“Docket No. 78-1443 79-4473 SECRETARY OF LABOR,Complainant, v.GENERAL MOTORS CORPORATION, GM PARTS DIVISION,Respondent.OSHRC Docket Nos. 78-1443 and 79-4478DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners. BY THE COMMISSION:These cases are before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).[[1]]\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).At issue in these two cases is whether respondent, General Motors Corporation(\”GM\”), violated 29 C.F.R. ? 1910.132(a)[[2]] by failing to require itsemployees to wear safety shoes at its parts warehouses in Westwood, Massachusetts andChamblee, Georgia.\u00a0 In separate opinions, Judge Edwin G. Salyers and Foster Furcolofound violations of the standard and affirmed the items on review. We reverse the judges’decisions and vacate those items.IDocket No. 78-1443 involves GM’s parts warehouse in Westwood, Massachusetts.\u00a0 At thiswarehouse, GM employs 150 people who handle approximately 1 1\/2 million parts a year.\u00a0 The parts weigh from a few ounces up to nearly 200 pounds and include wheel rims,wheels, manifolds, fenders, and brake drums.\u00a0 Ninety percent of the parts are movedby hand.\u00a0 The parts are stored on wooden pallets steel racks at various levels in thewarehouse.\u00a0 Employees climb portable step ladders to retrieve parts stored as high asfifteen feet above the floor.\u00a0 They also work in the vicinity of forklift trucks.\u00a0 Employees testified that they handled from two hundred to five hundred parts a day.\u00a0 The weights of the heaviest parts handled by the employees who testified rangedbetween 50 and 130 pounds.Five foot injuries had occurred in the two and one half years before the inspection.\u00a0 Four of these injuries, including three toe fractures, occurred as a result offalling auto parts.\u00a0 The fifth injury occurred when an employee’s toe was run over bya forklift wheel.\u00a0 An additional toe fracture caused by a falling part was sufferedafter the inspection but before the hearing.\u00a0 GM does not require employees to wearsafety shoes, but requires that substantial leather shoes be worn and offers a payrolldeduction plan that enables employees to purchase safety shoes at a substantial discount.Barnes, a supervisor in OSHA’s Hartford area office, testified on behalf of the Secretary.\u00a0 He was formerly employed as safety director for the Packaging Division of Monsantoand had worked in material management with Crown-Zellerbach.\u00a0 Although he had somefamiliarity with small-scale auto parts warehouses, Barnes’ primary experience involvedwarehouse handling a smaller volume of objects that were heavier than those in GM’swarehouses.\u00a0 He testified that a person familiar with the circumstances of thewarehousing industry would have used safety shoes to protect against the hazard to thefeet present in GM’s warehouse.\u00a0 He stated that the existence of the hazard wasevidenced by the five foot injuries received by GM’s employees.\u00a0 Barnes recommendedthat GM’s employees wear either Class 75 foot protection as described in American NationalStandards Institute (\”ANSI\”) Z41.1-1967, USA Standard for Men’s Safety ToeFootwear 8-11,[[3]] or toe caps.\u00a0 He testified that if GM’s employees had beenwearing safety shoes, the five foot injuries could have been prevented.\u00a0 Barnestestified that he did not know whether most employers in the warehousing and auto partsindustry require the wearing of safety shoes.\u00a0 Based on his own experience, he knewthree employers that required the wearing of safety-toed shoes in their warehouses.Derby was the director of safety for GM’s parts division.\u00a0 He testified that, afterconferring with outside experts, GM had determined that a mandatory safety shoerequirement should be instituted for employees in the foundry but concluded that in itsparts warehouses employees should be required to wear leather shoes.\u00a0 Derby testifiedthat a manifold or other palletized material could cause an injury if it fell on anemployee’s foot, but that safety shoes afford protection beyond what the warehouseconditions require.\u00a0 In Derby’s view, 5 foot injuries received by 150 employeesmoving 1 1\/2 million parts a year over a 2 1\/2 year period did not warrant a mandatorysafety shoe requirement.\u00a0 Derby testified that only 3 of these 5 injuries could havebeen prevented by safety shoes.\u00a0 He testified that GM required and paid for safetyshoes in its foundry operations, where the circumstances warranted it.Judge Furcolo affirmed item 2 of citation 2 alleging a violation of section1910.132(a).\u00a0 He found that the facts demonstrated that GM’s employees were exposedto a hazard of foot injuries that could have been prevented by safety shoes.\u00a0 JudgeFurcolo found that GM knew of the hazard.Docket No. 79-4478 involves GM’s Chamblee, Georgia parts warehouse.\u00a0 Atthis location, approximately 25 GM employees handle truck parts that weigh from a fewounces to over one hundred pounds.\u00a0 Forklifts and other lifting devices are availablefor employees to use in moving parts.\u00a0 At the time of the inspection, GM did notrequire employees to wear steel-toed safety shoes, but it encouraged their use and madethem available through a payroll deduction plan.\u00a0 GM did prohibit the wearing ofcanvas shoes, sandals, and similar shoes in the working area of the warehouse.\u00a0Warehouse employees had suffered 12 foot injuries between 1971 and July 1979. \u00a0Jackson, who had been employed by GM for 23 years, testified that there was \”a dangerof things falling on your feet\” when unloading trucks and handling pallets.\u00a0Jackson testified that he had always worn regular leather shoes because GM requiredno more, though he testified that he believed a need existed for safety shoes.Ellison, the warehouse manager for a hinge manufacturing plant, had never been in GM’s orany other parts warehouse.\u00a0 She testified that employees at her hinge warehouse lift30 to 60 pound boxes of hinges a distance of three feet from shelves onto pallets.\u00a0Ellison stated that the hinge warehouse employees had been required to wearsteel-toed shoes for fifteen years, but she was unable to explain why the shoes wererequired.Laurent is the occupational safety and health administrator for GM and a member of theoccupational safety and health group of the Motor Vehicle Manufacturers Association.\u00a0 He testified that industry practice in the automobile parts warehousing industry isto encourage but not require protective footwear.\u00a0 According to Laurent, GM’s injuryrecords do not indicate how injuries occur, whether employees were wearing safety shoeswhen they were injured or whether the injuries would have been prevented by wearing safetyshoes.\u00a0 However, Laurent did testify that safety shoes would have prevented at leastthree lost-time injuries.\u00a0 He explained that GM has attempted to make the task ofhandling auto parts safer by eliminating the need for employee actions that causeinjuries.\u00a0 Laurent testified that employees could avoid foot injuries by using\”a picking buggy,\” a four-wheeled carrier that is \”wheeled upimmediately\” to where parts are stored in order to transfer the parts.Judge Salyers affirmed item 1 or citation 1 alleging a violation of section 1910.132(a).\u00a0 He found that the Secretary had established the hazard of foot injuries fromfalling auto parts and had shown that safety shoes were neither worn nor required to beworn. Judge Salyers also found that GM had knowledge of the hazard.IIOn review, GM argues that in order to prove a violation of section 1910.132(a) theSecretary must demonstrate that an employer had actual knowledge of the existence of ahazard or that the employer’s failure to require personal protective equipment wascontrary to what was customarily required in the employer’s industry.\u00a0 GM relies on S&HRiggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273 (5th Cir. 1981), rev’g, 79OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ? 23,480 (No. 15855, 1979) (section1926.28(a)).\u00a0 In that case, the United States Court of Appeals for the Fifth Circuitreversed a Commission decision and held that industry custom is controlling and that toprove a violation of a broad standard such as section 1926.28(a) the Secretary must showthat an employer’s conduct did not conform to that of his industry.\u00a0 659 F.2d at1285.\u00a0 In a companion case, the Court affirmed this test but added that a violationcould be shown if the Secretary proved that the employer had actual knowledge thatpersonal protective equipment was necessary to protect his employees from a particularhazard.\u00a0 Owens-Corning Fiberglas Corp. v. Donovan, 659 F.2d 1285, 1288(5th Cir. 1981) (section 1910.132(a)), aff’g on other grounds 79 OSAHRC 26\/D6, 7BNA OSHC 1291, 1979 CCH OSHD ? 23,509 (No. 76-4990, 1979).GM argues that the Secretary has not shown that it had actual knowledge of afoot hazard or that its failure to require safety shoes fell short of industry custom inthe automotive parts warehousing industry.\u00a0 GM points to the unrebutted testimony ofLaurent and Derby that the practice in the automotive parts warehousing industry was toencourage the use of safety shoes but not to require their use.\u00a0 GM claims that thetestimony of the witnesses on industry practice called by the Secretary should be given noweight because they did not have experience in automotive parts warehouses.\u00a0 Itmaintains that the small number of injuries received by its employees did not provide itwith actual knowledge of a hazard.\u00a0 GM also disputes the Secretary’s claim that itsencouragement of the wearing of safety shoes and its payroll deduction plan demonstratethat it was aware of a hazard requiring safety shoes.Despite the Fifth Circuit’s rejection of the Commission’s rationale thatindustry custom is not dispositive but is only an aid in determining whether a reasonableperson would recognize a hazard requiring personal protective equipment, the Secretaryurges the Commission to adhere to the rationale in S&H Riggers and Owens-Corning.\u00a0The Secretary maintains that compliance with a broad standard such as section1910.132(a) may require methods of employee protection beyond that practiced in theindustry.According to the Secretary, the evidence demonstrates that a reasonableperson would recognize that the hazards at GM’s workplaces require that safety shoes beworn.\u00a0 He relies on, among other things, the dangers posed by the heavy parts, theinjuries received by employees, and in Docket No. 78-1443, the testimony of OSHA officialBarnes that a person familiar with the warehouse and auto parts industries would recognizea hazard of foot injuries at GM’s warehouse.\u00a0 The Secretary disputes GM’s argument inDocket No. 79-4478 that the equipment and training provided by GM eliminate the need forsafety shoes.\u00a0 He notes that these measures have not prevented injuries and claimsthat training should not be relied on as the chief form of protection when protection isavailable that does not depend on employee conduct.The Secretary also contends that the evidence demonstrates that GM had actual knowledge ofthe hazard.\u00a0 He relies primarily on GM’s knowledge that foot injuries had occurred,on the concessions by GM’s safety officers that safety shoes offered more protection andwere \”useful,\” and on GM’s facilitation of the purchase of safety shoes throughthe payroll deduction plan.IIIThe Commission has held that a hazardous condition requiring the use of personalprotective equipment exists under section 1910.132(a) if a reasonable person familiar withthe circumstances surrounding an allegedly hazardous condition, including any facts uniqueto a particular industry, would recognize a hazard warranting the use of personalprotective equipment. Owens-Corning, 7 BNA at 1295, 1979 CCH OSHD at p. 28,491.\u00a0 Commission precedent also holds that evidence of industry custom and practice willaid in determining whether a reasonable person familiar with the circumstances wouldperceive a hazard, though it is not necessarily determinative.\u00a0 Id.\u00a0 TheCommission also examines the employer’s own understanding of the alleged hazard.\u00a0 Id.\u00a0 We do not decide at this time whether the Commission’s reasonable person\/actualknowledge test or the Fifth Circuit’s industry custom\/actual knowledge test is moreappropriate.\u00a0 The Secretary has failed to prove the existence of violations of thecited standard under either test.\u00a0 See Consolidated Rail Corp., 82OSAHRC 41\/D3, 10 BNA OSHC 1851, 1858, n.19, 1982 CCH OSHD ? 26,165, p. 32,992 n.18 (No.78-238, 1982) (Rowland, Chairman, dissenting in part and concurring in part).We turn first to the \”actual knowledge\” question.\u00a0 Although the Secretaryrelies heavily on the number of injuries received by GM’s employees, we are unconvincedthat the number of injuries incurred gave GM actual knowledge that a hazard warrantingsafety shoes existed.\u00a0 According to Derby, GM’s safety director, during the 2 1\/2years before the inspection there had been 3 foot injuries at GM’s Westwood warehouse thatcould have been prevented by the wearing of safety shoes.\u00a0 But during that 2 1\/2 yearperiod, 150 employees had handled nearly 1 1\/2 million parts a year.\u00a0 Even if weaccept OSHA official Barnes’ testimony that 5 foot injuries could have been prevented,this is an injury rate of 1.33 foot injuries per million parts handled.\u00a0 In view ofthis low incidence of injuries, it is understandable that GM’s witnesses testified that afoot hazard requiring the wearing of safety shoes was not present at the parts warehouses.\u00a0 Derby stated that in his judgment the small number of injuries did not warrant amandatory safety shoe program.\u00a0 He testified that safety shoes would offer protectionbeyond what was needed in the parts warehouse.\u00a0 Laurent emphasized GM’s attempts tohave employees use \”picking buggies\” to transport auto parts and eliminate theneed for employee actions that could cause injuries.We are also reluctant to attach much importance to the fact that GM encouraged employeesto wear safety shoes and made provisions for their purchase through payroll deduction.\u00a0 An employer’s safety recommendations do not establish that such precautions werenecessary in order to comply with a standard.\u00a0 See United States SteelCorp., 82 OSAHRC 62\/A2, 10 BNA 2123, 2131, 1982 CCH OSHD ? 26,297, p. 33,235 (No.77-3378, 1982).\u00a0 If employers are not to be dissuaded from taking precautions beyondthe minimum regulatory requirements, they must be able to do so free from concern thattheir efforts will be relied on to establish their knowledge of an alleged hazard.\u00a0 SeeS&H Riggers & Erectors v. OSHRC, 659 F.2d at 1284; Diebold, Inc. v. Marshall,585 F.2d 1327, 1338 (6th Cir. 1978); Cape & Vineyard Division v. OSHRC, 512F.2d 1148, 1154 (1st Cir. 1975). Accordingly, we conclude that the Secretary failed toestablish that GM had actual knowledge of a hazard requiring safety shoes.We also find that the Secretary failed to establish that a reasonable person would haverecognized a hazard warranting the use of safety shoes at GM’s parts warehouses.\u00a0 Theincidence of foot injuries was not such as to have led a reasonable man to differ withGM’s conclusion that conditions at its warehouses required, at most, that employees wearleather shoes.\u00a0 Perhaps the most revealing evidence on the point is the practice ofthose persons most clearly familiar with the industry–the employees.\u00a0 See Haysite,Div. of Synthane-Taylor, 84 OSAHRC __\/__, 11 BNA OSHC 1967, 1984 CCH OSHD ?26,917 (No. 79-407, 1984); Owens-Corning, 7 BNA OSHC at 1295, 1979 CCH OSHD at p.28,492.\u00a0 Although Jackson, who had worked at the Chamblee plant for 23 years,testified that the unloading of pallets and trucks presented a danger of things falling onhis feet, he chose to continue wearing leather shoes despite the payroll deduction plan.\u00a0 None of the 6 employees from the Westwood warehouse who suffered foot injuries hadbeen wearing safety shoes when they were injured.\u00a0 Four employees who had beeninjured testified.\u00a0 Two wore safety shoes after the injury, but one of them did soonly in the winter.\u00a0 Of the total of 175 employees at the two warehouses, most didnot wear safety shoes though they had been encouraged to do so.\u00a0 Thus, substantialnumbers of the employees who experienced the conditions at the parts warehouses on a dailybasis chose not to wear safety shoes even though they were encouraged to do so by theiremployer and the shoes were made available at a discount.We also consider it relevant that the Secretary failed to establish that itwas customary in the auto parts warehousing industry to require that safety shoes be worn.\u00a0 His witnesses on this point had, at most, a passing familiarity with auto partswarehouses.\u00a0 OSHA official Barnes had at one point visited small-scale partswarehouses.\u00a0 He had no first-hand experience of operationslike GM’s.\u00a0 The warehouses he was familiar with generally dealt with much largerobjects than those moved by GM’s employees. Ellison had never visited GM’s parts warehouseor any other auto parts warehouses.\u00a0 She was able to testify only to what wasrequired at the hinge manufacturing warehouse she managed, and she could not explain whysafety shoes were required.\u00a0 Neither Barnes’ nor Ellison’s testimony aids us indetermining what the practice in the industry is.\u00a0 The only authoritative testimonyon industry custom was given by GM’s safety professionals, Derby and Laurent.\u00a0 Theytestified without rebuttal that the custom in the automotive parts warehouse industry wasto encourage but not require the wearing of safety shoes.\u00a0 Industry custom thereforesuggests that a reasonable person familiar with the circumstances would not recognize ahazard requiring the wearing of safety shoes in the parts warehouses.\u00a0 Thus, weconclude that the Secretary has failed to establish that a reasonable person familiar withthe circumstances at GM’s two parts warehouses would recognize a hazard requiring thewearing of safety shoes.[[4]]Accordingly, the judge’s decisions are reversed.\u00a0 In Docket No. 78-1443, item 2 ofcitation 2 is vacated.\u00a0 In Docket No. 79-4478, item 1 of citation 1 is vacated.FOR THE COMMISSION Ray H. Darling, Jr.Executive SecretaryDATED:\u00a0 JUN 29 1984CLEARY, Commissioner, dissenting:I must dissent from my colleagues’ disposition of these two consolidatedcases.\u00a0 In my view, the majority opinion is not only contrary to Commissionprecedent, but also runs afoul of several of the most basic tenets of occupational safetyand health law. I.The majority concludes that in both cases the evidence fails to establish either that GMhad actual knowledge of the need to require safety shoes, or that a reasonable personfamiliar with the circumstances of these cases would recognize a hazard warranting the useof safety shoes.\u00a0 An examination of the legal and factual bases for theirconclusions, however, reveal numerous fundamental errors.First, they find that the incidence of injuries was too low to warrant amandatory safety shoe program.\u00a0 The majority notes, for example, that over a 2-1\/2year period at GM’s Westwood warehouse, the injury rate was 1.33 foot injuries per millionparts handled.Implicit in such a conclusion is that before actual or constructive knowledgeof the need to require safety shoes at GM warehouses could be established, there wouldhave to be more accidents.\u00a0 Such an approach flagrantly violates the two primarytenets of the Act.\u00a0 First, \”[t]he keystone of the Act…is preventability.\”\u00a0 Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 1039 (2dCir. 1975).\u00a0 Second, \”[o]ne purpose of the Act is to prevent the firstaccident.\”\u00a0 Lee Way Motor Freight, Inc. v. Secretary of Labor, 511F.2d 864, 870 (10th Cir. 1975); see also Brennan v. Butler Lime andCement Co., 520 F.2d 1011 (7th Cir. 1975). Thus, actual injury is not a prerequisiteto establishing a violation.\u00a0 Lee Way Motor Freight v. Secretary of Labor, supra;Haysite Division of Synthane-Taylor, 84 OSAHRC ____ , 11 BNA OSHC 1967, 1984CCH OSHD ? (No. 79-407, 1984) (Cleary, dissenting).\u00a0 Indeed, the Act does notestablish as a sine qua non any specific number of accidents orinjury rate.\u00a0 Accordingly, reliance on the allegedly low incidence of injury ismisplaced.\u00a0 Ryder Truck Lines v. Brennan, 497 F.2d 230 (5th Cir. 1974).Moreover, I would observe that my colleagues’ conclusion that the injury rates were low iscontrary to the facts.\u00a0 While the majority would base an injury rate on the number ofparts handled, I suggest that the purposes of the Act would be better served by focusingon employees rather than things.\u00a0 Thus, in the Westwood warehouse there were six footinjuries in a 2-1\/2 year period, or 2.4 foot injuries per year.\u00a0 At the Chambleewarehouse, there were 12 foot injuries over an eight-year period, or 1.5 foot injuries peryear. Moreover, the Chamblee warehouse employed only 25 persons at any given time. \u00a0Thus, approximately six percent of the Chamblee employees could be expected to suffer footinjuries in any given year.\u00a0 In both cases, the incidence of foot injuries wassignificant and should have warned any reasonable person of the need to inquire safetyshoes.Second, my colleagues make much of the fact that the employees who hadactually experienced the conditions at the warehouse on a daily basis chose not to wearsafety shoes even though they were encouraged to do so by their employer and the shoeswere made available at a discount.\u00a0 The majority focuses on the testimony of JerryJackson, who, despite having worked at the Chamblee plant for 23 years, and recognizingthe danger of things falling on his feet, chose not to wear safety shoes.\u00a0 Thepractice of these employees not to wear safety shoes, we are told, is compelling evidencethat a reasonable person familiar with the industry would not recognize the need forsafety shoes.My colleagues totally mischaracterize Jackson’s testimony.\u00a0 In fact, Jackson’stestimony, if anything, establishes that he recognized the need for safety shoes. \u00a0For example, after indicating areas in the warehouse where he believed safety shoes arewarranted, Jackson testified as follows:Q.\u00a0 . . . If you feel that more protection is warranted in those areasand you’ve read that safety shoes may be purchased through payroll deduction at theemployer’s cost, why did you not purchase shoes when you were performing those functions?A. Well, I really — I can’t — I don’t know.\u00a0 I guess I don’t have too muchrespect for my feet, but I’ve always wore these and they didn’t require anymore.\u00a0 So,I guess I’m like a lot of other people, just didn’t do it.(Emphasis added)The testimony clearly establishes that Jackson recognized a need for safetyshoes.\u00a0 His failure to wear them was not attributed to a lack of a hazard, but ratherto a lack of \”respect for my feet.\”\u00a0 Jackson’s failure to wear safety shoesno more shows a lack of a hazard presented to his feet by falling objects than the failureof millions of Americans to wear safety belts establishes a lack of a hazard inherent indriving a car.I would also note that the majority’s reliance on the failure of employees towear safety shoes is misplaced in that it improperly shifts the burden of compliance onemployees.\u00a0 It has long been established that the entire thrust of the Act is toplace primary responsibility for safety in the workplace upon the employer.\u00a0 Atlantic& Gulf Stevedores, 534 F.2d 541 (3d Cir. 1976); Brennan v. O.S.H.R.C.& Gerosa, Inc., 491 F.2d 1340 (2d Cir. 1974).\u00a0 If anything, Jackson’stestimony underscores the wisdom of that principle.My colleagues also refuse to consider the fact that GM encouraged employees to wear safetyshoes and instituted a payroll deduction and discount plan to facilitate their purchase asevidence that GM had actual knowledge of the hazard.\u00a0 They base their refusal on thegrounds that 1) an employer’s safety recommendations do not establish that suchprecautions were necessary in order to comply with a standard, and 2) if employers are notto be dissuaded from taking precautions beyond the minimum regulatory requirements, theymust be able to do so free from concern that their efforts will be relied on to establishtheir knowledge of an alleged hazard.The majority fails to recognize, however, that, generally, and employer’s ownpractices regarding the use of protective equipment are relevant.\u00a0 Cape &Vineyard Division v. OSHRC, 512 F.2d 1148 (1st Cir. 1975); Owens-Corning FiberglasCorp., 79 OSAHRC 26\/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ? 23,509 (No. 76-4990, 1979) aff’d,659 F.2d 1285 (5th Cir. 1981).\u00a0 Any reluctance to use such evidence has occurredeither when the employer’s practice constituted the sole evidence against it, Diebold,Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978); United States Steel Corp.,82 OSAHRC 62\/A2, 10 BNA OSHC 2123, 1982 CCH OSHD ? 26,297 (No. 77-3378, 1982); or wherethe alleged safety rule was so vague that it was subject to varying interpretations. Cape& Vineyard Division v. OSHRC, supra.\u00a0 (General requirement thatsufficient protective covering be used where work is actually being done close to livewire not sufficiently specific to establish recognition of electrocution hazard insituation at issue.) Neither exception is applicable here.\u00a0 From the size and weightof the objects and the history of injuries to the testimony of employees and experts, therecord is replete with evidence establishing the need for safety shoes.\u00a0 Far fromstanding alone, GM’s encouragement of its employees to wear safety shoes is but one linkin a long chain of evidence establishing actual knowledge of the need to require safetyshoes.\u00a0 Moreover, rather than being ambiguous, GM’s policy is specifically geared tothe protection of employee feet from the hazard of falling auto parts that exist at thewarehouses.My colleagues’ next fundamental error occurs in their undue focus on the customs andpractices of the auto warehouse industry.\u00a0 It has long been held that while relevantin determining whether a reasonable person would perceive a hazard, industry custom andpractice is not dispositive.\u00a0 Consolidated Rail Corp., 82 OSAHRC 24\/F7, 10 BNAOSHC 1564, 1982 CCH OSHD ? 26,046 (Nos. 78-1504 & 78-1779, 1982), appeal dismissed,No. 82-3301, (3d Cir., July 22, 1983); Allegheny Airlines, Inc., 81 OSAHRC 37\/A14,9 BNA OSHC 1623, 1981 CCH OSHD ? 25,339 (No. 14291, 1981); Owens-Corning FiberglasCorp., supra.\u00a0 Where industry practice fails to take reasonableprecautions against hazards generally known in the industry, the employer may properly beheld to a standard higher than that of actual practice.\u00a0 Voegele Co. v. OSHRC,625 F.2d 1075 (3d Cir. 1980); Cape & Vineyard Division v. OSHRC, supra.\u00a0 Any other standard would allow an entire industry to avoid liability by maintaininginadequate safety measures.\u00a0 Voegele Co. v. OSHRC, supra.II.In Docket No. 78-1443, the evidence establishes that at its parts warehouse in Westwood,Massachusetts, GM employs 150 people in the handling of auto parts weighing from a fewounces to nearly 200 pounds.\u00a0 The employees handled up to 500 parts a day includingfenders (weighing 35 to 50 pounds), wheel rims (5 to 6 pounds), intake manifolds (10 to 40pounds), hood panels (80 to 125 pounds), brake drums (up to 78 pounds), and flywheels (8to 50 pounds).\u00a0 Ninety-five percent of the parts were moved by hand.\u00a0 Many ofthe parts were greasy and oily.\u00a0 Forklifts, weighing 2 to 2-1\/2 tons, also were usedto move pallets and racks loaded with parts.\u00a0 These loads ranged from 500 to 1,000pounds.\u00a0 On occasion, items have fallen from the pallets or racks.During 1976 and 1977, GM employees suffered six foot injuries.\u00a0 Five of theseinjuries were caused by dropped or fallen auto parts.\u00a0 Three of these injuriesresulted in fractures.\u00a0 The sixth injury was caused by a forklift running over anemployee’s foot.Despite these injuries, GM never required its employees to wear safety shoes. \u00a0Respondent did offer its employees a payroll deduction plan which enabled them to purchasesafety shoes at a substantial discount.\u00a0 Approximately 90 percent of the employeeswho handled parts did not wear safety shoes.\u00a0 Moreover, general practice allowedemployees to wear sneakers and canvas shoes from Memorial Day to Labor Day, and leathershoes thereafter.Docket No. 79-4478 involves another auto parts warehouse, operated by Respondent inChamblee, Georgia.\u00a0 Approximately 25 employees, called \”checkers,\” loadedand unloaded auto parts from trucks and removed them from stacks in the warehouse. \u00a0The weight of the parts ranged from a few ounces to over 100 pounds.\u00a0 The\”checkers\” had the option of using forklifts or other lifting devices to assistthem with the heaviest items.Between 1971 and August 6, 1979, Respondent’s employees had 12 foot injuries, includingfour fractures and four contusions which resulted in lost workdays.\u00a0 Nevertheless,Respondent did not require its employees to wear safety shoes.\u00a0 Rather, as in theWestwood, Massachusetts warehouse, GM instituted a payroll deduction plan where employeescould purchase safety shoes at a discount.\u00a0 Respondent’s safety manual prohibited thewearing of tennis shoes, although employees were occasionally known to wear them.It has been firmly established that a hazardous condition requiring the use of personalprotective equipment exists under ? 1910.132(a) if a reasonable person familiar with thecircumstances surrounding an allegedly hazardous condition, including any facts unique toa particular industry, would recognize a hazard warranting the use of personal protectiveequipment.\u00a0 Consolidated Rail Corp., supra; AlleghenyAirlines, Inc., supra; Owens-Corning Fiberglas Corp., supra.\u00a0 Although industry custom and practice will aid in determining whether a reasonableperson familiar with the circumstances and with any facts unique to the industry wouldperceive a hazard, they are not necessarily dispositive.\u00a0 Consolidated Rail Corp.,supra; Allegheny Airlines, Inc., supra; Owens-Corning FiberglasCorp., supra.In my view, the evidence clearly establishes a failure to comply with ?1910.132(a) at both warehouses.\u00a0 Employees at both sites were required to move autoparts of substantial size and bulk.\u00a0 In both cases these parts often fell.\u00a0 Atthe Westwood warehouse the parts were often greasy or oily, thereby increasing the dangerof employees dropping loads.\u00a0 OSHA Official Barnes, a safety engineer who had beeninvolved in material handling for 30 years, testified that safety shoes should have beenrequired at the Westwood warehouse.\u00a0 Moreover, the record establishes that asubstantial number of foot injuries have occurred at both sites. Clearly, Respondent’s\”substantial shoe\” requirement, which was not fully enforced in eitherwarehouse, was not sufficient to prevent these injuries.\u00a0 The evidence alsoestablishes that several of the foot injuries could have been prevented by safety shoes.While safety shoes may not have prevented all the injuries, the additional protectionafforded by safety shoes might have reduced the degree of damage in those instances whereinjury was inevitable.\u00a0 The overwhelming preponderance of the evidence establishesthat a reasonable person familiar with these circumstances would have recognized the needfor a mandatory safety shoe program.The evidence clearly establishes the existence of a hazard.\u00a0 Numerous injuries,employee testimony, work process, and expert testimony of persons familiar with materialhandling plants all have indicated that safety shoes should be worn.\u00a0 If, as themajority asserts, the auto parts warehousing industry does not customarily require safetyshoes, the law and the facts mandate that those customs must change.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this 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]] Because they present the same question of law on nearly identicalfacts, and involve the same employer, we consolidate these cases for decision underCommission Rule 9, 29 C.F.R. ? 2200.9.[[2]] 29 C.F.R. ? 1910.132(a) provides:? 1910.132 General requirements.(a) Application.\u00a0 Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, protective clothing, respiratory devices,and protective shields and barriers, shall be provided, used, and maintained in a sanitaryand reliable condition wherever it is necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanical irritants encounteredin a manner capable of causing injury or impairment in the function of any part of thebody through absorption, inhalation or physical contact.[[3]] Class 75 safety toe footwear must be able to withstand 2500 pounds ofcompression and 75 foot-pounds of impact.\u00a0 See ANSI Z41.1-1967, USAStandard for Men’s Safety Toe Footwear 8.[[4]] In a footnote in his brief in Docket No. 79-4478, the Secretaryrequests the Commission to take official notice of statistics in Bureau of LaborStatistics, Dep’t of Labor, Rep. No. 626, Accidents Involving Foot Injuries 5(1981).\u00a0 He contends that the statistics demonstrate that significant numbers of footinjuries occur from falling metal objects generally and from falling auto parts inparticular.\u00a0 GM opposes the Secretary’s request on the grounds that the statisticsare not appropriate for judicial notice.\u00a0 Inasmuch as the document would not affectany of the conclusions we have reached with regard to the Secretary’s case, it isunnecessary to decide whether to take official notice of it.\u00a0 The report states thata certain number of foot injuries were recorded in a two-month period in 1979 and that 2%of these involved falling auto parts.\u00a0 However, the document itself contains awarning against using the data as if it were representative of \”the country as awhole.\” Id. at 1. Moreover, the document does not purport to give injury figures forauto parts warehouses, nor does it provide any details about the circumstances of theinjuries received from falling auto parts.”