“SECRETARY OF LABOR,Complainant,v.INLAND STEEL COMPANY,Respondent.UNITED STEELWORKERS OF AMERICA,AND ITS LOCAL 1010,Authorized EmployeeRepresentative.OSHRC Docket No. 79-3286_DECISION_Before: BUCKLEY, Chairman; and RADER, Commissioner.[[*]]BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).This litigation was precipitated by the death of an Inland Steel Companyswitchman, Anthony Corona, in one of Inland’s railroad yards. Coronawas fatally injured when he was crushed between two groups of railcarswhich he was attempting to couple together. The Secretary’s OccupationalSafety and Health Administration subsequently inspected Inland’s railoperations and issued a citation alleging that Inland willfully violatedsection 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1),[[1]] in that it didnot adequately protect its employees from being injured by movingrailcars during switching or transporting operations. The specificallegations of the citation, as amended, were (1) that Inland failed toequip its railcars with handbrakes and (2) that it did not have anadequate safety program for reporting and removing from service railcarswith defective safety equipment and for preventing employees fromworking with those cars.It was undisputed that Inland did not install handbrakes on itsrailcars. Rather, Inland contended that handbrakes were less effectiveand more dangerous than wheel blocks. For this reason, Inland actuallyremoved handbrakes from its railcars and instead used specially designedwheel blocks to hold railcars in position. Inland also contended thatits rules for identification and removal of defective railcars wereadequate and were communicated to its employees.Commission Judge Richard DeBenedetto vacated both charges. He foundthat given the limitations and hazards of handbrakes in Inland’soperations, Inland’s decision to prevent \”inadvertent movement ofrailroad cars\” by using blocks was proper. The judge also found thatInland’s safety rules for reporting and removing from service defectiverailcars were adequate and that they were properly communicated toemployees. Finally, Judge DeBenedetto found that the evidence did notsustain the Secretary’s allegation that Inland failed to adequatelyenforce the rules. We affirm Judge DeBenedetto’s action in vacating theamended citation.I. _The Handbrake Allegation _AInland’s Harbor Works in East Chicago, Indiana, is the largest steelmanufacturing facility in North America, comprising 2500 acres andemploying 24,000 people. Inland uses some 3000 railcars of differenttypes in its internal railroad operations, which include 150 to 175miles of railway track. Its cars move the materials used in itssteelworks, including molten metal, steel ingots, and raw materials likescrap metal. In addition, hundreds of \”foreign\” railcars (originatingfrom outside railroads) are handled within the facility each day.It is the safety of Inland’s 250 or so switchmen that is the focus ofthis case. Switchmen couple railcars to trains and uncouple them, andperform the switching which allows cars to transfer from one track toanother. Inland’s switching crews consist of three persons–a\”conductor,\” who is the head switchman, another switchman, also calledthe \”helper,\” and a locomotive engineer.Inland’s operations consist basically of flat switching, that is,switching railcars on level tracks. Inland’s yards are \”dish-shaped,\”that is, level except for an incline at their sides. Inland typicallysorts its railcars into their appropriate track by releasing or\”kicking\” them down the inclined edge of the yard, letting them rollfreely over switching points until they come to a standstill at theirappropriate track. Most of its cars are in more or less constant use,being loaded or unloaded, with intermediate switching.Unlike foreign railcars, Inland’s railcars do not have handbrakes. In1958, Inland implemented a system to prevent movement of stationaryrailcars in areas where employees are working by using wood blocksshaped like parallelograms, 2\” high, 2\” thick, and 11\” long (measureddiagonally). Inland instructs employees in the use of different typesof blocking for different circumstances, to preclude movement of thecars after blocks are set. Each year, Inland’s employees block over100,000 cars.The amended citation alleged a willful section 5(a)(1) violation in that:The employer did not provide hand brakes on employer owned railroad carsused in the railroad yards plant wide as set forth below:Employees were exposed to the hazard of being struck by, caught between,or run over by moving railroad cars while conducting switching andtransporting operations as the railroad cars were without adequate meansto be braked . . . .BThe judge found no evidence that other employers in Inland’s industry,the steel industry, \”use handbrakes instead of blocks to secure plantrailway freight cars.\” He also found that in the industry of interstaterailroad carriers \”serious risks attending the use of handbrakespersist.\” Specifically, employees climbing on and off railcars to setand release handbrakes must contend with a \”precarious situation . . . .Railroad accident data reveal that getting on and off cars and operatinghandbrakes are major causes of injury. . . . [T]he Secretary has failedto show by any competent evidence that the use of blocks has been thecause of injury to Inland employees.\” The judge determined that woodenblocks were not shown to be unacceptable in either the steel industry oramong interstate railroads for the uses to which Inland puts them. Healso determined that an \”elaborate inspection and maintenance program\”would be required for handbrakes on Inland’s 1400 or so gondolas–abouthalf its fleet–due to the extensive damage to which they would besubjected in Inland’s scrap handling operations. He found that thetotal repair problems might very well be an insurmountable task and thatthe \”record fully justifies Inland’s decision\” to use specially designedblocks instead of handbrakes. We agree.CTo prove that an employer violated section 5(a)(1), the Secretary mustshow that the employer failed to free its workplace of a hazard that isrecognized as such by the employer or generally by the employer’sindustry, that is causing or is likely to cause death or seriousphysical harm, and that could have been materially reduced or eliminatedby a feasible means of abatement. _E.g_., _Cerro_ _Metal ProductsDivision, Marmon Group Inc_., 86 OSAHRC __\/__, 12 BNA OSHC 1821, 1822,1986 CCH OSHD ? 27,579, p. 35,829 (No. 78-5159, 1986).The judge in this case defined the recognized hazard as \”inadvertentmovement of railroad cars.\” The Secretary [[2]] urges us to accept thatformulation.[[3]] However, Inland objects to this definition on theground it is overly broad, contending that the hazard should be definedas the absence of handbrakes. As we have held, defining recognizedhazards too broadly would undermine the congressional purpose behind the\”recognition\” element– to limit the general duty imposed by section5(a)(1) to preventable hazards. _Pelron, Inc_., 86 OSAHRC, ___, 12 BNAOSHC 1833, 1835, 1986 CCH OSHD ? 27,605, p. 35,871-72 (No. 82-388,1986); _see_ _also_ _National Realty & Construction Co. v. OSHRC_, 489F.2d 1257, 1266 (D.C. Cir. 1973) (section 5(a)(1) limited to preventablehazards). We observed in _Pelron_ that an employer cannot reasonably beexpected to free its workplace of inherent risks that are incident toits normal operation. Therefore, to respect Congress’s intent, hazardsmust, be defined in a way that apprises the employer of its obligationsunder the Act by identifying conditions or practices over which theemployer can reasonably be expected to exercise control. 12 BNA OSHCat 1835, 1986 CCH OSHD at p. 35,872, _citing_ _Davey Tree Expert Co_.,84 OSAHRC 11\/D11, 11 BNA OSHC 1898, 1984 CCH OSHD ? 26,852 (No. 77-2350,1984). Consistent with this precedent, Inland argues that the hazardin question must be defined as a lack of handbrakes in order to affordit fair notice of the conduct the Secretary is requiring.Since movement of railcars is inherent and unavoidable in Inland’soperations, Inland is not required under section 5(a)(1) to free itsworksite of all railcar movement that might present a potential risk toits employees. Here, Inland had instituted a program for the use ofwheel blocks, the purpose of which was to prevent undesired orunintended movement, or movement beyond that necessary for the conductof its usual operations. However, while we conclude that \”inadvertent\”is an appropriate term to characterize the type of railcar movement fromwhich Inland sought to protect its employees, we need not decide whetherthe recognized hazard may be defined in this manner or must be definedmore narrowly as Inland contends. In a case such as this, where theemployer has a mechanism designed to eliminate a hazardous condition,the burden is on the Secretary to establish that the employer’s measureswere inadequate. _Cerro Metal Products_, _supra_, 12 BNA OSHC at1822-23, 1986 CCH OSHD at p. 35,829, _citing_ _National Realty &Construction Co. v. OSHRC_, 489 F.2d 1257, 1266-68 & n.40 (D.C. Cir.1973). In addition, the Secretary must show that knowledgeable personsfamiliar with the industry would regard additional measures as necessaryand appropriate in the particular circumstances existing at theemployer’s worksite. _Id_. We conclude that the Secretary has failedto meet that burden in this case. Since the Secretary has notestablished that Inland should have implemented the abatement measure headvocates–the use of handbrakes—the citation allegation must bevacated regardless of how the recognized hazard in issue is defined. _See_ _Pelron_, _supra_, 12 BNA OSHC at 1835, 1986 CCH OSHD at p. 35,871.(1)Inland is a member of the steel industry. Many steel plants containspecialized railroads similar to Inland’s, but the Secretary submittedno evidence to show steel industry practice or knowledge. In fact,Harding, superintendent of Inland’s Transportation Department, testifiedthat steel plants normally do not have handbrakes on their railcars. Thus, the evidence in this case does not indicate general understandingin the steel industry that blocks are not an adequate means to protectemployees from inadvertent railcar movement.[[4]] _See_ _Pratt &Whitney Aircraft v. Secretary of Labor_, 649 F.2d 96, 101 (2d Cir. 1981).(2)It is conceded that Inland is not engaged in business as a commoncarrier by railroad. Despite this, the Secretary argues that theinterstate railroad industry is a relevant industry, that it recognizesthe need for handbrakes in operations comparable to Inland’s, and thatInland is responsible under section 5(a)(1) for following the samepractices. We disagree. First, the Secretary did not prove thatinterstate common carriers generally use handbrakes, in their flatswitching operations. Second, those operations are not comparable toInland’s. Inland’s switching differs markedly because it is much morefrequent, increasing greatly the serious risks of handbrake operation,and because handbrakes would be subject to much greater damage than inswitching operations of interstate common carriers. In addition,Inland regularly uses types of railcars, such as ingot buggies, doublepot cars and pan cars, that are found rarely if ever among interstatecarriers. As described below, these cars will not accept a standardhandbrake and carry extremely hot or molten metal, creating specialproblems for switchmen attempting to secure them from movement.The Secretary relies on the fact that railcars used in interstatecommerce must be equipped with efficient handbrakes under the SafetyAppliance Act, 45 U.S.C. ? 11. However, there is no explicit statutoryrequirement that interstate common carriers use handbrakes eithergenerally or in switching operations similar to those involved in this case.In attempting to prove that interstate railroads _use_ handbrakes, theSecretary relies on the testimony of Marshall Sage, a rail safetyspecialist with the United Transportation Union, and Wilder Barnes, aformer Federal Railroad Administration safety specialist. They testifiedthat the safety rules of interstate carriers generally require that allrailcars be properly secured with handbrakes when left on any track. However, many of the railroads’ rules merely specify that a \”sufficient\”number of brakes be applied to prevent cars from moving. Sage admittedthat the term \”sufficient\” is not clear and has been interpreted in therailroad industry to mean that brakes do not necessarily have to be usedin all instances when cars are left on tracks.[[5]] Barnes alsoadmitted that blocks are used in railroad switching operations fortemporarily holding cars, and Sage stated that some interstate carriers’rules recognize that brakes may not always be adequate to preventmovement and require blocks to be used in such instances. Holland, aformer Inland employee who had prior rail carrier experience, statedthat he had never used handbrakes except to hold cars on elevated tracks.James Martin, Senior Vice President for Operations of the IllinoisCentral Gulf Railway Co. (\”ICG R.Co.\”), testified for Inland that he didnot interpret the common carriers’ rules to require the use ofhandbrakes in all cases, but merely to require that cars be secured byany sufficient means. This could mean chocks or blocks, skates,handbrakes, or nothing at all, depending on conditions. Furthermore,Martin testified without rebuttal that in most flat switching operationshandbrakes are not used even by interstate carriers. Thus, theSecretary failed to show that handbrakes are generally used in the typeof switching operations at issue here.Even if interstate rail carriers normally do use handbrakes in theirflat switching operations, there are significant differences between thetypical flat switching operations of interstate common carriers andthose at Inland. The most important difference is the frequency ofInland’s switching. Martin testified that Inland switches its railcarsmuch more often than interstate railroads because they are being loadedand unloaded in materials-handling almost constantly. Hardingtestified that Inland switches a railcar perhaps as much as 15 to 20times more often than outside railroads he has observed. Thus, ifhandbrakes were generally required, switchmen would have to climb onrailcars to set or release them perhaps 15 to 20 times more often thanon interstate common carriers.As a result of the greater frequency of Inland’s switching, the risk ofinjury to Inland’s switchmen while applying handbrakes would be evengreater than the risk that switchmen for interstate common carriersface. On interstate rail carriers during 1975-78, approximately 6.5percent of all injuries to yardmen (in which category switchmen wouldfall) involved operating handbrakes. Even if injuries on movingrailcars are excluded, the Federal Railroad AdministrationAccident\/Incident Bulletin covering 1978, introduced in evidence,indicates as many as 125 injuries to employees while operatinghandbrakes in switching and terminal operations, and as many as 326other injuries while getting on or off railcars in those operations.[[6]]On the other hand, despite the large number of blocking operationsperformed each year, Inland’s present blocking system had resulted in noinjuries to employees due to blocking railcars or being struck byrailcars that had been blocked during the entire 22 years the system hadbeen in operation. As Martin explained, blocks can be placed from theground at all times, with the employee’s body clear of the car. Martintestified, \”most accident prevention people would, I’m sure, opt to keepthe man off the car because of the potential hazard in boarding anddetraining.\”Martin was well qualified to give factual opinion testimony. His dutieswith ICG R.Co. included responsibility for safety. Martin had served ona railroad safety advisory committee for the Office of TechnologyAssessment of the United States Congress. The committee prepared anextensive study of the causes of railroad accidents and Federalregulation of the subject. Martin also had responsibilities fordevelopment of safe practices of Class I (major) rail carriers as VicePresident of Operations and Maintenance for the Association of AmericanRailroads. Martin’s conclusion is also consistent with therecommendation of Inland’s committee that formulated Inland’s currentblocking system in 1958. None of the five switchmen who served on thatcommittee, most of whom were experienced in the operations of interstaterail carriers, advocated using handbrakes. The other member of thecommittee was then transportation superintendent, Smolt, who previouslyhad worked as a switchman. He testified that operating handbrakes isthe most hazardous part of a switchman’s job.The much greater damage handbrakes would be exposed to in Inland’soperations also makes any comparison between Inland and interstatecarriers inapposite. The judge found that if handbrakes were requiredon Inland’s 1400 or so gondolas–about half its fleet–damage to thehandbrakes would be so frequent that the repair problems \”may very wellbe an insurmountable task.\” Martin noted that in Inland’s scrap metaltransportation operations \”there is no way to keep safety appliances inworking order,\” due to the almost constant damage to which the gondolasare exposed from huge pieces of scrap metal– individual pieces weighingas much as 4 or 5 tons–being loaded into and unloaded from the carswith electromagnets. Martin explained that different considerationsapply with respect to interstate carriers. Although there is a limitedamount of scrap handling done on interstate rail carriers, there is notthe frequent exposure of safety appliances to heavy damage due toconstant loading and unloading. Instead, interstate carriers useswitching yards primarily to receive, sort out, and dispatch trainsoriginating from, and destined for, other points.Inland’s frequent transportation of extremely hot or molten metal onspecially designed cars is another important difference between itsoperations and those of interstate common carriers. Many of Inland’scars are regularly involved in the transport of extremely hot or moltenmetals. These include 500 or so ingot buggies, 50 double pot cars, 31or more pugh ladle cars, and an unspecified number of pan cars. Martintestified that ingot buggies, double pot cars and pan cars would notaccept a standard braking system, so a special system would have to bedevised for them. The extreme heat of the metals carried on many ofInland’s cars would preclude mounting the car to set handbrakes, whereasblocks may be set because the switchman is shielded somewhat from theheat by the car’s body when setting them. Martin noted that interstatecommon carriers rarely carry hot metal.Thus, numerous important differences in working conditions and hazardsmake the Secretary’s comparison between the braking practices ofinterstate rail carriers and Inland inappropriate. The interstaterailroad industry simply does not furnish a model that Inland should beexpected to follow. _See_ _Donovan v. Royal Logging Co_., 645 F.2d 822,830 (9th Cir. 1981) (practice of one industry may not be imposed onanother industry where hazards and working conditions are not comparable).(3) The evidence also fails to show that knowledgeable persons familiarwith Inland’s industry would regard Inland’s system for the use ofblocks to be ineffective in protecting employees. As noted above,Inland had great success in safely holding railcars with blocks, and ithad no injuries attributable to its present blocking system in the22-year history of that system. Numerous witnesses experienced withboth common carriers and in-plant railroads testified that Inland’sblocking system was quite adequate, even when compared to handbrakes. Accordingly, the Secretary’s argument that the use of blocks ratherthan handbrakes would increase the likelihood of railcar movement incertain specific situations is not supported by the record.Transportation superintendent Harding testified that properly blockedcars will hold railcars in almost all situations, including on icy orwet rails. Inland employees are advised of different types of blockingto be used in different circumstances and are instructed to block allcars so that there will be no movement after they are set. Inland alsohas procedures to test the sufficiency of the blocking before therailcars are left on any track. Harding testified that where theincline is away from the engine, the initial blocking should be testedbefore the blocked cars are uncoupled from the train, by backing thetrain slightly to see if the blocks hold. If they do, there isreasonable assurance that the blocking is sufficient, and the railcarsare then uncoupled from the train. Where the incline is toward theengine, the train may be pulled slightly forward to test the blocks, orthe blocked cars may be uncoupled and the engine may pull away a shortdistance. In the latter case, if the blocks fail the blocked cars willroll toward the engine and couple up again, and additional blocking willbe used. Although the process of setting blocks sometimes involves morethan one attempt, switchman Thedford, a former union safety steward,testified that if an initial blocking failed, he would simply try otherblocking methods until a successful combination was found. Thus,Inland’s procedures were designed to minimize the chance of railcarsrolling free after they were blocked.Martin testified that Inland’s blocking system is \”certainly veryadequate\” for securing railcars in its operations, \”very safe\” andactually \”superior to the handbrake . . . in the type of activity theyare involved in.\” Martin had visited Inland’s facility and had observedits blocking system in use. His opinion was also based on hisobservation of other intraplant railroad facilities in the steelindustry that used blocks rather than handbrakes, including BethlehemSteel Company, Armco Steel Corporation, and Youngstown Sheet and TubeCompany.William Webber, an Inland trainmaster, and Charles C. Shannon, anindependent railroad consultant, also testified that Inland’s blockingsystem was fully adequate for securing its railcars. They also werewell qualified to give such an opinion. Webber previously had been aswitchman for Inland for more than five years, and before that had beena brakeman, operating handbrakes for the Pennsylvania Railroad for aboutfive years. Shannon, an independent railroad consultant since 1960, hadpreviously been a trainmaster qualified in and responsible forinstructing switchmen on railroad safety rules including handbrake usefor the Chicago and Northwestern Railway and had a total of 19 yearsmanagerial experience with that railroad. While employed by therailroad, Shannon personally had set blocks and applied brakes. LikeMartin, he also observed Inland’s blocking system first-hand.The Secretary relies on evidence that blocks could fail on Inland’s pughladle cars (molten metal carriers) due to the great weight of the cars,water and mud on the tracks, the incline of the track; and the swayingof the cars when the molten metal is poured into them. However, Hardingtestified that pugh ladle cars generally hold during loading operationswhen properly blocked on both sides of a wheel. The only way that aproperly blocked pugh ladle could move in Harding’s opinion was ifmolten metal spilled and burned the blocks or if some equipment such asa bulldozer struck the car–both very rare occurrences, based on histestimony. Furthermore, Harding testified that in his opinion ahandbrake would not hold a loaded pugh ladle either. Webber testifiedthat the high temperature of the hot steel carried on ingot mold buggiesand stake cars would preclude the use of handbrakes, whereas those carscould be blocked because temperatures are cooler near track level.The Secretary further argues that handbrakes were needed becauserailcars generally could be struck by machines during loading orunloading and roll free of their blocks. While arguably further brakingmeasures might decrease the chance of movement in that limitedsituation, there is no evidence that any employee had ever beenendangered by such an occurrence nor any evidence from which todetermine the likelihood or the frequency of such occurrences.Barnes, a witness for the Secretary, pointed out that handbrakes havethe holding power of 11 percent of the gross car weight; that they applyequally to all eight wheels on the typical railcar; and that they retainsome braking power even if the railcar is set in motion, whereas blockshave none once a wheel rolls over them. For example, Barnes testifiedthat a railcar could be derailed if Inland’s strongest blocking method,crossblocking–where two blocks are placed at right angles so that onebraces the other–were used on one set of wheels and the crossblockedcar were struck or pushed. There is no evidence that such a derailmenthad ever actually occurred. Barnes was the only witness to testify tothis possibility, and he was not asked to describe the likelihood ofsuch occurrences in light of the conditions existing in Inland’sfacility. Barnes also testified that in his opinion Inland’s blockingprocedure was hazardous because of the proximity of the employee’s handto the wheel in setting the block and the amount of time required inthose situations where more than one block must be set. However, Barneshad never visited Inland’s facility. There is no indication that he hadany knowledge of operations of internal railways in the steel industry,nor was he familiar with the type of blocks and the details of theblocking system instituted by Inland. The committee which developedInland’s present blocking system had established based on actual teststhat the special, tapered design of Inland’s blocks eliminated thehazards of employees’ fingers or hands being pinched between a block anda rail, or between a block and a wheel, when placed properly. The judgewas not persuaded that Barnes’ testimony, or that of Sage, outweighedthe evidence supporting Inland’s position. We cannot say that the judgeerred.[[7]]The Secretary presented testimony that blocks had been dislodged if theywere \”green\” (insufficiently cured), or if the blocks or rails were wetor icy. However, Transportation Department Superintendent Hardingtestified without contradiction that cars would not move even underthose circumstances if the blocks were properly set as employees weretaught and that properly placed blocks would hold railcars in almost allsituations. The number of such incidents of blocks failing to hold werefew and, as shown below, Inland closely supervised compliance with itsblocking procedures and disciplined employees who failed to properlyblock. There is other employee testimony, on which the Secretary alsorelies, that at times inadvertent movement of blocked cars had occurredbecause a car had been kicked into a track and had hit a blocked car,causing it to roll free of its blocks. However, many of Inland’s trackshave permanent derails and\/or locking switch stands. These devicesprevent cars from moving into the protected track. Also, Hardingtestified that when employees are working on or near a track, they willplace portable derails on both ends of the track or at one end if it isa stub track. There was no evidence from which to conclude that theseprecautions were not adequate to protect employees from being struck bya car dislodged from its blocks by a kicked car.The adequacy of Inland’s blocking system is also objectivelydemonstrated by the relatively low incidence of block failure comparedto the total number of blocking operations performed. Thus, Thedfordstated that he had experienced blocks failing to hold a car only once ortwice a week. Employee Warner testified that during the six months hehad worked as a switchman he had blocked cars on numerous occasions andonly in 10 instances did the blocks fail to hold. Although the detailsof Inland’s safety program are discussed more fully in the Part II, wenote that Inland monitors compliance with its safety rules anddisciplines employees for infractions. During the period from 1974through 1979, Inland reprimanded or penalized employees on 25 occasionsfor failure to block cars properly. Section 5(a)(1) does not require anemployer necessarily to prevent every instance of hazardous conduct byits employees. _See_ _Jones & Laughlin Steel Corp._, 82 OSAHRC 34\/A2,10 BNA OSHC 1778, 1782-83, 1982 CCH OSHD ? 26,128 at pp. 32,887-88 (No.76-2636, 1982).The Secretary has abandoned his claim that Inland should require the useof handbrakes to slow or stop moving railcars.[[8]] However, the unionhas not expressly abandoned that argument. Leaving aside the questionof whether the union may press claims that the Secretary has abandoned,we find Inland’s procedures for handling moving cars to be adequate toprotect its employees. We agree with the judge that the speed of thecars is adequately controlled by the locomotives, which move at a slowrate of speed, and by the basically flat topography of dish-shapedswitching yards. In fact, as the judge found, \”[t]he evidence indicatesthat having switchmen dismount the car and safeguard road crossings inthe path of the ‘runaway’ car, as Inland does, is a safer practice indealing with the situation than the Secretary’s recommended method ofrequiring switchmen to manipulate hand brakes of a moving car.\”In sum, none of the evidence relied on by the Secretary shows a need forInland to use brakes to protect employees from railcar movement. Because the Secretary failed to establish that Inland did not takesufficient steps through its blocking system and instructions toemployees to keep its workplace free of the hazard of inadvertentmovement of railcars, he has failed to prove a section 5(a)(1) violationas to this item. _United States Steel Corp_., 81 OSAHRC 28\/C2, 9 BNAOSHC 1641, 1981 CCH OSHD ? 25,282 (No. 76-5007, 1981). _See_ _Brennanv. OSHRC (Republic Creosoting Co._), 501 F.2d 1196, 1200 (7th Cir. 1974).II. _The Safety Program Allegation_The remaining issue on review is whether the judge erred in ruling thatthe employer’s safety program was adequate. The Secretary’s amendedcitation alleged three specific deficiencies in the safety program asfollows:A. The employer did not maintain railroad cars in a _safe_ operatingcondition. The employer’s use of defective railroad cars exposedemployees to the hazard of being struck by, caught between, or fallingfrom such railroad cars while switching or transporting the cars. Railroad cars with defective or missing uncoupler devices (pin lifters),bent and crushed stirrups, bent, crushed, loose and missing handholds(grab irons) and broken yokes (carrier irons) were being used ratherthan taken out of service as set forth below: [list of individualrailroad cars omitted]B. The employer failed to enforce company safety rules requiringtransportation employees to identify and report defective railroad carshaving missing or defective uncoupler devices (pin lifters), bent orcrushed stirrups, bent, crushed, loose or missing hand holds (grabirons) and broken yokes (carrier irons).C. Switchmen and Conductors working in railroad yards plantwide arerequired and\/or permitted to work with defective railroad cars havingdefective and\/or missing uncoupler devices (pin lifters) necessitatingstepping between cars to open couplers manually.[[9]](Emphasis in original)It is undisputed that at times some of Inland’s railcars in service haddefective pin lifters, stirrups or handholds; that switchmen did notalways report defective railcars; and that at times some switchmen wentbetween railcars to uncouple cars manually, due to missing or defectivepin lifters. It also is undisputed that Inland had an extensive safetyprogram including rules designed to prevent these problems,communication of the rules to switchmen, and efforts to detectviolations. The basic issues in dispute are whether Inland’s safetyprocedures for reporting defective railcars and uncoupling railcars wereadequate, and whether its safety rules were adequately communicated toemployees and adequately enforced.The judge found that Inland had established an adequate safety programand that its employees were adequately trained in the pertinent safetyrules. He rejected as not credible certain testimony introduced by theSecretary to show that supervisors coerced or induced employees toviolate these rules. He also found that the Secretary did not providea sufficiently definite standard or criterion against which to judgeInland’s maintenance program and that the Secretary failed to show whatadditional measures Inland could have taken to insure compliance withits safety rules. He determined that the Secretary’s evidence regardingfeasible abatement methods lacked probative value because the witness onwhom the Secretary relied, the compliance officer, was not familiar withthe circumstances of either the steel industry or of railroads in general.As noted above, to establish a section 5(a)(1) violation, the Secretarymust prove, among other things, the existence of a feasible and usefulmeans of reducing or eliminating the alleged recognized hazards. TheSecretary argues that Inland’s safety rules for reporting and removingdefective railcars from service and uncoupling railcars were inadequate,and that the communication and enforcement of those rules wasdeficient. Under Commission precedent, when elimination of a recognizedhazard requires that employees follow safe procedures, an employer isnot in violation of section 5(a)(1) if it has established workrulesdesigned to prevent the hazards from occurring, has adequatelycommunicated the workrules to the employees, has taken steps to discovernoncompliance with the rules, and has effectively enforced the rules inthe event of noncompliance. _Jones & Laughlin Steel Corp_., _supra_, 10BNA OSHC at 1782, 1982 CCH OSHD at p. 32,887.We find that the Secretary failed to prove the alleged inadequacies inInland’s safety program. We find specifically that Inland had adequatesafety rules requiring the reporting and removal from service ofrailcars with defective safety appliances, and prohibiting switchmenfrom going between railcars where hazards of railcar movement existed;that those rules were properly communicated to employees; and that theSecretary’s evidence of inadequate enforcement of these rules isinsufficient.[[10]] We will address these findings in order.AInland’s safety rules directly address and would eliminate the problemscomplained of by the Secretary and Union. Inland’s Rule 4 addresses thereporting and removal from service of defective railcars. The term \”badorder\” as used in the rule means that the railcar has a defective safetyappliance or some other defect warranting removal from service. Therule states:Conductors and switchmen must report all defective equipment to theirYardmaster.Bad order foreign empty cars are to be set outbound as soon aspossible. Bad order foreign loaded (inbound) cars are to be set forunloading as soon as possible and then set outbound empty immediatelywhen released. Exception–Foreign cars with broken drawbars are to beset aside in the plant for \”I.H.B.\” or \”J\” to repair.Red \”bad order\” cars signify major defects. A car with a red card mustnot be moved unless authorized by the Trainmaster or Asst.Superintendent and then it must be handled carefully to specificdestination. [[11]]In addition to requiring switchmen to report defective equipment,Inland’s Transportation Department has a field repair crew consisting oftwo supervisors and about 23 car repairmen assigned to inspect, repairand oil railcars in the yards daily. Yard clerks also are supposed tolocate and report all defective equipment in the course of theirduties. There is no evidence that switchmen, yardmasters, or carrepairmen could not determine when a railcar is defective. So far asthis record shows, Inland has adequate procedures for reportingdefective railcars and removing them from service.As to the problem of switchmen working between railcars, Inland’s Rule43 provides:Before stepping between cars to open knuckles, adjust drawbars and etc.,the cars must be at a complete standstill and a 20-foot-opening betweenthe cars. Also if there is any question of the cars not being at acomplete standstill they must be blocked.At night when it is necessary to step between cars to work on knuckles,drawbars, etc., switchman must place his lantern on the ground where itcan be seen by the other switchmen or engineer. Engineer, is not tomove the cars while the lantern is on the ground.In 1977, Inland further restricted work between cars by issuing a newRule 60 (later renumbered as Rule 58 in Inland’s revised rulebook). That rule provides:Under no circumstances will switchmen be permitted to lift pins by handwithout using cut levers.1. When cut lever is missing or inoperative switchman must cross in asafe manner to the other side of train and pull the cut lever on theother car.2. If cut levers are missing or inoperative on both sides of the trainthe cars must be set out as bad orders for car repair to replace orrepair cut levers.So far as this record shows, these rules would minimize the possibilityof switchmen being injured by a moving railcar while working withdefective equipment.BWe also find that the safety rules were properly communicated toswitchmen. Inland had an extensive safely program for switchmen thatincluded instructions on the safety rules. Switchmen were given threedays of classroom training and seven days of on-the-job training beforestarting work. Included in this training were instructions on thepertinent safety rules and on safe procedures for the specific jobsswitchmen must perform, including blocking cars, pulling pins andcoupling cars. The latter training is based on numerous detailed jobsafety analyses (\”JSAs\”) that Inland has developed for particularaspects of the switchman’s job. A test is administered to the switchmenat the end of the 10-day course. Following the course, eachswitchman-trainee spends two weeks as an extra member of switch crews. Three different conductors must sign a card saying that the traineeworks safely and can handle the job. During the following three monthseach trainee is placed on a particular job for a week at a time with anexperienced conductor.The evidence establishes that the switchmen knew Inland’s safety rules. Switchman Thedford testified that each day a safety rule pertaining totheir jobs is read to the switchmen, and he remembered that Rule 43 hadbeen read occasionally. Dills, a switchman who had previously been aforeman, had learned the rules from instruction by yardmasters. Warner,formerly a switchman, had been trained in safety rules, including Rules4, 43, and 60, and had been specifically instructed not to uncouple carslacking pin lifters. Former switchman Connelly was familiar with Rules4 and 43, and he indicated that he had learned of the rules throughsafety bulletins issued and posted by Inland.The Secretary relies on conductor Gillie’s testimony that he did notknow about Rule 60 until after the citations were issued and that he hadnot seen it posted. However, Transportation Superintendent Hardingtestified that Safety notices–the form in which Rule 60 was firstissued–are posted in the different yard areas for the switchmen toread, and are the subject of safety contacts and observations. Thejudge found Gillie’s testimony, including that claiming ignorance ofRule 60, not to be credible.The principles governing our determination of the correctness of ajudge’s credibility finding are well established. Normally, we willaccept the administrative law judge’s evaluation of the credibility ofwitnesses because it is the judge who has lived with the case, heard thewitnesses and observed their demeanor. _C. Kaufman_, 78 OSAHRC 3\/C1, 6BNA OSHC 1295, 1977-78 CCH OSHD ? 22,481 (No. 14249, 1978). However,the judge should identify the conflicting testimony and explain thereasons for failing to credit a witness’s testimony or for crediting thetestimony of a witness over that of another. _P & Z Co_., 77 OSAHRC211\/F5, 6 BNA OSHC 1189, 1192, 1977-78 CCH OSHD ? 22,413, p. 27,024 (No.76-5007, 1981) (judge’s credibility finding will be upheld whereopposing party does not demonstrate reasons why it should be reversedand Commission’s review of record indicates there is no basis for doing so).We find upon review of the entire record that the judge evaluated thevoluminous evidence and conflicting testimony carefully andimpartially. He also specifically identified much of the testimony byGillie that he failed to credit, and stated the reasons:Mr. Gillie’s testimony is strikingly unconvincing. Time and time againhe displayed bias against Inland, particularly in his demeanor and themanner in which he responded to questions on cross-examination. Themajor points of incredibility in his testimony include the allegedincidents of being harassed by Inland’s supervisors if he failed toundertake the dangerous practice of lifting pins by hand . . . thealleged lack of knowledge concerning Inland’s Safety Rule No. 60 whichprohibits that very practice . . . the amount of defective cars allegedto be as much as 70 percent and his claimed efforts to alleviate theproblem . . . . It is significant to note that although he had held theresponsible jobs of \”union griever\” and \”safety committeeman,\” neitherMr. Gillie nor any other conductor or switchman has asserted his rightsunder Article 14, section 6, of the collective bargaining agreementconcerning defective cars [permitting an employee to be relieved of workthat he believes is unnecessarily hazardous]. . . . It is alsonoteworthy that despite his professed concern regarding defectiveequipment and its hazards, Mr. Gillie failed to take any action onlnland’s offer of establishing a joint union-management committee toinvestigate the problem of bad order cars, which was raised by Mr.Gillie himself in an October 1978 \”Safety Agenda\” while Mr. Gillie wasacting as a safety committeeman . . . .(citations to the record omitted)The judge’s decision not to credit Gillie’s testimony, including hisassertion that he had not known Rule 60, is sufficiently explained onthe basis of factors that are peculiarly observable by the judge: Gillie’s demeanor on the witness stand and his manner of responding toquestions on cross-examination. The Judge perceived a bias againstInland that made Gillie’s testimony unreliable. We cannot say that thiswell-explained finding is erroneous. We also note that Gillie’stestimony on Rule 60 conflicts with Superintendent Harding’s testimonythat safety notices such as Rule 60 are posted for switchmen to read. We accept and concur with both the judge’s credibility finding regardingGillie and his finding that the safety rules were adequatelycommunicated to the employees.CThe remaining issue is whether, despite Inland’s extensive safetyprogram, the Secretary proved that the safety rules were not properlyenforced. The Secretary argues that switchmen routinely breached therules, that Inland knew or should have known of the employee violations,and that supervisors participated in and actively encouraged safety ruleviolations.The evidence supports the Secretary’s assertion that at times someswitchmen violated the rule against standing between cars to operatedefective uncoupling devices manually. For example, Warner testifiedthat he did so one or more times per and Connelly testified that he didso three or more times per shift, even after Inland’s Rule 60 wasimplemented in 1977. Both Thedford and Connelly testified that therequirement in Rule 43 that switchmen never work between railcars thatare less than 20 feet apart is sometimes violated because couplers willnot connect properly when cars are brought together from that distance,particularly on curved track.However, the mere fact that some switchmen violated safety rules attimes on Inland’s vast worksite does not prove a section 5(a)(1)violation by Inland. Inland employs some 250 switchmen, who performinnumerable switching operations. Also, switch crew members often hadto work out of each other’s sight and out of sight of their supervisors,the yardmasters, who are in a central office or tower in each yard andcannot observe individual switchmen at work in most instances. Forexample, regarding the Corona fatality, the yardmaster’s tower in thatyard was at least 100 yards from the site of the incident, too far topermit personal observation of Corona’s activities. Nevertheless,Inland has programs for enforcing safety rules through monitoringemployee performance and disciplining employees for violations. Tomonitor employee performance, Inland’s APF (Accident PreventionFundamentals) Program calls for safety contacts and observations. Safetycontacts are either group meetings or one-on-one reviews betweenemployees and supervisors on safety rules or JSAs.Observations are planned visits by supervisors to determine whether anemployee actually is complying with safety rules and JSAs. Employeeperformance is graded, with an unsatisfactory performance indicating aneed for reinstruction. If the employee is following the rules, adiscussion may not be needed and may not be held. According to Lundie,Inland’s safety director, the APF Program has been successful inreducing the number of accidents and injuries at Inland since it wasimplemented in 1965.Also, Inland’s management disciplines employees when it discoversviolations of safe practices. In addition to the reprimands ordiscipline issued for failure to block cars properly, previouslyreferred to, Switchman Gaglio was suspended for three days without payin 1978 for violating Rule 43. Switchman Corona was verballyreprimanded by trainmaster Webber three days before his death forviolating Rule 43 and was told he would be suspended. Later, afterstudying Corona’s personnel records and finding no previous incidents,Inland determined that a written reprimand would be issued instead. Issuance was pending when Corona died. On these facts the Secretary mustshow more than occasional instances of noncompliance with safety rulesin Inland’s yards to establish that it violated section 5(a)(1). _See__Jones & Laughlin_, _supra_. 10 BNA OSHC at 1783, 1982 CCH OSHD at p.32,888.Furthermore, it is not clear on the record that employees were exposedto the hazard of inadvertent movement every time they went between carsin violation of Inland’s safety rules. For example, Connelly testifiedthat when uncoupling cars having defective lifters, he would inform theengineer and instruct the engineer not to move the engine until theuncoupling was completed.The Secretary argues, however, that yardmasters knew that switchmenviolated safety rules and condoned, encouraged, and even participated inviolations. The Secretary’s specific arguments are that yardmastersknew that employees did consistently report defective cars and sometimesfailed to ensure that bad order cars that were reported were removedfrom service as required by Rule 4, that yardmasters also knew thatswitchmen sometimes violated Rules 43 and 60, that they actuallyrequired switchmen to violate these rules by \”harassing\” them if theydid not do so, and that yardmasters personally violated those at times.The Secretary relies on the compliance officer’s testimony thatyardmaster Westerfield told him that about 90 percent of Inlandemployees did not report defective cars, and that Harding also told himsome employees did not report them. However, since Inland placedprimary reliance for detecting and correcting defective railcars on itsfield repair crew in addition to its yard clerks who were alsoresponsible for reporting defective railcars, Inland had procedures tomake sure that defective cars were removed from service even ifswitchmen disobeyed the rule to report them. In any event, severalswitchmen testified that they did in fact report defective cars.[[12]] These employees, though, claimed that their reports were not actedupon. We do not agree.As the judge correctly observed, switchman Warner, who claimed that badorder cars he had reported were kept in service in two instances,conceded that one loaded car was first unloaded in conformity with Rule4 and that other defective cars were simply separated from \”good cars.\” Former switchman Connelly testified that there was a chronic failureamong yardmasters to write up orders on bad order equipment that hadbeen reported, thus preventing the equipment from being taken out ofservice. However, as the judge found, the only specific incidentConnelly recounted in that regard \”seriously undermines the import ofMr. Connelly’s statements.\” Connelly testified that once between 1972and 1976, yardmaster Lambert (since retired) asked Connelly to pick upfour or five railcars to use in mill operations. Connelly initiallyobjected because he considered them to be \”bad order.\” Lambert askedConnelly to reconsider because the cars were needed at the mill, andassured him that the cars would be repaired as soon as that operationwas completed. Connelly agreed. In his testimony, Connelly did notspecify what the defects had been. Under Rule 4, the yardmaster mustexercise judgment to determine whether a defect is serious, warrantingimmediate removal from service, or minor, not requiring immediateaction. Thus, Connelly’s account of hit agreement with Lambert actuallyundermines his general allegations of yardmasters failing to comply withRule 4. Indeed, Connelly admitted that it may not always be possible totake a bad order car immediately out of service. We are not persuadedthat either Warner or Connelly knew of any failure of a yardmaster towrite up appropriate orders on any car with a defective or missing pinlifter or other defect warranting removal from service.[[13]]Switchman Thedford testified that he had reported bad order cars inwriting to Assistant Transportation Superintendent DuVall but admittedhe could not testify that those same cars were not repaired. He alsotestified that on one occasion he had reported to Duvall the car numbersof 20 to 25 bad order cars, and that most of the \”major\” repairs werenot made, although some minor repairs were made. However, thistestimony does not establish that DuVall did not properly report thosecars to car repair and remove them from service. In fact, it suggeststhat he did. Thus, Thedford’s testimony does not support theSecretary’s position regarding the implementation of Inland’s safety rules.Yardmaster Westerfield testified that he always wrote up switch orderson bad order cars and always reported railcars to car repair when he sawmissing pin lifters, crushed or broken handholds, bent stirrups orcracked yokes. On an average workshift he reported up to five or tenrailcars as bad order. As discussed below, the judge refused to creditother testimony that implicated yardmasters in safety rule violationsand that conflicted with Westerfield’s testimony. In fact,Superintendent Harding testified that switchmen do not even need ayardmaster’s permission to set bad order cars to the repair tracks. Weare therefore not convinced that yardmasters interfered with the removalof bad order cars from service as alleged.The employees’ testimony must also be viewed in light of the evidenceregarding the extent of bad orders cars. The Secretary argues that sucha high percentage of railcars in service were defective that Inland’sprocedures for reporting and removing such cars from service must havebeen inadequate under section 5(a)(1). However, it was not establishedthat percentage of cars in service was defective. Former switchmanConnelly testified at one point that as much as 70 percent of Inland’scars in service were in bad order condition, but later he gave anestimate (400 bad order cars out of a total of 5000) that amounts toonly about 8 percent. Gillie also testified to the 70 percent figure butthe judge ruled his testimony not credible and we accept that findingfor the reasons discussed above. Harding denied that Inland had foundas many as one-third of cars in service to be defective.Compliance officer Gigli testified that of the 55 cars he personallyexamined, approximately 60 percent were in bad order condition. He couldnot recall the total number of cars in the yard during his inspection. Since he had no prior experience with railroad rolling stock, Gigli didnot know the relative number of bad order cars that would normally bepresent in a typical railroad yard at any given time; his opinion thatthere were too many defective cars in service was based on his overallexperience in an industrial environment and did not take into accountthe particular materials handled by Inland’s cars. At the same time,however, Gigli conceded that the repair tracks were filled with carswaiting to be repaired. This evidence does not establish that Inlandfailed to take adequate steps to remove bad order cars fromservice,[[14]] nor does it show what additional measures Inland couldhave implemented to protect switchmen from having to work with defectivegondolas or other cars.The Secretary also relies on employee testimony that yardmastersknowingly allowed or required switchmen to violate Rules 43 and 60 onoccasion. However, the judge refused to credit that testimony, and weaccept the judge’s credibility findings, for the reasons discussedbelow. The other testimony also fails to show supervisory knowledge of,or involvement in, safety rule violations.First we will discuss the testimony that the judge refused to credit. Switchman Warner testified that although he was taught the correctmethods of uncoupling cars by yardmaster Murray, Murray had given himadvice \”off the record\” during that training on how to \”save time andtrouble\” when uncoupling cars with defective pin lifters by pushing thepin up with a wooden block while standing between the cars. As thejudge observed, Murray flatly denied having given any such instruction. Furthermore, Warner admitted that he would have been reprimanded forviolating a safety rule if he were injured while uncoupling cars in themanner Murray suggested. In effect, Warner was testifying that asupervisor would give an instruction directly contrary to a safety ruleknown to be enforced by Inland. In our view, the judge could reasonablyfind such testimony not to be credible.Thedford testified that in early 1979 in Plant 1, yardmaster Westerfieldwas present when Thedford operated couplers manually because they weremissing pin lifters. He also said that Westerfield and certain otheryardmasters had manually opened \”knuckles\” for lack of pin lifters andhad gone between cars that were spaced less than 20 feet apart. However, Westerfield testified that he expected employees to adhere to\”serious\” safety rules like Rule 43 and that disciplinary action is\”almost automatic\” for infractions of such rules. He testified that hehad never seen, not had ever been informed of, individuals uncoupling acar that was missing a pin lifter and that he would not condone thatpractice. Thus, he flatly denied any implication that he was involvedin safety rule violations.The Secretary also relies on the testimony of former switchman Hollandthat company officials knew of the practice of employees going betweenrailcars to uncouple them when pin lifters were missing. However,Holland was retired and had not worked for Inland since 1975, beforeInland’s Rule 60 specifically prohibited that practice. Rule 43, theonly pertinent safety rule when Holland was an employee, did not forbidit. Furthermore, Holland stated that at least on some occasions when itwas necessary to operate a defective coupler, Inland’s mobile car repairfacility would send a repairman to install a pin lifter. Holland’stestimony does not show that Inland supervisors condoned violations ofany safety rules, either before or after he retired.Warner, Thedford, and Gillie made general statements that they would besubjected to \”harassment\” by yardmasters if they did not go between carsand manually operate coupling devices at times to keep the trainsmoving. They alleged that the \”harassment\” would take the form of being\”chewed out\” by the yardmaster, being restricted to the official lunchperiod of 20 minutes, not being allowed the routine one-hour earlyquitting time, or being assigned the least desirable jobs. However, ofthe two yardmasters who testified, Yardmaster Westerfield stated thatemployee violations of safety rules are not tolerated and yardmasterMurray flatly stated that the employee testimony against him was nottrue. Murray also stated that when training employees he alwaysexplains that cars having defective pin lifters are to be set aside asbad order and are not to be used. Also, in a letter submitted inevidence, written about a week before the Corona fatality that led toOSHA’s inspection, Superintendent Harding brought Gillie’s attention toRule 4 and added, \”Switch crew members are not forced to work with B\/O[bad order] equipment as stated in your letter.\”The judge found that the testimony of Warner, Thedford, and Gillie aboutyardmasters actively encouraging safety rule violations \”was flatlycontradicted by Inland’s witnesses in many material respects; and whenquestioned on cross examination by Inland’s counsel, [Warner’s,Thedford’s, and Gillie’s] account of particular events created a strongimpression that they were giving a wrong coloring to material facts soas to deprive them of credit.\” The judge also discredited Gilliestestimony generally, as discussed above. Like the Secretary, we aretroubled by an implication in the judge’s decision that the employees’claims of harassment are not credible because their testimony showedonly that they broke work rules to gain from supervisors longer lunchperiods and earlier quitting time. Such actions by supervisors wouldtend to undermine the company’s safety program. However, all thecredibility findings concerning Warner, Thedford, and Gillie areadequately explained on the basis of matters peculiarly observable bythe judge–the witnesses’ demeanor on the stand and their manner ofresponding on cross-examination. The judge’s findings also rest on thecontrary testimony of Inland’s witnesses, whom the judge also observed. We would have preferred that the judge had specifically identified thesupervisors’ testimony that conflicted with the testimony hediscredited. However, we have reviewed the entire record and have notedabove testimony by yardmasters Westerfield and Murray that contradictsthe employees’ testimony that supervisors encouraged violations. Wecannot say that the judge erred in crediting the supervisors’ testimonyrather than that of the switchmen.[[15]] We therefore accept thejudge’s credibility determinations. _C. Kaufman_, _supra_; _cf_._Asplundh Tree Expert Co_., 79 OSAHRC 109\/A2, 7 BNA OSHC 2074, 2078-79,1979 CCH OSHD ? 24,147, pp. 29,346-47 (No. 16162, 1979) (generalizedcriticism of a witness as not credible is insufficient).We further agree with the judge’s findings that certain employeetestimony of supervisory coercion is simply insubstantial. For example,the only specific incident that Connelly discussed in sufficient detailto allow us to evaluate what he considered \”harassment\” seriouslyundermines his allegation, as the judge found. That was the incidentinvolving former yardmaster Lambert, discussed previously. The sum andsubstance of that incident is that Connelly concurred that the carscould be unloaded at the mill before being repaired, after Lambert\”implored\” him to do so because the cars were needed there. Connellyalso testified that Lambert had had a heart attack \”and was under verysevere pressure to stay on the job, and we bent over backwards to keepJim Lambert without stress or strain.\” We agree with the judge thatthis incident shows no harassment or coercion by Lambert.Switchman Dills also testified that he had violated safety rules to\”[g]et the job done\” and \”[g]et in earlier, get better breaks\” from theyardmasters. However, the one specific instance he recounted in thisregard does not support the implication that yardmasters would rewardhim for breaking rules. Dills testified that \”3 weeks ago I was workinga little slower, I didn’t feel that good that evening, and I was takingmy time on my job, the Yard Master got ticked off because I wasn’tworking any faster than I was. And he put me on a different job\” whichDills considered to be a punishment because \”[i]t’s a little extra work. . . . there’s not that much time, where you can get a good break onthat other job.\” However, when Dills told the trainmaster that he wasnot feeling well he was permitted to go to the clinic. He took two daysoff work and returned without further incident. The judge correctlyfound that Dills’s testimony that he was \”harassed\” in that instance had\”no substance.\”Lastly, the judge discredited the testimony of Dills that when he hadbeen an hourly foreman in the Transportation Department for about oneand one-half years ending in early 1978, other supervisors falsifiedsafety contract cards by writing down safety contacts with employeesthat never had occurred. After testifying to that effect, Dillsadmitted it was possible that those yardmasters had made the safetycontacts before he saw them fill out the cards, and that the onlyfalsifications he could actually speak to were his own. We uphold thejudge’s finding that Dills’ testimony regarding the possiblefalsifications by other yardmasters \”lack[ed] credibility.\” Insofar asDill’s falsifications are concerned, he admitted that Inland had taughthim the correct way to fill out the cards, and that he could not confirmthat any yardmasters knew he falsified them. Indeed, Dills testifiedthat he would not want Harding to find out because \”[i]t’s breaking arule, his rule.\” Dills’ admissions constitute the only proof ofviolations by any foreman or supervisor in this case. They were notsafety rule violations, but concern a tangential matter–safety contactswith switchmen in the yards. This idiosyncratic misconduct of a singlehourly foreman over a year before the citation is too frail a need tosupport this citation. _See_ _Pennsylvania Power & Light Co_., 737 F.2d350 (3d Cir. 1984).Finally, the compliance officer testified that during his inspection,yardmaster Murray went between two cars and manually operated a pinlifter in his presence. However, Murray testified that he had done sobecause he understood that the compliance officer had asked him \”todemonstrate what we felt caused [Corona’s] accident.\” Murray testifiedthat the compliance officer then \”asked me if it could be done withoutbeing between the draw bars\” and Murray demonstrated that also. Hetestified that these demonstrations had occurred in the presence of aMr. Jones of the safety department and Assistant Superintendent DuVallas well. Only later did the compliance officer discover that liftingpins manually was a safety violation. Murray’s testimony adequatelyexplains the reason for demonstrating the manual lifting of a pin. Hedid it to satisfy what he understood to be a request by an OSHAinspector during the inspection. Exposure to hazards due to complyingwith an OSHA inspector’s perceived request is not grounds for issuanceof a citation. _Cf_. _Brown-McKee, Inc_., 80 OSAHRC 34\/A2, 8 BNA OSHC1247, 1249, 1980 CCH OSHD ? 24,409, p. 29,736 (No. 76-982, 1980)(violation cannot be based on exposure of employer’s walkaroundrepresentative during inspection); _Bechtel Power_ _Co_., 79 OSAHRC34\/A2, 7 BNA OSHC 1361, 1365 n.7, 1979 CCH OSHD ? 23,575 at p. 28,576n.7 (No. 13832, 1979) (same).We accept the judge’s determination that the evidence did notpreponderate in the Secretary’s favor on the issue of the adequacy ofInland’s efforts to enforce its safety program.[[16]] Thus, theSecretary failed to prove a section 5(a)(1) violation with regard to theaspects of Inland’s safety program at issue–its rules for reportingdefective railcars and uncoupling railcars.Because the Secretary failed to prove a section 5(a)(1) violation as toeither citation item, we vacate the citation. The judge’s decision isaffirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JUL 30, 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected]), telephone (202-606-5398), fax(202-606-5050), TTY (202-606-5386). FOOTNOTES:[[*]] Commissioner Wall did not participate in this decision.[[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]] The Authorized Employee Representative, which also seeksenforcement of the citation, joined in many of the Secretary’sarguments. Where both of these parties advance an argument, we willidentify it as the Secretary’s argument, for convenience.[[3]] The Secretary refers to the hazard at issue as both \”inadvertent\”and \”uncontrolled\” movement, and former Commission Cleary’s directionfor review used the term \”uncontrolled\” rather than \”inadvertent.\” Weconclude that in the circumstances here there is no substantivedifference between the two terms.The Secretary also argues that the issue of whether a recognized hazardexisted is not before us. The judge found that there was a recognizedhazard of \”inadvertent movement of railroad cars,\” and the correctnessof that finding was not mentioned in former Commissioner Cleary’sdirection for review. However, the Commission may still rule on theissue after the parties are afforded any necessary opportunity to submitbriefs on it. _See_ _Hamilton Die Cast, Inc_., 86 OSAHRC __ \/__ , 12BNA OSHC 1797, 1986 CCH OSHD ? (No. 83-308, 1986) (Commission mayconsider issues outside the four corners of a direction for review forthe sake of fairness and uniformity of adjudication, after parties havebeen afforded any necessary opportunity to brief issues). All theparties specifically addressed the issue on the merits in their briefs. Moreover, the existence of a recognized hazard, properly defined, is anessential element of a finding of any section 5(a)(1) violation. Inthese circumstances, we will address the recognized hazard issue.[[4]] _In Wheeling-Pittsburgh Steel Corp_., 81 OSAHRC 102\/A2, 10 BNAOSHC 1242, 1981 CCH OSHD ? 25,801 (No. 76-4807 1981), _aff’d withoutpublished opinion_ 688 F.2d 828 (3d Cir. 1982), _cert. denied_ 459 U.S.1203 (1983), the Commission found that certain unidentified \”other steelcompanies\” use handbrakes on their railcars. 10 BNA OSHC at 1246 & n.4,1981 CCH OSHD at p. 32,244 & n.4. However, that decision did notindicate how many steel companies use handbrakes.In this case there was testimony that at least seven steel companyplants had received pugh ladles with handbrakes from one manufacturer. However, the record does not explain why these plants received pughladle cars with brakes, nor does it show that any of the plants actuallyused the brakes. Indeed, Inland’s expert witness, Martin, stated thatone of the steel companies that receives cars with brakes, BethlehemSteel, operates in the same manner as does Inland, that is, it does notuse brakes. Other steel plants in addition to Inland had pugh ladlecars that were not equipped with brakes. Thus, the record here does notestablish that the steel industry generally recognizes that blocks alonewill not prevent injury to employees.[[5]] The Union argues that Inland’s rules should be more specific as towhen railcars should be secured. It points to rules of variousinterstate common carriers as models. However, we find that the commoncarriers’ rules are not models that Inland can be expected to follow. In any event, those rules were not actually shown to give more specificguidance than the training Inland gave employees in blocking. Most ofthe safety rules submitted in evidence by the Secretary contain generalstatements like that of the Elgin, Joliet & Eastern Railway Co.: \”Whencars are left on any track, sufficient hand brakes must be set toprevent cars moving . . . . \” Inland’s Rule 43 gives comparably specificguidance since it requires that railcars be blocked before employeesstep between them \”if there is any question of the cars not being at acomplete standstill.\” Also, Inland trains its switchmen in thedifferent types of blocking and when to use them, and instructsemployees to block cars so that there will be no movement after they areset.[[6]] The specific safety problems of setting and releasing handbrakeswere explained by Martin. Typically, applying or releasing handbrakesrequires the switchman to climb partway up a metal ladder on the side ofthe car, then step to a similar adjacent ladder on the end of the carand climb up that ladder to a narrow metal platform (perhaps 12\” wideand 20\”-30\” long) to operate the handbrake. The switchman then sets orreleases the handbrake, typically by turning a brake wheel or rotating apump handle and retraces his steps down the ladder to detrain.Martin noted that the hazards of slippery stirrups and other surfaceswould be increased in adverse weather conditions, or where there wasgrease on the stirrups. Martin also noted that brakes can malfunctiondue to chains breaking or other factors and that a railcar can moveinadvertently–even run away from a train to which it wasattached–while handbrakes are being applied or released, creatingdangers to an employee attempting to leave the train by a ladder fromthe handbrake platform.Photographs appearing in the safety manual of the Elgin, Joliet andEastern Railway Company, an interstate carrier, clearly support thejudge’s conclusion that switchmen face a \”precarious situation\” whenoperating handbrakes.[[7]] OSHA’s compliance officer, Gigli, also gave opinion testimonytending to show that handbrakes should be required. However, Gigli hadno personal experience with rolling railroad stock or steel railroads. Thus, his opinions are entitled to no greater weight that those of Sageand Barnes. The Secretary’s evidence on the need for handbrakes didnot preponderate over Inland’s contrary evidence.[[8]] In his brief he notes that if the Commission finds that \”such aprocedure does create a hazard,\” the Secretary \”only seeks to requirethe use of brakes to secure stationary railcars.\” The FRA injurystatistics previously referred to show 246 injuries to employees whileoperating handbrakes on moving cars in yard service. A hazard thereforeis clearly presented.[[9]] An explanation of certain terms used in the citation is helpful. The uncoupler devices, commonly called \”pin lifters,\” permit railcars tobe uncoupled without an employee stepping between the cars and facingthe risk of railcar movement. The pin lifter consists of a leverextending from beneath the coupling mechanism (\”knuckle\”) at the end ofthe railcar to the outer edge of the car. To uncouple two railcars, theemployee pushes down on the lever, causing the other end of the lever torise, pushing up the \”pin\” in the knuckler and unlocking the knuckle. The \”stirrups\” are the rungs of the metal ladders on the sides and endsof the railcars, and the \”handholds\” or \”grab irons\” are metal handlesthat employees grasp while climbing on and off the railcars or riding onthem. The \”drawbar\” is the metal shaft, one end of which forms theknuckle and the other end of which attaches to the railcar’s frame. The\”yoke\” attaches to the end of the railcar and acts as a collar aroundthe \”drawbar,\” holding it in place.[[10]] The Secretary and the Union rely on Commission cases involvingsafety standards promulgated under section 5(a)(2) of the Act, placing aburden on the a _prima_ _facie_ case. Those cases are inapposite undersection 5(a)(1). The Secretary retains the burden of establishing by apreponderance of the evidence the existence of a feasible and usefulmeans of abating recognized hazards in a section 5(a)(1) case. _See__Donovan v. Royal Logging_, 645 F.2d 822, 828 (9th Cir. 1981).[[11]] Yardmasters are the switchmen’s supervisors and are responsiblefor the proper operation of their respective yards. The trainmaster oneach shift is in overall charge of rail operations throughout Inland’sfacility. \”Rip tracks\” are repair tracks in the yard where bad ordercars are to be directed and taken out of service until repaired. \”Foreign cars\” are railcars from outside railroads. \”I.H.B.\” apparentlyrefers to the Indiana Harbor Belt Railway and the \”J\” apparently refersto the Elgin, Joliet and Eastern Railway Company, which are outsiderailroads.[[12]] The Union notes that there were no written instructions informingemployees what constitutes a defective car and argues that showsinadequate communication of Inland’s safety rules. We disagree becausethat argument over-emphasizes formal aspects of Inland’s safety programat the expense of its substance. The lack of written instructions wasnot shown to decrease employee awareness of the defects to be reportedor reduce employee compliance with reporting procedures. _See_ _Jones &Laughlin Steel_ _Corp_., 82 OSAHRC 34\/A2, 10 BNA OSHC 1778, 1982 CCHOSHD ? 26,128 (No. 76-2636, 1982).[[13]] We reach the same conclusion with respect to Connelly’stestimony, which the judge did not address, of another instance when agreat deal of scrap loading required the use of an unusual number ofcars, including bad order cars.[[14]] The fact that Inland’s repair tracks were full tends to establishthat Inland’s rule requiring the reporting and removal from service ofdefective railcars was adequately implemented. Conversely, however, itis equally obvious that the ultimate effectiveness of the rule dependsas well on the adequacy of Inland’s car repair procedures. Nevertheless, the Secretary’s citation does not directly allege anyinadequacy in Inland’s car repair program itself. The record shows thatin response to Gillie’s request in October 1978 for an improved repairprogram, Inland assigned additional personnel and a second supervisor tothe repair shop and established two additional repair tracks. At thetime of the inspection, Inland each month was repairing between 750 and800 cars, almost one-third of its entire fleet. In a memorandumwritten to DuVall in June 1979, after the inspection, Thedford, thenunion safety steward, expressed approval of car repair efforts duringone week in that month when 181 cars were repaired. In referring tothis amount of car repair, which is equivalent to a monthly repair rateof 785 cars, Thedford stated, \”I think our [s]upervisors are doing afine job in helping us have safe equipment to work with.\” AlthoughThedford also concluded that a large number of bad order cars remained,his memorandum recognized rule 4 and stated that employees can assist inreducing the incidence of bad order cars by reporting defects asrequired by that rule. Accordingly, Thedford apparently consideredInland’s repair facilities to be capable of handling the number ofdefective cars that in his view should be reported under Rule 4.[[15]] Former switchman Connelly also testified generally thatyardmasters who he did not identify threatened to shorten his lunchperiod or give him the least desirable jobs around the yard if he didnot keep defective cars in service as needed in scrap operations. Likethe testimony of Warner, Thedford, and Gillie Connelly’s statements arecontradicted by the testimony of Inland’s supervisors.[[16]] The previous accidents involving Inland switchmen do not proveinadequacies in the elements of Inland’s safety program at issue here. The Secretary relies on the Corona fatality as well as a fatality andseveral injuries that occurred in the 1960’s to establish inadequacies. However, Corona, who was crushed between the drawbars of two railcars,had been instructed in Inland’s safety rules, had correctly answered thequestions on Rule 43 in his switchman’s test, and had been orallyreprimanded by trainmaster Webber three days before the fatality forviolating Rule 43, as noted above. Yardmaster Westerfield testifiedthat Corona told him the morning he died, \”Don’t worry, I know Rule43.\” There is no evidence that Corona was not properly instructed inInland’s safety rules or that Inland condoned his violation of thoserules. It also should be noted that switchman Thedford, who blamedyardmasters for failure to make sure that bad order cars were removedfrom service in certain cases was on duty in that one of the carsinvolved had a missing pin lifter, which may have led Corona to gobetween them, where he was crushed.As to the fatality and injuries that occurred in the 1960’s, these alsofail to show inadequacies in Inland’s safety program at the time of theinspection or citations. The Secretary notes that a broken toe wassuffered by switchman Bastardo in 1969 when a stirrup broke on a car hewas riding and his foot fell under a wheel. However, the Secretary didnot show that Inland should have detected a defect in that stirrup inadvance. That incident establishes nothing about the adequacy ofInland’s safety rules. A 1967 injury to switchman Schutz occurred whilehe was standing between cars inspecting a defective coupling mechanism. However, that injury predated Rule 60, which prohibited going betweenrailcars having no pin lifters. A 1964 arm injury to switchman Holland,the result of being pinned between railcars while attempting to open acoupler, was due to his violation of Rule 43, according to Inland’saccident report. A 1964 hand injury to coal bridge helper Wallace whilesetting blocks on a coal tripper car, involved specialized coal handlingequipment and is unrelated to Inland’s railroad operations, as the judgefound. The cause of a fatality in 1960, in which an employee, Stubbs,was pinned between railcars, was not established. Thus, these accidentsdo not prove that Inland had an inadequate safety program. “