“Docket No. 79-3286 SECRETARY OF LABOR, Complainant, v. INLAND STEEL COMPANY, Respondent. UNITED STEELWORKERS OF AMERICA, AND ITS LOCAL 1010, Authorized Employee Representative. OSHRC Docket No. 79-3286DECISION Before:\u00a0 BUCKLEY, Chairman; and RADER,Commissioner.[[*]]BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration.\u00a0 It was established to resolvedisputes arising out of enforcement actions brought by the Secretary of Labor under theAct and has no regulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C.? 659(c).This litigation was precipitated by the death of anInland Steel Company switchman, Anthony Corona, in one of Inland’s railroad yards.\u00a0Corona was fatally injured when he was crushed between two groups of railcars whichhe was attempting to couple together. The Secretary’s Occupational Safety and HealthAdministration subsequently inspected Inland’s rail operations and issued a citationalleging that Inland willfully violated section 5(a)(1) of the Act, 29 U.S.C. ?654(a)(1),[[1]] in that it did not adequately protect its employees from being injured bymoving railcars during switching or transporting operations.\u00a0 The specificallegations of the citation, as amended, were (1) that Inland failed to equip its railcarswith handbrakes and (2) that it did not have an adequate safety program for reporting andremoving from service railcars with defective safety equipment and for preventingemployees from working with those cars.It was undisputed that Inland did not installhandbrakes on its railcars.\u00a0 Rather, Inland contended that handbrakes were lesseffective and more dangerous than wheel blocks.\u00a0 For this reason, Inland actuallyremoved handbrakes from its railcars and instead used specially designed wheel blocks tohold railcars in position.\u00a0 Inland also contended that its rules for identificationand removal of defective railcars were adequate and were communicated to its employees.Commission Judge Richard DeBenedetto vacated bothcharges.\u00a0 He found that given the limitations and hazards of handbrakes in Inland’soperations, Inland’s decision to prevent \”inadvertent movement of railroad cars\”by using blocks was proper.\u00a0 The judge also found that Inland’s safety rules forreporting and removing from service defective railcars were adequate and that they wereproperly communicated to employees.\u00a0 Finally, Judge DeBenedetto found that theevidence did not sustain the Secretary’s allegation that Inland failed to adequatelyenforce the rules.\u00a0 We affirm Judge DeBenedetto’s action in vacating the amendedcitation.I.\u00a0 The Handbrake Allegation A Inland’s Harbor Works in East Chicago, Indiana, isthe largest steel manufacturing facility in North America, comprising 2500 acres andemploying 24,000 people.\u00a0 Inland uses some 3000 railcars of different types in itsinternal railroad operations, which include 150 to 175 miles of railway track.\u00a0 Itscars move the materials used in its steelworks, including molten metal, steel ingots, andraw materials like scrap metal.\u00a0 In addition, hundreds of \”foreign\”railcars (originating from outside railroads) are handled within the facility each day.It is the safety of Inland’s 250 or so switchmen thatis the focus of this case.\u00a0 Switchmen couple railcars to trains and uncouple them,and perform the switching which allows cars to transfer from one track to another. \u00a0Inland’s switching crews consist of three persons–a \”conductor,\” who is thehead switchman, another switchman, also called the \”helper,\” and a locomotiveengineer.Inland’s operations consist basically of flatswitching, that is, switching railcars on level tracks.\u00a0 Inland’s yards are\”dish-shaped,\” that is, level except for an incline at their sides.\u00a0 Inlandtypically sorts its railcars into their appropriate track by releasing or\”kicking\” them down the inclined edge of the yard, letting them roll freely overswitching points until they come to a standstill at their appropriate track.\u00a0 Most ofits cars are in more or less constant use, being loaded or unloaded, with intermediateswitching.Unlike foreign railcars, Inland’s railcars do not have handbrakes.\u00a0 In 1958, Inlandimplemented a system to prevent movement of stationary railcars in areas where employeesare working by using wood blocks shaped like parallelograms, 2\” high, 2\” thick,and 11\” long (measured diagonally).\u00a0 Inland instructs employees in the use ofdifferent types of blocking for different circumstances, to preclude movement of the carsafter blocks are set.\u00a0 Each year, Inland’s employees block over 100,000 cars.The amended citation alleged a willful section5(a)(1) violation in that: The employer did not provide hand brakes on employerowned railroad cars used in the railroad yards plant wide as set forth below:Employees were exposed to the hazard of being struckby, caught between, or run over by moving railroad cars while conducting switching andtransporting operations as the railroad cars were without adequate means to be braked . .. .BThe judge found no evidence that other employers inInland’s industry, the steel industry, \”use handbrakes instead of blocks to secureplant railway freight cars.\”\u00a0 He also found that in the industry of interstaterailroad carriers \”serious risks attending the use of handbrakes persist.\”\u00a0 Specifically, employees climbing on and off railcars to set and release handbrakesmust contend with a \”precarious situation . . . . Railroad accident data reveal thatgetting on and off cars and operating handbrakes are major causes of injury. . . . [T]heSecretary has failed to show by any competent evidence that the use of blocks has been thecause of injury to Inland employees.\”\u00a0 The judge determined that wooden blockswere not shown to be unacceptable in either the steel industry or among interstaterailroads for the uses to which Inland puts them.\u00a0 He also determined that an\”elaborate inspection and maintenance program\” would be required for handbrakeson Inland’s 1400 or so gondolas–about half its fleet–due to the extensive damage towhich they would be subjected in Inland’s scrap handling operations.\u00a0 He found thatthe total repair problems might very well be an insurmountable task and that the\”record fully justifies Inland’s decision\” to use specially designed blocksinstead of handbrakes.\u00a0 We agree.C To prove that an employer violated section 5(a)(1),the Secretary must show that the employer failed to free its workplace of a hazard that isrecognized as such by the employer or generally by the employer’s industry, that iscausing or is likely to cause death or serious physical harm, and that could have beenmaterially reduced or eliminated by a feasible means of abatement.\u00a0 E.g., CerroMetal Products Division, 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 hazardas \”inadvertent movement of railroad cars.\”\u00a0 The Secretary [[2]] urges usto accept that formulation.[[3]]\u00a0 However, Inland objects to this definition on theground it is overly broad, contending that the hazard should be defined as the absence ofhandbrakes.\u00a0 As we have held, defining recognized hazards too broadly would underminethe congressional purpose behind the \”recognition\” element– to limit thegeneral duty imposed by section 5(a)(1) to preventable hazards.\u00a0 Pelron, Inc.,86 OSAHRC, ___, 12 BNA OSHC 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 preventable hazards).\u00a0We observed in Pelron that an employer cannot reasonably be expected to free itsworkplace of inherent risks that are incident to its normal operation.\u00a0 Therefore, torespect Congress’s intent, hazards must, be defined in a way that apprises the employer ofits obligations under the Act by identifying conditions or practices over which theemployer can reasonably be expected to exercise control. \u00a0 12 BNA OSHC at 1835, 1986CCH OSHD at p. 35,872, citing Davey Tree Expert Co., 84 OSAHRC 11\/D11, 11BNA OSHC 1898, 1984 CCH OSHD ? 26,852 (No. 77-2350, 1984). \u00a0 Consistent with thisprecedent, Inland argues that the hazard in question must be defined as a lack ofhandbrakes in order to afford it fair notice of the conduct the Secretary is requiring.Since movement of railcars is inherent andunavoidable in Inland’s operations, Inland is not required under section 5(a)(1) to freeits worksite of all railcar movement that might present a potential risk to its employees.\u00a0 Here, Inland had instituted a program for the use of wheel blocks, the purpose ofwhich was to prevent undesired or unintended movement, or movement beyond that necessaryfor the conduct of its usual operations.\u00a0 However, while we conclude that\”inadvertent\” is an appropriate term to characterize the type of railcarmovement from which Inland sought to protect its employees, we need not decide whether therecognized hazard may be defined in this manner or must be defined more narrowly as Inlandcontends.\u00a0 In a case such as this, where the employer has a mechanism designed toeliminate a hazardous condition, the burden is on the Secretary to establish that theemployer’s measures were inadequate.\u00a0 Cerro Metal Products, supra, 12BNA OSHC at 1822-23, 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). \u00a0In addition, the Secretary must show that knowledgeable persons familiar with the industrywould regard additional measures as necessary and appropriate in the particularcircumstances existing at the employer’s worksite.\u00a0 Id.\u00a0 We conclude thatthe Secretary has failed to meet that burden in this case.\u00a0 Since the Secretary hasnot established that Inland should have implemented the abatement measure headvocates–the use of handbrakes—the citation allegation must be vacated regardless ofhow the recognized hazard in issue is defined.\u00a0 See Pelron, supra,12 BNA OSHC at 1835, 1986 CCH OSHD at p. 35,871.(1)Inland is a member of the steel industry. \u00a0 Manysteel plants contain specialized railroads similar to Inland’s, but the Secretarysubmitted no evidence to show steel industry practice or knowledge.\u00a0 In fact,Harding, superintendent of Inland’s Transportation Department, testified that steel plantsnormally do not have handbrakes on their railcars.\u00a0 Thus, the evidence in this casedoes not indicate general understanding in the steel industry that blocks are not anadequate means to protect employees from inadvertent railcar movement.[[4]]\u00a0 SeePratt & Whitney Aircraft v. Secretary of Labor, 649 F.2d 96, 101 (2d Cir.1981).(2)It is conceded that Inland is not engaged in businessas a common carrier by railroad.\u00a0 Despite this, the Secretary argues that theinterstate railroad industry is a relevant industry, that it recognizes the need forhandbrakes in operations comparable to Inland’s, and that Inland is responsible undersection 5(a)(1) for following the same practices.\u00a0 We disagree.\u00a0 First, theSecretary did not prove that interstate common carriers generally use handbrakes, in theirflat switching operations.\u00a0 Second, those operations are not comparable to Inland’s.\u00a0 Inland’s switching differs markedly because it is much more frequent, increasinggreatly the serious risks of handbrake operation, and because handbrakes would be subjectto much greater damage than in switching operations of interstate common carriers. \u00a0In addition, Inland regularly uses types of railcars, such as ingot buggies, double potcars and pan cars, that are found rarely if ever among interstate carriers.\u00a0 Asdescribed below, these cars will not accept a standard handbrake and carry extremely hotor molten metal, creating special problems for switchmen attempting to secure them frommovement. The Secretary relies on the fact that railcars used in interstate commerce must beequipped with efficient handbrakes under the Safety Appliance Act, 45 U.S.C. ? 11. \u00a0However, there is no explicit statutory requirement that interstate common carriers usehandbrakes either generally or in switching operations similar to those involved in thiscase.In attempting to prove that interstate railroads usehandbrakes, the Secretary relies on the testimony of Marshall Sage, a rail safetyspecialist with the United Transportation Union, and Wilder Barnes, a former FederalRailroad Administration safety specialist. They testified that the safety rules ofinterstate carriers generally require that all railcars be properly secured withhandbrakes when left on any track.\u00a0 However, many of the railroads’ rules merelyspecify that a \”sufficient\” number of brakes be applied to prevent cars frommoving.\u00a0 Sage admitted that the term \”sufficient\” is not clear and has beeninterpreted in the railroad industry to mean that brakes do not necessarily have to beused in all instances when cars are left on tracks.[[5]]\u00a0 Barnes also admitted thatblocks are used in railroad switching operations for temporarily holding cars, and Sagestated that some interstate carriers’ rules recognize that brakes may not always beadequate to prevent movement and require blocks to be used in such instances. \u00a0Holland, a former Inland employee who had prior rail carrier experience, stated that hehad never used handbrakes except to hold cars on elevated tracks.James Martin, Senior Vice President for Operations ofthe Illinois Central Gulf Railway Co. (\”ICG R.Co.\”), testified for Inland thathe did not interpret the common carriers’ rules to require the use of handbrakes in allcases, but merely to require that cars be secured by any sufficient means.\u00a0 Thiscould mean chocks or blocks, skates, handbrakes, or nothing at all, depending onconditions. Furthermore, Martin testified without rebuttal that in most flat switchingoperations handbrakes are not used even by interstate carriers.\u00a0 Thus, the Secretaryfailed to show that handbrakes are generally used in the type of switching operations atissue here.Even if interstate rail carriers normally do usehandbrakes in their flat switching operations, there are significant differences betweenthe typical flat switching operations of interstate common carriers and those at Inland.\u00a0 The most important difference is the frequency of Inland’s switching.\u00a0 Martintestified that Inland switches its railcars much more often than interstate railroadsbecause they are being loaded and unloaded in materials-handling almost constantly. \u00a0Harding testified that Inland switches a railcar perhaps as much as 15 to 20 times moreoften than outside railroads he has observed.\u00a0 Thus, if handbrakes were generallyrequired, switchmen would have to climb on railcars to set or release them perhaps 15 to20 times more often than on interstate common carriers.As a result of the greater frequency of Inland’sswitching, the risk of injury to Inland’s switchmen while applying handbrakes would beeven greater than the risk that switchmen for interstate common carriers face.\u00a0 Oninterstate rail carriers during 1975-78, approximately 6.5 percent of all injuries toyardmen (in which category switchmen would fall) involved operating handbrakes.\u00a0 Evenif injuries on moving railcars are excluded, the Federal Railroad AdministrationAccident\/Incident Bulletin covering 1978, introduced in evidence, indicates as many as 125injuries to employees while operating handbrakes in switching and terminal operations, andas many as 326 other injuries while getting on or off railcars in those operations.[[6]]On the other hand, despite the large number ofblocking operations performed each year, Inland’s present blocking system had resulted inno injuries to employees due to blocking railcars or being struck by railcars that hadbeen blocked during the entire 22 years the system had been in operation.\u00a0 As Martinexplained, blocks can be placed from the ground at all times, with the employee’s bodyclear of the car.\u00a0 Martin testified, \”most accident prevention people would, I’msure, opt to keep the man off the car because of the potential hazard in boarding anddetraining.\”Martin was well qualified to give factual opinion testimony.\u00a0 His duties with ICGR.Co. included responsibility for safety.\u00a0 Martin had served on a railroad safetyadvisory committee for the Office of Technology Assessment of the United States Congress.\u00a0The committee prepared an extensive study of the causes of railroad accidents andFederal regulation of the subject.\u00a0 Martin also had responsibilities for developmentof safe practices of Class I (major) rail carriers as Vice President of Operations andMaintenance for the Association of American Railroads.\u00a0 Martin’s conclusion is alsoconsistent with the recommendation of Inland’s committee that formulated Inland’s currentblocking system in 1958.\u00a0 None of the five switchmen who served on that committee,most of whom were experienced in the operations of interstate rail carriers, advocatedusing handbrakes.\u00a0 The other member of the committee was then transportationsuperintendent, Smolt, who previously had worked as a switchman.\u00a0 He testified thatoperating handbrakes is the most hazardous part of a switchman’s job.The much greater damage handbrakes would be exposedto in Inland’s operations also makes any comparison between Inland and interstate carriersinapposite.\u00a0 The judge found that if handbrakes were required on Inland’s 1400 or sogondolas–about half its fleet–damage to the handbrakes would be so frequent that therepair problems \”may very well be an insurmountable task.\”\u00a0 Martin notedthat in Inland’s scrap metal transportation operations \”there is no way to keepsafety appliances in working order,\” due to the almost constant damage to which thegondolas are exposed from huge pieces of scrap metal– individual pieces weighing as muchas 4 or 5 tons–being loaded into and unloaded from the cars with electromagnets.\u00a0Martin explained that different considerations apply with respect to interstatecarriers.\u00a0 Although there is a limited amount of scrap handling done on interstaterail carriers, there is not the frequent exposure of safety appliances to heavy damage dueto constant loading and unloading.\u00a0 Instead, interstate carriers use switching yardsprimarily to receive, sort out, and dispatch trains originating from, and destined for,other points.Inland’s frequent transportation of extremely hot ormolten metal on specially designed cars is another important difference between itsoperations and those of interstate common carriers.\u00a0 Many of Inland’s cars areregularly involved in the transport of extremely hot or molten metals.\u00a0 These include500 or so ingot buggies, 50 double pot cars, 31 or more pugh ladle cars, and anunspecified number of pan cars.\u00a0 Martin testified that ingot buggies, double pot carsand pan cars would not accept a standard braking system, so a special system would have tobe devised for them.\u00a0 The extreme heat of the metals carried on many of Inland’s carswould preclude mounting the car to set handbrakes, whereas blocks may be set because theswitchman is shielded somewhat from the heat by the car’s body when setting them.\u00a0Martin noted that interstate common carriers rarely carry hot metal.Thus, numerous important differences in workingconditions and hazards make the Secretary’s comparison between the braking practices ofinterstate rail carriers and Inland inappropriate.\u00a0 The interstate railroad industrysimply does not furnish a model that Inland should be expected to follow.\u00a0 SeeDonovan v. Royal Logging Co., 645 F.2d 822, 830 (9th Cir. 1981) (practice of oneindustry may not be imposed on another industry where hazards and working conditions arenot comparable).(3) The evidence also fails to show thatknowledgeable persons familiar with Inland’s industry would regard Inland’s system for theuse of blocks to be ineffective in protecting employees.\u00a0 As noted above, Inland hadgreat success in safely holding railcars with blocks, and it had no injuries attributableto its present blocking system in the 22-year history of that system.\u00a0 Numerouswitnesses experienced with both common carriers and in-plant railroads testified thatInland’s blocking system was quite adequate, even when compared to handbrakes.\u00a0Accordingly, the Secretary’s argument that the use of blocks rather than handbrakeswould increase the likelihood of railcar movement in certain specific situations is notsupported by the record.Transportation superintendent Harding testified thatproperly blocked cars will hold railcars in almost all situations, including on icy or wetrails.\u00a0 Inland employees are advised of different types of blocking to be used indifferent circumstances and are instructed to block all cars so that there will be nomovement after they are set.\u00a0 Inland also has procedures to test the sufficiency ofthe blocking before the railcars are left on any track.\u00a0 Harding testified that wherethe incline is away from the engine, the initial blocking should be tested before theblocked cars are uncoupled from the train, by backing the train slightly to see if theblocks hold.\u00a0 If they do, there is reasonable assurance that the blocking issufficient, and the railcars are then uncoupled from the train.\u00a0 Where the incline istoward the engine, the train may be pulled slightly forward to test the blocks, or theblocked cars may be uncoupled and the engine may pull away a short distance.\u00a0 In thelatter case, if the blocks fail the blocked cars will roll toward the engine and couple upagain, and additional blocking will be used.\u00a0 Although the process of setting blockssometimes involves more than one attempt, switchman Thedford, a former union safetysteward, testified that if an initial blocking failed, he would simply try other blockingmethods until a successful combination was found.\u00a0 Thus, Inland’s procedures weredesigned to minimize the chance of railcars rolling free after they were blocked.Martin testified that Inland’s blocking system is\”certainly very adequate\” for securing railcars in its operations, \”verysafe\” and actually \”superior to the handbrake . . . in the type of activity theyare involved in.\”\u00a0 Martin had visited Inland’s facility and had observed itsblocking system in use.\u00a0 His opinion was also based on his observation of otherintraplant railroad facilities in the steel industry that used blocks rather thanhandbrakes, including Bethlehem Steel Company, Armco Steel Corporation, and YoungstownSheet and Tube Company.William Webber, an Inland trainmaster, and Charles C.Shannon, an independent railroad consultant, also testified that Inland’s blocking systemwas fully adequate for securing its railcars.\u00a0 They also were well qualified to givesuch an opinion.\u00a0 Webber previously had been a switchman for Inland for more thanfive years, and before that had been a brakeman, operating handbrakes for the PennsylvaniaRailroad for about five years.\u00a0 Shannon, an independent railroad consultant since1960, had previously been a trainmaster qualified in and responsible for instructingswitchmen on railroad safety rules including handbrake use for the Chicago andNorthwestern Railway and had a total of 19 years managerial experience with that railroad.\u00a0While employed by the railroad, Shannon personally had set blocks and appliedbrakes.\u00a0 Like Martin, he also observed Inland’s blocking system first-hand.The Secretary relies on evidence that blocks could fail on Inland’s pugh ladle 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 swaying of the cars when the molten metal is poured intothem.\u00a0 However, Harding testified that pugh ladle cars generally hold during loadingoperations when properly blocked on both sides of a wheel.\u00a0 The only way that aproperly blocked pugh ladle could move in Harding’s opinion was if molten metal spilledand burned the blocks or if some equipment such as a bulldozer struck the car–both veryrare occurrences, based on his testimony. Furthermore, Harding testified that in hisopinion a handbrake would not hold a loaded pugh ladle either.\u00a0 Webber testified thatthe high temperature of the hot steel carried on ingot mold buggies and stake cars wouldpreclude the use of handbrakes, whereas those cars could be blocked because temperaturesare cooler near track level.The Secretary further argues that handbrakes wereneeded because railcars generally could be struck by machines during loading or unloadingand roll free of their blocks.\u00a0 While arguably further braking measures mightdecrease the chance of movement in that limited situation, there is no evidence that anyemployee had ever been endangered 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 thathandbrakes have the holding power of 11 percent of the gross car weight; that they applyequally to all eight wheels on the typical railcar; and that they retain some brakingpower even if the railcar is set in motion, whereas blocks have none once a wheel rollsover them.\u00a0 For example, Barnes testified that a railcar could be derailed ifInland’s strongest blocking method, crossblocking–where two blocks are placed at rightangles so that one braces the other–were used on one set of wheels and the crossblockedcar were struck or pushed.\u00a0 There is no evidence that such a derailment had everactually occurred.\u00a0 Barnes was the only witness to testify to this possibility, andhe was not asked to describe the likelihood of such occurrences in light of the conditionsexisting in Inland’s facility.\u00a0 Barnes also testified that in his opinion Inland’sblocking procedure was hazardous because of the proximity of the employee’s hand to thewheel in setting the block and the amount of time required in those situations where morethan one block must be set.\u00a0 However, Barnes had never visited Inland’s facility.\u00a0There is no indication that he had any knowledge of operations of internal railwaysin the steel industry, nor was he familiar with the type of blocks and the details of theblocking system instituted by Inland.\u00a0 The committee which developed Inland’s presentblocking system had established based on actual tests that the special, tapered design ofInland’s blocks eliminated the hazards of employees’ fingers or hands being pinchedbetween a block and a rail, or between a block and a wheel, when placed properly.\u00a0The judge was not persuaded that Barnes’ testimony, or that of Sage, outweighed theevidence supporting Inland’s position.\u00a0 We cannot say that the judge erred.[[7]]The Secretary presented testimony that blocks hadbeen dislodged if they were \”green\” (insufficiently cured), or if the blocks orrails were wet or icy.\u00a0 However, Transportation Department Superintendent Hardingtestified without contradiction that cars would not move even under those circumstances ifthe blocks were properly set as employees were taught and that properly placed blockswould hold railcars in almost all situations.\u00a0 The number of such incidents of blocksfailing to hold were few and, as shown below, Inland closely supervised compliance withits blocking procedures and disciplined employees who failed to properly block.\u00a0There is other employee testimony, on which the Secretary also relies, that at timesinadvertent movement of blocked cars had occurred because a car had been kicked into atrack and had hit a blocked car, causing it to roll free of its blocks. \u00a0However,many of Inland’s tracks have permanent derails and\/or locking switch stands.\u00a0 Thesedevices prevent cars from moving into the protected track.\u00a0 Also, Harding testifiedthat when employees are working on or near a track, they will place portable derails onboth ends of the track or at one end if it is a stub track. \u00a0There was no evidencefrom which to conclude that these precautions were not adequate to protect employees frombeing struck by a car dislodged from its blocks by a kicked car.The adequacy of Inland’s blocking system is alsoobjectively demonstrated by the relatively low incidence of block failure compared to thetotal number of blocking operations performed.\u00a0 Thus, Thedford stated that he hadexperienced blocks failing to hold a car only once or twice a week.\u00a0 Employee Warnertestified that during the six months he had worked as a switchman he had blocked cars onnumerous occasions and only in 10 instances did the blocks fail to hold.\u00a0 Althoughthe details of Inland’s safety program are discussed more fully in the Part II, we notethat Inland monitors compliance with its safety rules and disciplines employees forinfractions.\u00a0 During the period from 1974 through 1979, Inland reprimanded orpenalized employees on 25 occasions for failure to block cars properly.\u00a0 Section5(a)(1) does not require an employer necessarily to prevent every instance of hazardousconduct by its employees.\u00a0 See Jones & Laughlin Steel Corp., 82OSAHRC 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 Inlandshould require the use of handbrakes to slow or stop moving railcars.[[8]] However, theunion has not expressly abandoned that argument.\u00a0 Leaving aside the question ofwhether the union may press claims that the Secretary has abandoned, we find Inland’sprocedures for handling moving cars to be adequate to protect its employees.\u00a0 Weagree with the judge that the speed of the cars is adequately controlled by thelocomotives, which move at a slow rate of speed, and by the basically flat topography ofdish-shaped switching yards.\u00a0 In fact, as the judge found, \”[t]he evidenceindicates that having switchmen dismount the car and safeguard road crossings in the pathof the ‘runaway’ car, as Inland does, is a safer practice in dealing with the situationthan the Secretary’s recommended method of requiring switchmen to manipulate hand brakesof a moving car.\”In sum, none of the evidence relied on by theSecretary shows a need for Inland to use brakes to protect employees from railcarmovement.\u00a0 Because the Secretary failed to establish that Inland did not takesufficient steps through its blocking system and instructions to employees to keep itsworkplace free of the hazard of inadvertent movement of railcars, he has failed to prove asection 5(a)(1) violation as to this item.\u00a0 United States Steel Corp., 81OSAHRC 28\/C2, 9 BNA OSHC 1641, 1981 CCH OSHD ? 25,282 (No. 76-5007, 1981).\u00a0 SeeBrennan v. OSHRC (Republic Creosoting Co.), 501 F.2d 1196, 1200 (7th Cir. 1974).II.\u00a0 The Safety Program AllegationThe remaining issue on review is whether the judgeerred in ruling that the employer’s safety program was adequate.\u00a0 The Secretary’samended citation alleged three specific deficiencies in the safety program as follows:A.\u00a0 The employer did not maintain railroad carsin a safe operating condition.\u00a0 The employer’s use of defective railroad carsexposed employees to the hazard of being struck by, caught between, or falling from suchrailroad cars while switching or transporting the cars.\u00a0 Railroad cars with defectiveor missing uncoupler devices (pin lifters), bent and crushed stirrups, bent, crushed,loose and missing handholds (grab irons) and broken yokes (carrier irons) were being usedrather than taken out of service as set forth below: [list of individual railroad carsomitted]B.\u00a0 The employer failed to enforce companysafety rules requiring transportation employees to identify and report defective railroadcars having missing or defective uncoupler devices (pin lifters), bent or crushedstirrups, bent, crushed, loose or missing hand holds (grab irons) and broken yokes(carrier irons).C.\u00a0 Switchmen and Conductors working in railroadyards plantwide are required and\/or permitted to work with defective railroad cars havingdefective and\/or missing uncoupler devices (pin lifters) necessitating stepping betweencars to open couplers manually.[[9]](Emphasis in original)It is undisputed that at times some of Inland’srailcars in service had defective pin lifters, stirrups or handholds; that switchmen didnot always report defective railcars; and that at times some switchmen went betweenrailcars to uncouple cars manually, due to missing or defective pin lifters.\u00a0 It alsois undisputed that Inland had an extensive safety program including rules designed toprevent these problems, communication of the rules to switchmen, and efforts to detectviolations.\u00a0 The basic issues in dispute are whether Inland’s safety procedures forreporting defective railcars and uncoupling railcars were adequate, and whether its safetyrules were adequately communicated to employees and adequately enforced.The judge found that Inland had established anadequate safety program and that its employees were adequately trained in the pertinentsafety rules.\u00a0 He rejected as not credible certain testimony introduced by theSecretary to show that supervisors coerced or induced employees to violate these rules.\u00a0 He also found that the Secretary did not provide a sufficiently definite standardor criterion against which to judge Inland’s maintenance program and that the Secretaryfailed to show what additional measures Inland could have taken to insure compliance withits safety rules.\u00a0 He determined that the Secretary’s evidence regarding feasibleabatement methods lacked probative value because the witness on whom the Secretary relied,the compliance officer, was not familiar with the circumstances of either the steelindustry or of railroads in general.As noted above, to establish a section 5(a)(1)violation, the Secretary must prove, among other things, the existence of a feasible anduseful means of reducing or eliminating the alleged recognized hazards.\u00a0 TheSecretary argues that Inland’s safety rules for reporting and removing defective railcarsfrom service and uncoupling railcars were inadequate, and that the communication andenforcement of those rules was deficient.\u00a0 Under Commission precedent, whenelimination of a recognized hazard requires that employees follow safe procedures, anemployer is not in violation of section 5(a)(1) if it has established workrules designedto prevent the hazards from occurring, has adequately communicated the workrules to theemployees, has taken steps to discover noncompliance with the rules, and has effectivelyenforced the rules in the event of noncompliance.\u00a0 Jones & Laughlin Steel Corp.,supra, 10 BNA OSHC at 1782, 1982 CCH OSHD at p. 32,887.We find that the Secretary failed to prove the alleged inadequacies in Inland’s safetyprogram.\u00a0 We find specifically that Inland had adequate safety rules requiring thereporting and removal from service of railcars with defective safety appliances, andprohibiting switchmen from going between railcars where hazards of railcar movementexisted; that those rules were properly communicated to employees; and that theSecretary’s evidence of inadequate enforcement of these rules is insufficient.[[10]]\u00a0 We will address these findings in order.AInland’s safety rules directly address and wouldeliminate the problems complained of by the Secretary and Union.\u00a0 Inland’s Rule 4addresses the reporting and removal from service of defective railcars.\u00a0 The term\”bad order\” as used in the rule means that the railcar has a defective safetyappliance or some other defect warranting removal from service.\u00a0 The rule states:Conductors and switchmen must report all defectiveequipment to their Yardmaster.Bad order foreign empty cars are to be set outboundas soon as possible.\u00a0 Bad order foreign loaded (inbound) cars are to be set forunloading as soon as possible and then set outbound empty immediately when released.\u00a0 Exception–Foreign cars with broken drawbars are to be set aside in the plant for\”I.H.B.\” or \”J\” to repair.Red \”bad order\” cars signify majordefects.\u00a0 A car with a red card must not be moved unless authorized by theTrainmaster or Asst. Superintendent and then it must be handled carefully to specificdestination. [[11]]In addition to requiring switchmen to reportdefective equipment, Inland’s Transportation Department has a field repair crew consistingof two supervisors and about 23 car repairmen assigned to inspect, repair and oil railcarsin the yards daily.\u00a0 Yard clerks also are supposed to locate and report all defectiveequipment in the course of their duties.\u00a0 There is no evidence that switchmen,yardmasters, or car repairmen could not determine when a railcar is defective.\u00a0 Sofar as this record shows, Inland has adequate procedures for reporting defective railcarsand removing them from service.As to the problem of switchmen working betweenrailcars, Inland’s Rule 43 provides:Before stepping between cars to open knuckles, adjustdrawbars and etc., the cars must be at a complete standstill and a 20-foot-opening betweenthe cars.\u00a0 Also if there is any question of the cars not being at a completestandstill they must be blocked.At night when it is necessary to step between cars towork on knuckles, drawbars, etc., switchman must place his lantern on the ground where itcan be seen by the other switchmen or engineer.\u00a0 Engineer, is not to move the carswhile the lantern is on the ground.In 1977, Inland further restricted work between cars by issuing a new Rule 60 (laterrenumbered as Rule 58 in Inland’s revised rulebook).\u00a0 That rule provides:Under no circumstances will switchmen be permitted tolift pins by hand without using cut levers.1.\u00a0 When cut lever is missing or inoperativeswitchman must cross in a safe manner to the other side of train and pull the cut lever onthe other car.2.\u00a0 If cut levers are missing or inoperative onboth sides of the train the cars must be set out as bad orders for car repair to replaceor repair cut levers.So far as this record shows, these rules wouldminimize the possibility of switchmen being injured by a moving railcar while working withdefective equipment.BWe also find that the safety rules were properlycommunicated to switchmen.\u00a0 Inland had an extensive safely program for switchmen thatincluded instructions on the safety rules.\u00a0 Switchmen were given three days ofclassroom training and seven days of on-the-job training before starting work. \u00a0Included in this training were instructions on the pertinent safety rules and on safeprocedures for the specific jobs switchmen must perform, including blocking cars, pullingpins and coupling cars.\u00a0 The latter training is based on numerous detailed job safetyanalyses (\”JSAs\”) that Inland has developed for particular aspects of theswitchman’s job.\u00a0 A test is administered to the switchmen at the end of the 10-daycourse.\u00a0 Following the course, each switchman-trainee spends two weeks as an extramember of switch crews.\u00a0 Three different conductors must sign a card saying that thetrainee works safely and can handle the job.\u00a0 During the following three months eachtrainee is placed on a particular job for a week at a time with an experienced conductor.The evidence establishes that the switchmen knew Inland’s safety rules.\u00a0 SwitchmanThedford testified that each day a safety rule pertaining to their jobs is read to theswitchmen, and he remembered that Rule 43 had been read occasionally.\u00a0 Dills, aswitchman who had previously been a foreman, had learned the rules from instruction byyardmasters.\u00a0 Warner, formerly a switchman, had been trained in safety rules,including Rules 4, 43, and 60, and had been specifically instructed not to uncouple carslacking pin lifters.\u00a0 Former switchman Connelly was familiar with Rules 4 and 43, andhe indicated that he had learned of the rules through safety bulletins issued and postedby Inland.The Secretary relies on conductor Gillie’s testimonythat he did not know about Rule 60 until after the citations were issued and that he hadnot seen it posted.\u00a0 However, Transportation Superintendent Harding testified thatSafety notices–the form in which Rule 60 was first issued–are posted in the differentyard areas for the switchmen to read, and are the subject of safety contacts andobservations.\u00a0 The judge found Gillie’s testimony, including that claiming ignoranceof Rule 60, not to be credible.The principles governing our determination of thecorrectness of a judge’s credibility finding are well established.\u00a0 Normally, we willaccept the administrative law judge’s evaluation of the credibility of witnesses becauseit is the judge who has lived with the case, heard the witnesses and observed theirdemeanor.\u00a0 C. Kaufman, 78 OSAHRC 3\/C1, 6 BNA OSHC 1295, 1977-78 CCH OSHD ?22,481 (No. 14249, 1978).\u00a0 However, the judge should identify the conflictingtestimony and explain the reasons for failing to credit a witness’s testimony or forcrediting the testimony of a witness over that of another.\u00a0 P & Z Co., 77OSAHRC 211\/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 where opposing party does notdemonstrate reasons why it should be reversed and Commission’s review of record indicatesthere is no basis for doing so).We find upon review of the entire record that thejudge evaluated the voluminous evidence and conflicting testimony carefully andimpartially.\u00a0 He also specifically identified much of the testimony by Gillie that hefailed to credit, and stated the reasons:Mr. Gillie’s testimony is strikinglyunconvincing.\u00a0 Time and time again he displayed bias against Inland, particularly inhis demeanor and the manner in which he responded to questions on cross-examination.\u00a0 The major points of incredibility in his testimony include the alleged incidents ofbeing harassed by Inland’s supervisors if he failed to undertake the dangerous practice oflifting pins by hand . . . the alleged lack of knowledge concerning Inland’s Safety RuleNo. 60 which prohibits that very practice . . . the amount of defective cars alleged to beas much as 70 percent and his claimed efforts to alleviate the problem . . . . It issignificant to note that although he had held the responsible jobs of \”uniongriever\” and \”safety committeeman,\” neither Mr. Gillie nor any otherconductor or switchman has asserted his rights under Article 14, section 6, of thecollective bargaining agreement concerning defective cars [permitting an employee to berelieved of work that he believes is unnecessarily hazardous]. . . . It is also noteworthythat despite his professed concern regarding defective equipment and its hazards, Mr.Gillie failed to take any action on lnland’s offer of establishing a jointunion-management committee to investigate the problem of bad order cars, which was raisedby 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’stestimony, including his assertion that he had not known Rule 60, is sufficientlyexplained on the basis of factors that are peculiarly observable by the judge: \u00a0Gillie’s demeanor on the witness stand and his manner of responding to questions oncross-examination.\u00a0 The Judge perceived a bias against Inland that made Gillie’stestimony unreliable. We cannot say that this well-explained finding is erroneous. \u00a0We also note that Gillie’s testimony on Rule 60 conflicts with Superintendent Harding’stestimony that safety notices such as Rule 60 are posted for switchmen to read. \u00a0 Weaccept and concur with both the judge’s credibility finding regarding Gillie and hisfinding that the safety rules were adequately communicated to the employees.C The remaining issue is whether, despite Inland’sextensive safety program, the Secretary proved that the safety rules were not properlyenforced.\u00a0 The Secretary argues that switchmen routinely breached the rules, thatInland knew or should have known of the employee violations, and that supervisorsparticipated in and actively encouraged safety rule violations.The evidence supports the Secretary’s assertion thatat times some switchmen violated the rule against standing between cars to operatedefective uncoupling devices manually.\u00a0 For example, Warner testified that he did soone or more times per and Connelly testified that he did so three or more times per shift,even after Inland’s Rule 60 was implemented in 1977.\u00a0 Both Thedford and Connellytestified that the requirement in Rule 43 that switchmen never work between railcars thatare less than 20 feet apart is sometimes violated because couplers will not connectproperly when cars are brought together from that distance, particularly on curved track.However, the mere fact that some switchmen violatedsafety rules at times on Inland’s vast worksite does not prove a section 5(a)(1) violationby Inland.\u00a0 Inland employs some 250 switchmen, who perform innumerable switchingoperations.\u00a0 Also, switch crew members often had to work out of each other’s sightand out of sight of their supervisors, the yardmasters, who are in a central office ortower in each yard and cannot observe individual switchmen at work in mostinstances.\u00a0 For example, regarding the Corona fatality, the yardmaster’s tower inthat yard was at least 100 yards from the site of the incident, too far to permit personalobservation of Corona’s activities.\u00a0 Nevertheless, Inland has programs for enforcingsafety rules through monitoring employee performance and disciplining employees forviolations.\u00a0 To monitor employee performance, Inland’s APF (Accident PreventionFundamentals) Program calls for safety contacts and observations. Safety contacts areeither group meetings or one-on-one reviews between employees and supervisors on safetyrules or JSAs.Observations are planned visits by supervisors todetermine whether an employee actually is complying with safety rules and JSAs. Employeeperformance is graded, with an unsatisfactory performance indicating a need forreinstruction.\u00a0 If the employee is following the rules, a discussion may not beneeded and may not be held.\u00a0 According to Lundie, Inland’s safety director, the APFProgram has been successful in reducing the number of accidents and injuries at Inlandsince it was implemented in 1965.Also, Inland’s management disciplines employees whenit discovers violations of safe practices.\u00a0 In addition to the reprimands ordiscipline issued for failure to block cars properly, previously referred to, SwitchmanGaglio was suspended for three days without pay in 1978 for violating Rule 43. \u00a0Switchman Corona was verbally reprimanded by trainmaster Webber three days before hisdeath for violating Rule 43 and was told he would be suspended.\u00a0 Later, afterstudying Corona’s personnel records and finding no previous incidents, Inland determinedthat a written reprimand would be issued instead.\u00a0 Issuance was pending when Coronadied. On these facts the Secretary must show more than occasional instances ofnoncompliance with safety rules in Inland’s yards to establish that it violated section5(a)(1).\u00a0 See Jones & Laughlin, supra.\u00a0 10 BNA OSHC at1783, 1982 CCH OSHD at p. 32,888.Furthermore, it is not clear on the record that employees were exposed to the hazard ofinadvertent movement every time they went between cars in violation of Inland’s safetyrules.\u00a0 For example, Connelly testified that when uncoupling cars having defectivelifters, he would inform the engineer and instruct the engineer not to move the engineuntil the uncoupling was completed.The Secretary argues, however, that yardmasters knewthat switchmen violated safety rules and condoned, encouraged, and even participated inviolations.\u00a0 The Secretary’s specific arguments are that yardmasters knew thatemployees did consistently report defective cars and sometimes failed to ensure that badorder cars that were reported were removed from service as required by Rule 4, thatyardmasters also knew that switchmen sometimes violated Rules 43 and 60, that theyactually required 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’stestimony that yardmaster Westerfield told him that about 90 percent of Inland employeesdid not report defective cars, and that Harding also told him some employees did notreport them.\u00a0 However, since Inland placed primary reliance for detecting andcorrecting defective railcars on its field repair crew in addition to its yard clerks whowere also responsible for reporting defective railcars, Inland had procedures to make surethat defective cars were removed from service even if switchmen disobeyed the rule toreport them.\u00a0 In any event, several switchmen testified that they did in fact reportdefective cars.[[12]]\u00a0 These employees, though, claimed that their reports were notacted upon.\u00a0 We do not agree. As the judge correctly observed, switchman Warner,who claimed that bad order cars he had reported were kept in service in two instances,conceded that one loaded car was first unloaded in conformity with Rule 4 and that otherdefective cars were simply separated from \”good cars.\”\u00a0 Former switchmanConnelly testified that there was a chronic failure among yardmasters to write up orderson bad order equipment that had been reported, thus preventing the equipment from beingtaken out of service.\u00a0 However, as the judge found, the only specific incidentConnelly recounted in that regard \”seriously undermines the import of Mr. Connelly’sstatements.\”\u00a0 Connelly testified that once between 1972 and 1976, yardmasterLambert (since retired) asked Connelly to pick up four or five railcars to use in milloperations.\u00a0 Connelly initially objected because he considered them to be \”badorder.\”\u00a0 Lambert asked Connelly to reconsider because the cars were needed atthe mill, and assured him that the cars would be repaired as soon as that operation wascompleted.\u00a0 Connelly agreed.\u00a0 In his testimony, Connelly did not specify whatthe defects had been.\u00a0 Under Rule 4, the yardmaster must exercise judgment todetermine whether a defect is serious, warranting immediate removal from service, orminor, not requiring immediate action.\u00a0 Thus, Connelly’s account of hit agreementwith Lambert actually undermines his general allegations of yardmasters failing to complywith Rule 4.\u00a0 Indeed, Connelly admitted that it may not always be possible to take abad order car immediately out of service.\u00a0 We are not persuaded that either Warner orConnelly knew of any failure of a yardmaster to write up appropriate orders on any carwith a defective or missing pin lifter or other defect warranting removal fromservice.[[13]]Switchman Thedford testified that he had reported badorder cars in writing to Assistant Transportation Superintendent DuVall but admitted hecould not testify that those same cars were not repaired.\u00a0 He also testified that onone occasion he had reported to Duvall the car numbers of 20 to 25 bad order cars, andthat most of the \”major\” repairs were not made, although some minor repairs weremade.\u00a0 However, this testimony does not establish that DuVall did not properly reportthose cars to car repair and remove them from service.\u00a0 In fact, it suggests that hedid.\u00a0 Thus, Thedford’s testimony does not support the Secretary’s position regardingthe implementation of Inland’s safety rules.Yardmaster Westerfield testified that he always wroteup switch orders on bad order cars and always reported railcars to car repair when he sawmissing pin lifters, crushed or broken handholds, bent stirrups or cracked yokes. \u00a0On an average workshift he reported up to five or ten railcars as bad order. \u00a0 Asdiscussed below, the judge refused to credit other testimony that implicated yardmastersin safety rule violations and that conflicted with Westerfield’s testimony. \u00a0 Infact, Superintendent Harding testified that switchmen do not even need a yardmaster’spermission to set bad order cars to the repair tracks.\u00a0 We are therefore notconvinced that yardmasters interfered with the removal of bad order cars from service asalleged.The employees’ testimony must also be viewed in light of the evidence regarding the extentof bad orders cars.\u00a0 The Secretary argues that such a high percentage of railcars inservice were defective that Inland’s procedures for reporting and removing such cars fromservice must have been inadequate under section 5(a)(1).\u00a0 However, it was notestablished that percentage of cars in service was defective.\u00a0 Former switchmanConnelly testified at one point that as much as 70 percent of Inland’s cars in servicewere in bad order condition, but later he gave an estimate (400 bad order cars out of atotal of 5000) that amounts to only about 8 percent. Gillie also testified to the 70percent figure but the judge ruled his testimony not credible and we accept that findingfor the reasons discussed above.\u00a0 Harding denied that Inland had found as many asone-third of cars in service to be defective.Compliance officer Gigli testified that of the 55cars he personally examined, approximately 60 percent were in bad order condition. Hecould not recall the total number of cars in the yard during his inspection.\u00a0 Sincehe had no prior experience with railroad rolling stock, Gigli did not know the relativenumber of bad order cars that would normally be present in a typical railroad yard at anygiven time; his opinion that there were too many defective cars in service was based onhis overall experience in an industrial environment and did not take into account theparticular materials handled by Inland’s cars.\u00a0 At the same time, however, Gigliconceded that the repair tracks were filled with cars waiting to be repaired.\u00a0 Thisevidence does not establish that Inland failed to take adequate steps to remove bad ordercars from service,[[14]] nor does it show what additional measures Inland could haveimplemented to protect switchmen from having to work with defective gondolas or othercars.The Secretary also relies on employee testimony thatyardmasters knowingly allowed or required switchmen to violate Rules 43 and 60 onoccasion.\u00a0 However, the judge refused to credit that testimony, and we accept thejudge’s credibility findings, for the reasons discussed below.\u00a0 The other testimonyalso fails to show supervisory knowledge of, or involvement in, safety rule violations.First we will discuss the testimony that the judgerefused to credit.\u00a0 Switchman Warner testified that although he was taught thecorrect methods of uncoupling cars by yardmaster Murray, Murray had given him advice\”off the record\” during that training on how to \”save time andtrouble\” when uncoupling cars with defective pin lifters by pushing the pin up with awooden block while standing between the cars.\u00a0 As the judge observed, Murray flatlydenied having given any such instruction.\u00a0 Furthermore, Warner admitted that he wouldhave been reprimanded for violating a safety rule if he were injured while uncoupling carsin the manner Murray suggested.\u00a0 In effect, Warner was testifying that a supervisorwould give an instruction directly contrary to a safety rule known to be enforced byInland.\u00a0 In our view, the judge could reasonably find such testimony not to becredible.Thedford testified that in early 1979 in Plant 1,yardmaster Westerfield was present when Thedford operated couplers manually because theywere missing pin lifters.\u00a0 He also said that Westerfield and certain otheryardmasters had manually opened \”knuckles\” for lack of pin lifters and had gonebetween cars that were spaced less than 20 feet apart.\u00a0 However, Westerfieldtestified that he expected employees to adhere to \”serious\” safety rules likeRule 43 and that disciplinary action is \”almost automatic\” for infractions ofsuch rules.\u00a0 He testified that he had never seen, not had ever been informed of,individuals uncoupling a car that was missing a pin lifter and that he would not condonethat practice.\u00a0 Thus, he flatly denied any implication that he was involved in safetyrule violations.The Secretary also relies on the testimony of formerswitchman Holland that company officials knew of the practice of employees going betweenrailcars to uncouple them when pin lifters were missing.\u00a0 However, Holland wasretired and had not worked for Inland since 1975, before Inland’s Rule 60 specificallyprohibited that practice.\u00a0 Rule 43, the only pertinent safety rule when Holland wasan employee, did not forbid it.\u00a0 Furthermore, Holland stated that at least on someoccasions when it was necessary to operate a defective coupler, Inland’s mobile car repairfacility would send a repairman to install a pin lifter.\u00a0 Holland’s testimony doesnot show that Inland supervisors condoned violations of any safety rules, either before orafter he retired.Warner, Thedford, and Gillie made general statementsthat they would be subjected to \”harassment\” by yardmasters if they did not gobetween cars and manually operate coupling devices at times to keep the trainsmoving.\u00a0 They alleged that the \”harassment\” would take the form of being\”chewed out\” by the yardmaster, being restricted to the official lunch period of20 minutes, not being allowed the routine one-hour early quitting time, or being assignedthe least desirable jobs.\u00a0 However, of the two yardmasters who testified, YardmasterWesterfield stated that employee violations of safety rules are not tolerated andyardmaster Murray flatly stated that the employee testimony against him was not true.\u00a0Murray also stated that when training employees he always explains that cars havingdefective pin lifters are to be set aside as bad order and are not to be used.\u00a0 Also,in a letter submitted in evidence, written about a week before the Corona fatality thatled to OSHA’s inspection, Superintendent Harding brought Gillie’s attention to Rule 4 andadded, \”Switch crew members are not forced to work with B\/O [bad order] equipment asstated in your letter.\”The judge found that the testimony of Warner,Thedford, and Gillie about yardmasters actively encouraging safety rule violations\”was flatly contradicted 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 strong impression that they were giving a wrongcoloring to material facts so as to deprive them of credit.\”\u00a0 The judge alsodiscredited Gillies testimony generally, as discussed above.\u00a0 Like the Secretary, weare troubled by an implication in the judge’s decision that the employees’ claims ofharassment are not credible because their testimony showed only that they broke work rulesto gain from supervisors longer lunch periods and earlier quitting time.\u00a0 Suchactions by supervisors would tend to undermine the company’s safety program. \u00a0However, all the credibility findings concerning Warner, Thedford, and Gillie areadequately explained on the basis of matters peculiarly observable by the judge–thewitnesses’ demeanor on the stand and their manner of responding on cross-examination.\u00a0 The judge’s findings also rest on the contrary testimony of Inland’s witnesses,whom the judge also observed.\u00a0 We would have preferred that the judge hadspecifically identified the supervisors’ testimony that conflicted with the testimony hediscredited.\u00a0 However, we have reviewed the entire record and have noted abovetestimony by yardmasters Westerfield and Murray that contradicts the employees’ testimonythat supervisors encouraged violations.\u00a0 We cannot say that the judge erred increditing the supervisors’ testimony rather than that of the switchmen.[[15]]\u00a0 Wetherefore accept the judge’s credibility determinations.\u00a0 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) (generalized criticism of awitness as not credible is insufficient).We further agree with the judge’s findings thatcertain employee testimony of supervisory coercion is simply insubstantial.\u00a0 Forexample, the only specific incident that Connelly discussed in sufficient detail to allowus to evaluate what he considered \”harassment\” seriously undermines hisallegation, as the judge found.\u00a0 That was the incident involving former yardmasterLambert, discussed previously.\u00a0 The sum and substance of that incident is thatConnelly concurred that the cars could be unloaded at the mill before being repaired,after Lambert \”implored\” him to do so because the cars were needed there. \u00a0Connelly also testified that Lambert had had a heart attack \”and was under verysevere pressure to stay on the job, and we bent over backwards to keep Jim Lambert withoutstress or strain.\”\u00a0 We agree with the judge that this incident shows noharassment or coercion by Lambert.Switchman Dills also testified that he had violatedsafety rules to \”[g]et the job done\” and \”[g]et in earlier, get betterbreaks\” from the yardmasters.\u00a0 However, the one specific instance he recountedin this regard does not support the implication that yardmasters would reward him forbreaking rules.\u00a0 Dills testified that \”3 weeks ago I was working a littleslower, I didn’t feel that good that evening, and I was taking my time on my job, the YardMaster got ticked off because I wasn’t working any faster than I was.\u00a0 And he put meon a different job\” which Dills considered to be a punishment because \”[i]t’s alittle extra work . . . . there’s not that much time, where you can get a good break onthat other job.\”\u00a0 However, when Dills told the trainmaster that he was notfeeling well he was permitted to go to the clinic.\u00a0 He took two days off work andreturned without further incident.\u00a0 The judge correctly found that Dills’s testimonythat he was \”harassed\” in that instance had \”no substance.\”Lastly, the judge discredited the testimony of Dillsthat when he had been an hourly foreman in the Transportation Department for about one andone-half years ending in early 1978, other supervisors falsified safety contract cards bywriting down safety contacts with employees that never had occurred.\u00a0 Aftertestifying to that effect, Dills admitted it was possible that those yardmasters had madethe safety contacts before he saw them fill out the cards, and that the onlyfalsifications he could actually speak to were his own.\u00a0 We uphold the judge’sfinding that Dills’ testimony regarding the possible falsifications by other yardmasters\”lack[ed] credibility.\”\u00a0 Insofar as Dill’s falsifications are concerned, headmitted that Inland had taught him the correct way to fill out the cards, and that hecould not confirm that any yardmasters knew he falsified them.\u00a0 Indeed, Dillstestified that he would not want Harding to find out because \”[i]t’s breaking a rule,his rule.\”\u00a0 Dills’ admissions constitute the only proof of violations by anyforeman or supervisor in this case.\u00a0 They were not safety rule violations, butconcern a tangential matter–safety contacts with switchmen in the yards.\u00a0 Thisidiosyncratic misconduct of a single hourly foreman over a year before the citation is toofrail a need to support this citation.\u00a0 See Pennsylvania Power & LightCo., 737 F.2d 350 (3d Cir. 1984).Finally, the compliance officer testified that duringhis inspection, yardmaster Murray went between two cars and manually operated a pin lifterin his presence.\u00a0 However, Murray testified that he had done so because he understoodthat the compliance officer had asked him \”to demonstrate what we felt caused[Corona’s] accident.\”\u00a0 Murray testified that the compliance officer then\”asked me if it could be done without being between the draw bars\” and Murraydemonstrated that also.\u00a0 He testified that these demonstrations had occurred in thepresence of a Mr. Jones of the safety department and Assistant Superintendent DuVall aswell.\u00a0 Only later did the compliance officer discover that lifting pins manually wasa safety violation.\u00a0 Murray’s testimony adequately explains the reason fordemonstrating the manual lifting of a pin.\u00a0 He did it to satisfy what he understoodto be a request by an OSHA inspector during the inspection.\u00a0 Exposure to hazards dueto complying with an OSHA inspector’s perceived request is not grounds for issuance of acitation.\u00a0 Cf. Brown-McKee, Inc., 80 OSAHRC 34\/A2, 8 BNA OSHC 1247,1249, 1980 CCH OSHD ? 24,409, p. 29,736 (No. 76-982, 1980) (violation cannot be based onexposure of employer’s walkaround representative during inspection); Bechtel Power Co.,79 OSAHRC 34\/A2, 7 BNA OSHC 1361, 1365 n.7, 1979 CCH OSHD ? 23,575 at p. 28,576 n.7 (No.13832, 1979) (same).We accept the judge’s determination that the evidence did not preponderate in theSecretary’s favor on the issue of the adequacy of Inland’s efforts to enforce its safetyprogram.[[16]]\u00a0 Thus, the Secretary failed to prove a section 5(a)(1) violation withregard to the aspects 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 to either citationitem, we vacate the citation.\u00a0 The judge’s decision is affirmed.FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary DATED:\u00a0 JUL 30, 1986The Administrative Law Judge decision in this matteris unavailable in this format.\u00a0 To obtain a copy of this document, please request onefrom our Public Information Office by e-mail ( [email protected]),telephone (202-606-5398), fax (202-606-5050), TTY (202-606-5386).\u00a0FOOTNOTES: [[*]] Commissioner Wall did not participate in thisdecision.[[1]] Section 5(a)(1) states: Each employer–(1) shall furnish to each of his employees employment and a place of employment whichare free from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees . . . .[[2]] The Authorized Employee Representative, whichalso seeks enforcement of the citation, joined in many of the Secretary’s arguments.\u00a0 Where both of these parties advance an argument, we will identify it as theSecretary’s argument, for convenience.[[3]] The Secretary refers to the hazard at issue asboth \”inadvertent\” and \”uncontrolled\” movement, and former CommissionCleary’s direction for review used the term \”uncontrolled\” rather than\”inadvertent.\”\u00a0 We conclude that in the circumstances here there is nosubstantive difference between the two terms.The Secretary also argues that the issue of whether arecognized hazard existed is not before us.\u00a0 The judge found that there was arecognized hazard of \”inadvertent movement of railroad cars,\” and thecorrectness of that finding was not mentioned in former Commissioner Cleary’s directionfor review.\u00a0 However, the Commission may still rule on the issue after the partiesare afforded any necessary opportunity to submit briefs on it.\u00a0 See HamiltonDie Cast, Inc., 86 OSAHRC __ \/__ , 12 BNA OSHC 1797, 1986 CCH OSHD ? (No. 83-308,1986) (Commission may consider issues outside the four corners of a direction for reviewfor the sake of fairness and uniformity of adjudication, after parties have been affordedany necessary opportunity to brief issues).\u00a0 All the parties specifically addressedthe issue on the merits in their briefs.\u00a0 Moreover, the existence of a recognizedhazard, properly defined, is an essential element of a finding of any section 5(a)(1)violation.\u00a0 In these circumstances, we will address the recognized hazard issue.[[4]] In Wheeling-Pittsburgh Steel Corp., 81OSAHRC 102\/A2, 10 BNA OSHC 1242, 1981 CCH OSHD ? 25,801 (No. 76-4807 1981), aff’dwithout published 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.\u00a0 10 BNA OSHC at 1246 & n.4,1981 CCH OSHD at p. 32,244 & n.4.\u00a0 However, that decision did not indicate howmany steel companies use handbrakes.In this case there was testimony that at least sevensteel company plants had received pugh ladles with handbrakes from one manufacturer.\u00a0 However, the record does not explain why these plants received pugh ladle cars withbrakes, nor does it show that any of the plants actually used the brakes.\u00a0 Indeed,Inland’s expert witness, Martin, stated that one of the steel companies that receives carswith brakes, Bethlehem Steel, operates in the same manner as does Inland, that is, it doesnot use brakes.\u00a0 Other steel plants in addition to Inland had pugh ladle cars thatwere not equipped with brakes.\u00a0 Thus, the record here does not establish that thesteel industry generally recognizes that blocks alone will not prevent injury toemployees.[[5]] The Union argues that Inland’s rules should bemore specific as to when railcars should be secured.\u00a0 It points to rules of variousinterstate common carriers as models.\u00a0 However, we find that the common carriers’rules are not models that Inland can be expected to follow.\u00a0 In any event, thoserules were not actually shown to give more specific guidance than the training Inland gaveemployees in blocking.\u00a0 Most of the safety rules submitted in evidence by theSecretary contain general statements like that of the Elgin, Joliet & Eastern RailwayCo.:\u00a0 \”When cars are left on any track, sufficient hand brakes must be set toprevent cars moving . . . . \” Inland’s Rule 43 gives comparably specific guidancesince it requires that railcars be blocked before employees step between them \”ifthere is any question of the cars not being at a complete standstill.\” \u00a0 Also,Inland trains its switchmen in the different types of blocking and when to use them, andinstructs employees to block cars so that there will be no movement after they are set.[[6]] The specific safety problems of setting andreleasing handbrakes were explained by Martin.\u00a0 Typically, applying or releasinghandbrakes requires the switchman to climb partway up a metal ladder on the side of thecar, then step to a similar adjacent ladder on the end of the car and climb up that ladderto a narrow metal platform (perhaps 12\” wide and 20\”-30\” long) to operatethe handbrake.\u00a0 The switchman then sets or releases the handbrake, typically byturning a brake wheel or rotating a pump handle and retraces his steps down the ladder todetrain.Martin noted that the hazards of slippery stirrupsand other surfaces would be increased in adverse weather conditions, or where there wasgrease on the stirrups.\u00a0 Martin also noted that brakes can malfunction due to chainsbreaking or other factors and that a railcar can move inadvertently–even run away from atrain to which it was attached–while handbrakes are being applied or released, creatingdangers to an employee attempting to leave the train by a ladder from the handbrakeplatform.Photographs appearing in the safety manual of theElgin, Joliet and Eastern Railway Company, an interstate carrier, clearly support thejudge’s conclusion that switchmen face a \”precarious situation\” when operatinghandbrakes.[[7]] OSHA’s compliance officer, Gigli, also gaveopinion testimony tending to show that handbrakes should be required.\u00a0 However, Giglihad no personal experience with rolling railroad stock or steel railroads. \u00a0 Thus,his opinions are entitled to no greater weight that those of Sage and Barnes. \u00a0 TheSecretary’s evidence on the need for handbrakes did not preponderate over Inland’scontrary evidence.[[8]] In his brief he notes that if the Commissionfinds that \”such a procedure does create a hazard,\” the Secretary \”onlyseeks to require the use of brakes to secure stationary railcars.\” \u00a0 The FRAinjury statistics previously referred to show 246 injuries to employees while operatinghandbrakes on moving cars in yard service.\u00a0 A hazard therefore is clearly presented.[[9]] An explanation of certain terms used in thecitation is helpful.\u00a0 The uncoupler devices, commonly called \”pin lifters,\”permit railcars to be uncoupled without an employee stepping between the cars and facingthe risk of railcar movement.\u00a0 The pin lifter consists of a lever extending frombeneath the coupling mechanism (\”knuckle\”) at the end of the railcar to theouter edge of the car. To uncouple two railcars, the employee pushes down on the lever,causing the other end of the lever to rise, pushing up the \”pin\” in the knucklerand unlocking the knuckle.\u00a0 The \”stirrups\” are the rungs of the metalladders on the sides and ends of the railcars, and the \”handholds\” or \”grabirons\” are metal handles that employees grasp while climbing on and off the railcarsor riding on them. 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 around the \”drawbar,\”holding it in place.[[10]] The Secretary and the Union rely on Commissioncases involving safety standards promulgated under section 5(a)(2) of the Act, placing aburden on the a prima facie case.\u00a0 Those cases are inapposite undersection 5(a)(1).\u00a0 The Secretary retains the burden of establishing by a preponderanceof the evidence the existence of a feasible and useful means of abating recognized hazardsin a section 5(a)(1) case.\u00a0 See Donovan v. Royal Logging, 645 F.2d 822,828 (9th Cir. 1981).[[11]] Yardmasters are the switchmen’s supervisorsand are responsible for the proper operation of their respective yards. \u00a0 Thetrainmaster on each shift is in overall charge of rail operations throughout Inland’sfacility.\u00a0 \”Rip tracks\” are repair tracks in the yard where bad order carsare to be directed and taken out of service until repaired.\u00a0 \”Foreign cars\”are railcars from outside railroads. \”I.H.B.\” apparently refers to the IndianaHarbor Belt Railway and the \”J\” apparently refers to the Elgin, Joliet andEastern Railway Company, which are outside railroads.[[12]] The Union notes that there were no writteninstructions informing employees what constitutes a defective car and argues that showsinadequate communication of Inland’s safety rules.\u00a0 We disagree because that argumentover-emphasizes formal aspects of Inland’s safety program at the expense of itssubstance.\u00a0 The lack of written instructions was not shown to decrease employeeawareness of the defects to be reported or reduce employee compliance with reportingprocedures.\u00a0 See Jones & Laughlin Steel Corp., 82 OSAHRC34\/A2, 10 BNA OSHC 1778, 1982 CCH OSHD ? 26,128 (No. 76-2636, 1982).[[13]] We reach the same conclusion with respect toConnelly’s testimony, which the judge did not address, of another instance when a greatdeal of scrap loading required the use of an unusual number of cars, including bad ordercars.[[14]] The fact that Inland’s repair tracks were fulltends to establish that Inland’s rule requiring the reporting and removal from service ofdefective railcars was adequately implemented.\u00a0 Conversely, however, it is equallyobvious that the ultimate effectiveness of the rule depends as well on the adequacy ofInland’s car repair procedures.\u00a0 Nevertheless, the Secretary’s citation does notdirectly allege any inadequacy in Inland’s car repair program itself.\u00a0 The recordshows that in response to Gillie’s request in October 1978 for an improved repair program,Inland assigned additional personnel and a second supervisor to the repair shop andestablished two additional repair tracks.\u00a0 At the time of the inspection, Inland eachmonth was repairing between 750 and 800 cars, almost one-third of its entire fleet. \u00a0In a memorandum written to DuVall in June 1979, after the inspection, Thedford, then unionsafety steward, expressed approval of car repair efforts during one week in that monthwhen 181 cars were repaired.\u00a0 In referring to this amount of car repair, which isequivalent to a monthly repair rate of 785 cars, Thedford stated, \”I think our[s]upervisors are doing a fine job in helping us have safe equipment to workwith.\”\u00a0 Although Thedford also concluded that a large number of bad order carsremained, his memorandum recognized rule 4 and stated that employees can assist inreducing the incidence of bad order cars by reporting defects as required by that rule.\u00a0 Accordingly, Thedford apparently considered Inland’s repair facilities to becapable of handling the number of defective cars that in his view should be reported underRule 4.[[15]] Former switchman Connelly also testifiedgenerally that yardmasters who he did not identify threatened to shorten his lunch periodor give him the least desirable jobs around the yard if he did not keep defective cars inservice as needed in scrap operations. Like the testimony of Warner, Thedford, and GillieConnelly’s statements are contradicted by the testimony of Inland’s supervisors.[[16]] The previous accidents involving Inlandswitchmen do not prove inadequacies in the elements of Inland’s safety program at issuehere.\u00a0 The Secretary relies on the Corona fatality as well as a fatality and severalinjuries that occurred in the 1960’s to establish inadequacies.\u00a0 However, Corona, whowas crushed between the drawbars of two railcars, had been instructed in Inland’s safetyrules, had correctly answered the questions on Rule 43 in his switchman’s test, and hadbeen orally reprimanded by trainmaster Webber three days before the fatality for violatingRule 43, as noted above.\u00a0 Yardmaster Westerfield testified that Corona told him themorning he died, \”Don’t worry, I know Rule 43.\”\u00a0 There is no evidence thatCorona was not properly instructed in Inland’s safety rules or that Inland condoned hisviolation of those rules.\u00a0 It also should be noted that switchman Thedford, whoblamed yardmasters for failure to make sure that bad order cars were removed from servicein certain cases was on duty in that one of the cars involved had a missing pin lifter,which may have led Corona to go between them, where he was crushed.As to the fatality and injuries that occurred in the1960’s, these also fail to show inadequacies in Inland’s safety program at the time of theinspection or citations.\u00a0 The Secretary notes that a broken toe was suffered byswitchman Bastardo in 1969 when a stirrup broke on a car he was riding and his foot fellunder a wheel.\u00a0 However, the Secretary did not show that Inland should have detecteda defect in that stirrup in advance.\u00a0 That incident establishes nothing about theadequacy of Inland’s safety rules.\u00a0 A 1967 injury to switchman Schutz occurred whilehe was standing between cars inspecting a defective coupling mechanism.\u00a0 However,that injury predated Rule 60, which prohibited going between railcars having no pinlifters.\u00a0 A 1964 arm injury to switchman Holland, the result of being pinned betweenrailcars while attempting to open a coupler, was due to his violation of Rule 43,according to Inland’s accident report.\u00a0 A 1964 hand injury to coal bridge helperWallace while setting blocks on a coal tripper car, involved specialized coal handlingequipment and is unrelated to Inland’s railroad operations, as the judge found.\u00a0 Thecause of a fatality in 1960, in which an employee, Stubbs, was pinned between railcars,was not established.\u00a0 Thus, these accidents do not prove that Inland had aninadequate safety program.\u00a0″