“Docket No. 76-5004 SECRETARY OF LABOR,Complainant, v.BETHLEHEM STEEL CORPORATION, FABRICATED STEEL CONSTRUCTION DIV.,Respondent.OSHRC Docket No. 76-5004DECISION Before:\u00a0 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 the Occupational Safetyand Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 Thisprovision, the Act’s general duty clause, requires that employers furnish places ofemployment free from \”recognized\” hazards. [[1]]\u00a0 Former Administrative LawJudge Usher vacated the citation because he found the Secretary had failed to prove thatthe hazard alleged in the citation was \”recognized\” within the meaning of theclause.\u00a0 For the following reasons, we affirm the judge’s decision.Bethlehem Steel was repairing a blast furnace at its plant in Johnstown, Pennsylvania.\u00a0 During the repair work, some of its employees ascended a skip hoist, a structureinclined about 70? from the horizontal that was used to convey charging cars to the topof the blast furnace.\u00a0 Within the skip hoist, the employees removed rails, lugs, andmetal plate.\u00a0 The Secretary claimed before the judge and argues before us that as aresult of this work, material could have fallen, bounced out of the skip hoist and landedon an employee working on a winch platform.\u00a0 This employee, Mr. Earnest, waspositioned about 18 feet away from the skip hoist; the employees who worked on the skiphoist were as high as 87 feet above Mr. Earnest’s level but were a horizontal distancefrom him of about 50 feet.\u00a0 The citation alleged that Bethlehem violated the generalduty clause by not providing overhead protection against falling objects for Mr. Earnest.A necessary element of proof in any general duty clause litigation isrecognition of the alleged hazard.\u00a0 The Secretary may prove this element by showingthat the employer’s industry recognized the cited hazard or that the employer himselfrecognized it.[[2]]\u00a0 On review, the Secretary claims only that Bethlehem, rather thanits industry, recognized the alleged hazard of objects falling onto the winch platform asa result of the work of the employees in the skip hoist.\u00a0 He argues that the judgeerred in not finding the evidence sufficient.\u00a0 The Secretary points to several itemsof evidence and argues that the judge should have given them more weight.The Secretary briefly argues that Bethlehem officials were aware of the hazard because aunion steward and his assistant had requested overhead protection for Mr. Earnest, thewinch operator.\u00a0 At the hearing, there was sharply conflicting testimony on thepoint.\u00a0 A union steward and his assistant testified that they had made such a requestof two Bethlehem officials.\u00a0 One of these officials testified, however, that he hadunderstood the request to be one for overhead protection against rain.\u00a0 The otherBethlehem official testified that he had not been told of any hazard by the union stewardand his assistant, and he did not remember that any request for overhead protectionagainst falling objects was made.\u00a0 As the Secretary recognizes in his brief, thejudge made a credibility evaluation and believed Bethlehem’s witnesses.\u00a0 TheSecretary supplies no reason, and nothing in this record suggests, why the Commissionshould depart in this case from its practice of deferring to a judge’s evaluation of thecredibility of witnesses.[[3]]The Secretary claims that a collective bargaining agreement evincesBethlehem’s recognition of the hazard.\u00a0 This contract was never introduced intoevidence.\u00a0 It was instead described by a union official as requiring overheadprotection for a machine operator where \”there is a danger of anything falling andinjuring\” him.\u00a0 Inasmuch as this provision does not apply until a hazard exists,it demonstrates nothing about whether Bethlehem recognized a hazard here.The Secretary points to a statement by Mr. Oakes, a Bethlehem supervisor,that \”pellets\” had fallen onto the winch platform.\u00a0 Yet, the record doesnot indicate what exactly these \”pellets\” were, how such they weighed, how largethey were, or why they posed a danger to the winch operator.\u00a0 If anything, the recordsuggests that the pellets were not dangerous, for when Mr. Oakes was asked whether metalobjects had fallen onto the winch platform, he replied \”[j]ust\” pellets.Finally, the Secretary lays much stress on Mr. Earnest’s testimony that Mr.Oakes was present when a metal lug fell within a foot or so of Mr. Earnest.\u00a0 Despitethe vivid impression that such an incident could be expected to have left upon aneyewitness, Mr. Oakes testified that he did not remember it.\u00a0 In addition, both Mr.Earnest and Mr. Oakes testified that Mr. Earnest had not asked Mr. Oakes for overheadprotection from falling metal objects.\u00a0 Judge Usher considered Mr. Earnest’s accountin light of Mr. Oakes’ testimony, and it is apparent from his discussion that he was notconvinced that Mr. Earnest’s account supported a finding of actual knowledge.\u00a0 TheSecretary does not suggest a reason why we should disagree with the weight attached by thejudge to Mr. Earnest’s testimony.For these reasons, we are not convinced by the Secretary’s arguments that thejudge’s decision should be reversed.\u00a0 We do, however, acknowledge that, as theSecretary maintains, other portions of the judge’s decision focused too heavily on theprecise circumstances of an accident that befell Mr. Earnest and whether it wasforeseeable.[[4]]\u00a0 Yet, to borrow somewhat from the judge’s decision, though thisaccident was tragic and deep sympathy is due to the victim, we have no choice but tovacate a citation that is not supported by preponderant evidence that an employer violatedthe Act.\u00a0 Inasmuch as such evidence is lacking here, the judge’s decision vacatingthe citation is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.EXECUTIVE SECRETARYDATED:\u00a0 MAR 30 1984CLEARLY, Commissioner, dissenting:I respectfully disagree with the majority affirmance of the administrativelaw judge’s decision.\u00a0 Although I agree with them that the judge’s decision focusedtoo sharply on the circumstances of the accident and on the foreseeability of theaccident, I find that the judge’s decision does not come to grips with the pertinentevidence supporting the citation.As the majority notes, Bethlehem employees were repairing a blast furnace.\u00a0 Some were removing rails in a skip hoist, which was used to convey charging cars tothe top of the blast furnace.\u00a0 The rails had been welded in place with iron lugs,each of which weighed about ten-and-one-half pounds.\u00a0 Bethlehem employees usedtorches to cut the lugs loose; they also cut loose sections of the rails and metal plate.\u00a0 Some of the cut pieces were tugged with a winch to break them loose.\u00a0 Althoughthe employees were supposed to catch the lugs and secure all cut pieces, some lugs andmetal pellets nevertheless got loose and fell down the skip hoist. The skip was inclinedabout 70? from the horizontal.The skip hoist was not enclosed except on its bottom surface.\u00a0 The topand sides were composed of various structural members (trusses and braces), somewhat likea structural steel bridge with an open framework.\u00a0 The bottom surface, called thechute, was flat but was interrupted by rails, lugs and other metal objects.\u00a0 Somemetal pieces got loose, fell down the chute, ricocheted off the metal objects or thetrusses of the hoist, and bounced out of the hoist before reaching the bottom.A Bethlehem employee, Mr. Earnest, was operating the winch that was used tobreak loose metal pieces.\u00a0 He was stationed on a work platform at a point 87 feetbelow the elevation of the employees who cut loose the metal pieces.\u00a0 His workstation faced the top side of the skip hoist and was 18 feet away from it.\u00a0 Hetherefore faced the direction of travel of ricocheting metal pieces.\u00a0 For the reasonsdiscussed below, I credit Mr. Earnest’s testimony that an iron lug had fallen within afoot or so of him and some debris and metal pellets had fallen to his work platform.\u00a0 Mr. Earnest wore earphones to respond to requests from his fellow employees whenthey wanted the winch to be used and was required to concentrate on the instructions givenover the earphones.\u00a0 The earphones’ wire restricted his ability to avoid ricochetingobjects.\u00a0 At least some of the work was performed late at night and Mr. Earnest wasalso blind in one eye.\u00a0 Bethlehem furnished Mr. Earnest with no overhead protectionfrom falling metal.On the night of September 30, 1976, a metal lug flew out of the skip hoistand struck Mr. Earnest, blinding his good eye.\u00a0 The administrative law judge foundthat the trajectory followed by the metal lug was \”horizontal.\”\u00a0 This, thejudge reasoned, was \”[o]f particular significance,\” for if the angle of thepiece’s trajectory were \”horizontal\” or \”near-horizontal,\” theoverhead protection required by the citation \”would have been useless because theobject would have traveled on a course below the ‘overhead protection.’\”\u00a0 Thejudge then explored the testimony about how the accident happened and concluded hisdiscussion with the following:[The Secretary’s] proof fails to establish recognition of the hazard in thisinstance.\u00a0 His version of how the accident happened is incredible considering thegravitational attraction of the earth’s mass and engineering principles based on thattheory.\u00a0 The accident doubtless occurred as [Bethlehem’s] several engineers havethoughtfully theorized.\u00a0 [The Secretary’s] theory fails to address itself to theaccident as it could have been foreseen.\u00a0 The accident was not \”reasonablyforeseeable prior to the time such exposure occurred…[and it was] not preventable by theemployer\” [citation omitted].\u00a0 It was totally unforeseeable.As the majority recognizes, the judge erred in that he limited his analysisto the particular accident that occurred, and asked whether the employer could have\”foreseen\” it.\u00a0 Our precedent establishes rather that the judge should haveinquired whether the cited, generically-defined hazard of failing objects was shown tohave existed and was \”recognized.\”A hazard was present.\u00a0 The Commission defines hazards in terms ofthe physical agents or processes that could injure employees, and not in terms of theabsence of protective measures.[[5]]\u00a0 The hazard in this case, therefore, was not theabsence of overhead protection but that alleged in the amended citation–falling materialor, more precisely, falling pieces of metal.\u00a0 That hazard existed on Bethlehem’sworksite.\u00a0 To say that there was no hazard of falling metal pieces is either to trustthe employees repairing the skip hoist to catch every loose metal piece or to trust everyfalling piece to travel straight down the hoist without hitting any of its trusses, bracesand rails and bouncing out of the hoist.\u00a0 Joseph Arslan, a Bethlehem field engineer,testified that metal pieces would fall down the chute and be deposited in the pit\”under perfect conditions.\”\u00a0 Mr. Arslan also testified that conditions werenot \”perfect.\” Moreover, according to the testimony of Mr. Earnest and Mr.Oakes, respectively, a metal lug and metal pellets did fly out of the skip hoistand fall onto the winch operator’s platform.\u00a0 The circumstances of Mr. Earnest’saccident also furnish relevant evidence on the point.\u00a0 Specifically, the accident isevidence that metal pieces could fly out of the hoist with enough velocity to reach thewinch operator.\u00a0 The trajectory of the particular lug that injured Mr. Earnest–whichthe parties and the judge spent so much time and energy reconstructing–is beside thepoint.\u00a0 It requires no more than common sense and a knowledge of physics to realizethat a metal piece that flies out of the skip hoist at a so-called \”horizontal\”angle just a short distance above the employee’s head can hit the employee on the top ofhis head because gravity will immediately accelerate the piece downward.The record does contain testimony by Bethlehem witnesses that there was nohazard or that they did not recognize a hazard of metal pieces falling onto Mr. Earnest.\u00a0 This testimony is worth little.\u00a0 During much of it, the witnesses explainedwhy the trajectory of the object that hit Mr. Earnest was \”horizontal,\” a matterthat is irrelevant.\u00a0 During other testimony, the witnessess reasoned backwards fromthe accident, and stated that because the trajectory was \”horizontal,\” thehazard either did not exist or was not recognized, or that overhead protection would nothave prevented the accident.\u00a0 For example, Mr. McKosky, a Bethlehem engineer, statedthat because the trajectory of the lug that hit Mr. Earnest was \”horizontal,\”there was no \”recognizable hazard\” of metal pieces falling onto Mr. Earnest’shead.\u00a0 In other portions of the testimony, witnesses stated that no hazard of piecesfalling onto Mr. Earnest’s head existed or was recognized because Mr. Earnest was notworking directly under his fellow employees.[[6]] This testimony however, did not takeaccount of the fact that the chute of the skip hoist conveyed metal pieces in Mr.Earnest’s direction.I therefore find that even if Bethlehem’s theory of how the accident occurredwere correct, a hazard of metal objects falling onto an employee’s head was present atBethlehem’s worksite.The hazard was \”recognized.\”\u00a0 As the majorityrecognizes, the administrative law judge vacated the citation on the ground that a hazardwas not shown to be \”recognized.\”\u00a0 A recognized hazard is a condition thatis known to be hazardous either by the industry in general or the employer in particular.\u00a0 Beaird-Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21\/D11, 7 BNAOSHC 1225, 1979 CCH OSHD ? 23,493 (No. 12600, 1979).\u00a0 I find that Bethlehem had actualknowledge of the hazard of falling metal pieces.\u00a0 Mr. Oakes, a Bethlehem supervisor,acknowledged that metal pellets had fallen onto Mr. Earnest’s work platform.[[7]] \u00a0Mr. Earnest also testified that Mr. Oakes was present when an iron lug fell within a footor so of him at his work station and that Mr. Oakes then kicked the lug off theplatform.\u00a0 Mr. Oakes did not deny that this incident occurred; he testified only thathe did not remember it.\u00a0 Since there was no contradiction, the judge did not make acredibility finding on this issue,[[8]] and I conclude from the record that an iron lugdid fall within a foot or so of Mr. Earnest in Mr. Oakes’ presence.\u00a0 Moreover, Mr.Oakes himself conceded that metal pellets had fallen onto the platform.\u00a0 Because Mr.Oakes was a supervisor, his actual knowledge of the hazard of metal lugs and pelletsfalling near Mr. Earnest must be imputed to his corporate employer.I also conclude that a falling piece of metal was substantially likely tocause death or serious physical harm if it hit an employee.\u00a0 The record is clear andBethlehem does not deny that overhead planks could feasibly be erected to protectemployees.\u00a0 That this step would materially reduce the hazard to employees is alsobeyond dispute.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of the document, please request one from our PublicInformation 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 of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees. . . .[[2]] See, e.g., Phillips Petroleum Co., 84 OSAHRC__\/__, 11 BNA OSHC 1776, 1779, 1984 CCH OSHD ? 26,783, p. 34,254 (No. 78-1816, 1984), andcases 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 thejudge who has lived with the case, heard the witnesses, and observed their demeanor.\”\u00a0 C. Kaufman, Inc., 78 OSAHRC 3\/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 BNA OSHC 1417, 1422, 1982 CCH OSHD ? 25,957, p. 32,539 (No. 76-5255, 1982); BoeingCo., 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 ofproof).[[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.2d828 (3d Cir. 1982), cert. denied, 103 S.Ct. 1188 (1983).\u00a0 The Commission’sholding that hazards ought not to be defined in terms of the proposed means of abatement, seeBeaird-Poulan, 79 OSAHRC 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 issued under thegeneral duty clause may require that work practices and safety precautions be upgraded tofeasible levels greater than those taken by the employer or his industry.\u00a0 ChevronOil Co., 83 OSAHRC 19\/B2, 11 BNA 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. June 17, 1983).[[6]] When Mr. Hardin, a former safety engineer for Bethlehem, was askedwhether overhead protection would have prevented this particular accident, he answered\”no\” because there was nothing directly over Mr. Earnest’s work station. \u00a0Similarly, Mr. Keyser, a Bethlehem safety engineer, relied on the fact that \”[n]o onewas actually working directly 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 is unknown.\u00a0 Atthe very least, however, this fact shows that Bethlehem was aware, through Mr. Oakes, thatthe winch platform was within range of falling metal objects.[[8]] Only on a different point–whether Mr. Earnest had specificallyrequested Mr. Oakes to provide overhead protection–did the judge seem to touch upon thecredibility of Mr. Oakes and Mr. Earnest.\u00a0 Yet, Mr. Earnest never testified that hehad specifically made such a request of Mr. Oakes.The majority finds that the judge did consider Mr. Earnest’s testimony and implies thatthe judge did not find it believable enough to ground a finding on.\u00a0 I too haveexamined the judge’s decision but I cannot discern in it the careful evaluation that themajority suggests was made.”