“SECRETARY OF LABOR,Complainant,v.BETHLEHEM STEEL CORPORATION,FABRICATED STEEL CONSTRUCTION DIV.,Respondent.OSHRC Docket No. 76-5004_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:The Secretary of Labor issued to Bethlehem Steel Corporation a citationalleging a violation of 29 U.S.C. ? 654(a)(1), section 5(a)(1) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”theAct\”). This provision, the Act’s general duty clause, requires thatemployers furnish places of employment free from \”recognized\” hazards.[[1]] Former Administrative Law Judge Usher vacated the citationbecause he found the Secretary had failed to prove that the hazardalleged in the citation was \”recognized\” within the meaning of theclause. For the following reasons, we affirm the judge’s decision.Bethlehem Steel was repairing a blast furnace at its plant in Johnstown,Pennsylvania. During the repair work, some of its employees ascended askip hoist, a structure inclined about 70? from the horizontal that wasused to convey charging cars to the top of the blast furnace. Withinthe skip hoist, the employees removed rails, lugs, and metal plate. TheSecretary claimed before the judge and argues before us that as a resultof this work, material could have fallen, bounced out of the skip hoistand landed on an employee working on a winch platform. This employee,Mr. Earnest, was positioned about 18 feet away from the skip hoist; theemployees who worked on the skip hoist were as high as 87 feet above Mr.Earnest’s level but were a horizontal distance from him of about 50feet. The citation alleged that Bethlehem violated the general dutyclause by not providing overhead protection against falling objects forMr. Earnest.A necessary element of proof in any general duty clause litigation isrecognition of the alleged hazard. The Secretary may prove this elementby showing that the employer’s industry recognized the cited hazard orthat the employer himself recognized it.[[2]] On review, the Secretaryclaims only that Bethlehem, rather than its industry, recognized thealleged hazard of objects falling onto the winch platform as a result ofthe work of the employees in the skip hoist. He argues that the judgeerred in not finding the evidence sufficient. The Secretary points toseveral items of evidence and argues that the judge should have giventhem more weight.The Secretary briefly argues that Bethlehem officials were aware of thehazard because a union steward and his assistant had requested overheadprotection for Mr. Earnest, the winch operator. At the hearing, therewas sharply conflicting testimony on the point. A union steward and hisassistant testified that they had made such a request of two Bethlehemofficials. One of these officials testified, however, that he hadunderstood the request to be one for overhead protection against rain. The other Bethlehem official testified that he had not been told of anyhazard by the union steward and his assistant, and he did not rememberthat any request for overhead protection against falling objects wasmade. As the Secretary recognizes in his brief, the judge made acredibility evaluation and believed Bethlehem’s witnesses. TheSecretary supplies no reason, and nothing in this record suggests, whythe Commission should depart in this case from its practice of deferringto a judge’s evaluation of the credibility of witnesses.[[3]]The Secretary claims that a collective bargaining agreement evincesBethlehem’s recognition of the hazard. This contract was neverintroduced into evidence. It was instead described by a union officialas requiring overhead protection for a machine operator where \”there isa danger of anything falling and injuring\” him. Inasmuch as thisprovision does not apply until a hazard exists, it demonstrates nothingabout whether Bethlehem recognized a hazard here.The Secretary points to a statement by Mr. Oakes, a Bethlehemsupervisor, that \”pellets\” had fallen onto the winch platform. Yet, therecord does not indicate what exactly these \”pellets\” were, how suchthey weighed, how large they were, or why they posed a danger to thewinch operator. If anything, the record suggests that the pellets werenot dangerous, for when Mr. Oakes was asked whether metal objects hadfallen onto the winch platform, he replied \”[j]ust\” pellets.Finally, the Secretary lays much stress on Mr. Earnest’s testimony thatMr. Oakes was present when a metal lug fell within a foot or so of Mr.Earnest. Despite the vivid impression that such an incident could beexpected to have left upon an eyewitness, Mr. Oakes testified that hedid not remember it. In addition, both Mr. Earnest and Mr. Oakestestified that Mr. Earnest had not asked Mr. Oakes for overheadprotection from falling metal objects. Judge Usher considered Mr.Earnest’s account in light of Mr. Oakes’ testimony, and it is apparentfrom his discussion that he was not convinced that Mr. Earnest’s accountsupported a finding of actual knowledge. The Secretary does not suggesta reason why we should disagree with the weight attached by the judge toMr. Earnest’s testimony.For these reasons, we are not convinced by the Secretary’s argumentsthat the judge’s decision should be reversed. We do, however,acknowledge that, as the Secretary maintains, other portions of thejudge’s decision focused too heavily on the precise circumstances of anaccident that befell Mr. Earnest and whether it was foreseeable.[[4]] Yet, to borrow somewhat from the judge’s decision, though this accidentwas tragic and deep sympathy is due to the victim, we have no choice butto vacate a citation that is not supported by preponderant evidence thatan employer violated the Act. Inasmuch as such evidence is lackinghere, the judge’s decision vacating the citation is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.EXECUTIVE SECRETARYDATED: MAR 30 1984CLEARLY, Commissioner, dissenting:I respectfully disagree with the majority affirmance of theadministrative law judge’s decision. Although I agree with them thatthe judge’s decision focused too sharply on the circumstances of theaccident and on the foreseeability of the accident, I find that thejudge’s decision does not come to grips with the pertinent evidencesupporting the citation.As the majority notes, Bethlehem employees were repairing a blastfurnace. Some were removing rails in a skip hoist, which was used toconvey charging cars to the top of the blast furnace. The rails hadbeen welded in place with iron lugs, each of which weighed aboutten-and-one-half pounds. Bethlehem employees used torches to cut thelugs loose; they also cut loose sections of the rails and metal plate. Some of the cut pieces were tugged with a winch to break them loose. Although the employees were supposed to catch the lugs and secure allcut pieces, some lugs and metal pellets nevertheless got loose and felldown the skip hoist. The skip was inclined about 70? from the horizontal.The skip hoist was not enclosed except on its bottom surface. The topand sides were composed of various structural members (trusses andbraces), somewhat like a structural steel bridge with an openframework. The bottom surface, called the chute, was flat but wasinterrupted by rails, lugs and other metal objects. Some metal piecesgot loose, fell down the chute, ricocheted off the metal objects or thetrusses of the hoist, and bounced out of the hoist before reaching thebottom.A Bethlehem employee, Mr. Earnest, was operating the winch that was usedto break loose metal pieces. He was stationed on a work platform at apoint 87 feet below the elevation of the employees who cut loose themetal pieces. His work station faced the top side of the skip hoist andwas 18 feet away from it. He therefore faced the direction of travel ofricocheting metal pieces. For the reasons discussed below, I credit Mr.Earnest’s testimony that an iron lug had fallen within a foot or so ofhim and some debris and metal pellets had fallen to his work platform. Mr. Earnest wore earphones to respond to requests from his fellowemployees when they wanted the winch to be used and was required toconcentrate on the instructions given over the earphones. Theearphones’ wire restricted his ability to avoid ricocheting objects. Atleast some of the work was performed late at night and Mr. Earnest wasalso blind in one eye. Bethlehem furnished Mr. Earnest with no overheadprotection from falling metal.On the night of September 30, 1976, a metal lug flew out of the skiphoist and struck Mr. Earnest, blinding his good eye. The administrativelaw judge found that the trajectory followed by the metal lug was\”horizontal.\” This, the judge reasoned, was \”[o]f particularsignificance,\” for if the angle of the piece’s trajectory were\”horizontal\” or \”near-horizontal,\” the overhead protection required bythe citation \”would have been useless because the object would havetraveled on a course below the ‘overhead protection.’\” The judge thenexplored the testimony about how the accident happened and concluded hisdiscussion with the following:[The Secretary’s] proof fails to establish recognition of the hazard inthis instance. His version of how the accident happened is incredibleconsidering the gravitational attraction of the earth’s mass andengineering principles based on that theory. The accident doubtlessoccurred as [Bethlehem’s] several engineers have thoughtfullytheorized. [The Secretary’s] theory fails to address itself to theaccident as it could have been foreseen. The accident was not\”reasonably foreseeable prior to the time such exposure occurred…[andit was] not preventable by the employer\” [citation omitted]. It wastotally unforeseeable.As the majority recognizes, the judge erred in that he limited hisanalysis to the particular accident that occurred, and asked whether theemployer could have \”foreseen\” it. Our precedent establishes ratherthat the judge should have inquired whether the cited,generically-defined hazard of failing objects was shown to have existedand was \”recognized.\”_A hazard was present_. The Commission defines hazards in terms of thephysical agents or processes that could injure employees, and not interms of the absence of protective measures.[[5]] The hazard in thiscase, therefore, was not the absence of overhead protection but thatalleged in the amended citation–falling material or, more precisely,falling pieces of metal. That hazard existed on Bethlehem’s worksite. To say that there was no hazard of falling metal pieces is either totrust the employees repairing the skip hoist to catch every loose metalpiece or to trust every falling piece to travel straight down the hoistwithout hitting any of its trusses, braces and rails and bouncing out ofthe hoist. Joseph Arslan, a Bethlehem field engineer, testified thatmetal pieces would fall down the chute and be deposited in the pit\”under perfect conditions.\” Mr. Arslan also testified that conditionswere not \”perfect.\” Moreover, according to the testimony of Mr. Earnestand Mr. Oakes, respectively, a metal lug and metal pellets _did_ fly outof the skip hoist and fall onto the winch operator’s platform. Thecircumstances of Mr. Earnest’s accident also furnish relevant evidenceon the point. Specifically, the accident is evidence that metal piecescould fly out of the hoist with enough velocity to reach the winchoperator. The trajectory of the particular lug that injured Mr.Earnest–which the parties and the judge spent so much time and energyreconstructing–is beside the point. It requires no more than commonsense and a knowledge of physics to realize that a metal piece thatflies out of the skip hoist at a so-called \”horizontal\” angle just ashort distance above the employee’s head can hit the employee on the topof his head because gravity will immediately accelerate the piece downward.The record does contain testimony by Bethlehem witnesses that there wasno hazard or that they did not recognize a hazard of metal piecesfalling onto Mr. Earnest. This testimony is worth little. During muchof it, the witnesses explained why the trajectory of the object that hitMr. Earnest was \”horizontal,\” a matter that is irrelevant. During othertestimony, the witnessess reasoned backwards from the accident, andstated that because the trajectory was \”horizontal,\” the hazard eitherdid not exist or was not recognized, or that overhead protection wouldnot have prevented the accident. For example, Mr. McKosky, a Bethlehemengineer, stated that because the trajectory of the lug that hit Mr.Earnest was \”horizontal,\” there was no \”recognizable hazard\” of metalpieces falling onto Mr. Earnest’s head. In other portions of thetestimony, witnesses stated that no hazard of pieces falling onto Mr.Earnest’s head existed or was recognized because Mr. Earnest was notworking directly under his fellow employees.[[6]] This testimonyhowever, did not take account of the fact that the chute of the skiphoist conveyed metal pieces in Mr. Earnest’s direction.I therefore find that even if Bethlehem’s theory of how the accidentoccurred were correct, a hazard of metal objects falling onto anemployee’s head was present at Bethlehem’s worksite._The hazard was \”recognized._\” As the majority recognizes, theadministrative law judge vacated the citation on the ground that ahazard was not shown to be \”recognized.\” A recognized hazard is acondition that is known to be hazardous either by the industry ingeneral or the employer in particular. _Beaird-Poulan, A Division ofEmerson Electric Co._, 79 OSAHRC 21\/D11, 7 BNA OSHC 1225, 1979 CCH OSHD? 23,493 (No. 12600, 1979). I find that Bethlehem had _actual_knowledge of the hazard of falling metal pieces. Mr. Oakes, a Bethlehemsupervisor, acknowledged that metal pellets had fallen onto Mr.Earnest’s work platform.[[7]] Mr. Earnest also testified that Mr.Oakes was present when an iron lug fell within a foot or so of him athis work station and that Mr. Oakes then kicked the lug off theplatform. Mr. Oakes did not deny that this incident occurred; hetestified only that he did not remember it. Since there was nocontradiction, the judge did not make a credibility finding on thisissue,[[8]] and I conclude from the record that an iron lug did fallwithin a foot or so of Mr. Earnest in Mr. Oakes’ presence. Moreover,Mr. Oakes himself conceded that metal pellets had fallen onto theplatform. Because Mr. Oakes was a supervisor, his actual knowledge ofthe hazard of metal lugs and pellets falling near Mr. Earnest must beimputed to his corporate employer.I also conclude that a falling piece of metal was substantially likelyto cause death or serious physical harm if it hit an employee. Therecord is clear and Bethlehem does not deny that overhead planks couldfeasibly be erected to protect employees. That this step wouldmaterially reduce the hazard to employees is also beyond dispute.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of the document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Section 5(a)(1) states:Each employer–(1) shall furnish to each of his employees employment and a place ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees. . . .[[2]] _See_, _e.g_., _Phillips Petroleum Co_., 84 OSAHRC __\/__, 11 BNAOSHC 1776, 1779, 1984 CCH OSHD ? 26,783, p. 34,254 (No. 78-1816, 1984),and cases cited.[[3]] \”It is the policy of the Commission to ordinarily accept anAdministrative Law Judge’s evaluation of the credibility of witnesses, .. . for it is the judge who has lived with the case, heard thewitnesses, and observed their demeanor.\” _C. Kaufman, Inc_., 78 OSAHRC3\/C1, 6 BNA OSHC 1295, 1297, 1977-78 OCH OSHD ? 22,481, p. 27,099 (No.14249, 1978).[[4]] _See_ _Kansas City Power & Light Co_., 82 OSAHRC 13\/A2, 10 BNAOSHC 1417, 1422, 1982 CCH OSHD ? 25,957, p. 32,539 (No. 76-5255, 1982);_Boeing Co_., 77 OSAHRC 188\/D13, 5 BNA OSHC 2014, 1977-78 CCH OSHD ?22,266 (No. 12879, 1977); _United States Steel Corp_., 83 OSAHRC 35\/A2,10 BNA OSHC 1752, 1756-7, 1982 CCH OSHD ? 26,123, pp. 32,869-32,870 (No.77-1796, 1982) (foreseeability not a separate element of proof).[[5]] _Wheeling-Pittsburgh Steel Corp_., 81 OSAHRC 102\/A2, 10 BNA OSHC1242, 1245, 1982 CCH OSHD ? 25,801, p. 32,244 (No. 76-4807, 1981),_aff’d_, 688 F.2d 828 (3d Cir. 1982), _cert. denied_, 103 S.Ct. 1188(1983). The Commission’s holding that hazards ought not to be definedin terms of the proposed means of abatement, _see_ _Beaird-Poulan_, 79OSAHRC 21\/D11, 7 BNA OSHC 1225, 1229, 1979 CCH OSHD ? 23,493, p. 28,459(No. 12600, 1979), reflects its view that an abatement order issuedunder the general duty clause may require that work practices and safetyprecautions be upgraded to feasible levels greater than those taken bythe employer or his industry. _Chevron Oil Co_., 83 OSAHRC 19\/B2, 11BNA OSHC 1329, 1331 & n.5, 1983 CCH OSHD ? 26,507, pp. 33,721-33,722 &n.5 (No. 10799, 1983), _pet. for rev. filed_, No. 83-4371 (5th Cir. June17, 1983).[[6]] When Mr. Hardin, a former safety engineer for Bethlehem, was askedwhether overhead protection would have prevented this particularaccident, he answered \”no\” because there was nothing directly over Mr.Earnest’s work station. Similarly, Mr. Keyser, a Bethlehem safetyengineer, relied on the fact that \”[n]o one was actually workingdirectly overhead.\”[[7]] The majority attaches no weight to the fact that metal pellets hadfallen onto the platform because the size and weight of the pellets isunknown. At the very least, however, this fact shows that Bethlehem wasaware, through Mr. Oakes, that the winch platform was within range offalling metal objects.[[8]] Only on a different point–whether Mr. Earnest had specificallyrequested Mr. Oakes to provide overhead protection–did the judge seemto touch upon the credibility of Mr. Oakes and Mr. Earnest. Yet, Mr.Earnest never testified that he had specifically made such a request ofMr. Oakes.The majority finds that the judge did consider Mr. Earnest’s testimonyand implies that the judge did not find it believable enough to ground afinding on. I too have examined the judge’s decision but I cannotdiscern in it the careful evaluation that the majority suggests was made.”