving equipment on the BOF during the period when
the repair work is to take place. Employees working on the teeming cars
would also have the main power switches controlling power to the motors
that drive the cars placed in an open position.

The unexpected activation of the tilt furnace motors could cause the
furnace to tilt, throwing men from the platform area to the ground (Tr.
42, 52). When working on the lance port seals, the furnace is normally
turned upside down to prevent extreme heat and smoke being introduced
into the work area, which could happen if the top of the furnace was
inadvertently rotated to its upright position (Tr. 127, 128).

Other serious hazards can occur from the unexpected movement of the
lance carriage. If the lance were unexpectedly slewed into an area where
the employees were working, the employees could be hit by the carriage
(Tr. 171, 950, 951). An additional hazard exists to workers who may be
working on the upper platform over the furnace from any sudden movement
of the lance which could cause large pieces of hardened metal, which had
adhered to the lance during the melting process, to fall from the lance
itself. Any movement of the lance causes these hardened metal globules,
referred to as "skull", to dislodge from the lance and fall into the
work area where it could hit an employee. All the above discussed
hazards could cause death or serious physical injury to Respondent's
employees (Tr. 126, 128, 883).

In order to prevent injuries which could occur from inadvertent or
unexpected start-up of machinery under repair or inspection, whether at
the BOF or any other work area, the Respondent maintained a work rule
known as the "Lock-Out, Flag and Tag Rule". This rule is a part of
Respondent's general safety rules and is published in a handbook given
to all employees (Ex. C-5, C- 5-a). The work rule is also published as
part of various Division safety rules, (Ex. C-6, C-6-a), and is
mentioned in written job safety procedures known as Job Safety Analysis
(Ex. C-8, Tr. 59, 109, 405, 455).

Respondent's Flag and Tag Rule was designed to work as follows:
Employees who were to make repairs or inspections to machinery or
equipment, which if moved or cycled could result in their injury, were
to have the main power switch controlling the machinery under repair
opened (valves closed) and a flag and tag attached to the opened switch
or closed valve. With the main power switch opened (or valve closed)
power, whether electrical, hydraulic or pneumatic, capable of cycling or
starting the equipment would be isolated from the equipment thereby
preventing its activation. The flag and tag was to be a warning to all
other employees against closing the power switch or valve, which would
cause a restoration of power to the machinery undergoing repairs.

The rule specifically provided that no one other than the person who
placed the flag on the switch or valve was ever to remove the flag or
tag. For example, employees who were to perform repair work on the
Number 3 BOF would have the electrical breaker controlling power to the
furnace tilt motors, lance slew motors and lance hoist motors placed in
an open position, affixing their flags to the open switch. In cases
where several switches were next to one another a wood bar would be
placed on the open switches with a flag attached to the bar. The bar was
to be a warning to all employees that all switches upon which it rested
were not to be closed. Respondent believed, and holds firmly to its
belief, that its Flag and Tag Rule would in all instances act as a
positive means of preventing the unauthorized closing of "flagged" main
power switches or valves, and that flags, once placed on a main power
switch or valve, would not be removed by persons other than the
individual who had initially affixed the flag to the open switch, and
thus the power switch was considered "locked out" (Tr. 1198, 1402, 1403,
1663, 1725).

The procedure ostensibly established by Respondent in flagging a main
power switch required the employee who was to perform the repairs or
inspection to locate an electrician who then would open a locked door to
the room where the electrical main power switches were located (referred
to as control room); the electrician would enter the control room with
the employee and open the appropriate power switches as desired by the
employee, thereby disrupting the flow of power to those components of
the BOF desired immobilized. Once the electrician had opened the needed
power switches, the employee would place his flag and tag on the opened
switch (Tr. 122). The number of individual flags and tags placed on a
power switch could vary with the number of employees working at a
particular location. Each employee working in the repair area who would
be susceptible to injury from movement of any component of the BOF was
required to place his flag on the open switch. [[2/]] Pursuant to this
procedure, electrical switches were not to be closed until all flags
were removed.

Removal of the flags was done in a fashion similar to that followed when
flags were placed on electrical switches. The employee who had placed
the flag on the switch was the only person authorized to remove his
particular flag. Upon removal of all flags the electrician would close
the switch thereby restoring the flow of power to the equipment.

As mentioned, the switches which control power to the motors operating
the basic components of the BOF were located in various control rooms
generally situated distant from the work area (Tr. 791). It had been the
policy of Respondent that only electricians would be allowed to open the
locked doors to the control rooms and manipulate the switches (Tr. 116,
148, 459, Ex. C-9, C-10). This was an adjunct to the security of flags
placed on power switches. At times, however, the doors to the control
room were not kept closed and locked but were left unlocked and open.
This occurred with regular frequency during the summer months when the
day's high temperatures combined with the heat generated by the
electrical equipment, making it necessary to keep the doors to the rooms
open as a means of obtaining additional cooling ventilation to the room.

This was done in an attempt to lower the high temperatures so as to
avoid damage to the equipment (Tr. 116, 118, 751, 752). This, however,
allowed for unauthorized individuals to enter the electrical control
rooms thereby diminishing the security of the flags placed on the
switches (Tr. 116, 118, 751, 752).

The basic flag in use at Respondent's Burns Harbor Plant consisted of a
piece of blue cloth attached to a tag by way of a rubber or leather
band, (hence the name "Flag and Tag Rule"). The tag contained
information identifying the employee to whom the flag belonged (Exs.
R-4, 2nd page, R-21, C-9, C-10). The stated purpose of the Flag and Tag
Rule is "to protect personnel from injury" by serving as a "warning to
all other employees not to operate the machine unit . . . whenever said
employee is in danger of injury due to the nature of the job he is
doing" (Exs. R-4, R-5, R-6).

Whether the flag and tag rule operated as an adequate means of
protecting employees from the hazards associated with inadvertent
application of power to equipment under repair or inspection (thus
allowing equipment to cycle or move while employees were working on
same), became a long term continuous virulent controversy between
Respondent and Respondent's employees. This manifested itself in formal
and informal grievances being filed by employees working at the BOF's
(Ex. C-4, 20-26, 28, 29, 32, 33, 34, 35, 36, 37).

The Respondent has continuously maintained that its Flag and Tag Rule
was a sufficient means to prevent unexpected or inadvertent application
of power to the equipment or machinery during periods when employees
were making repairs. Respondent considered its flagging rule equivalent
to a physical lockout which did not incorporate into its meaning the
required use of a padlock, notwithstanding the fact that its rule was
entitled "Lockout, Flag and Tag Rule" (Tr. 1236, 1402, 1403, 1663, 1725,
Ex. C-5-a). The Respondent considered its Flag and Tag Rule a generic
approach to positively insuring the interruption of power to equipment
under repair and was accordingly inclusive of the term "locked". The
rule was considered by Respondent to have its own generic flexibility
incorporating the concept of being "locked" without the need of a
padlock. According to Respondent, the utilization of a flag and tag on
an open switch obviated the need for a padlock or any other device that
could physically prevent the disconnected power switch from being moved
to the engaged position (Tr. 1236, 1402, 1403, 1663, 1725).

The employees, on the other hand, believed that the Flag and Tag Rule
was an unreliable means of preventing the inadvertent application of
power to equipment since the flag could be easily removed by someone
other than the person who initially placed the flag on the opened
electrical power switch (or closed valve), allowing for the closing of
the electrical power switch or opening of a pneumatic or hydraulic
valve. This belief of employees developed over a period of time after
numerous instances of employees being subjected to inadvertent start-up
of equipment or the unexpected restoration of power to the equipment
under repair. These occurrences were directly attributed to the
unauthorized removal of flags from main power switches by persons other
than those who had placed the flags on the switch. Additionally, there
were continued and numerous instances of the terms of the flag rule not
being followed.

The incidents involving violations of Respondent's Flag and Tag Rule
resulted in a loss of confidence by employees in the ability of the rule
to protect them from the hazards associated with the unexpected and
inadvertent application of power to machinery and equipment under
repair. These incidents resulted in the filing of numerous formal and
informal grievances by the employees with Respondent (Exs. C-19-29, 32,
33, 34, 37). This situation further resulted in the filing of a safety
complaint by one of Respondent's employees with the Complainant alleging
the presence of a hazard to employees working at Number 3 BOF by reason
of the absence of an adequate lockout system to prevent the unexpected
application of power to equipment under inspection or repair (Ex. C-4,
Tr. 41-48). A safety inspection of Respondent's work practice involving
the Flag Rule was made by Complainant as a result of the employee
complaint; this gave rise to the instant contested Citation.

_FINDINGS OF FACT AND CONCLUSIONS OF LAW _

_ALLEGED VIOLATION OF SECTION 5(a)(1) OF THE ACT_

(a) _Elements and proof in a general duty case under current case law _

Section 5(a)(1) of the Act requires of an employer that he "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. Commission rulings
concerning the Secretary's burden in establishing the existence of a
5(a)(1) violation, hold that there must be a showing that the employer
failed to render its workplace "free" of a hazard, that the hazard was
"recognized" and that the hazard was causing or likely to cause death or
serious physical harm to its employees._Brown and Root, Inc., _1980 CCH
OSHD para. 24,853. With respect to recognition of the hazard, the
Commission rulings place upon the Secretary the burden to show that the
manner in which an employer went about the activity criticized in the
Citation was known by it to be hazardous or was generally recognized as
such by the industry, or was reasonably foreseeable._Pratt & Whitney,_
1980 CCH OSHD para. 24,447; _SSC Corp.,_ 1976-77 OSHD para. 20,814.

The Commission has further pointed out that it is upon the Secretary to
show that there were feasible steps the employer could have taken to
avoid the Citation -- in other words it is the Secretary who must
establish the feasibility of its abatement charge within its Citation.
_Brown and Root, Inc., supra._ The courts have adopted the Commission's
views as to what proof the Secretary must establish in order to sustain
its charge that an employer violated Section 5(a)(1) of the Act.
_Whirlpool Corp. v. OSHRC, _645 F. 2d 1096 (D.C. Cir. 1981); _Pratt and
Whitney Aircraft _v. _Secretary of Labor,_ 649 F. 2d 96 (2nd Cir. 1981);
_Usery _v. _Marquette Cement Manufacturing Co.,_ 568 F. 2d 902 (2nd Cir.
1977); _National Reality and Construction Co._ v._OSHRC,_ 489 F. 2d 1257
(D.C. Cir. 1973).

Viewing the instant record, I find that the credible evidence in this
case, by an overwhelming margin, has established that the Secretary has
met his burden of proof in establishing that a violation of Section
5(a)(1) of the Act existed at Respondent's workplace, as that burden of
proof has been articulated by both the Review Commission and reviewing
courts.

(b) _Application of the Decision and Affirmed Citation_

In the instant case the Complainant has charged the Respondent with
violating Section 5(a)(1) of the Act by allowing employees to work on
equipment under repair or inspection without having in place a positive
control of the sources of power to such equipment to prevent unexpected
or unanticipated start-up of the equipment during the repair or
inspection activities. The Citation charged that only through use of a
system whereby employees use personal padlocks, or equivalent devices,
to lock out power switches could the dangerous hazards associated with
the unexpected application of power be eliminated. The Citation charged
Respondent's "Flag and Tag Rule" as being ineffective in the prevention
of safety hazards, also charging Respondent with failing to implement or
use an effective lockout procedure when making repairs or adjustments to
its lance port seals, or other equipment, at its Number 3 basic oxygen
furnace (BOF). The Respondent answers the Citation denying that the
employees did not have a positive lockout procedure in place, defending
and forwarding its "Flag and Tag Rule" as a feasible method of locking
out power sources to equipment which may be under repair. Respondent
further maintained that use of "padlocks" as a means of locking out
power switches was both technically and economically unfeasible, and
presented other safety hazards.

While the Citation refers only to the Number 3 BOF, it is clear that the
ruling in this case will directly apply to Respondent's other basic
oxygen furnaces at its work place (as well as impacting throughout its
plant) where employees, while making repairs or inspections to
equipment, are subjected to hazards of serious injury or death resulting
from unexpected application of power to the equipment under repair or
inspection. This seems the only logical approach in this case since the
facts have established that all three BOF work areas were substantially
identical, were contiguous to one another, were operated as an integral
operation, were worked on by the same employees, were all controlled
from one operating station (pulpit), and had main power control switches
for all three BOF's located in the same control rooms (Tr. 20-40, 118,
130, 743, 1147-1155, 1341-1343, Ex. C-31). Any other application of this
Decision (and the affirmed Citation) would render the same work areas
occupied by the same employees and employee groups with varying,
conflicting lockout rules. This unquestionably would have the least
desirable effect of uncertainty in providing for the safety of employees
in all three BOF operations. Finally, the instances where the "Flag and
Tag Rule" failed to protect employees from the inadvertent start-up of
equipment exposing employees to the dangers of death or serious physical
harm occurred not only in all three BOF work areas, but throughout the
Respondent's workplace at its Burns Harbor Plant (Tr. 561, 565, 573-578,
Exs. C-20, C-21, C-22, C-24, C-25, C- 26, C-27, C-30, C-31, C-32, C-34,
C-37, C-44, C-47, Ex. R-1, R-11, R-14).

(c)_The Workplace Environs and Operation of the Flag and Tag Rule_

It is important to understand the massiveness of the equipment which is
worked on by the employees and how that relates to the enormity of the
hazard created by inadvertent application of power to the equipment and
possible cycling of equipment while employees are in close and intimate
proximity to it. The work area, which is the subject of the Citation, is
at Respondent's Basic Oxygen Furnace (BOF) of which it has three (Tr.
1150, Ex. C-1). The basic oxygen steelmaking process is differentiated
from other steel production processes through introduction of oxygen
into the metal melting furnace through a large pipe structure called a
lance. The lance is approximately 70 feet long and 10 inches in diameter
and rides on an I-beam type carriage. During the melting process the
lance is lowered into the furnace and oxygen is blown into the molten
steel bath increasing the temperature of the molten metal and removing
impurities from the molten metal. A heavy metal seal clamps around the
lance holding it in place during its "blowing" process (Tr. 1151-1165).

Movement of the lance, as well as a tilting movement of the furnace, is
controlled by a "pulpit operator" located in a control room ("pulpit")
approximately 200-250 feet from the Number 3 furnace; all three BOF's
are controlled by the one operator at the "pulpit" (Tr. 20, 88). The
pulpit operator has no direct visual contact with the lance or lance
port seal work area but observes this area on a black and white TV
monitor. This is an aid to prevent the operator from swinging the lance
into the work area or tilting the furnace while employees may be working
there (Tr. 34, 35, 73, 74, 1151-1155). Additionally, the operator has a
console that contains lights indicating whether power is going to the
motors which move and operate the lance and furnace (Tr. 38). If
employees are working in the area the lance must be in the parked
position (Tr. 40).

There are two lances at each BOF; one is in the standby position and one
in the ready position. When not in use, the lance which is in the ready
position is kept in the "park" position which is about 10 feet away from
the mouth of the furnace (Tr. 1151). At the beginning of the metal
melting process ("a heat"), the lance traverses or "slews" from the
parked position to the "ready" position, a point directly over the mouth
of the furnace, the bottom of the lance being approximately 4-5 feet
above the opening (Tr. 1151). It is then lowered into the "in hood"
position at which point the lance is inside the lance port seal but a
few feet above the mouth of the furnace. When the lance is lowered to a
point directly above the molten metal bath, oxygen is then blown into
the molten metal. After the melting process is completed, the lance is
raised from the furnace, traversing to the parked position. The furnace
is then tilted so as to allow for the pouring of the molten metal and
pouring away of slag. The furnace is then turned in the upright position.

By reason of the tremendous heat associated with metal melting, and the
dynamics in the movement of the massive equipment making up the BOF, the
components of the BOF require continuous and frequent repairs (Tr. 103,
104, Ex. C-7). These repairs are referred to as "minor repairs", often
involving the lance and lance port seals (Ex. C-7). In providing for the
safety of Respondent's employees who must perform these repairs to this
large equipment, power to the motors which move the lance and which move
or tilt the furnace is disrupted at a main control point by breaking the
main power circuits leading from the power source to the motors. This
disruption in the flow of power is done at electrical control rooms
where are located large knife-edge electrical switches. These switches
once placed in an open position immobilize the equipment and keep it
from moving while employees are in the repair work area. The same is
true with electrically powered teeming cars that carry molten metal or
slag from the furnace. These cars often need repair work done to them.
The motors that drive these cars also have their main control switches
at the electrical control rooms. The lance port seals are operated by
compressed air, and during "minor repairs" are secured by closing off an
air valve located near the seals at the side of the BOF.

The hazard associated with inadvertent or unexpected start-up or
movement of BOF equipment to which employees making repairs or
inspections are exposed involve their being struck or crushed by the
moving equipment, or being knocked from the work platform to the ruble
pit below, or being knocked into the furnace itself. Death or serious
physical injury is likely to occur from any such encounter (Tr. 42, 46,
52, 83, 126-128, 171, 230-234, 600, 601, 706, 753-757, 872, 873, 883,
943, 952, 995-999, 1354, Exs. C-22, R-62). An additional hazard develops
from falling pieces of hardened metal globs from off the lance when the
lance is moved. These metal pieces form on the lance during the melting
process. These hardened metal globs, or "skull" as they are called,
readily fell from the lance into the work area when moved. Employees
working in the swing radius of the lance could receive serious physical
injury if the lance were suddenly moved into the work area causing the
"skull" to fall from the lance onto the employees (Tr. 40, 126-128).
Lastly, the furnace is generally placed in an upside down position when
the lance port seals are undergoing repair. In the case of inadvertent
or unexpected rotation of the furnace, smoke, fumes and heat could be
omitted from the mouth of the furnace into the work area and could cause
serious burns to employees working there (Tr. 127-28).

To prevent the situation where equipment under repair could be
inadvertently activated, Respondent established its Flag and Tag Rule.
This rule, in the main, required that main power switches controlling
power to machinery under repair or inspection be placed in an open
position [[3/]] and a flag and tag placed on the open switch by the
individual who is to make the repairs. The tag would carry the name,
department symbol or code of the man who placed the flag on the open
switch. While Respondent's work rule mentions the use of a lock to
accomplish a "lockout", Respondent specifically prohibited the use of
locks. [[4/]] Cardinal to success of the rule's capability to protect
workers from the hazards of unanticipated or inadvertent start-up of
equipment under repair, as enforced by Respondent, was the prohibition
of removal of the flag or tag from an open power switch by an employee
other than the employee who placed it on the switch, except under
certain controlled conditions (Exs. C-5-a, C-6-a).

(d) _The Parties Positions_

While Respondent's own rule refers to the use of a "lock", Respondent
throughout these proceedings maintained that its rule did not intend for
that word to mean a padlock and that the use of a flag and tag is a
generic proposition that incorporates the concept of a lock.
Respondent's view is that the flag and tag is comparable, equal, and
inclusive of the act of using a padlock in locking main power switches
in an open position (Tr. 1236, 1402, 1403, 1663, 1725).

The Complainant maintained that Respondent's failure to provide a work
practice wherein employees who were repairing or inspecting machinery
would lock out the power switches with a personal padlock, to which only
the employee using same had the key, caused the work area to be
hazardous since the flag could be easily removed by other employees, and
indeed was done so by both hourly employees as well as Respondent's own
supervisors. This allowed for power to be restored to the equipment,
with the resultant hazard of unanticipated start-up, while those
employees who had placed the flags on the switches were relying upon
them for safety in their work. The Complainant further maintained that
the hazard was easily recognized by Respondent at its workplace by
reason of the many incidents arising from Respondent's Flag and Tag Rule
being disregarded or violated. Complainant asserts that the hazard was
not only recognizable, but all but ignored since it was Respondent's own
supervisors who in many instances allowed or participated in the removal
of employees' flags from open power switches without the knowledge or
consent of the affected employee.

The Complainant has concluded that not only was the flag and tag system
forwarded by Respondent an inherently ineffective and recognized unsafe
procedure for protecting employees engaged in repair or inspection of
machinery from the unexpected application of power to the equipment but
in and of itself created a hazard if employees were required to work on
machinery whose main power switches were merely flagged in an open
position (Tr. 237, 238, 269, 271, 272, 273, 341, 342).

(e) _Evaluation of Expert Testimony_

As a prelude to resolving the contested factual issues, opinion evidence
of the expert witness, together with the observations of the lay
experts, will be considered first. I find the conclusions and
observations of the Complainant's expert witnesses that with the use of
padlocks for locking power switches in the open position there would be
little to no possibility of unauthorized persons causing main power
switches to be closed, and power unexpectedly restored to equipment
being repaired, just too persuasive and logical to be ignored. The
conclusions and observations of these experts resulted from many years
of experience with the use of padlocks, as well as with the use of the
flag and tag system. Their combined extensive experience with use of the
padlock for positively locking out power switches clearly established
that padlocks were not only effective in meeting the hazards involved
herein but were completely compatible with the operation of virtually
any type machinery, including that involved with electrical equipment
and their components (Tr. 238, 239, 240, 253, 255, 257, 283, 284, 287,
288, 337, 342, 343, 344, 362). I find Complainant's experts' conclusions
concerning the use of a lock, as opposed to a flag and tag, as a
positive means of protecting employees from the inadvertent start-up of
equipment singularly persuasive.[[5/]] I further find that the testimony
of Complainant's expert witnesses established that use of padlocks to
meet the hazards of inadvertent start-up of equipment under repair was a
well entrenched procedure in industry in general, and the steel industry
in particular. It simply cannot be said that the inherent inability of a
flag and tag system to effectively protect employees from hazards
similar to that involved in this case was not recognized in the steel
making industry (Tr. 238, 239, 241-252, 335-340, 343, 399, 400, 401,
405, 878, 879, 883, 884). Thus in so far as it may need be established
that there was industry recognition of the cited hazard, Complainant, in
this regard, has borne his burden. _National Reality and Construction
Company_ v. _OSHRC_, _supra;_ _S. C. Corp,_ 1976-77 CCH OSHD para. 20,814.

Finally, it should be noted that the opinions, conclusions and
observations reached by Complainant's expert and lay witnesses that a
hazard existed at the worksite by reason of the use of flags and tags as
a form of "lockout" was well substantiated by the repeated predicted
shortcomings within the Flag and Tag Rule; there were indeed many
instances of capricious removal of flags from open power switches
without the knowledge or authority of the person who had placed the
flags there in the first place, as will be more fully described below.

(f)   _The Flag and Tag Rule's Failure to Operate as an Effective Safety
Rule_

This record is ladened with incident after incident where flags placed
on open switches, under Respondent's Flag and Tag Rule, by employees who
were to perform inspection or repair work were removed from the switches
without the knowledge of the employees who had placed them there in the
first place. These continuous recurring incidents subjected employees to
the dangers and hazards of unexpected start-up of equipment undergoing
repair, and was of significant concern to the employees. This concern
manifested itself in the filing of grievances and the threat of a job
walkoff.

The cited hazard in this case was well established by the Complainant
with the testimony of employees who experienced their flags and tags
being removed from flagged open main power switches of equipment
undergoing repairs. These incidents, while dating prior to 1971 [[6/]]
persisted nearly to the date of trial herein. The following describes
the type of incidents which demonstrates the inherent shortcomings of a
flag rule.

In April of 1971, the flags of employees working on a transfer car were
removed by a laborer under the direction of the sub-foreman placing
those employees working on the transfer car into hazardous situation by
reason of the possibility of inadvertent and unexpected movement of the
equipment (Tr. 577, 581, 589, 631, 639, 640, Ex. C-29). In late 1973,
employees were working on coupling of a teeming car when a supervisor
had an electrician remove their flags without their knowledge. The
switches were energized causing the car to move and the coupling which
they were working on to rotate. The employees narrowly missed sustaining
severe injury (Tr. 600, 601, 753-756, Ex. C-33, pages 8, 9).

In January, 1974, one of the most serious incidents involving the Flag
and Tag Rule occurred tragically illustrating the extreme hazards
employees can be exposed to in the event of a failure in the integrity
of the rule. A millwright in the BOF Mechanical Department lost his arm
and leg when he was run over by an ingot car on which he was working.
The ingot car was put into motion when a string of cars from another
track was moved through an unlocked and unflagged rail switch onto the
track where the employee was working (Tr. 565- 70, Ex. C-27). In
Respondent's accident investigation report, and at the hearing, it was
shown, that only strict application of the Flag and Tag Rule would have
prevented the accident. The flag rule was violated by reason of the
supervisor's decision to use a safety watchman on the track instead
locking and flagging the actual switch. This decision was made in order
to "expedite" the job (Tr. 1408, Ex. C-27).

Sometime in the first half of 1975, an employee who was engaged in
lubricating equipment, and was in close proximity to said equipment had
his flag removed from a flagged out power switch; this subjected him to
injury by reason of the possible start-up of the equipment (Tr. 528).
During that same period two employees working on a teeming car had their
flags pulled off a main power switch allowing for the restoration of
power to the teeming car. This was done by their foreman and placed the
two employees in danger (Tr. 529, 530).

In December, 1977, a foreman attempted to have one employee flag out
power switches for other employees who were to later work on BOF
equipment controlled by said switches. This became the subject of a
grievance (Tr. 585, 688, Ex. C-32). In February, 1979, a foreman removed
an employee's flag from the Number 2 BOF tilt controls while the
employee was working on the furnace (Ex. C-24). In August, 1979, a
laborer removed flags on power switches placed there by employees who
were repairing related equipment. This subjected the individuals to the
possibility of inadvertent start-up of the equipment. The situation was
averted by a safety watchman catching the infraction and having the
flags restored to the power switches (Tr. 492, Ex. C-23).

In December, 1979, an employee working on a teeming car, who had placed
a heavy metal slab across the tracks to prevent movement of a second
teeming car into the work area, had the slab removed by order of
management without his knowledge. This subjected the employee to the
hazard of the second teeming car rolling into the work area causing
injury to the individual (Tr. 615-617, 706-709, 713), 714 Ex. C-37.). As
late as March, 1980, a foreman removed the flag from a power switch of
an employee performing repairs on equipment, (the foreman admitting that
this was regularly done). This incident became the subject of a
grievance (Tr. 479, Ex. C-20).

All these above described incidents seemed representative of the
experiences in the work place (Tr. 75, 79, 461, 473, 561, 749, 752).
They are found to be a clear indication of a flag's inability to act as
a positive protective lockout of power switches. These incidents amply
demonstrate how flags used to prevent the reactivation of power can be
easily removed by persons other than the individual who placed the flags
on the open switches, thus leaving the employee unknowingly exposed to
the dangers of injury from unexpected movement or start-up of the
machinery under repair. This situation was exacerbated the fact that on
many occasions the doors to the control rooms where power switches are
located are left unlocked and open (Tr. 116, 118, 751, 752).

While Respondent attributes these incidents to improper Flag Rule
procedures or to communication problems (Tr. 1173, 1175, 1222,
1379-1382, 1410), Respondent misses the mark in failing to recognize
that the incidents are not deviations in the effectiveness of the Flag
Rule but examples of the inherent fatal flaw in considering the flag a
positive means to insure that equipment under repair will not be
inadvertently started. This conclusion rings especially true since on
many occasions it was Respondent's own supervisors who made a conscious
deliberate decision not to comply with the explicit terms of the flag rule.

Considering the realities of the work place, I simply do not find the
testimony of Respondent's witnesses who equated the use of a flag to a
padlock as a means of "locking out" power switches to have any basis in
reason or fact. In light of the evidence making the record in this case
such a conclusion is found not only to be unrealistic, but has caused to
exist at subject work place a hazard to those employees required to
perform repair work on equipment seemingly protected by flags.

Respondent's Flag and Tag Rule was further shown to be a failure as a
lockout safety rule by reason of the extent of deviations from
compliance with the rule itself. This record contains significant
evidence which shows that the Flag and Tag Rule, because of its
inability and its ineffectiveness to positively protect employees
engaged in repair work, had never won acceptance from employees as an
effective means of protection from subject hazard; nor would it ever.

There apparently developed a derisive attitude by employees, both
supervisors and hourly employees, towards compliance with the Flag and
Tag Rule. This resulted in significant instances of noncompliance with
the rule by both supervisors and hourly employees, but mainly by
supervisors.[[7/]] This manifested itself in disenchantment with the
rule by hourly employees and disregard of the rule by supervisors, all
of which predictably further degraded the effectiveness of the rule. The
record in this case contains significant examples of the many instances
where compliance with the Flag and Tag Rule was simply ignored. Indeed,
one of these instances resulted in the filing of a safety complaint with
the Complainant and is demonstrative of this situation. The safety
complaint was filed by the Pulpit Operator after he had experienced
several incidents involving employees narrowly escaping from injury when
he had activated the lance or other BOF equipment this complaint gave
rise to this action (Tr. 71, 75, 77, 80).

The first of these incidents, occurring several months prior to the
filing of the OSHA complaint, came to the Pulpit Operator's attention
when an employee approached him claiming that the employee, while
working on the lance port seals, had narrowly missed being killed when
the lance was slewed by the Pulpit Operator in on him (Tr. 46-47). The
employee had been instructed by his foreman to quickly adjustments on
the lance port seal without flagging out the perform necessary breakers
(Tr. 47, 170-171). A second similar incident occurred on February 26,
1979, which prompted the filing of the safety complaint (Tr. 41-48, Ex.
C-4). The Pulpit Operator was again told to slew the lance, not knowing
employees were working on the lance port seal (Tr. 43). A foreman
working at the lance port seal did not cause to have the equipment
flagged out even though employees were ordered to work there. According
to Respondent's supervisors the foreman assumed that another
individual's flag was on the lance's main power breaker (Tr. 1229-39,
1245-49). Had an effective lockout utilizing padlocks been in place
these incidents would not have occurred.

Perhaps the most telling of the Flag and Tag Rule's _inherent_ inability
to be considered an effective and convincing means of protecting
employees from these hazards discussed in this case was the continuous
non-compliance with the rule by Respondent's own supervisors [[8/]] (Tr.
561, 578, 593 600, 621, 639, Exs. C-28, 32, 688, 699,700, 824, 857,
863). This situation had three distinct aspects to it. First, it showed
in and of itself the inherent weaknesses ingrained within the flag rule,
and the rule's perpetuation of the hazard to which employees, who had
placed reliance upon said flag rule for protection, were exposed.
Second, it had the effect of causing employees to lose faith in the flag
rule as a means of protection and to insist that padlocks be used
instead of flags to secure the open power switches (Tr. 133, 136, 140,
168, 461-469, 473, 561, 699, 749, 750, 772). Third, the lack of
confidence of the employees in the rule manifested itself in diminished
compliance with the rule, further degrading it as a legitimate means of
hazard prevention. This last aspect is considered a reasonably
foreseeable event since human nature does not respond or adhere to
useless acts, specifically those that purport to be safety related when
in fact they are not. Respondent's flag rule was such a rule.

(g)  _Respondent broadly argues that the hazard to Which Employees Were
Exposed_

Respondent broadly argues that the hazard alleged in the Citiation was
not recognizable and that this, accordingly,  fatally flawed the Citation.

Respondent's arguments in all its parts is singularly unpersuasive. The
Commission, as well as the Courts, has held that the knowledge (or
recognition) requirement within section 5(a)(1) of the Act can be
satisfied by proving that the employer had actual knowledge that a
condition was hazardous or by showing that the standard of knowledge in
the relevant industry recognized the condition to be hazardous.[[9/]]
_National Reality Co. supra;_ _Brennan _v. _Vy Lactose Laboratories,
Inc._, 494 F. 2d 460 (8th Cir. 1974); _Brown & Root Inc.,_ 1980 _supra.
_In this case, the Complainant clearly showed that there was actual
recognition of the hazard by Respondent and thus has met his burden of
proof in this regard. Respondent's argument in defense of the Citation
is rejected.

The employees, continually, over a prolonged period, and up to recent
date voiced their concern about the effectiveness of the Flag and Tag
Rule as a means or protecting them from the hazards of inadvertent
start-up of equipment under repair. This was done directly on the job to
supervisors, by way of safety complaints, and through the job grievance
procedure. In 1976, employees refused to rely on the Flag and Tag Rule
and began using locks by reason of the number of violations of the Flag
and Tag Rule, many of which were by supervisors who simply disregarded
the rule. After a confrontation with Respondent on this matter the
employees agreed that use of the locks would be for a limited period,
allowing to Respondent that time necessary to rehabilitate the rule so
that it could be an effective means of protection. Though each time the
employees were willing to use locks for a limited duration, so that
Respondent could institute better training aimed at upgrading the
effectiveness of the rule, it sorely appeared that rehabilitation of the
Flag and Tag Rule as a means of avoiding the hazards associated with
inadvertent startup was just not possible (Tr. 749, 788, 827, 853-855, 861).

Two separate grievance hearings held under the arbitration provisions of
the Collective Bargaining Agreement were held concerning the reliability
of the Flag and Tag Rule as a means of protecting employees and the
employees' right to use padlocks supplied by Respondent. The
arbitrations dealt with then recent breaches of the Flag and Tag Rule
(Ex. C- 19, R-1). It was during the second grievance procedure that it
became clear to Respondent's supervisors that the employees had totally
lost faith in the Flag and Tag Rule and would not work without locks
being provided to them for use in locking power switches in the open
position. Respondent's supervisors recognized the fact that employees
would not return to work without the protections which could only be
afforded through the use of padlocks (Tr. 1469). At that time it was
hoped by Respondent that with enhanced training the employees would come
to have restored faith in the effectiveness of the Flag and Tag Rule,
and not insist on the use of company provided locks; Respondent's hopes
never materialized and the event never came about (Tr. 827, 1469-1472,
1475). The significance of this evidence in determining that a
recognized hazard existed at the workplace, as charged in the Citation,
simply cannot be ignored.

I need not rehash that evidence showing time after time an employee, who
had placed a flag on a main power switch relying upon that flag for
protection from the subject hazard, having the flag removed by a second
employee, who all too often was one of Respondent's own supervisors,
thereby placing the employee's safety in jeopardy -- all known to
Respondent. Further, I will not discuss those cases where employees, by
reason of a failure in the Flag and Tag Rule, were experiencing close
calls due to the reactivation of power and the inadvertent start-up of
equipment which was under repair and initially appropriately flagged out
-- all known to Respondent. Finally it is hard to imagine there was not
recognition of the hazard when Respondent's own safety work rules
specifically provided for the use of padlocks to accomplish proper
"locking out" of power switches (Ex. C-5, C-6).[[10/]]

(h) _Feasibility_

While I find Complainant has shown that a recognized hazard existed at
Respondent's worksite by continuing the use of hanging flags to effect a
"lockout" of power switches to equipment under repair and inspection,
and that a system of using padlocks would eliminate this hazard,
discussion of the feasibility in use of the padlock is necessary since
under appropriate Commission and court law it is the Secretary's burden
to establish this fact. _Whirlpool_ v. OSHRC and MARSHALL_supra._;
_National Realty,_ 489 F. 2d at 1268. Additionally, this issue was
raised by Respondent as part of its defense to the Citation.

The credible evidence introduced in this matter established that the use
of padlocks to effect a "lockout" of power switches to equipment under
repair was not only feasible but a reasonable method to address the
hazard associated with unexpected or inadvertent start-up of equipment.
The singular ease a padlock can be issued to employees, the ease the
padlock can be used by employees, and the ease that a lock can be
affixed to power switch components of existing equipment at Respondent's
plant belies any real issue that a well organized program would be
anything other than a feasible method to effect lockout of power sources
to equipment under repair. That padlocks are currently successfully used
at Respondent's worksite (not to mention other similarly situated
steelmaking facilities) is proof enough that padlocks, as a means to
effect lockouts, are completely compatible devices for use on
Respondent's machinery and equipment, and are completely compatible with
the manufacturing processes carried on by Respondent (Tr. 132, 136, 153,
155, 156, 235, 253-257, 258, 273, 294, 295, 303, 335, 338, 342, 343,
362, 391, 396, 397, 460, 461, 469, 472, 473, 509, 513, 535, 561, 618,
619, 649, 711, 712, 744-749, 788, 794, 798, 827, 830, 838, 876-878, 883,
Exs. C-9, C-10, C-12, C-13, C-14, C-15, C-16, C-17, C-18, C-51, C-53).

Respondent, in attacking the feasibility of use of padlocks, raises
three separate arguments. First, Respondent argues that since some of
its equipment was incapable of being padlocked, repair work would at
times, by necessity, have to be done under a flag and tag rule and that
this amounted to a "bastardized" safety rule rendering the use of
padlocks ineffective. Respondent further argues that using padlocks on
its electrical equipment would be a "jury rigged" proposition and by
reason of the large numbers of padlocks which might be needed could
cause a chain of locks capable of becoming entangled in the electrical
leads resulting in an electrical hazard. Lastly Respondent argues that
the use of padlocks would be costly requiring a significant outlay of money.

Respondent's argument that the operation of two systems (i.e. flag and
tag, and padlock) would render uncertain the enforcement of either is
specious at best. Most, if not all, electrical power switching equipment
controlling power to production equipment is capable of being padlocked,
or locked with the equivalent of a padlock [[11/]] (Tr. 118, 130, 131,
132, 153, 155, 156, 446, 447, 448, 459, 647, 648). As such, the advent
of a two system program just does not appear probable to any significant
degree to adversely impact upon the effectiveness of using padlocks. In
any event there is no hiding from the fact that Respondent's Flag and
Tag Rule was not working effectively and replacement of it in any degree
is a constructive step toward eliminating or reducing hazards in the
workplace.

With respect to Respondent's argument concerning the possibility of
locks causing shorts or becoming enmeshed in the energized leads of the
switching equipment, I find no persuasive evidence that such a hazard
existed to any appreciable degree or that such a hazard, if it did
exist, could not be corrected or prevented.

The most credible evidence seemed to show that the number of padlocks
which would be used at any one time would be manageable. This evidence
came through the testimony of employees who actually worked with the BOF
equipment, such testimony being straightforward, truthful and compelling
in the ordinary common sense of things (Tr. 140, 362, 514, 515, 647,
648, 649, 650, 794, 798, 826, 835, 956-962). There is little credible
evidence in this record which would indicate that use of padlocks would
result in huge cumbersome chains of locks hanging from switches, as
portrayed by Respondent. Additionally, with a well supervised and
effectively enforced optional "group lock system" (as currently provided
in Respondent's General Safety Rules for Employees) the number of
individual locks used could be significantly controlled (Tr. 258,
287-289, 344, 514, 515, 516, 519, 533, 699, 743, 746, 796-798, 799, 904-
906, 977, 1022, 1017, 1018, 1020, Ex. C-5, Section VII - paragraph 2).

Moreover, since under Respondent's own lockout rule (when it chooses to
follow that rule) only skilled electricians are allowed to manipulate
the electrical power switches an electrician could safely place the
padlock on the power switch as desired by the employee. The employee
could observe from a safe vantage point that his lock was indeed used to
lock the appropriate power switch in an open position without incurring
any risk of exposure to electrical hazards (Tr. 122, 956-962,
1763-1767). Finally, through the use of "lock expanders" large numbers
of locks could be safely accommodated when attached to open power
switches, without the postulated unwieldy chain of locks (Tr. 282, 283,
1321, 1322, Ex. C-12, figure 21-14).

However, assuming the occurrence of a possible electrical hazard which
could not be satisfactorily overcome by use alone of the above discussed
work practices or equipment, Complainant demonstrated that there still
existed other well recognized and readily available means to deal with
or effectively eliminate the hazard. These means could either be used by
themselves or in conjunction with those above mentioned, and included
electrical insulation of locks, use of non-conductive locks, and use of
rubber shielding which could easily be hung from the switches to
separate the locks from the energized leads (Tr. 283-285, 1319, 1320,
1333, 1334, 1337).

(i) _Economic Feasibility_

As to the issue of costs and economic feasibility raised by Respondent,
first, I see no reason for Respondent to replace any of its electrical
equipment, which would be extraordinarily expensive. Its equipment
currently can accommodate use of padlocks as a lockout device. Further,
with use of any of the above discussed means, methods or procedures to
prevent electrical hazards, no modification of the equipment would be
necessary with employment of the personal padlock lockout system.
Hydraulic or pneumatic valves can easily be locked with a chain and
padlock (Tr. 132, 136, 141, 153, 155, 156, 460, 461, 462, 469, 470, 538,
618, 647, 648, 711, 749, 762, 795, 826, 829, 838, 1318, 1321, 1322,
1472, 1473, Ex. C-9, C-10). Second, the costs associated with purchase
of a large number of padlocks appears insignificant in comparison to the
benefits received from a safer hazard-free workplace. Moreover, the cost
of locks pales thin in comparison to the magnitude of costs associated
with ordinary repair and maintenance of the equipment at the BOF (Tr.
258, 304-306, 362). Clearly, there exists in this case no legitimate
economic bar to employment of a personal padlock system provided by
Respondent to its employees.

(j) _Possible Rehabilitation of Flag Rule Through Training_

One last argument of Respondent needs to be considered, that being
Respondent's perception that any failure in its Flag and Tag Rule's
effectiveness to prevent hazards arising from unexpected start-up could
be adequately resolved through proper training and supervision.
Respondent essentially forwards the proposition that it is not the flag
and tag system that is at fault when there is a failure in the projected
protections against inadvertent start-up, but that this is merely a
matter of need for enhanced training, communications, or supervision. I
find Respondent's argument begs the basic question whether or not
adherence to the Flag and Tag Rule, as opposed to use of a padlock to
accomplish the lockout, was itself the hazard. It cannot be denied that
all through Respondent's prolonged training efforts (Tr. 1354,
1459-1461, 1519-1523, Exs. R-5, R-6, R-15, R-16, R-17 R-19), there was
no reduction or elimination in the number and seriousness of incidents
involving the improper removal of one employee's flag by another
employee (be he an hourly employee or supervisor), and that these
incidents subjected employees who had relied upon the protection of the
flag to possible serious injury from unexpected start-up of equipment
under repair.

Considering the extensive record in this case, Respondent's argument, in
and of itself, can only lead to the inescapable conclusion that its Flag
and Tag Rule has an inherent unremediable inability to adequately deal
with the recognized hazard it was designed to prevent. Respondent's
argument as a defense to the Citation must be rejected. _BSAF -
Wyandotte Corporation,_ 1981 CCH OSHD para. 25,831.

(k) _The Citation_

Respondent has argued that the general duty clause was an inappropriate
provision of the Act for Complainant to use in citing the alleged
violation. I fail to see the logic of Respondent's argument, since the
Citation is clearly worded in terms of Section 5(a)(1) of the Act,
unequivocably informs Respondent of the violative condition -- a
condition for which no current standard exists, and informs Respondent
on how the hazard could feasibly be abated. _Whirlpool Corporation_ v.
_OSHRC,_ 645 F. 2d 1096 (D. C. Cir. 1981); _Whirlpool Corporation, _1979
OSHD para. 23,552 (Review Commission). I find that the amended Citation,
on its face, to be an appropriate means for the Complainant to cite the
offending condition. I do not find any authority in the cases cited by
Respondent to hold otherwise.

(1) _Conclusions_

It has been made patently clear that maintenance of Respondent's Flag
and Tag Rule created a serious hazard to employees. The recurring and
continuing deviations in compliance with Respondent's Flag and Tag Rule
points out both the rule's inherent inability to protect employees from
the hazards involved in this case, and the validity of Complainant's
position that only through use of a personal padlock system can there be
achieved a realistic positive means to lockout power switches thus
effectively disrupting power from reaching equipment worked on by
employees. Further, the record is completely devoid of any evidence
whatsoever which supports Respondent's conclusion that the term
"lockout" really means the use of a Flag and Tag and not the use of a
padlock. A simple, but persuasive and compelling, truth exists in this
case and that is that none of the events in which an employee removed
from an open power switch the flag of another employee who was then
engaged in repair work, placing the latter employee in jeopardy of
injury, would have occurred had there been in place a padlock, the key
to which was on the person who placed the padlock on the switch in the
first instance.

In summary, I find that the Complainant has shouldered his burden in
demonstrating those elements establishing a violation of Section 5(a)(1)
of the Act. BASF - _Wyandotte Corporation,_ _supra;_ _Brown and Root,
Inc., supra; Whirlpool Corp._ v. _OSHRC, supra;_ _Pratt & Whitney
Aircraft_ v. _Secretary of Labor,_ _supra;_ _Usery_ v. _Marquette Cement
Manufacturing Co.,_ _supra_; _National Realty and Construction Co._ v.
_OSHRC_, _supra._ Ample evidence in this case established the existence
of a known and recognized serious hazard in the use of flags and tags by
employees attempting to accomplish a positive means of lockout for power
sources to machines under repair or inspection. Ample proof exists in
this record showing that the use of padlocks would virtually eliminate
the possibility of unauthorized closing of main power switches which had
been properly locked open with a padlock. The evidence further showed
that personal padlocks, supplied by Respondent to employees, would be
compatible with the operation and use of Respondent's equipment at all
its BOF areas, and was a feasible means to eliminate the hazard to which
employees are no exposed. Accordingly, I find Complainant has
established that a violation of Section 5(a)(1) of the Act existed by
reason of Respondent's failure to have as a work practice the use of
padlocks as a means of positively locking out power sources during
periods when equipment was under repair or inspection.

_CHARACTERIZATION OF THE VIOLATION AS WILLFUL_

The Complainant, by amendment,[[12/]] charged in its Citation and
Complaint that Respondent's violation of Section 5(a)(1) of the Act was
willful in nature. I find sufficient and convincing evidence to sustain
Complainant's allegation that the violation of the general duty clause
by Respondent was willful in nature. That Respondent was fully aware of
the hazard to its employees and was fully aware of the failures in its
own flag and tag rule to adequately cope with such hazard, simply cannot
be denied under any reasonable understanding of the evidence making the
record in this case. Indeed, it appears the vulnerability of employees
to injury under Respondent's flag and tag work rule was all but ignored
by Respondent and its supervision.

This case involves instance after instance of employees, while
performing repair or inspection work on the BOF, being placed in
jeopardy of serious or mortal injury by reason of the easy and
inappropriate removal of flags from power switches. What makes this
matter particularly egregious is the fact that in many instances it was
Respondent's own supervisors who blatantly violated the Flag and Tag
Rule or otherwise participated in having the flags removed from open
main power switches without the consent or knowledge of the employee who
had placed them there initially. This apparently was done in order to
gain quick restoration of power to the BOF equipment which in turn
allowed Respondent to speedily place its BOF, that had been under
repair, back into production -- all taking place regardless of the
safety consequences or considerations (Tr. 48, 473, 474, 593, 594, 857,
858, 1199). In these acts there did not seem to be any real thought or
regard given to the safety of employees working on the equipment, and
was in total contravention of the purpose of the flags as a device to
safely secure power switches.

The record established that notwithstanding Respondent's championing of
the virtues of its Flag and Tag Rule, there was little regard by
Respondent's supervision in faithfully following the flag rule (Tr. 479,
528, 529, 530, 565-570, 577, 581, 583, 589, 600, 601, 615-617, 639, 706,
709, 713, 753, 756, 1408). It could be said that violations of the Flag
and Tag Rule by Respondent's supervisors, with its hazardous component
to employees, was done intentionally when it suited Respondent's
purposes. After all this record shows that no supervisor was ever
disciplined in the slightest for disregarding the rule (Tr. 621, 1195,
1264-1267, 1278, 1485, 1579-1583) -- even a supervisor who had seriously
violated the rule at least twice, yet was still considered to have had
an unblemished record (Tr. 1313).

There had been numerous grievances and safety complaints filed by
employees concerning both the surreptitious removal of employees' flags
from power switches and the fact that the provisions of the Flag and Tag
Rule was being ignored. Respondent's only response to these grievances
and complaints was its relentless imposition of the flag rule until that
point when employees, in mortal fear of their safety, appeared ready to
walk off the job unless something was done. Then, on a limited basis,
and for the alleged purpose of attempting to obtain time to rehabilitate
its rule so that some sort of faith could be restored to it, did
Respondent allow select employees to use padlocks to positively lockout
power sources. After a period of time, it should have been clear that it
was impossible for the employees to regain faith in the Flag and Tag
Rule since those other employees who were not allowed to use locks, but
required to rely on the flag rule, continued to experience their flags
being improperly removed from opened power switches. No such realization
came to Respondent.

Time and time again the inherent shortcoming in the Flag and Tag Rule
was brought to Respondent's attention but Respondent acted indifferently
to these incidents plainly showing a willingness to subject its
employees to otherwise avoidable dangers and hazards. Respondent's only
answer to the failures of its Flag and Tag Rule was its strident, but
baseless, fidelity to the belief that the rule presented the same degree
of positiveness that a padlock system would have in securing power
switches. I find that ordinary reason would have dictated that the
continual and reoccurring episodes involving the failures in the
workplace of Respondent's flag rule would have brought to mind the
vulnerability for easy removal of the flags from opened power switches
and the flag's failure as a safety device. Accordingly, the only
objective conclusion that can be reached, in light of these facts, is
that the belief or opinion of Respondent that the effectiveness of its
Flag and Tag Rule was, vis-a-vis, comparable to that of a personal
padlock program, was one not reached in good faith. A fortiori, there
exists little to bar the way for the ultimate finding that this
employer's conduct was willful in nature. _KVS-TVM Builders,_ 10 BNA
OSHC 1128, 1981 CCH OSHD para. 23,738; _Wright & Lopez, Inc._ (Docket
No. 76-0256), 10 BNA OSHC 1108, 1981 CCH OSHD para. 25,728; _Marshall
_v._M. W. Watson, Inc., _652 F. 2d 977 (10th Cir. 1981), Judge's
Decision 1979 OSHD para. 24,009; _Mel Jarvis Construction Co.,_ 10 BNA
OSHC 1053, 1981 CCH OSHD para. 25,713;_Wright and Lopez, Inc._ (Docket
No. 76-3743), 8 BNA OSHC 1261, 1980 CCH OSHD para. 24,419; _General
Electric Co., _5 BNA OSHC 1448, 1977 CCH OSHD para. 21,853; _Western
Waterproofing Co._ v. _Marshall,_ _supra; C. N. Flagg & Co.,_ 2 BNA OSHC
1539, 1974-75, CCH OSHD para. 19,251.

I find the actions of Respondent in failing to have in place a program
whereby padlocks are issued to employees, allowing them to lock open
power switches while they are engaged in repair or inspection of
equipment, to be an act showing a careless disregard of employee safety
and an intentional disregard of, or plain indifference to, the Act's
requirements. _Wright & Lopez, Inc._ (Docket No. 76-0256), _supra;_ _St.
Joe Minerals Corp._ v. _OSHRC, _647 F. 2d 840, (8th Cir. 1981), and
cases cited at Note 12 therein; _Western Waterproofing Co.,_ v.
_Marshall, supra; Babcock & Wilcox Co._ v. _OSHRC,_ 622 F. 2d 1160 (3rd
Cir. 1980); Empire-Detroit Steel v. OSHRC, 579 F. 2d 378 (6th Cir. 1978).

Accordingly, I find that Respondent's conduct in violating the general
duty clause, as alleged in the amended Complaint and Citation, was
willful in nature.
_
ASSESSMENT OF PENALTIES_

In the instant case, the Secretary has proposed an amended penalty of
$10,000. This amount represents the maximum penalty that could be
imposed for a willful violation.

In assessing the appropriateness of a penalty, the first consideration
should be whether the proposed penalty satisfies the purposes of the
Act. Next the Commission must consider "the size of the business of the
employer being charged, the gravity of the violation, the good faith of
the employer, and the history of the previous violations", as provided
under Section 17(j) of the Act_. St. Joe Minerals Corp., d/b/a St. Joe
Lead Co.-- Smelting Division_, 10 BNA OSHC 1023, 1981 CCH OSHD para. 25,644.

With respect to the size of Respondent's business, this employer is a
large corporation with adequate facilities and personnel to
expeditiously deal with its occupational safety problems. Viewing the
gravity of the violation, the evidence established that literally
hundreds of employees were exposed to the hazards caused by use of the
Flag and Tag Rule as the means of obtaining positive lockout of
equipment under repair. The evidence further established that unexpected
activation of equipment while under repair, and ostensibly guarded by
flags, could result in serious injury or even death. The gravity of the
violation must be considered high.

In determining the good faith of the employer, the record established
little good faith on the part of Respondent in addressing the hazards
caused by imposition of its flag rule. Indeed, it was shown that
expediency in bringing Respondent's equipment which had been under
repair back into operation, as allowed under the flag rule, surpassed
any consideration for the safety of employees. The history of this case
involves just too many incidents of employees narrowly escaping injury,
or being exposed to hazards, by reason of the failures in Respondent's
flag rule -- many of which were caused by Respondent's own supervisors.

While an employer's training efforts would normally be a factor in
adjusting a penalty in its favor, such is not appropriate in this case.
Respondent's activities in establishing training programs, allegedly
designed to deal with the hazards incident to the flag and tag rule, was
done not so much to provide a safe work place as it was to legitimize
its discredited flag rule long shown to be inherently flawed as a safety
rule. This case deals with a long history of employees being exposed to
otherwise avoidable dangers caused by Respondent's compassionless
adherence to its flag rule over the much sought after personal padlock
system.

I see no compelling reason why the maximum penalty should not be imposed
in this case. After carefully reviewing the record, I find no supportive
evidence or legal basis why the proposed maximum penalty should receive
any adjustment. Imposition of the proposed penalty, it is believed, will
serve as an inducement for quick abatement of the hazards throughout
Respondent's workplace. Accordingly, I find the penalty of $10,000 in
accord with the purpose of the Act in assuring employees a safe
workplace. As such, that amount will be affirmed.

_OTHER MATTERS_

The Respondent, in its post trial brief, argues that it was not afforded
fundamental due process by the Administrative Law Judge during the
hearing (labeled Point I). While a review of the record will show that
each party was afforded every opportunity to present that evidence it
believed necessary to its case, and was afforded complete and unabridged
examination and cross-examination of each witness (except when
repetition became excessive), comment will be made to some of
Respondent's arguments.

Respondent has argued that certain documents were admitted into evidence
without proper foundation. While the record demonstrates that an
adequate foundation was laid for the introduction of each of the
documents listed in Respondent's argument, it should be recognized that
in an administrative hearing the technical rules of evidence become less
important when juxtaposed against considerations dealing with the
reliability and probative value of the proffered evidence. Each document
allowed into evidence herein had that quantum of reliability and
relevancy which made it important to the issues in this case. _Hurlock
Roofing Company,_ 1979 CCH OSHD para. 24,006; Administrative Procedure
Act, 5 U.S.C. 556(d). Only marginally relevant evidence and evidence
confusing, misleading, prejudicial or time wasting was not allowed into
the record.

Respondent further argues that its case was prejudiced because the
Administrative Law Judge allowed into the record evidence and testimony
which predated the six month period for issuance of a Citation under
Section 9(c) of the Act. Respondents argument as a matter of law is
without merit as has been determined so by the Commission and reviewing
courts. _Ford Motor Company,_ 1977-78 CCH OSHD para. 22,106; _Empire
Detroit Steel Division_ v. _OSHRC, _1977 CCH OSHD para. 22,813, 579 F.
2d 378 (6th Cir. 1978). Additionally, such evidence was highly relevant
in the determination of the issues in this case.

Respondent's next argument involves what it perceived as an inability of
the Administrative Law Judge to render a decision on the various motions
presented at the close of Complainant's case by reason of the fact that
there existed a transcript of the hearing which had inaccuracies in it.
While it is not the custom in these proceedings to have any part of the
transcript completed prior to the close of the hearing, it so happened
that the trial schedule was spread over a period of time so as to
facilitate the personal schedules of the attorneys, and that this
allowed for part of the transcript covering the first few days of the
trial to become available prior to the close of Complainant's case. As
someone who was more than a were casual observer to these proceedings, I
found it unnecessary to review the transcript prior to the conclusion of
the hearing and submission of post trial briefs. The content or
condition of the transcript had no bearing whatsoever on the various
rulings made in this case. It can safely be said that it was solely the
quality of the motions and the persuasiveness of the arguments
supporting those motions that was the basis for issuance of any order or
ruling.

The final argument of Respondent that will be considered relates to what
it describes as "inappropriate statements of the ALJ". In this regard,
it will be for the reviewing bodies to determine whether any statements
of the Administrative Law Judge were inappropriate, rendering an unfair
prejudice to any party, or whether those statements impinged upon the
fairness of the proceedings. However, in Respondent's listing of
"inappropriate" statements, where Respondent has challenged the right of
the Administrative Law Judge to ask questions of witnesses, I believe
Respondent's argument tears at the basic fabric insuring a fair trial.
It is the responsibility of the Administrative Law Judge to assure that
the facts of the case are fully elicited. Indeed it is the Judge's
obligation to ask questions so that record may reflect with clarity what
the witnesses intended to convey. It is the Judge's responsibility to
question witnesses to clarify any confusing or ambiguous testimony or to
develop additional facts, and this is what was done. (Occupational
Safety and Health Review Commission Rules of Procedure, Rules 66 and 66
(j); Federal Rules of Evidence, Rule 614 (b).

Finally, the undersigned has not lightly taken this line of argument
made by Respondent and by reason of this has reviewed and re-reviewed
the transcript to insure that fundamental fairness was given all parties
in this case during the hearing and subsequently in rendering a
decision. In this regard, I searched through the record and have been
unable to find any instances where any party to these proceedings was
not afforded fundamental due process. Additionally, I have taken
particular pains and efforts in writing the decision in a manner in
which each party will know exactly how and why a particular conclusion
was reached -- all of which may account in some measure for the length
of this decision. After due consideration, I find no rational basis to
alter these proceedings in any matter by reason of these arguments made
by Respondent.

_ORDER _

Based upon the foregoing Findings of Fact and Conclusions of Law, as set
out in my _Decision and Order,_ and for good cause shown, it is ORDERED:

1. That item 1 of the Willful-Serious Citation 1 is AFFIRMED.

2. A penalty of $10,000 is assessed.

Edward A. Bobrick
Judge, OSHRC

Dated: March 11, 1982
Chicago, Illinois

------------------------------------------------------------------------

FOOTNOTES:

[[1/]] Section 5 (a) (1) reads in pertinent part:

(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.

[[2/]] The employee could also place a "group flag" whereby several
employees working closely together would operate under one flag (Tr.
138, 798, Ex. C-5-a, pg. 13, para. No. 2).

[[3/]] In the case of electrical equipment, main power switches are
placed in the open position. Pneumatic and hydraulic valves are placed
in a closed position.

[[4/]] Respondent's "_Lock-out, Flag and Tag Rule"_ found in Section VII
of its General Safety Rules for Employees (Ex. C-5-a) provides in
applicable part: (1) This rule is especially applicable to those
employees who oil, inspect or work around machinery and includes those
who repair cranes or crane runways. The main switch handle controlling
machinery which will be repaired or inspected shall be opened and locked
out whenever provisions allow a lock to be used.The _lock shall be
posted with a flag or tag_ before anyone shall be permitted to work
around or on the machinery involved. Plant procedure is to be followed.
All flags and tags shall have the name, department symbol or code and
check number of the man who places them. The flags and tags are to be
securely fastened with cord or non-metallic material. Wire is not to be
used for this purpose. No one shall remove a lock, a flag or tag except
the person who places it except under the following conditions: In the
event that a person does not remove his lock, flag or tag and cannot be
located, and it is necessary to put the machine in operation, the
supervisor, after making a thorough check of the machinery in question
in company with a repairman, on turn, may remove the _lock,_ flag or
tag. (Emphasis added)

[[5/]] After weighing the knowledge and experience of all expert
witnesses concerning the subject matter of this case, the self interest
of the witnesses and the reasoning upon which their testimony is based,
I find I cannot ascribe to Respondent's witness the same degree of
reliability as I did with Complainant's witnesses. I found Respondent's
expert witness, while sincere in his views, not able to squarely deal
with those hard issues involving the consequences of flags being
inappropriately removed from open power switches (Tr. 1707, 1708). The
witness's offering of a synergistic review of Respondent's basic flag
rule did not bring any ready insight into the case (Tr. 1725). Further,
the bulk of this witnesses' testimony dealt with equipment not analogous
to that involved in this case (Tr. 1753-1759).

[[6/]] There was significant testimony and evidence introduced showing
that prior to 1971 the Flag and Tag Program was not working as a means
of positive lockout protection for employees. This evidence consisted of
employee testimony as well as documentation of grievances relating to
the removal by supervisors of flags from open switches (Tr. 578, Ex.
C-28, Tr. 587, Ex. C-30, Tr. 1349-1530, Ex. R-4). Since these incidents
occurred prior to the effective date of the Act, they cannot be
considered actionable or relevant in any way and thus are viewed as not
material to the issues in this case. Accordingly, all evidence of this
nature has been disregarded in any conclusions reached herein.

With respect to evidence outside the statutory six-month period referred
to in Section 9(c) of the Act, but occurring subsequent to the effective
date of the Act, I do not agree with Respondent's view as to its lack of
relevancy and admissibility. I find this evidence relevant, material,
and admissible. _Ford Motor Co., _1977-78 CCH OSHD para. 22,106;_Empire
Detroit Steel Division v. OSHRC,_ 579 F. 2d 378 (5th Cir. 1978).

[[7/]] The statement of a BOF Mechanical employee was illustrative of
the fact that while hourly employees tried to adhere and rely on the
flag rules for protection, supervisory employees did not feel a like
compunction. "We know the importance of it because it is our lives and
our friends lives that we work with that are involved" (Tr. 768).

[[8/]] The record, and the discussion of it, contains ample examples of
violations of the terms, spirit and purpose of the Flag and Tag Rule by
Respondent's supervisors. I will not re-review them except to make
reference to two incidents that portray the typical workings of the Flag
and Tag Rule, and the attitude of Respondent and its supervisors toward
the rule as a means of obtaining employee job safety. One incident
involves a foreman who attempted to have one set of employee's flags
placed on open power switches for a second set of employees (Tr. 593,
Ex. C-32). This subverted the entire purpose of the rule. A grievance
was filed challenging the actions of the supervisor. Then there is the
telling incident which took place as late as March 10, 1980. A foreman
removed a flag from an open power switch placed by an employee who was
then working on a generator controlled by the flagged out power switch.
The foreman who admitted removing the employee's flag, without the
employee's knowledge, found excuse for his conduct by stating "employees
take each other's blue flag and tag off as commonplace _don't they"
_(Tr. 479, Ex. C-20). Significantly, no disciplinary action was ever
initiated by Respondent toward the supervisor even though this was the
second such incident in which he was involved -- indeed, no disciplinary
action had ever been taken by Respondent toward any supervisors for
violating the flag and tag rule (Tr. 621, 1195, 1264-1267, 1278, 1485,
1579-1583).

[[9/]] As to industry recognition see pages 20-21 supra.

[[10/]] N. 4 supra

[[11/]] In support of its argument concerning the lack of lockout
facilities, Respondent offered the testimony of an expert witness who
described how significant amounts of equipment at the plant could not be
padlocked. The testimony of this expert witness, however, concerned
itself with high voltage electrical equipment which was a type of
equipment substantially different than that involved in this case. The
electrical equipment referred to by Respondent's expert in his opinions
was different in character to the mechanical equipment involved in this
case since it had its own electrical switching devices which were
equivalent to padlocks, had these devices in close proximity to the
equipment, was used only by skilled electricians, and was generally its
own power source (Tr. 1693-1695, 1734-1737, 1753, 1754-1759). I find the
testimony of Respondent's expert not on point, offering little insight
into the contested issues by reason of the significant differences
between the equipment and its uses and purposes which formed the basis
of his opinion, and that equipment involved in this case.

[[12/]] At the close of Complainant's case, and immediately before
Respondent proceeded with its part of the case, Complainant presented a
Motion to Amend Complaint wherein paragraph IV(c) of the Complaint was
amended to allege that the charged violation constituted a
willful/serious violation within the meaning of Section 17(a) of the
Act. Complainant further moved that paragraph IV(g) of the Complaint be
amended with respect to the penalty proposed for Item 1 of Citation No.
1 to allege that the proposed penalty be $10,000 (Tr. 1034). After
allowing the parties ample opportunity to prepare and present their
arguments concerning the Motion to Amend (Tr. 1065, 1068, 1072,
1088-1122), for those reasons announced at trial, I allowed Complainant
to amend his Complaint characterizing the alleged violation as willful
in nature and changing the proposed penalty (Tr. 1122-1126).