“*SECRETARY OF LABOR,**Complainant,** v.** TRINITY INDUSTRIES, INC., ** Respondent.**UNITED STEELWORKERS OF AMERICA, DISTRICT 30, LOCAL 7629, **Authorized Employee Representative.**Docket No. 88-2691**\/DECISION \/*Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:The employer, Trinity industries, Inc. (\”Trinity\” or \”the Company\”),manufactures chemical processing tanks at a plant in Sharonville, Ohio.In 1988, the Occupational Safety and Health Administration (\”OSHA\”), ofthe United States Department of Labor, inspected Trinity’s Sharonvilleplant and issued two citations, which included a four-item seriouscitation and a one-item repeat citation. Trinity contested bothcitations and the parties presented evidence to an administrative lawjudge of the Commission. After the hearing, the judge affirmed therepeat citation’s one item, although he reduced its classification toserious and assessed a reduced penalty of $600 rather than $800. Thejudge vacated item 1 of the serious citation. He affirmed the remainingthree items and assessed the proposed penalties, which were $700, $700,and $800 for serious citation items 2, 3, and 4, respectively. Trinitytakes exception to the $800 penalty for serious citation item 4 andtakes exception to the affirmance of the other two serious citationitems. Trinity also takes exception to the affirmance of the one item ofthe citation that the judge reclassified as serious.For the following reasons, we reduce the penalty for serious citationitem 4 from $800 and affirm the remainder of the judge’s decision. Thatis, we find violations as alleged in items 2 and 3 of the seriouscitation and as alleged in item 1 of the citation that the judgereclassified as serious.\/I. The Merits of Citation Item 1, Reclassified as Serious \/\/*A. Background*\/The reclassified item alleges that Trinity failed to use screens toprotect the eyes of employees \”adjacent to\” welding arcs. [[1]] Duringthe OSHA inspection of the Sharonville plant, compliance officer DennisCollins was able to view welding arcs at two locations as he walked downthe main aisle of a work area. The compliance officer took a photographof one location. The photograph does not show a welding arc, but it doesshow the welder at work. According to the compliance officer’s testimonyexplaining what the photograph is intended to illustrate, he was able toview the, welding work, and any arc created by it, because there was noscreen between the aisle and the welding work. Compliance officerCollins also testified that a welding arc at the other location wasvisible because the welding work was being performed from a ladder at alevel above the screen that was in use. [[2]]According to compliance officer Collins, the main aisle was a \”hightraffic area.\” The compliance officer further testified that Trinity’sshop superintendent, Paul Vied, who accompanied him on the inspection,agreed that the existing screens were inadequate. Therefore, thecompliance officer believed that there was a serious hazard of flashburns to the employees. He testified that screens need not totallyenclose the welding work such that even a crane operator cannot peer infrom above: \”Not from that distance, I wouldn’t be concerned.\” But hewas concerned about the extent of the arcs’ visibility to employeespassing on the main aisle. The compliance officer did not testifyspecifically that he saw employees using the aisle, but theadministrative law judge, Joe D. Sparks, inferred from this evidencethat employees did use the aisle, could view the arcs, and could sufferflash burns.\/*B. Analysis*\/To establisih a violation of a standard, the Secretary must show by apreponderance of the evidence that: (1) the cited standard applies, (2)its terms were not met, (3) employees had access to the violativecondition, and (4) the employer knew or could have known of it with theexercise of reasonable diligence. See, e.g., Walker Towing Corp., 14 BNAOSHC 2072, 2074, 1991 CCH OSHD ? 29,239, p.39,157 (No. 87-1359, 1991),citing Astra Pharmaceutical Prod., Inc., 9 BNA OSHC 2126, 2129, 1981 CCHOSHD ? 25,578, pp.31,899-31,900 (No. 78-6247, 1981). Trinity does notdispute that the cited standard applies to the Company’s operations,that the abatement method prescribed by the cited standard was not beingdeployed where the Secretary would require, and that the company knew orcould have known of the alleged deficiencies. Trinity does dispute,however, that the abatement method was necessary to protect anyemployees. That is, Trinity disputes that employees had access to anyhazard as a result of the alleged deficiencies in the placement ofscreens. In particular, Trinity asserts that the Secretary failed toshow the distance of the welding operations from the main aisle, thesize of the openings through which the arcs were visible, the hazardassociated with exposure to welding arcs at whatever distance wasinvolved, and whether any employees used the main aisle. In other words,the Secretary failed to show that there were \”[w]orkers or other personsadjacent to the welding areas,\” in the language of the cited standard.The evidence, however, is sufficient in these respects. The citedstandard does not define \”adjacent,\” but the dictionary meaning of theterm is \”relatively near\” or \”not distant or far off\”; also, things neednot be right next to each other or touching each other to be \”adjacent,\”if they are not separated by similar things. Webster’s Third NewInternational Dictionary, Unabridged 26 (1986). The compliance officer’sphotograph of one location, depicting one welding operation as seen fromthe main aisle, shows that any employees who might walk down the mainaisle could have been \”adjacent\” to that particular welding operation.The welder and some equipment next to him are plainly visible, not faraway, in the middle of a room-like area that the compliance officerdescribed as a \”bay\” between \”columns.\” There are no interveningoperations and no intervening obstructions to viewing the welding operation.Particularly worthy of notice is the fact that, as Collins testifiedabout his photograph, there was \”one welding screen present on one sideof the operation,\” but the \”lack of a screen on the adjacent side\”rendered welding arcs \”observable from the main center bay aisle.\” Thewelding screen shown in the photograph appears to block the view of thewelding operation from part of the main aisle; the screen is positionedparallel to the viewer and to his right. The viewer, however, canplainly see the employee who was performing the welding work because,immediately beside the existing screen, there is a large gap that looksat least one-half as wide, and possibly almost as wide, as the onewelding screen shown in the photograph. We therefore determine from thephotograph that one of the two locations of welding work lacked weldingscreens adequate to protect any employees from viewing welding arcswhile passing on the adjacent main aisle.Moreover, this photograph showing a welding screen at one locationdemonstrates Trinity’s own belief that its employees could be exposed tohazards of flash burns from welding arcs visible along the main aisle,and this photograph is not the only evidence of Trinity’s belief. Thereis also Collins’ unrebutted testimony that Trinity had a screen on themain aisle at another location, although the screen was not high enoughto shield the are from view. More significantly, there is the shopsuperintendent’s acknowledgement, as reported by compliance officerCollins in his testimony, that the existing screens were inadequate atboth locations. Collins’ testimony regarding this admission wasunrefuted, and therefore the admission constitutes proof that one ofTrinity’s managers who was familiar with the existing workingconditions, including the use of welding screens at both locations,believed that screens were necessary and that the existing screens wereinadequate to protect employees from the hazard presented by thesewelding operations along the main aisle. [[3]]Collins’ view that the main aisle had \”traffic\” enough to warrant theuse of screens is,therefore,corroborate by the words of one of Trinity’ssupervisory personnel, and by the actions of the Company itself indeploying the welding screens that the Company did decide to use. Seeinfra note 8. Furthermore, we accept the compliance officer’s assessmentof the traffic on the main aisle because it is the assessment of areliable witness who inspected the work area and whose assessment isunrebutted. We also accept Collins’ testimony that there was a serioushazard of flash burns to the employees. When he agreed in testimony thatscreens would not be needed overhead to protect any crane operators, hedemonstrated awareness that distance reduces the hazard. We thereforeaccord dispositive weight to his judgment that there was a hazard toemployees passing on the main aisle; his judgment is that of an informedsafety professional. Accordingly, we find that Trinity’s employees hadaccess to the hazardous conditions, see Gilles & Cotting Inc., 3 BNAOSHC 2002, 2003, 1975-76 CCH OSHD ? 20,448. p.24.424 (No. 504, 1976),and affirm the judge’s decision affirming the citation item. Theviolation was serious, based on the compliance officer’s testimony thatviewing a welding arc can produce a burn on the outer layer of the eye.Compare Vanco Constr., Inc., 11 BNA OSHC 1058,1061-62 1983-84 CCH OSHD ?26,372, p.33,454 (No. 79-4945, 1982), aff’d, 723 F.2d 410 (5th Cir.1984) (serious physical harm is substantially probable in view of the\”delicateness of the eye\”). The judge’s assessment of a penalty of $600is appropriate. Nacirema Operating Co., 1 BNA OSHC 1001, 1003, 1971-73CCH OSHD ? 15,032, p.20,044 (No. 4, 1972) (in general, the gravity of anoffense is the principal factor in penalty assessment).\/*II. The Merits of Item 2 of the Serious Citation*\/\/*A. Background*\/Serious citation item 2 alleges that, in a particular instance, Trinityfailed to ensure use of safety belts. [[4]] During the OSHAinspection,compliance officer Collins photographed an employee walkingacross the top of a cylindrical tank, which was approximately 20 feetlong, 5 feet in diameter, and 9 feet above a concrete floor. There wereno guardrails or other means of protection against falling to the floor.The compliance officer testified that, if the employee did fall, hewould suffer anything from \”sever bruises\” to \”broken bones\” or a\”concussion.\”Trinity made safety belts available to its employees and had a safetyrule requiring employees to tie off when \”working\” 48 inches above theground.[[5]] The expected practice was for employees at work on tanks totie off to tank nozzles in the vicinity of their work stations or taskareas. The employee photographed by the compliance officer had tied offin this manner while he was at work at his work station. There wastestimony indicating, however, that Trinity’s managers did not requireemployees to tie off while walking upon a tank to approach or leave awork station, and the usual practice was not to tie off at those times.According to Trinity’s production manager, Mark Lane, these activitiescould not be called \”working,\” as contemplated by the Company’s safetyrule. In this case, the employee ventured unprotected across the tankwhen he needed to retrieve a wrench from his work station.During the inspection and at the hearing, compliance officer Collinsexpressed the view that it was necessary to tie off at such times: \”Youwould have the fall potential the entire time you were walking on thatparticular vessel.\” The production manager, who accompanied thecompliance officer during his inspection and testified regarding hisbelief that it was unnecessary for an employee to tie off until he wasstationary and performing an actual task of work, nevertheless gavetestimony showing some agreement with the compliance officer that therewas a hazard. According to production manager Lang’s testimony regardinghis reaction to the compliance officer’s views expressed during the OSHAinspection, he indicated to the compliance officer that the employeeshould have found some way to be off because \”basically … a man, whenhe’s up there, should be tied off.\” At the hearing, the productionmanager also indicated agreement that crossing a tank without being tiedoff is a hazard, because a fall would be hazardous. [[6]]According to Collin’s unrefuted testimony, the Company had not providedany appropriate place for an employee to tie off while crossing thetank. Lang suggested that the employee could tie off to an overheadcrane, if the crane were locked out. The compliance officer disagreed,however, noting that the employee would be yanked off the tank if thecrane should move. According to Collins, Lang then suggested thatTrinity would have to adopt at this location a means of tying off(details not given) that Trinity was using elsewhere in the plant.According to the compliance officer, other manufacturers of storagetanks use height- adjustable catwalks to gain access to tank-top workstations, or the manufacturers install height-adjustable bars or staticlines, to provide continuous fall protection for their employees. [[7]]\/*B. Analysis*\/Section 1910.132(a) is a general standard, broadly worded to encompassmany hazardous conditions or circumstances. If the duty to comply withthe standard is not defined, it could run the risk of being almostindefinitely applicable. To avoid that result, and in order to carry herburden of proof as to applicability, see, e.g., Walker Towing Corp., 14BNA OSHC at 2074, 1991 CCH OSHD at p. 39,157, the Secretary mustestablish that a reasonably prudent employer, concerned about the safetyof employees in the circumstances involved in a particular case, wouldrecognize the existence of a hazardous condition and provide protectionas required by the Secretary’s citation. Advance Bronze, Inc v.Secretary, 917 F.2d 944, 951 (6th Cir. 1990). Evidence that otheremployers in the industry actually provide the particular personalprotective equipment satisfies this test. Id. Also allowed forconsideration is evidence of accidents, evidence of industrial safetystandards or recommendations, or opinion testimony from personsexperienced in performing the work or familiar with the workingconditions. Id.; see also, Ray Evers Welding Co. v. OSHRC, 625 F.2d726,732-33 (6th Cir. 1980) (concerning the construction industrystandard that generally requires personal protective equipment).In this case, we have the unrefuted testimony of the experiencedcompliance officer that other employers in the industry use scaffolds orlifelines (or bars) with safety belts to provide constant fallprotection on tanks. Also, although Trinity had not had any accidents,the opinion testimony of Trinity’s production manager evinces anawareness that crossing a tank without a tied-off safety belt ishazardous; essentially, he agreed with the experienced complianceofficer that there was a fall hazard against which some form ofprotection would be appropriate. Significantly, the only rationales putforth by Trinity’s production manager for failing to provide fallprotection were the possible difficulty in rigging a lifeline, thecomparative brevity of an employee’s exposure while crossing a tank, anda belief that this activity was not a form of \”working.\” He actuallyrecognized, however, that employees must tie off while performing anactual task of work upon the tank. Therefore the rule adds furthersupport to the overall picture of recognition.[[8]] In short, apreponderance of the evidence shows that a reasonable person, familiarwith the circumstances, would have recognized a hazard necessitating theuse of the personal protective equipment that the cited standardrequires.[[9]]The Secretary has therefore estatblished the cited standard’sapplicability. The remaining elements of the Secretary’s case are notdisputed: a foreman could have seen the lack of protection for theemployee who walked across the tank. See, Walker Towing Corp., 14 BNAOSHC at 2074, 1991 CCH OSHD at p. 39,157. Also, the use of fallprotection in other manufacturers’ plants indicates its feasibilityhere, and Trinity has not presented any specific rebuttal. See supranote 7. [[10]] Accordingly, we turn to whether Trinity has establishedany affirmative defense.In Brock v. L.E. Myers Co., 818 F.2d 1270, 1277 (6th Cir. 1987), thecourt stated that \”an employer may defend . . . on the ground that, dueto the existence of a thorough and adequate safety program which iscommunicated and enforced as written, the conduct of its employee(s) inviolating that policy was idiosyncratic and unforeseeable.\” In thiscase, however, Trinity’s work rule was not enforced as written. Theproduction manager realized that there could be a fall hazard, but hedid not think that gaining access to a work station or retrieving a toolwas sufficient exposure to count as \”working,\” and did not expect thatemployees would tie off at such times. Therefore, Trinity cannot claimthat it \”could not reasonably have foreseen the aberrant behavior\” ofthe employee and, at least in the circumstances involved in this case,cannot successfully maintain its claim to the safety \”program’seffectiveness in practice as well as in theory.\” Id.Accordingly, we affirm the judge’s decision finding a serious violationas set forth in citation item 2. The violation was serious, in view ofthe unrebutted evidence that a fracture or all impairment as severe as aconcussion could result from falling onto a concrete floor. CompareSpancrete Northeast, Inc., 15 BNA OSHC 1020, 1024, 1991 CCH OSHD ?29,313, p. 39,358 (No. 86-521, 1991) (major fractures are seriousinjuries). The judge’s assessment of a $700 penalty :s appropriate forthe serious violation.\/*III. The Merits of Item 3 of the Serious Citation*\/\/*A. Background*\/Serious citation item 3 alleges that a gas cylinder in Trinity’s plantlacked a valve cap.[[11]] Near the main aisle that was a \”high trafficarea,\” compliance officer Collins observed a pair of gas cylinders, oneof which was not equipped with a valve cap. The capless cylinder had onit a regulator but no hoses; it was not connected for use and was notbeing used. In fact, shop superintendent Vied told the complianceofficer that the cylinders probably had been there for two to three days.Vied partially opened the valve of the capless cylinder and determinedthat it contained gas compressed to a pressure of 40 pounds, at aminimum. Vied also told Collins that the cylinder contained oxygen, andCollins himself looked at the label on the cylinder and saw that itindicated oxygen. Relying on this evidence, see supra note 3, the judgefound that the cylinder contained oxygen.[[12]] Collins believed that,without a cap to protect the valve of the cylinder, the valve could bedamaged and the pressurized gas could rapidly escape, causing thecylinder to be propelled as a danderous missile. Futhermore, theevidence presented showed that even if the pressure were low, the gascould be a fire hazard.[[13]]Apparently, the cylinder was designed to accept a cap; while Collins wasin the plant, the Company’s employees removed the regulator from it andput a cap on it. Also, according to Lang, the Company has a work rulerequiring gas cylinders to \”have caps in place.\” Lang stated that he hadcommunicated the rule to the employees and that the rule was covered insafety meetings. In general, according to this witness, the rule wasfollowed.\/*B. Analysis*\/Trinity asserts that the Secretary failed to establish that the citedgas cylinder was, as the cited standard puts it, \”designed to accept acap.\” Trinity offered no rebuttal, however, to the compliance officer’stestimony that the cylinder did accept a cap during the inspection.Moreover, as the Secretary notes in her brief, Trinity’s own safety rulerequiring caps would have been overbroad and inappropriate if some ofthe cylinders could not accept them.Trinity further asserts that the Secretary failed to prove a hazard, butno such proof is necessary; the cited standard presumes a hazard, itdoes not require proof. See StanBest, Inc., 11 BNA OSHC 1222, 1231,1983-84 CCH OSHD ? 26,455, p. 33,625 (No. 76-4355, 1983) (citing cases);American Steel Works, Inc., 9 BNA OSHC 1549, 1551 n.4 1981 CCH OSHD ?25,285, p. 31,270 n.4 (No. 77-553, 1981) (citing cases); cf,. OrmetCorp., 14 BNA OSHC 2134, 2137-38, 1991 CCH OSHD ? 29,254, p. 39,202 (No.85,531, 1991) (\”the standard anticipates the possiblity that the loadwill fall\”). Moreover, on the basis of credible evidence, the ALJ foundthat the tanks contained oxygen pressurized to at least 40 pounds.Trinity did not convincingly establish that the gas was inert, see supranote 12, and Trinity did not present any evidencethat there was anegligible amount of gas or a negligible pressure, see supra note 13. Therefore, Trinity has not shown that the particular instance ofnoncompliance involved in this case would have had such a negligibleeffect on employee safety as to be properly classifiable as de minimis.See Whiting-Turner Contrac. Co., 13 BNA OSHC 2155, 2156, 1987-90 CCHOSHD ? 28,501, p. 37,771 (No. 87-1238, 1989) (negligible relationship tosafety), Pratt & Whitney Airfcraft, 9 BNA OSHC 1653,1658,1981 CCH OSHD ?25,359, p. 31,506 (No. 13401, 1981) (the classification is \”reserved forthose unusual situations where the hazard is so trifling that anabatement order would not significantly promote the objective ofemployee safety\”); Turner Co., 4 BNA OSHC 1554, 1564, 1976-77 CCH OSHD ?21,023, p. 25,281 (No. 3635, 1976) (\”the particular facts presented hereshow no circumstances which would take [the employer] out of the rangeof cases covered by the Secretary’s rulemaking action\”); Huber, Hunt &Nichols, Inc., 4 BNA OSHC 1406, 1409, 1976-77 CCH OSHD ? 20,837, p.25,012 (No. 6007, 1976) (\”if on the facts of a particular case itappears, for example, that the cylinders are so completely empty as tonegate the possibility of injury, the presumption will be considered tohave been rebutted\”).Accordingly, we affirm the judge’s decision affirming the seriouscitation item. In view of the evidence that establishes a potential forhazards from a fire or an instance of missile-like propulsion, theviolation was serious. The $700 penalty that the judge assessed isappropriate.\/*The Penalty for Item 4 of the Serious Citation*\/\/*A. Background*\/In his decision, the judge found and the parties do not now dispute thatTrinity violated ? 1910.303(b)(1). [[14]] During the inspection,compliance officer Collins found two \”mall grinders\” that did not havesuitable plugs. The plugs were rated at 120 to 208 volts, but thegrinders operated at 480 volts. Also, certain openings in the plugsallowed metal dust generated by Trinity’s grinding operations to leakinside and accumulate there. Plugs having these deficiencies had causedshorts and shocks, arcs and explosions, by which employees had beenburned. Collins testified that there could have been serious burns, oreven an electrocution.In February 1988, approximately six months prior to the inspection inthis case, there was a serious accident involving a welder, LionelHarris. As he was attaching an extension cord to a mail grinder, hereceived a shock that threw him backward against a gas cylinder, fromwhich position he fell onto a skid containing manufacturing parts.Harris suffered a lower lumbar strain, a pinched nerve in the lowerlumbar region, a concussion, and a neck strain. He was away from workfor more than a year. Immediately after the accident, when certainemployees took apart the plug of Harris’ grinder, it was found to havebeen \”burnt black on the inside, just totally burned out.\” Also, therewas some grinding dust inside.The Harris incident was not the first occasion on which a Trinityemployee had experienced a problem with this kind of plug; it was justthe most serious. Another employee had suffered burns several timeswhen, in the words of the company’s maintenance electrician, WilliamTittle, \”he would be plugging it into a receptacle and it would flashback onto his arm.\” For several years, according to Tittle and accordingto a welder, Thomas Brockman, who was also a grievance committeeman inthe employees’ union, this kind of plug had been shorting out, burningout, and exploding, and employees had suffered minor shocks and burns.It was further noted that, after the Harris incident, three more plugsshorted out.Until the Harris incident, the Company had been replacing the burned outor exploded plugs with new plugs of the same kind, deficient in ratingand quality. According to Tittle, he replaced approximately 50 plugs ayear. He had worked at the plant for more than ten years, and theemployee who had trained him for maintenance work had told him that\”this was going to be a common thing that I’ll be doing a lot of, isreplacing these plugs.\” Furthermore, Tittle explained that \”(i)t was acommon thing throughout the shop and everyone knew about it [,] so Ihave to assume that Management had to know about it[,] since it wasbefore my time.\” Also, approximately three years prior to the Harrisincident, the voltage rating of the plugs changed, from a rating at 480volts to a rating at 120 to 208 volts. At that time, the plant receivedcautions and notices.[[15]] The cautions and notices were brought to theattention of the plant’s maintenance supervisor.[[16]]Trinity’s welders had wrapped the plugs in tape, in an attempt to closeoff the openings in them and keep metal dust out. This precaution wasnot entirely successful; during the inspection, the compliance officerfound \”a significant amount\” of metal dust inside a tape-wrapped plug,and maintenance electrician Tittle testified that tape-wrapped plugscontinued to short out.In April 1988, after the Harris incident, Trinity began replacing thedeficient plugs with ones that were rated for the 480 voltage at whichthe grinders operated. After the Harris incident and after each of thethree subsequent shorts, welder Brockman, as a union member, went toproduction manager Lang and told him that the problem was the deficientvoltage rating of the plugs [[17]]. Brockman also claimed that afterthe Harris incident he proposed to summon OSHA–by filing acomplaint–unless the company took appropriate action concerning theshock hazards in the plant. \”Management\” asked him to wait, thenembarked upon a program of replacing the deficient plugs. Lang claimedthat he himself investigating the matter and made the decision toreplace the plugs, after Brockman only described to him the deficiencyin the voltage ratings; Brockman had not asked for any correctiveaction. Tittle testified that the decision was voluntary; the Company\”was getting pressure from our local union…but voluntarily the Companydid it,\” without OSHA’s involvement, as far as he knew.Brockman further testified that, after the Harris incident, he consultedthe personnel manager about the plugs. This manager responded that hewas already aware of the problem. Also, in \”early\” 1988, a Companymanager assigned only temporarily to the Sharonville plant told Langthat there were problems with the plugs. To the best of Lang’sknowledge, prior to early 1988 no one had worked on a cost estimate forreplacing the plugs.In early 1988, Lang authorized the expenditure of approximately $20,000to replace approximately 600 plugs (and install receptacles capable ofaccepting the new plugs). In addition, the manager assigned a particularmaintenance, employee to do the job systematically–from one end of theplant to the other. In August 1988, when the compliance officerinspected the plant, the employee had completed his systematicprogression and most of the plugs had been replaced. There remained onlyapproximately seven or eight that had escaped his notice, as equipmenthad been moved back and forth over the months. Thus, the complianceofficer believed that, to a large degree, the deficient plugs had beenreplaced; he found plugs having an acceptable voltage rating. Also, thenew plugs were dust-tight and, according to Brockman’s knowledge, thenew plugs had not produced any shorts.Trinity had a safety program including not only safety manuals butsafety meetings and reprimands. There was a corporate safetycoordinator, Neale Foreman, who testified. The Company was large andoperated several plants. To the best of the compliance officer’sknowledge, there were more than 100 employees at this one plant alone.The Company had a history of OSHA violations. This particular inspectionwas conducted under warrant after Trinity declined to allow a complaintinspection on February 24, 1988, and, as Trinity did not allow thecompliance officer to examine the Company’s records regarding its safetyprogram, the compliance officer did not give the Company any credit forgood faith.B. AnalysisThe Secretary proposed a penalty of $800, primarily because of Trinity’sIarge size and prior violations, as well as this particular violation’ssignificant gravity. We reduce the penalty to $600, however, on thebasis of good faith. The Company had substantially eliminated the hazardby the time of the inspection, and the Company’s failure to haveentirely eliminated the hazard was the result of difficult operatingcircumstances rather than a careless attitude toward abating the hazard.Once Trinity’s management officials determined to take action about thehazard, they implemented a program capable of entirely abating it. We donot disagree with the Secretary that, generally, the gravity of a hazardis to be given great weight in assessing an appropriate penalty. In thiscase, however, we give credit for good faith in order to encourage alarge employer to protect its employees and to cooperate with theFederal occupational safety and health program, by taking voluntarymeasures to abate genuinely and obviously serious hazards.OrderAccordingly, we modify the judge’s decision in one respect, by reducingthe penalty for serious citation item 4 from $800 to $600. We otherwiseaffirm the judge’s decision finding violations as alleged in items 2 and3 of the serious citation and as alleged in item 1 of the citation thathas been reclassified as serious.Edwin G Foulke, Jr.ChairmanDonald G. WisemanCommissionerVelma MontoyaCommissionerDated: January 23, 1992 ————————————————————————SECRETARY OF LABOR,Complainant,v.TRINITY INDUSTRIES, INC.,Respondent,andUNITED STEELWORKERS OF AMERICA,DISTRICT 30, LOCAL 7629,Authorized EmployeeRepresentative.OSHRC Docket No. 88-2691APPEARANCES:Janice L. Thompson, Esquire, Office of the Solicitor,U. S. Department of Labor, Cleveland, Ohio, on behalf of complainant.Frederick W. Addison, III, Esquire, Locke, Purnell, Rain and HarrellDallas, Texas, on behalf of respondent.Harry W. Sorgs, President, Local 7629, United Steelworkers of AmericaCincinnati, Ohio, on behalf of authorized employee representative.DECISION AND ORDERSPARKS, Judge: Respondent, Trinity Industries, Inc., operates a foundrybusiness at 11861 Mosteller Road, Sharonville, Ohio. As a result of aninspection conducted in August 1988, serious and repeat citations wereissued. The Secretary proposed penalties of $3,800.I.SERIOUS CITATION NO. 1Item one of the serious citation alleges a violation of 29 C.F.R. ?1910.22(a)(1) [[1]] as follows:1 29 CFR 1910.22(a)(l): Places of employment were not kept clean andorderly, or in a sanitary condition:(a) Spent welding rods were scattered on the floor at the welding areasin the center bay.The evidence shows that approximately 8 to 12 used welding rods werescattered about the floor in an area of the center bay where weldingoperations were going on. The spent rods were about the size of a smallpencil, approximately inch in diameter and 3 to 4 inches long. A welderwas seated in the area near the rods (Tr. 113, 132-137, 273-276). TheSecretary contended that the spent rods constituted a hazard toemployees who might step on them because of a ball-bearing effect–thatassumption was disputed by respondent’s manager who was of the opinionthat the rods would be crushed by a person stepping on one, without anydanger of slipping (Tr. 113, 134, 276-277). The rods were observed atapproximately 2:40 p.m. on August 5, 1988, which was about an hour andten minutes before the shift quitting time. It is undisputed that thefloors of the plant facility were cleaned daily and that a crew would becalled to immediately clean up any spills. Moreover, the only employeeshown to be exposed to the condition was a welder who was seated and notwalking around the area. The rods were not in a walkway or other trafficarea. Under the conditions described, it is to be expected that thewaste rods would remain on the floor of the area until cleaned up at theend of the shift. The evidence indicates such waste was removed at leastonce a day.The burden of proof is upon the Secretary to show exposure to a hazardcaused by the condition. There is no evidence that an injury had everoccurred. As no one was walking in the area and the slipping hazard wasremote, the evidence does not show that a realistic danger of injury waspresented to the welder or any other employee; and, accordingly, theevidence does not establish a violation as alleged.Item two of citation number one alleges a serious violation of 29 C.F.R.? 1910.132(a)[[2]] as follows:29 CFR 1910.132(a): Protective equipment was not used when necessarywhenever hazards capable of causing injury and impairment were encountered:(a) In the north bay, an employee was exposed to a fall of approximately9′ while walking on a tank and while stepping from a stepladder onto thetank and had no means of fall protection.The Secretary proposed a penalty of $700. The evidence shows that anemployee, Alan Thomas, was standing or walking on a large cylindricaltank approximately nine feet above the floor without a safety belt orother means of personal protection (Ex. C-1, C-2; Tr. 27, 286). Theemployee was observed walking on the tank. The employee, a welder, waspreparing the tank for shipment by installing the bolting andaccessories (Tr. 287). A fall from the tank car to the concrete floorbelow would likely result in severe injuries such as broken bones, aconcussion or serious bruises (Tr. 27-28). Thomas Brockman, a Class Awelder who also worked in the north bay, testified that, at the time ofthe inspection, the practice was to not tie off while walking across thetank but to tie off to nozzles while at the work stations (Tr. 228).compliance officer Dennis Collins did not see any appropriate place totie off a safety belt at that location (Tr. 29). Mark Lang, respondent’sproduction manager, suggested that the employee could tie off to anoverhead crane, but the employee could be subjected to being pulled offthe tank car should the crane be placed in operation (Tr. 28-29, 289).The compliance officer testified that at other manufacturers he had seencatwalks and static lines used to provide safe access to work areas (Tr.29).Respondent contends that the evidence does not show that the employerhad knowledge of the conditions. Yet, the employee was working in anopen portion of the facility and the conditions were or, with properdiligence, should have been seen by his foreman or other supervisor.That is especially true as it was common practice not to tie off whilewalking across the tanks (Tr. 228). Respondent further suggests theemployee was engaged in an isolated incident of misconduct an he was inviolation of respondent’s safety rules. As defined in Brock v. L. E.Myers Co., High Voltage Div., 818 F.2d 1270, 1277 (6th Cir. 1987), thedefense requires the following elements of proof:. . . an employer may defend the citation on the ground that, due to theexistence of a thorough and adequate safety program which iscommunicated and enforced as written, the conduct of its employee(s) inviolating that policy was idiosyncratic and unforeseeable. By itsnature, information with respect to the implementation of its writtensafety program will be in the hands of the employer, and it is notunduly burdensome to require it to come forward with such evidence. Ifthe employer’s evidence preponderates, it has successfully establishedthe defense of unforeseeable employee misconduct. We emphasize that theemployer who wishes to rely on the presence of an effective safetyprogram to establish that it could not reasonably have foreseen theaberrant behavior of its employees must demonstrate that program’seffectiveness in practice as well as in theory.Mr. Lang testified that the company’s work rules required employees touse a safety belt attached to a lanyard when working above 48 inches(Tr. 285-286). Respondent contends employees were informed of such rulesat safety meetings (Tr. 290). However, the work rule was not enforced.Employees did not tie off while walking across the tanks and supervisorsdid not regularly require employees to even tie off to nozzles[[3]] (Tr.229). Therefore, respondent’s affirmative defense must fail. TheSecretary has established a serious violation of item two as alleged.Item three charged a violation of 29 C.F.R. ? 1910.252(a)(2)(ii)(d)[[4]] as follows:3 29 C.F.R. 1910.252(a)(2)(ii)(d): Valve protection caps were not inplace, hand-tight, on compressed gas cylinders not in use or connectedfor use:(a) Beside the center bay aisle, there was an oxygen\/actylene torchwhich was not connected for use and which had no valve protection cap onthe oxygen cylinder.Compliance officer Collins observed several compressed gas cylinderslocated near the center bay aisle. One of the cylinders had a regulatorattached to it, but did not have any hoses and so could not have been inuse. Company representative Paul Vied indicated there was at least 40pounds of pressure in the tank (Ex. C-3; Tr. 35-36). The tank had beensitting in a high traffic area for two to three days (Tr. 37-38).Collins described the hazard presented by the missing valve cap asfollows (Tr. 38):A The hazard would be damage to that valve which could release thepressure in the tank. It would release oxygen. If there’s a sufficientamount of pressure in that tank you could have a missile. Even ifthere’s not a sufficient amount of pressure in the tank to create amissile, you still have fire potential by releasing oxygen compressedoxygen, into the ambient air.Death or serious injury would probably result from an accident. Fromreading the label on the cylinder, Collins determined it containedoxygen gas (Tr. 154-155). Thomas G. Brockman, a welder, indicated thecylinder looked like one containing acetylene because it was in a redcylinder, but he did not read the label. He testified it was common forcylinders within the plant to be without valve caps because caps werenot maintained in any organized fashion (Tr. 230-231, 245). Plantmanager Lang disagreed with testimony that the red color of the cylinderindicated it contained acetylene but thought the type of regulator andsize of the cylinder did suggest it contained acetylene (Tr. 292- 293).The testimony of Compliance officer Collins that it contained oxygen isconvincing since his statement is based upon his observation of thelabel on the cylinder. Even if it contained acetylene, equally greathazards are present.Respondent contends the Secretary failed to prove a prima facie case,because there is no specific testimony that the cylinder in question\”. .. is designed to accept a cap.\” The only reasonable inference to bedrawn from the finding and testimony of Compliance Officer Collins wasthat the cylinder was so designed. That was at the heart of the allegedviolation and had the cylinder not been designed to accept a cap,company officials would have quickly resolved the allegation on thewalkaround.Respondent suggests it had a work rule requiring caps on cylinders, butas the testimony of welder Brockman makes clear, the work rule, if any,was not enforced.A violation of 29 C.F.R. ? 1910.252(a) (2)(ii)(d) has been establishedas alleged in item three.A penalty of $700 was proposed by the secretary.Item four of serious citation one alleges a violation of 29 C.F.R. ?1910.303(b)(1)[[5]] under the following circumstances:29 CFR 1910.303(b)(1): Electrical equipment was not free from recognizedhazards that were likely to cause death or serious physical harm toemployees:(a) Mall grinder No. CL located between columns B12 and C12 was operatedat 4880V and was equipped with an extension cord which had a 4-prongtwist lock attachment plug rated for only 120\/208V. In addition, theattachment plug had openness between its cord grips and cord and was notsuitable for exposure to conductive dusts.(b) Mall grinder No. 6 located between column B12 and C12 was operatedat 480V and was equipped with attachment plugs on its cords which wereonly approved for 120\/208V. In addition, the cord grips of the plugswere not designed for exposure to conductive dusts and were notadequately sealed by application of dust tape to the cord and plug.Compliance Officer Collins testified he had two concerns regarding mallgrinder number CL described in item 4a as follows (Tr. 64-65):. . . The first concern was this piece of equipment was being operatedat 480 volts and this particular plug is not an approved plug at 480volts. It’s UL approval is only for a 120\/208 voltage rating.The second concern which was raised during the inspection, and this wasone of the complaint items, was the fact that there were problems withthese plugs due to getting metal dust inside the plugs and having them arc.The mall grinder number six was operated at 480 volts rather than the120\/208 for which it was designed and also had problems with metal dustinside the plugs (Tr. 76, 202-206).Respondent contends the Secretary cited the wrong standard in hercontention that tools were being used at an unapproved voltage and thatmetal dust inside taped connections to the plugs was not a recognizedhazard (Resp. brief p. 13).The evidence showed that respondent had experienced problems withequipment with the defects cited for some time and had been replacingits electrical circuits and equipment (Tr. 335). It was recognized thatthe problems cited had caused electrical shorting and shocks (Tr. 236)Lionel Harris, a welder, had been seriously injured after receiving anelectrical shock at a plug shown to contain metal dust and to be burntblack (Tr. 186-190).In spite of these accidents, respondent was still using underrated plugsand equipment containing metal dust at the time of the inspection. Mr.Lang estimated seven or eight plugs, several mall grinders and severalextension cords were in use (Tr. 300).The facts of record establish that respondent violated 29 C.F.R. ?1910.303(b)(1) as alleged.II.REPEAT CITATION NO. 2Citation number two alleges a repeat violation of 29 C.F.R. ?1910.252(e)(2)(iii)[[6]] under the following conditions:(a) Along the center bay aisle, there was an arc welding operationlocated between columns B9 and B10 which had only 1 welding screen andhad the welding being performed at a level above the screen exposingemployees in the aisle to the welding flash.(b) At the center bay aisle between columns B5 and B6, there was awelding operation in process which had welding screen protections fromthe east side but none from the west side.Compliance officer Dennis Collins testified that at the two locationsdescribed in the citation, he observed welding operations beingperformed so that the arc could be seen. The arc from the welding goingon between columns B5 and B6 could be seen from the main center bayaisle, because there was no screen to shield the rays. The arc from thewelding processing being performed between columns B9 and B11 could beseen from the main aisle because the welding was taking place at aheight higher than the screens (Ex. C-4; Tr. 40-41). Welder Brockmantestified that, at the time of the inspection, respondent did not haveenough screens for all the welding stations (Tr. 243). During thewalkaround inspection, Paul Vied, a company representative, agreed thatthe welding screens were inadequate (Tr. 21, 57-58). As stated byCompliance officer Collins, the absence of adequate welding screenscould result in serious flash burns to the eyes (Tr. 58).Respondent contends the Secretary failed to prove a violation on thegrounds that there was no showing of employee exposure. The citationstates and the compliance officer testified; however, that the work wasbeing done along the center bay aisle and the arc was seen from thatlocation. The reasonable inference to be drawn from those facts was thatemployees walking along the center bay aisle could see and saw the arc.It is concluded they were thereby exposed to the hazard. A flash burn ofthe eyes is a serious injury (Tr. 58).The Secretary contends that the violation was a repeated one. Underprecedent of the Commission, \”a violation is repeated … if, at thetime of the alleged repeated violation, there was a Commission finalorder against the same employer for a substantially similar violation.\”Potlatch Corp., 79 OSAHRC 6\/A2, 7 BNA OSHC 1061, 1063, 1979 CCH OSHD ?23,294, p. 28,171 (No. 16183, 1979). Under Potlatch, a prima facie caseof similarity is established by a showing that the prior and presentviolations were for failure to comply with the same standard. If thestandards were not the same; however, the Secretary must present otherevidence that the violations were substantially similar and in suchcases evidence that the violations involved similar hazards is relevant. Id.Exhibit C-9 is a copy of a citation issued May 27, 1986, to BrightonCorporation charging a violation of 29 C.F.R. ? 1910.252(e)(2)(iii)under the following circumstances:1910.252(e)(2)(iii): workers or other persons adjacent to welding werenot protected from the rays by noncombustible or flameproof screens orshields, nor were they required to wear appropriate goggles:(a) At the center bay near column B7, screens or shields were not usedto protect persons from rays of the Thermol Arc cutting system.Not only was the citation issued under the same standard, but theviolation took place in the same general area of the plant. BrightonCorporation did not contest the citation, and it became a final order(Tr. 59-62). Respondent acquired the plant from Brighton on January 1,1987 (Tr. 344, 346).The Secretary lists eight factors which she contends, under nationallabor and civil rights law, determine whether respondent is a successorcorporation bound by the earlier final order and asserts such factorsshould be applied in this case. The factors are as follows:(1) whether successor company had notice of charge,(2) ability of predecessor to provide relief,(3) whether there has been a substantial continuity of businessoperations, (4) whether successor used the same plant, (5) whethersuccessor uses the same or substantially the same work force, (6)whether successor uses the same or substantially the same supervisorypersonnel, (7) whether the same jobs exist under substantially the sameworking conditions, (8) whether successor uses the same machinery,equipment and methods of production, and (9) whether successor producesthe same product.Golden State Bottling Co. v. N.L.R.B. 414 U.S. 168 (1973);John Wiley & Sons Inc. v. Livington, 376 U.S. 543 (1963);E.E.O.C. v. MacMillan Bloedel containers, Inc., 503 F.2d 1086 (6th Cir.1974).The record in this case, however, fails to establish the extent to whicheach of the eight factors are present in this case. Without question,many employees, including some managers and supervisors who had workedfor Brighton continued their work for Trinity after it acquired thefacility. Except for Lang who was plant superintendent from 1984 to 1987it is not shown to what extent the managers who dealt with the OSHAinspection for Brighton continued their employment under Trinity. InFlexible Corp., 84 OSAHRC 43\/A2, 12 BNA OSHC 1053, 1984-85 CCH OSHD ?27,063 (No. 83-1013, 1984), Judge Burroughs noted there was no showingof \”. – – common identity of directors, officers or stockholders of thepredecessor and successor corporation\” and, therefore, the successorcorporation \”. . . cannot be held liable for the violations of itspredecessor.\” It might be added that the safety personnel and policieshave been changed.In any event, there has been no showing of sufficient nexus betweenBrighton and Trinity that a prior citation to Brighton should cause asimilar citation to respondent to be a repeated one.A serious violation, but not a repeated violation, of 29 C.F.R.?1910.252(e)(2)(iii) has been established.III.PENALTYIt is concluded that items two, three and four ofcitation one and itemone of citation two constitute serious violations. Section 17(b) of theAct requires that a civil penalty of up to $1,000 be assessed for eachserious violation. Section 17(j) gives the Review Commission authorityto assess penalties giving consideration to the gravity of theviolations and the size, good faith and history of prior violations ofthe employer.Respondent’s corporate headquarters is in Dallas, Texas. It hasapproximately 3,000 employees nationwide and over 100 employees at itsMosteller Road facility involved in this proceeding (Tr. 329-331, 353).There is no evidence of prior inspections of this plant after it wasbought from Brighton, nor is there evidence of anything other than goodfaith by the company.The Secretary proposed a penalty of $700 for citation one, item two.Employees working on the tanks without safety protection were subject toserious injury due to the fall hazard. The evidence shows that anysafety rules regarding the dangerous practice were not enforced. Theproposed penalty of $700 is reasonable and warranted.The absence of caps on gas cylinders as alleged in citation one, itemthree, creates a realistic hazard due to fire or explosion. The penaltyproposed by the Secretary of $700 is reasonable.Citation one, item four, concerned the mall grinders connected toimproper electrical circuits with metal dust in their plugs. That therehave been serious injuries demonstrates the gravity of the violation. Apenalty of $800 is warranted.Citation two, item one, was charged as a repeat violation but found toconstitute a serious, rather than a repeat violation. The Secretaryproposed an $800 penalty; however; as a serious a penalty of $600 isreasonable.CONCLUSIONS OF LAW1. Respondent is an employer subject to the Act and this proceeding.2. Respondent did not violate 29 C.F.R. ? 1910.22(a)(l) as alleged incitation one, item one.3. Respondent violated the Act as alleged in items two, three and fourof citation one under conditions constituting serious violations.4. Respondent violated 29 C.F.R. ? 1910-252(e)(2)(iii) as alleged incitation two, item one, under conditions constituting a serious violation.ORDER 1. Citation one, item one, is vacated.2. Citation one, items two, three and four, are affirmed.3. Citation two, item one, is affirmed as a serious violation.4. Penalties of $2,800 are assessed.Dated this 14th day of February, 1990.Joe D. SPARKSJudge————————————————————————FOOTNOTES:[[1]] The cited standard is 29 C.F.R. ? 1910.252(e)(2)(iii), which in1990 was renumbered as 29 C.F.R. ? 1910-252(b)(2)(iii). The standardstates, in pertinent part:Protection from arc welding rays. Where the work permits, the weldershould be enclosed in an individual booth …. Booths and screens shallpermit circulation of air at floor level. Workers or other personsadjacent to the welding areas shall be protected from the rays bynoncombustible or flameproof screens or shields, or shall be required towear appropriate goggles.[[2]] At the time of the hearing, Collins had worked for OSHA for 16 1\/2years and had conducted over 1200 inspections, mainly Involving safetystandards.[[3]] The Commission has previously upheld the sufficiency of unrebuttedtestimony regarding admissions by an employer’s employees. See, AnoplateCorp, 12 BNA OSHC 1678,1682 n,10. 1986-87 CCH OSHD ? 27,519, p.35,684n.10 (No. 80-4109,1986) StanBest, Inc. 11 BNA OSHC 1222,& 1227 & 1228,1983-84 CCH OSHD ? 26,455. pp.33,621-22 (No. 76-4355, 1983). AstraPhamaceutical Prod. Inc.. 9 BNA OSHC at 2131-32, 1981 CCH OSHD atpp.31,901-02.[[4]] The cited standard is 29 C.F.R. ? 1910.132(a), which states:Personal Protective equipment. including personal protective equipmentfor eyes, face, head, and extremities, protective clothing, respiratorydevices, and protective shields and barriers, shall be provided, used,and maintained in a sanitary and reliable condition wherever it isnecessary by reason of hazards of processes or environment, chemicalhazards. radiological hazards. or mechanical irritants encountered in ain a manner capable of causing injury or impairment in the function ofany part of the body through absorption, inhalation or physical contact.[[5]]The Company’s, production manager testified that Trinity’s safetyrule had been only orally communicated, and, we note that it does notappear in either of the Company’s safety manuals.[[6]] At the hearing, when cross examined as to whether he thought thatcrossing a tank without a safety belt constituted a fall hazard, Langreplied. \”I would say, yes. If a man fell it would be a fall hazard.\” Hefurther stated: \”Basically, the man should be able to [gain] access tohis work site. [I]f he’s walking across… going to his station … [he]should maybe [have] had a ladder going to the actual work site.\” Thecompany’s safety manuals refer to ladders and scaffolds, withoutactually requiring their use in the kind of work involved here.Nevertheless, according to some testimony, the employee involved heremay have, been disciplined for failing to use a tied-off safety belt.[[7]] Lang testified, however, that he did not recall any furtherdiscussion after Collins gave his opinion that the crane was not asuitable anchor. In his testimony, Lang also summarily posited thatputting up a lifeline would not [be] impossible, but impractical, probably.\”[[8]] An employer’s voluntary safety efforts may properly be consideredin conjunction with other evidence demonstrating that the employer orits industry recognized the hazard in question. Compare Durion Co. v.Secretary. 750 F.2d 28, 30 (6th Cir. 1984); with Donovan v. GeneralMotors Corp., 764 F.2d 32, 36-37 (1st Cir. 1985). Cotter & Co. v. OSHRC,598 F.d 911, 914- 15 (5th Cir. 1979); and DieboId, Inc. v. Marshall, 585F.2d 1327, 1337-38 (6th Cir. 1978). See also Otis Elevator Co. v. OSHRC,581 F.2d 1056 1058 (2d Cir. 1978); Lukens Steel Co., 10 BNA OSHC 1115,1123, 1981 CCH OSHD ? 25,742, p. 32,119 (No. 76-1053, 1981). Addressingthis case law, Trinity argues as if its workrule were the only evidenceof hazard recognition. The Company erroneously assumes that all otherrelated evidence is relevant to a separate matter, i.e., recognition ofa need for the particular personal protective equipment. That is not thecase, however. Evidence concerning equipment used by other employers isrelevant to hazard recognition because the evidence demonstrates a broadperception, throughout an industry, that protection was necessary in thecircumstances.[[9]] Trinity did not present any sufficient evidence in rebuttal.Trinity asserts that common sense would \”dictate\” not bothering withsafety belts, because \”one could reasonably predict that the risk ofinjury associated with tying off a safety belt may actually be greaterthan the risk involved in retrieving the wrench,\” which \”might take 30seconds at most.\” Trinity questions why an employee should \”go to thefurther time, trouble, and risk of tying off a safety belt.\” There is noevidence specifically supporting these assertions, however, whether theyare taken as a rationale demonstrating why reasonable persons would notrecognize a hazard requiring personal protective equipment or as anattempt to raise a greater hazard defense. Compare Ray Evers Welding v.OSHRC. 625 F.2d 726.732 (\”he testified that the proposed means ofprotecting employee from falling were not feasible and would in factsubject employees to a greater hazard of falling because of theirreduced mobility\”).[[10]] Regarding feasibility as an element of a violation of a generalstandard such as the one cited in this case. see Granite City TerminalsCorp. 12 BNA OSHC 1741, 1746 n.11, 1986-87 CCH OSHD ? 27,547, p. 35,775n. 11 (No. 83 882-S, 1986).[[11]] The cited standard is 29 C.F.R. ? 1910.252(a)(2)(ii)(d), which in1990 was renumbered as 29 C.F.R. ? 1910.253(b)(2)(iv). . The standardstates. in pertinent part:Valve protection caps, where [a] cylinder is designed to accept a cap,shall always be in place, hand-tight, except when cylinders are in useor connected for use.[[12]] Trinity tried to prove that the cylinder contained somethingother than oxygen. When Trinity’s attorney cross-examined Collins, heasked whether the cylinder contained argon. an inert gas (noncombustibleand nonflammable). Collins replied that, to the best of hisrecollection, the gas was not argon, and Collins again reffered to thelabel that had indicated oxygen. Another witness, a longtime employeewho was a welder and a union grievance committeeman, posited that thecylinder contained acetylene, although he was not sure; he reasonedentirely on the basis of the red color of the cylinder. Lang testifiedthat the cylinder contained acetylene, based on the appearance of thegauges of the regulator and the size of the cylinder, he said that thecolor (if the cyIinder is not a significant factor in determining whatsubstance a cylinder contains. He had not looked at the cylinders label.[[13]] Both oxygen and acctylene can be fire hazards; the Company’sproduction manager agreed that this is so. On review, Trinity assertsthat there was no showing that acetylene could be a fire hazard at lowpressures, but production manager Lang agreed, without qualification,that both gases presented this hazard. Also, obviousIy, a cyclinder canbecome a missile regardless of the kind of gas it contains, if the gasis sufficiently pressurized. Thus, even if the cyclinder containedacetylene rather than oxygen, the judge correctly found hazards existed.[[14]] This standard pertains to \”[e]xamination\” of electricalequipment, and requires:Electrical equipment shall be free from recognized hazards that arelikely to cause death or serious physical harm to employees. Safety ofequipment shall be determined using the following considerations:(i) Suitability for installation and use in conformity with theprovisions of this subpart Suitability of equipment for an identifiedpurpose may be evidenced by listing or labeling for that identified purpose.(ii) Mechanical strength and durability, including, for parts designedto enclose and protect other equipment, the adequacy of the protectionthus provided.[[15]] The record does not establish the source of these particularcautions and notices, but on the basis of certain evidence indicatingthat cautions and notices may appear on or inside the boxes that containsuch plugs, we infer that the cautions and notices came from themanufacturer.[[16]] At the time, the Sharonville plant was operated under the name ofBrighton Corporation which, according to Trinity’s corporate statementfiled in this case, is one of the names under which Trinity haspreviously transacted business. In January 1987, however, Trinity beganoperations in its own name at the Sharonville plant. In this case, thereis no evidence indicating that the Sharonville plant’s maintenancesupervisor resigned thereafter. Moreover, inasmuch as, the ownership ofthe plant evidently did not change, we find no reason to infer a changeof management personnel[[17]] Because Brockman was not yet aware that metal dust hadcontributed to the electrical hazards, Brockman did not mention it toLang. Thus, not until OSHA inspected in August 1988 did Lang learn ofthe employees’ practice of wrapping tape around the old plugs to keepdust out of them. [[1]] Section 1910.22(a)(l) of 29 C.F.R. states as follows:(a) Housekeeping. (1) All places of employment, passageways, storerooms,and service rooms shall be kept clean and orderly and in a sanitarycondition.[[2]]Section 1910.132(a) of 29 C.F.R. provides as follows:Protective equipment, including personal protective equipment for eyes,face, head, and extremities, protective clothing, respiratory devices,and protective shields and barriers, shall be provided, used, andmaintained in a sanitary and reliable condition wherever it is necessaryby reason of hazards of processes or environment, chemical hazards,radiological hazards, or mechanical irritants encountered in a mannercapable of causing injury or impairment in the function of any part ofthe body through absorption, inhalation or physical contact[[3]] Brockman testified as follows (Tr. 229):Q Do you know If the tying off, even if it’s just on the nozzles, ifthat’s enforced by a supervisory personnel?A Regularly, it’s not. Unless one of the safety committee or grievancecommittee complained about it. It has been a practice of them gettingright up there and working with nothing on.Q Or, without even tying off to the nozzles?A Yes.[[4]] Section 1910.252(a)(2)(ii)(d) of 29 C.F.R. states as follows:(d) Valve protection caps, where cylinder is designed to accept a cap,shall always be in place, hand-tight, except when cylinders are in useor connected for use.[[5]]Section 1910.303(b)(1) of 29 C.F.R. provides:(b) Examination, installation, and use of equipment –(1) Examination.Electrical equipment shall be free from recognized hazards that arelikely to cause death or serious physical harm to employees. . . .[6]]Section 1910.252(e)(2)(iii) of 29 C.F.R. provides:(iii) Protection from arc welding rays. Where the work permits, thewelder should be enclosed in an individual booth painted with a finishof low reflectivity such as zinc oxide (an important factor forabsorbing ultraviolet radiations) and lamp black, or shall be enclosedwith noncombustible screens similarly painted. Booths and screens shallpermit circulation of air at floor level. Workers or other personsadjacent to the welding areas shall be protected from the rays bynoncombustible or flameproof screens or shields or shall be required towear appropriate goggles.”