“SECRETARY OF LABOR,Complainant,v.LAUHOFF GRAIN COMPANY,Respondent.OSHRC Docket No. 81-0984_DECISION_Before: BUCKLEY, Chairman; WALL, 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 (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).Lauhoff Grain Company processes and stores soybeans and corn at itsDanville, Illinois workplace. The site includes a private railswitchyard at which rail cars are marshalled and trains assembled anddisassembled. On January 21, 1981, an employee of a subcontractorworking in the rail yard was killed when an engine operated by a Lauhoffemployee backed six rail cars into a forklift truck, crushing thesubcontractor’s employee between it and a nearby crane. The Secretaryof Labor investigated the accident and then issued to Lauhoff a seriouscitation alleging, as amended, that Lauhoff violated 29 C.F.R. ?1910.176(f) by failing to \”install a derail and\/or bumper blocks ontrack 16 to prevent railroad cars from entering a work area.\”[[1]]Judge Edward A. Bobrick affirmed the citation and assessed a $900penalty. We affirm the judge’s disposition.The fatality occurred at track 16, a spur track which ran parallel toand connected with track 17 at its northern terminus, and ended in acovered loading dock within Lauhoff building 203. Near its southernterminus, approximately 30 feet north of building 203, was a crossovertrack connecting it to track 17. The central portion of track 16 wascovered with dirt and unused in order to assure adequate clearance forcars being moved into and out of the building 203 loading dock from thetrack 17 crossover. The northern portion of track 16 from its northernterminus to the dirt-covered area, was of a length which couldaccommodate six hopper cars and was used to store loaded hopper cars. West of, and parallel to, track 16 was track 15 where the Norfolk &Western Railroad Company would deliver empty hopper cars.The standard operating procedure was for a Lauhoff switch engine to pickup empty hopper cars from track 15, and move them into the building 203loading dock via track 17 and the crossover at the southern end of track16. Loaded cars would then be pulled out of the loading dock via thecrossover and track 17 and then pushed south onto the northern portionof track 16 used for storing them until eventually picked up by Norfolk& Western for delivery elsewhere. As stated, the northern portion oftrack 16 could accommodate six cars.On the morning of January 21, 1981, Lauhoff employees Bright and Tugglewere moving cars on tracks 16 and 17. Bright, the engineer, looked toTuggle, the switchman, for directions in order to switch cars from onetrack to another. Sometime after they started work that morning, thecrane that was subsequently involved in the accident was moved intoposition between tracks 15 and 16, with one set of outriggers inside thedirt-covered portion of track 16–just north of the southern part oftrack 16 and Lauhoff building 203. The crane was operated by theO’Neill Brothers Construction Company to assist the constructionactivities of the Ellington Miller Company. Ellington Miller hadcontracted with Lauhoff to erect additions to two buildings in Lauhoff’ssoybean processing area, the above-mentioned building 203, and building205–located immediately to the east of building 203.During the time the crane was in use, the work of the soybean plantcontinued on a normal basis. Track 15 continued to be used to storeempty rail cars; the northern part of track 16 continued to be used tohold soybean-filled rail cars; and the portion of track 16 south of thedirt-covered part continued to be used as access to building 203. Lauhoff employees were in the construction area checking gauges,connecting lines, crossing the rail tracks and going through the nearbybuildings. No derails or bumper blocks were used to protect work areasnear tracks 15, 16, and 17 during the construction.The crane was being used to lift steel reinforcing rods to the top ofbuilding 203. The rods were delivered to the crane by the forklifttruck, operated by an employee of O’Neill Brothers. Around noon, theO’Neill Brothers employees stopped work for lunch. The forklift truckwas left parked about two feet north of the crane, close to track 16,and south of the southernmost rail car then resting on the northern partof track 16. The forklift was 20 feet long and 8 feet wide.At about 12:30 p.m., Lauhoff employees Bright and Tuggle were switchinga loaded hopper car to the northern part of track 16, for eventualpickup by the Norfolk and Western Railroad. The switch engine andhopper car moved backwards at a speed of five miles per hour or less;the hopper car coupled to five other cars already standing on track 16. Engineer Bright operated the train from the right (east) side of theengine while Tuggle, ostensibly acting as watchman, also was positionedon the right side of the train. The entire train was backed upsouthward on track 16 over track that curved right (west) so thatneither Bright nor Tuggle could see either the southernmost car on thetrain or the forklift (a \”blind push\”). The southernmost car hit theforklift and pushed it into the crane while the forklift operator wasbetween the two pieces of equipment.The standard for which Lauhoff was cited provides:_Subpart N–Materials Handling and Storage_? 1910.176 _Handling Materials–general_.(f) _Rolling railroad cars_. Derail and\/or bumper blocks shall beprovided on spur railroad tracks where a rolling car could contact othercars being worked, enter a building, work or traffic area.To prove a violation of a standard, the Secretary must establish itsapplicability. _See_ _Belger Cartage Service, Inc_., 79 OSAHRC 16\/B4, 7BNA OSHC 1233, 1235, 1979 CCH OSHD ? 23,440, p. 28,373 (No. 76-1480,1979). Lauhoff contends that the words \”rolling car\” in the citedstandard refer to free rolling cars only–not cars being pushed by anengine.The Commission stated in _Bunge Corp_., 86 OSAHRC ____, 12 BNA OSHC1785, 1791, 1986 CCH OSHD ? 27,565, p. 35,806 (No. 77-1622, 1986), that\”[i]t is axiomatic that OSHA standards must be interpreted in accordancewith the natural and plain meaning of their words . . . .\” Should thewords of a standard represent terms of art in the discipline or industrythat it regulates, however, the words should be construed accordingly. They may not be construed to deprive employers of fair notice of therequirements of the law. _See_ _C. F. & I. Steel Corp_., 86 OSAHRC______, 12 BNA OSHC 2067, 2075, 1986 CCH OSHD ? 27,691, p. 36,140 (No.79-4786, 1986).The plain meaning of the words \”rolling car\” appears to encompass bothcars that are rolling because they are attached to a moving engine andcars that are free rolling. Lauhoff argues, however, that the wordsshould be interpreted to apply only to free rolling cars. In support ofits position, Lauhoff refers to certain language contained in a variancefrom the cited standard issued by the Secretary in 1974 to anothercompany with a private rail yard, Fisher Mills, Inc. That company useda switch engine to move cars over its spur tracks just as Lauhoff does. The variance referred to the terms \”rolling car\” in section 1910.176(f)and stated: \”A rolling car is a car moving freely and it is to such asituation that the standard is addressed.\” 39 Fed. Reg. 1677 (1974). The variance authorized noncompliance with the standard so long as thecompany performed its switching operations while complying with a seriesof mandated safety practices.Lauhoff points out that, relying primarily on the above quoted languagefrom the Fisher Mills variance, a Review Commission Administrative LawJudge subsequently stated in an unreviewed decision that \”29 C.F.R. ?1910.176(f) is not applicable to railroad cars being switched whileattached to a locomotive.\” _Cargill, Inc_., 79 OSAHRC 99\/C12, p. 17(full text), 8 BNA OSHC 1101 (digest), 1979 CCH OSHD ? 24,034(digest)(No. 78-3110, 1979)(ALJ). Lauhoff also points to proposedchanges to section 1910.176(f), which the Secretary published a shorttime after granting the variance in 1974. 39 Fed. Reg. 14,352-53(1974). The proposed changes would have deleted the word \”railroad\”from the phrase \”spur railroad tracks,\” would have deleted the word\”and\” from \”[d]erail and\/or bumper blocks,\” and would have specificallyreferred to both free rolling cars and cars attached to locomotives as\”Rolling railroad cars.\” The proposed changes to section 1910.176(f)were not adopted, however.The only testimony as to the industry’s understanding of the term camefrom Lauhoff expert witness Flint, the assistant superintendent forrailroad operations for a division of the Port of Galveston, who had 34years of railroad experience. He testified:To me, and I believe I could say to railroad people, the term \”rollingcar\” describes the condition of the car. The car is rolling. \”Rollingequipment\” is any piece of equipment regardless of whether it is movingor standing still, that is capable of rolling on the track.Judge Bobrick found the regulation \”simple and unambiguous\”. The judgefound that the term \”rolling car\” does not distinguish between a railcar that is rolling on its own and a car that is attached to a switchengine. He stated that the standard’s purpose was to prevent rail carsfrom unexpectedly entering a work area, regardless of whether the carswere pushed by an engine or rollingfreely. The judge further stated that the variance granted to FisherMills would not have been necessary if the standard did not apply tocars coupled to an engine. The judge found that Lauhoff recognized theneed for derailers in that it used them elsewhere in its rail yard whereemployees worked on rail cars.The Commission concludes, as did Judge Bobrick, that the meaning of\”rolling car\” is simple and unambiguous. A rolling car under the citedstandard is a rail car that is in the process of rolling– whetherattached to a power source, such as an engine, or not.The testimony of Lauhoff’s expert Flint does not support the company’sposition on this issue. Nothing in his testimony suggests that theindustry understands \”rolling car\” to refer only to a freely rollingcar, as distinguished from a car that is rolling because it is attachedto a moving engine.Nor is there any basis in the history of the development of the standardthat indicates an intent to give \”rolling car\” a meaning other than itsplain and natural one. The cited standard was derived from a virtuallyidentical standard at 41 C.F.R. ? 50-204.3(f) issued under theWalsh-Healey Act. The record contains no legislative history orcontemporaneous interpretation which supports Lauhoff’s definition, andnone is recited in the Fisher Mills variance. The language in theFisher Mill variance is not persuasive. There is no evidence that it isauthoritative, and it accompanied a variance that was granted. It wasnot indicated that the variance was unnecessary as being inapplicable tocars moving under power of an engine.[[2]] Certain of the safetypractices mandated by the Fisher Mills variance involved situations inwhich rail cars were connected to a moving engine. If, as the variancestates, the standard applied only to cars \”moving freely,\” theprovisions of the variance governing cars connected to an engine wouldbe unnecessary.The unreviewed judge’s decision in _Cargill_, which did adopt thevariance’s definition, does not compel a different result. Unreviewedjudge’s decisions do not constitute binding Commission precedent. _Leone Construction Co_., 76 OSAHRC 12\/E6, 3 BNA OSHC 1979, 1981,1975-76 CCH OSHD ? 20,387, p. 24,322 (No. 4090, 1976).Lauhoff contends that the standard is ambiguous in that the term\”and\/or\” permits derails and bumper blocks to be used together whereasderails and bumper blocks serve separate functions and should not beused together. Lauhoff’s contention is rejected. The term \”and\/or\”does not require the use of both devices together. The term means thatderails may be used separately, bumper blocks may be used separately, orthe two devices may be used together, where appropriate. Here, Lauhoffused neither device.A further ambiguity asserted by Lauhoff is that the use of the word\”where\” may refer either to the circumstances under which derails andbumper blocks should be used or to the precise spot where those devicesshould be placed; if the latter, then the devices would not only beinappropriate but dangerous. Albeit artlessly drafted, the standard incontext demonstrates that \”where\” refers to the circumstances underwhich the specified safety devices should be used.Lauhoff contends that the words \”railroad tracks\” refer to tracks thatare part of the \”common railroad operating system,\” as opposed to\”private\” or \”industry tracks\” that are operated within privatefacilities such as its own. But, Lauhoff has not pointed to anyphysical difference between its tracks and those tracks that are a partof the common railroad operating system. The Commission does not viewthe standard’s use of the term \”railroad tracks\” (emphasis added)instead of \”rail tracks\” as intending to draw a distinction betweenpieces of track on the basis of who owns the track. Lauhoff’s attorneyfrequently used the term \”railroad\” where she was referring to the railoperations at Lauhoff’s private facility. Further, it is doubtful thatOSHA would have adopted a standard governing only railroads serving ascommon carriers. _See_ _Cuyahoga Valley Railroad Co_., 82 OSAHRC 59\/C3,10 BNA OSHC 2156, 1982 CCH OSHD ? 26,292 (No. 76-1188, 1982) (discussingpreemptive authority of Federal Railroad Administration over the\”general railroad system . . .\”), _aff’d without consideration ofpoint_, 748 F.2d 340 (6th Cir. 1985), _rev’d_, 106 S.Ct. 286 (1985). Lauhoff’s tracks are therefore \”railroad tracks\” within the meaning ofthe cited standard.It is the Secretary’s burden, also, to establish that the employer knewor, with the exercise of reasonable diligence, could have known of theviolative condition. _See_ _Monarch Water Systems, Inc_., 86 OSAHRC_______, 12 BNA OSHC 1897, 1898, 1986 CCH OSHD ? 27,632, p. 35,932 (No.83-943, 1986). Here, the question is knowledge of the existence of awork area near track 16.Lauhoff argues that the Secretary failed to establish that anyemployee–supervisory or hourly–knew or could, with the exercise ofreasonable diligence, have known of the positions of the forklift andcrane, which Lauhoff asserts were not supposed to be on track 16. Lauhoff also contends that it could not be expected to police a facilityof this size, learn of every activity of every contractor’s employees,know of the work area on track 16, and know of the precise locations ofthe various cranes then in use. We disagree, as did the judge, whoobserved that management personnel who supervised the switchyard,processing plant, construction work and safety program were all fullyaware of the crane’s location, the absence of a derail and blue flag,and the \”blind\” pushes of up to six cars close to the work area ontracks 15 and 16 . . . . It is difficult to understand [Lauhoff’s]position that on January 21, 1981 it was without knowledge of theactivities of O’Neill since the crane and forklift truck were in thesame location where it had been in use since December 17, 1979 and[Lauhoff] was aware that an 18-foot wide crane could not sit on track 15without stretching onto track 16.The judge also observed that the nature of the work required that theO’Neill crane, as well as the forklift, be in the area near building203, occupying tracks 15 and 16 and the space between them.Loading supervisor Berry knew that Lauhoff had not placed a derail orbumper block on either track on the day of the accident. Berry admittedknowing the crane would be working on track 15 on the morning of theaccident. With a 170-foot boom, the crane was highly visible, and hehad seen the crane in the yard on other occasions; he had also observedthat the outriggers of the crane extended beyond the body of the crane. The fact that Berry admitted knowing that the crane would be working ontrack 15 that morning but did not also admit knowing that the cranewould be on track 16 as well is of no consequence. Berry knew thephysical layout of the rail yard and knew how close together tracks 15and 16–and the other tracks in the yard–were. The crane had been inthe same location on each of at least three other occasions within amonth of the accident, and the particular location was the only one thatwould interfere neither with Lauhoff’s grain and rail operations norwith construction. Berry should have known that the crane, which was 18feet wide with its outriggers extended, would extend to track 16.Berry had seen the rail cars on track 16 on the morning of theaccident. As the loading supervisor, Berry knew that Lauhoff wascontinuing to load soybeans on a regular basis while construction workproceeded and knew that loaded rail cars were brought to track 16 toawait being moved off the facility. As loading supervisor, Berryshould have been aware that his loaders engaged in blind pushes of carsdown track 16 and could not always see what was in front of thesouthernmost car being pushed. Berry was familiar with the constructionactivities being performed as they affected the soybean loadout area ofthe rail yard and knew that the construction work required the use ofcranes.Since Berry knew cranes were being used in conjunction with theconstruction activities and since the forklift truck was being used tobring steel to the crane for hoisting, Berry could have known that theforklift truck would occasionally be near the crane and track 16. Indeed, the forklift had been left in that same position on otheroccasions. Both Lauhoff employees Tuggle and Bright knew about theposition of the forklift truck prior to the backing of the train downtrack 16 and believed that the train would clear the forklift. Theforklift truck was a part of the work area near track 16 that requiredderail or bumper block protection under the terms of the citedstandard. Lauhoff, through Berry, could have known of the existence ofthat work area.Lauhoff argues that the use of derails would have created a greaterhazard. To prove a greater hazard defense, an employer must show that(1) the hazards of compliance with a standard are greater than thehazards of noncompliance, (2) alternative means of protection areunavailable, and (3) a variance was unavailable or inappropriate. _Modern Drop Forge Co. v. Secretary of Labor_, 683 F.2d 1105 (7th Cir.1982); _Roofing Systems Consultants_, 80 OSAHRC 51\/C13, 8 BNA OSHC 1446,1449, 1980 CCH OSHD ? 24,504, p. 29,941 (No. 76-592, 1980). The partieshave primarily argued about whether the use of a derail would havepresented a greater hazard. The standard, however, provides that abumper block may be used with, _or instead of_, a derail. For Lauhoff’sgreater hazard defense to prevail, the company must establish that botha derail and a bumper block presented greater hazards. We find thatthe record shows a bumper block would not have presented a greater hazard.Lauhoff’s expert, Flint, testified that a bumper block is a \”device ofrather solid construction and weight . . . it is placed at the ends oftracks to prevent cars or equipment from rolling over the end of thetrack.\” Flint initially stated that if a train that included four tosix loaded rail cars were to hit a bumper block on level track whilemoving at less than five miles per hour, the train would derail. Flintalmost immediately reconsidered that statement, however, andsubsequently testified that the \”more probable thing that would happenwould be the bumper block would be somewhat damaged because of that muchweight.\”The Secretary’s expert, Galvin, a supervisory specialist in railroadoperating practices with the Federal Railway Administration, testifiedthat the use of a bumper block at the southern end of the northernsection of track 16 would not present a greater hazard than the failureto use a bumper block. There is no evidence that a bumper block couldnot have been put there.The judge apparently believed that bumper blocks were not involved inthis case because they are normally used at the ends of sections oftrack. However, the southern end of the northern portion of track 16was a de facto end of track 16, for Lauhoff never used track 16 all theway through, had covered part of the track over with dirt to preventuse, and had permanently set into position on track 16, just below thedirt-covered section of that track, a section of cross-over track fromtrack 17. It would not have been safe to put rail cars on the unused,dirt-covered section of track 16 because rail cars placed there wouldhave been hit by rail cars regularly using the crossover section of track.Therefore, since Lauhoff failed to show that bumper blocks would havepresented a greater hazard, it has failed to establish a greater hazarddefense. The Commission need not determine whether Lauhoff establishedthat derails would have presented a greater hazard.[[3]] The Commissionalso need not determine whether a variance was unavailable orinappropriate.[[4]]Finally, Lauhoff raises the multi-employer worksite defense enunciatedin _Anning-Johnson Co_., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1198-99,1975-76 CCH OSHD ? 20,690 (No. 3694, 1976). Under the Commission’s_Anning-Johnson_ precedent, to successfully escape liability for itsalleged violation of a standard, a subcontractor on a multi-employerconstruction site must show that it neither created nor controlled thealleged hazard, and that it had attempted to protect its employees byrealistic measures taken as an alternative to literal compliance withthe cited standard or that it did not have, and with the exercise ofreasonable diligence could not have had, notice that the condition washazardous. We need not determine whether the _Anning-Johnson_ defenseis applicable under the circumstances of this case, since it is clearthat an employer that creates a hazard to which its own employees areexposed may not escape liability under _Anning-Johnson_. Here, it wasLauhoff employees who were responsible for backing the train into thework area. It was Lauhoff that determined that its rail operationswould proceed on a normal basis while the construction activities wereconducted close to track 16. It was Lauhoff that could have installed abumper block or derail device but did not do so. Further, the recordclearly establishes that Lauhoff employees were exposed to the citedhazard. Lauhoff employees were in the construction area during theperiod of construction checking gauges, connecting lines, crossing therail tracks, and working in and around buildings 203 and 205. If thecrane had been hit while it was lifting a load, the crane and load couldhave toppled onto Lauhoff employees working near the crane or in andaround buildings 203 and 205. Thus, the _Anning-Johnson_ defense wouldnot benefit Lauhoff.The Commission assesses a penalty of $900. We find that the gravity ofthe violation was high in that death could, and did, result fromnoncompliance with the cited standard. We do not credit Lauhoff withany significant degree of good faith because it essentially took noaction to protect the employees in the work area around the crane andforklift from rolling rail cars at any time that the crane waspositioned between tracks 15 and 16. Further, Lauhoff is a relativelylarge employer of over 100 employees and has been issued a priorcitation which was partially affirmed in a settlement agreement.Accordingly, the Commission affirms the citation alleging a seriousviolation of section 1910.176(f), and assesses a $900 penalty.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: February 4, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.LAUHOFF GRAIN COMPANY,a Corporation,Respondent.OSHRC Docket No. 81-0984_DECISION AND ORDER_Appearance:FRANCIS X. LILLY, Esq., Solicitor of Labor,JOHN SECARAS, Regional Solicitor,NANCY B. COLLINS, Esq., Office of the Solicitor,Chicago, Illinoisfor Raymond J. Donovan, Secretaryof Labor, U.S. Department of Labor, Complainant.Lynn E. Pollan, Esq., Assistant Counsel,Bunge Corporation, New York, New York forLauhoff Grain Company, Respondent.BOBRICK, JudgeThis proceeding was commenced pursuant to Section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. 651, _et_ _seq_.,(hereinafter referred to as the \”Act\”), wherein Respondent, LauhoffGrain Company, contested a Citation issued by Complainant, Raymond J.Donovan, Secretary of Labor, U.S. Department of Labor. [[1\/]] TheCitation charged Respondent with a serious violation of Section 5(a)(2)of the Act and the 1980 Occupational Safety and Health Regulations 29C.F.R. 1910.176(f), as follows:Derail and\/or bumper blocks were not provided on spur railroad trackswhere rolling car(s) could contact other cars being worked or enter abuilding, work or traffic area: In that: On or about January 21, 1981,the Lauhoff Grain Company did not install a derail and\/or bumper blockson track #16 to prevent railroad cars from entering a work area.On January 22, 1981, a Compliance Officer of the Occupational Safety andHealth Administration (hereinafter \”OSHA\”), in response to a report of afatality which had occurred on January 21, 1981, at Respondent’sworkplace, conducted a safety investigation at that site (Tr. 490). TheCompliance Officer, prior to performing the investigation, first visitedthe Coroner’s office and then the employer of the deceased employeekilled at Respondent’s worksite. Once at Respondent’s workplace,pursuant to the agreements reached between the Respondent and theCompliance Officer, an abbreviated opening conference was held, afterwhich the investigation was then begun (Tr. 495-500).As a result of this investigation, on March 25, 1981, a Citation wasissued to Respondent initially charging it with a violation of theGeneral Duty Clause of the Act (Section 5(a)(1). This Citation waslater amended to allege a violation of Section 5(a)(2) of the Act andSafety Regulation 29 C.F.R. 1910.176(f), which provides:? 1910.176 Handling materials – general.(f) _Rolling railroad cars_. Derail and\/or bumper blocksshall be provided on spur railroad tracks where a rollingcar could contact other cars being worked, enter abuilding, work or traffic area._FINDINGS OF FACT AND CONCLUSION OF LAWFACTS OF CASE_Respondent is an employer engaged in the business of processing andstoring corn and soybeans. At the cited workplace, in Danville,Illinois, it operates a large facility consisting of storage tanks,processing buildings, administrative offices, and an extensive railswitchyard (Ex. C-9, C-40). Hopper rail cars move Respondents productsinto and out of the facility though its extensive network of railsmaking up its switchyard.During 1980 and 1981, Respondent engaged a number of contractors toperform some construction work at its bean processing area, inparticular, in and around Buildings 203, 206 and 210. This workrequired that the contractors work in and around its switchyard. Ellington Miller Construction Company (hereinafter \”Ellington Miller\”)was one of the contractors working in this area. This company wasassisted by O’Neill Brothers Construction Company (hereinafter\”O’Neill\”), the employer of the deceased employee.Respondent’s operation, carried on at its processing facility, requiredthe use of a network of approximately 19 railroad tracks which comprisedits rail switching yard. The accident which gave rise to theinvestigation took place on track 16 near building number 203. Theaccident occurred when rail cars being pushed onto track 16 byRespondent’s switch engine came in contact with a forklift truck, whichhad been parked alongside track 16, pushing the forklift against a cranepartially situated on track 15 and 16. The forklift truck and the cranewere being used in the construction activities going on in Respondent’sswitchyard. At the exact instant of impact of the railcar, forkliftand crane, an employee of O’Neill had stepped between the crane and theforklift truck, was therein caught between them, and was crushed as theforklift was pushed against the crane.A. _Operation of Respondent’s Switchyard_In the operation and switching of rail cars at Respondent’s switchyard,we find that the Norfolk & Western Railroad Company (hereinafter \”N&W\”)would deliver all hopper cars to Respondent (Tr. 25). An N&W spur trackenters at the north end of Respondent’s property (Tr. 44). Employees ofthe N&W would throw a switch located on the north side of a rail bridgeto gain entry from the N&W main line onto the N&W spur and then toRespondent’s property (Tr. 160, Ex. C-9). The throwing of the switch atthe rail bridge would trigger an alarm bell and red light inside therail yard to alert Respondent’s employees that the N&W was about toenter the plant (Tr. 160). The surface around the tracks atRespondent’s switchyard is asphalted (Tr. 872).To reach track 16, where the accident took place, or tracks 15 and 17,which, respectively, were to track 16’s west and east, a rail car wouldhave to move from the N&W main line onto the N&W spur track, and onlythen onto Respondent-owned tracks which led to tracks 15, 16 and 17 (Tr.123, 124, Ex. C-9).Respondent switches rail cars on tracks 15, 16, 17, 18 and 19 by meansof a switch engine to which the cars are coupled (Tr. 30, 45, 48). Theswitch engine moves no faster than five miles per hour (Tr. 636). Theswitch engine would switch no more than two rail cars at one time (Tr.131); however, it would push together up to six cars on a single track(Tr. 179).In January, 1981, track 15 was used to hold empty hopper cars until thebean plant was ready to load them (Tr. 47). The N&W would back emptycars onto track 15 and leave them (Tr. 129). Respondent pulled emptycars off track 15 and generally would move them onto track 17 to loadwith product (Tr. 49 L. 2-12).Tracks 16 and 17 were used by Respondent for loading the bean plant’sproducts into hopper cars via two loadout spouts in building 203 locatedat the south end of tracks 16 and 17 (Tr. 140, 177, 176). Hopper carswere brought straight down track 17 to the loadout spout on track 17. Cars also traveled down track 17, to a crossover track for locating themat track 16’s loadout location (Tr. 62, 65, 128, 129, 665).Filled cars at the two loadout locations were pulled back north on track17, and placed on other tracks for storage (Tr. 52, 129). They weregenerally placed on track 16 north of an inoperable section on thattrack. The cars could also be placed on tracks 17, 18 and 19 (Tr. 52, 129).Track 16, which as mentioned had an inoperable section near its southernend, is divided into two clear and distinct functional sections. Thesouthern section of track 16 is used as an entry into the loadoutstation in building 203 (Tr. 62-63). Access to this section of track 16is gained only by coming south on track 17, and as above relatedentering a switch to a crossover track, and then to a second switch ontrack 16 to the loadout section. Exit is possible only by reversing theprocess (Tr. 65, 177, Ex. J-1). Approximately four-fifths of track 16 isused as a storage track for cars labeled by Respondent as bad orders(defective) hopper cars, and for filled hopper cars awaiting pick up byN&W (Tr. 62, 63, 67; see Ex. C- 9).In storing cars on track 16, it was Respondent’s usual practice for thecrews to put the first car at an undesignated point at the south end ofthe storage section of track 16, but no further south than the crossoverpoint, since clearance had to be maintained to permit cars to cross overfrom track 17 to the loadout section of track 16 (Tr. 65, 135-136,178). Railroad cars have not been moved beyond the crossover point ontrack 16 for years due to the safety concern of fouling the crossoverpoint (Tr. 6, 62-65, 149, 666).Between the north or storage section of track 16 and the south orloadout section of track 16, there is dirt over the track. Respondentreferred to this section of track 16, as being \”pegged out\” (Tr. 667). This section of track 16 was out of service and has been out of servicefor a number of years (Tr. 63). The pegged out area, however, was onlycovered by a very thin and uneven layer of dirt. Most of the pegged outtrack was clearly visible through the dirt (Ex. C1-5, C2-1). There isno bumper block, derail, blue flag, or other device separating theactive northern section of track 16 used for storage from the southernsection of track 16 used for filling hopper cars.In order to allow sufficient clearance for rail traffic on the crossovertrack between 16 and 17 and for rail traffic over the switch at thenorth end of track 16, no more than six cars would be placed on track 16(Tr. 134, 135, 179). The practice of Respondent’s employees, whoregularly performed the switching work, was to position the first loadedcar as far south on track 16 as one could go without creating aclearance problem for the crossover track (Tr. 178). As other cars wereadded on track 16, they were pushed slowly toward the car or carsalready positioned and then coupled to them (Tr. 178 L. 10-14). The N&Wwould pick up the loaded cars on track 16, normally five or six cars inthe morning and evening (Tr. 52, 54, 55).Viewing Respondent’s loading and switching activities around tracks 15,16 and 17, once a hopper car is filled the switching engine would movenorth along track 17. The engineer operates the switch engine from theeast side or right side of the cab of the engine with the switchman tohis east (Tr. 191, 193). The engineer and switchman remain in visualcontact as the engine proceeds north and then curves west on track 17past the entry to track 16 (Tr. 191, Ex. C-9). If cars were to beplaced on track 16, the switchman would throw the switch to permit thetrain to enter track 16 (Ex. R10(c), R10(e). The full hopper car isthen pushed south onto track 16 where it is positioned for eventual pickup by N&W (Tr. 177). Respondent’s switching crew next pulls out oftrack 16 and picks up an empty car on track 15 (Tr. 47). The empty caris then pulled out of track 15 by the engine and pushed down track 17and\/or the crossover onto 16 for filling at the bean plant (Tr. 131).Tracks 15 and 16 are utilized by train equipment operated by both N&Wand Respondent. The N&W brings empty cars to track 15 (Tr. 28, 47,51). Filled cars are placed on track 16 by Respondent’s switching crewand then are picked up by N&W (Tr. 54-55). N&W activity in Respondent’syards is not performed under supervision of Respondent management (Tr.54-55, 129-130). N&W would perform switching activities on their ownschedule (Tr. 55, 134). In January, 1981, there was no schedule for N&Wto pick up on track 16 or drop off on track 15.Respondent’s switching crew is made up of two loaders (Tr. 175-176). The loaders operate the switching engine owned by Respondent (Ex.C-41). The loader-engineer (hereinafter \”engineer\”) sits on the righthand side of the switching engine (Tr. 191-193, 861, Ex. C-41). He isalways on this same side of the switching engine, regardless of thedirection in which the engine is moving (Tr. 200, 861). The loaderswitchman (hereinafter \”switchman\”) is in visual contact with theengineer at all times, except when his job requires him to step out ofthe line of vision to throw a switch (Tr. 192, 634, 368). Theseemployees alternate jobs from day to day (Tr. 138, 175, 176). They gettheir basic instructions from the management person referred to byRespondent as the \”Loading Supervisor,\” but the everyday operations arewithin their own discretion (Tr. 152). These employees are responsiblefor loading the product into the rail cars (Tr. 127, 138). When theseemployees are loading product, no other employee of Respondent would beswitching or moving rail cars on tracks 15 through 19 (Tr. 132).All cars entering tracks 15, 16, 17, and the track 16 crossover section,enter from the north. The switch engine is to the north of the carsbeing pushed. The southern most or lead car is closest to the beanplant and farthest from the engine (Ex. C-40).Respondent rail operating rules and safety practices do not require anymember of the train crew, or any other person, to be at the lead end ofthe car’s being moved (Tr. 176, Ex. C-19). This means that no person isobserving the southern most car as the engine is pushing south ontotracks 13, 14, 15, 16 and 17 in order to couple or uncouple a car. Thissystem of \”pushing\” is called a \”blind shove\” or \”blind push\” (Tr.1255). There is no radio or other means of communication among crewmembers other than visual hand signals (Tr. 638). Cars are usuallyplaced on tracks 15 and 16 one or two at a time, but 5 or 6 may bepushed together at any one time (Tr. 131, 179). They may be removed ina string or one at a time (Tr. 130). Each time an engine picks up acar, its next planned move is to push that car into another car for thepurpose of making a connection or \”couple.\” This is done by bringing anopen knuckle of the coupler or each car together. Any time a couple isattempted a miscouple may occur resulting in an unintentional anduncontrolled car movement (Tr. 73-75, 739, 1326). The car or cars whichfail to couple on track 17 may begin to roll south, toward building 203and the track 16 crossover track (Tr. 73-75, 1326).B. _Respondent’s Operating and Safety Rules_Respondent maintained a comprehensive safety program both in its plantand in the rail switchyard. This safety program included rules,operating procedures, training, and monitoring to insure the safety ofits employees (Tr. 628). Newly hired employees were indoctrinated ontheir first day at work by Respondent’s Plant Safety Director (Tr.628). Thereafter, the employee’s supervisor would present theadditional training necessary for the employee’s specific department(Tr. 628). During these sessions, rules and procedures were discussed(Tr. 628). Specialized training, both voluntary (_e.g_., first aid) andmandatory (_e.g_., lift truck), was also provided (Tr. 631).Departmental safety meetings for all employees were held once a month. Different safety procedures were featured and discussed (Tr. 628, 629). If an employee wanted a matter brought to the Company’s attention he orshe would contact a representative of the Union \/Management SafetyCommittee (Tr. 629).The Union\/Management Safety Committee would meet once a month to discussplant health and safety issues (Tr. 629). Safety committeerepresentatives make lists of items to discuss at these meetings (Tr.629). The Safety Committee included union representatives, plantmanagers, the Plant Safety Director and the Corporate Safety Director(Tr. 629). Additionally, Respondent had various incentive programs tofoster plant safety (Tr. 199, 629, 630).As part of the safety program, Respondent completed a booklet of basicsafety rules entitled \”Lauhoff Safety Rules\” which employees would carrywith them (Tr. 611, Ex. J-2(b). Not all the safety rules were includedin the booklet, such as rules of common sense (Tr. 249, 610, 611).Respondent’s safety booklet included rules relating to work in the railyard area (Tr. 632). Other rules on rail area safety were communicatedorally to employees during indoctrination, during monthly departmentalsafety meetings, and as problems arose (Tr. 632)._C. Respondent’s Blue Flag Rule_Rules 5 [[2\/]] and 9 [[3\/]] in the \”General Safety Rule\” section of thesafety booklet relate to the \”blue flag\” rule observed at theworkplace. The blue flag rule is a well established work rule in therailroad industry and is fairly general practice in private industry.A blue flag is a standard safety sign requiring a \”STOP\” to moving railequipment and it indicates that there are \”men working on the track\”(Tr. 634, Ex. R-10(a) and (b). For better visibility at nighttime ablue light may also be used (Tr. 710). The blue flag communicates toanyone operating rail equipment that the track is out of service beyondthe point of the blue flag. Rail equipment is not to pass beyond thatpoint (Tr. 164, 634). The absence of a blue flag indicates that thetrack is open to rail traffic (Tr. 634).The Respondent had its employees follow the blue flag rule at itsswitchyard (Tr. 613, 616, 892, 893). Respondent used the blue flag toprotect access routes where employees or equipment had to cross aparticular track frequently (Tr. 892, 893). Consistent with railroadpractice, if an employee of Respondent required the protection providedby the blue flag, he was required to erect it (Ex. J-2(b) Rule 9, Tr.164, 614, 634). The employees who’s duties it was to switch cars werenot responsible for erecting a blue flag (Tr. 613).Similar to a lockout system, only the person who placed the blue flagcould remove it (Tr. 164, 635). Accordingly, if a blue flag was left onthe track, before anyone else could remove it, an attempt had to be madeto locate the person who placed it. If that person could not belocated, a thorough inspection of the area was made to determine that noone was working on the track and that no one would be exposed should theblue flag be removed (Tr. 635, 636).In January, 1981, Respondent had bumper blocks at the terminal points ofits active tracks (Tr. 61). Respondent also had derail devices ontracks A and B which directly joined the N&W main line. These twotracks were used by Respondent to clean rail cars (Tr. 69, 619). Thesetracks were located to the west of the main N&W railroad line andoutside and to the west of the switchyard. Blue flags or blue lightswere used in conjunction with the derails at these locations (Tr. 620,621). These flags warned that men were working on the track and hadlocked a derail in the derailing position (Tr. 621).Except for bumper blocks at the end of most tracks in the bean plantyardand the derails on tracks A and B, it was the policy and practice ofRespondent to use \”blue flags\” as the only means of preventing traintraffic from passing certain designated points and moving into an areawhere employees were working or were located near or on a track (Tr.59-61, 621, 634-635). No positive means of preventing unauthorized orinadvertent train traffic into a work area was utilized by Respondent(Tr. 60, 158, 621, 654, 672).If Respondent determined that it would be impractical to blue flag atrack, such as for momentarily walking across rail tracks, Respondent’semployees were to then rely upon a \”ten foot rule.\” This rule wascontained in Respondent’s safety booklet (Ex. J- 2(b) Rule 8, Tr. 249,250, 275, 613, 614, 636, 637). This rule required that anyone who hadto walk around rail equipment would be required to stay at least tenfeet away from the ends of cars or engines (Ex. J-2(b) Rule 8).Respondent had a sister rule to the ten foot clearance rule, whichrequired that vehicles and all other obstructions be kept at least eightand one-half feet from the center line of a rail track in order to allowrail cars sufficient lateral clearance (Tr. 637).Respondent has several work practices directed at maintaining safeoperations in rail areas. The switchman would give hand signals todirect the engine operator and would throw switches to permit movementfrom one track to another (Tr. 127). He would walk alongside the engineand keep a watch when it moved (Tr. 638). The engine operator will notmove the engine unless he could see the switchman; he would sound a hornbefore moving the engine (Tr. 637, 638). An amber light flashes fromthe top of the switch engine any time it moved as means of furtheralerting personnel in the area that there is movement on the tracks (Tr.137). The switch engine travels at very slow speeds, of less than 5mph (Tr. 636).Wheel clocks are used to keep cars from moving and, during the couplingprocess, hand brakes are generally set (Tr. 682, 686). When additionalcars are to be placed on a track on which a car is already standing, thepractice is to back the car slowly toward the standing car until thecars are coupled (Tr. 139). Many times the engineer and switchman haveno visual contact with the end of the cars being pushed.According to Respondent, it had not experienced any injury to employeesat its switchyard, by reason of any movement of rail cars for at least32 years (Tr. 161, 162, 194, 614, 616, 638)._D. Construction Activities at Respondent’s Switchyard and Plant_In October of 1980, Respondent contracted with Ellington Miller to erectan addition to building 205. The project was designed to provideexplosion release siding for building 205, [[4\/]] (Ex. R-3, C-3) andinvolved removal of the old roof and erecting a penthouse over building205. After removing the roof, Ellington Miller extended the height ofthe building approximately 30-35 feet, framed in several floor levels,and replaced the roof on building 205 (Tr. 334).While Ellington Miller and its employees were involved in the abovementioned construction work, various other contractors and theiremployees were working in and about the area of building 205 and thenetwork of active train track (Ex. C-9, R-3, Tr. 882-888, 902-903).In the Request for Quotation used for construction projects byRespondent, provisions were included to alert contractors that they hadto comply with Respondent’s safety rules and OSHA standards (Exs. C-4(e)Item 3, J- 2(b) pp 12-13, Tr. 240, 241). The \”Lauhoff Safety Rules\”Booklet, the Bunge Corporation [[5\/]] Safety Information andInstructions for Contractors booklet, (Ex. J-2(a),(b), printed materialcontaining special work rules for work in the extraction area (Ex.C-4(a), and General Safety Rules for Contractors working in the Plant(Ex. C-4(b) were a part of Lauhoff’s Request for Quotation package (Tr.211, 643, 644). Contractors were also notified verbally, in the pre-bidmeeting, of the safety requirements so that they could adjust their bidsto reflect any extra expenses that might be incurred thereby (Tr. 643 L.7-13). The bid packing itself contained all safety data pertaining tooperations at Respondent’s worksite (Ex. J-21(a), Tr. 689, 690).Contractors were required to distribute copies of the \”Lauhoff SafetyBooklet\” to their employees; Respondent supplies enough copies for thispurpose (Ex. J-2(b), Tr. 241). On November 18, 1980, Respondent sent amemorandum to contractors notifying them that each contractor would berequired to maintain a log signed by its employees to indicate they hadreceived and read the safety booklet (Tr. 241, 242, Ex. C-4(d). Outsidecontractor’s employees were to have read the booklet and work by therules contained therein [[6\/]] (Tr. 244, 693). Whether the informationimparted to each of contractors reached employees working the railyardis clearly left to speculation (Tr. 318, 320, 322, 378, 440, 452, 453).Respondent held weekly meetings with its contractors to discuss ongoingprojects (Tr. 247, 641, 642, Ex. R-9). At these meetings, safety wasalso addressed, including problems which may have arisen but were notcovered by the written safety materials (Tr. 247, 248, 263). Othermeetings were held at which time safety was discussed and materialhanded out to remind the contractors to comply with Respondent’s safetyprogram (Tr. 336, 348, 349, 641, 642, Ex. R-9, C-4(c) Item 5, 8). Inparticular, Respondent’s blue flag system used on the rail switchingarea was discussed with the outside contractors as late as December,1980 and January, 1981 (Tr. 694). According to Respondent’s witnesses,depending on the seriousness of an infraction, it had required that acontractor’s employee be removed from the job or be permanently barredfrom working at Respondent’s worksite (Tr. 214, 239, 651, 695, and 696).Respondent expected the contractors, in their performing constructionwork at the worksite, to work around Respondent’s own production needs,unless the bid package stated otherwise, at which point the Respondentwas to turn over an area to the contractor for a specified amount oftime (Tr. 257). If a contractor needed to take a portion of the plantout of service temporarily, it would contact Respondent’s \”New WorkSupervisor\” (Tr. 258). The New Work Supervisor would then contact thesupervisor of the department involved to see if the contractor could beaccommodated; if the contractor could not be accommodated, it would notget access to the area at that time (Tr. 258). If, after the New WorkSupervisor had agreed that a contractor could place equipment in aparticular location, Respondent found that it required the use of thearea for rail movement, the contractor was obligated to move itsequipment. Respondent would then pay \”railroad interruption time\” forthe time needed to move the contractor’s equipment out of the area andthen back again (Tr. 279).In performing the construction work at Respondent’s worksite, inparticular that work being done from the rail switching area, a cranehad to be placed near building 203; this required that it be placed ontoswitchyard tracks. The first crane so employed was that owned byEllington Miller. This crane was placed in an area around tracks 16 and17 and the crossover track (Tr. 426). The crane thus situatedinterfered with cars entering and leaving building 203 (Tr. 426). IfRespondent wanted to bring a car through on track 17, the loaders wouldinform an Ellington Miller representative that it had to move the craneout of the way (Tr. 427). The crane was then moved. When the rail carmovement was completed, Ellington Miller would return the crane to thesame location (Tr. 427). The crane was then positioned for a 5 to 10day period. No blue flag or derailer mechanism was placed on the tracksduring that period the crane was located on tracks 16 and 17 (Tr. 429).Due to the many interference’s with Respondent’s production schedule,and its concerns for paying Ellington Miller the railroad interferencetime, another smaller crane was brought in to replace the first (Tr.426-427, 458). This second crane, a smaller truck crane, was brought toRespondent’s worksite on December 16, 1980 [[7\/]] (Tr. 294). Thiscrane, hired from O’Neill, was first used on December 17, 1980 (Tr.295). The exact location of where to place the crane was left to theoperator of the crane since he knew the crane’s capabilities (Tr. 472). Placement of the crane, however, was conditioned upon the provisionthat the crane’s outriggers stay clear of the tracks, so that a rail carpassing on the east side would not hit the outriggers of the crane (Tr.318, 445, 492).The second crane was not left on the tracks throughout the project. Each night the crane, after its use, was moved out of the work area. Itwould be moved back into the work area for use on the next day (Tr. 58,59, 315, 316, 317, 396). The crane was usually positioned approximatelytwenty feet north of building 203, the bean loadout building, betweentracks 15 and 16 (Tr. 293). The outriggers of the crane, used tostabilize the crane when the boom is in service, were fully extended(Tr. 305, 307). Two of the outriggers were placed in the gauge or openarea between the two metal rails of track 15. The other two outriggerswere positioned in the gauge of track 16 (Ex. C-1-3 through C-1-10, C-40, C-42). The crane body was positioned over the field or area betweentracks 15 and 16 with the rear or south outriggers against a pile ofdebris on track 15 (Tr. 296, 298, Ex. C-1-3, C-1-4 and C-1-5).The crane was first used on December 17, 1980 and then again on January12, 13, 14 and 21, 1981. Each time it was used it was located in theexact same position in the switchyard (Tr. 161, 298, 326). Each timethe crane was positioned, the four outriggers were extended, two each ontracks 15 and 16 (Tr. 159). A forklift truck was always used inconjunction with the crane and was therefore required to position itselfin and about the network of tracks near the crane. No blue flag orderailer was employed on tracks 15 or 16 at anytime during the abovementioned period when the first or second crane was used in conjunctionwith work on building 205.The forklift truck used in connection with the crane was 20 feet longand 8 feet wide; it traveled in and around the entire construction area(Tr. 311-313, Ex. C- 20). It would usually be positioned somewherearound the area of the crane (Tr. 311, 313). While assisting the crane,the forklift would often be directly north of the crane or to the eastwhere steel was being hooked (Tr. 311, 312, 324). Due to the length andwidth of both the forklift and the crane taken together, considering thevery narrow open space between tracks 15 and 16, both pieces ofequipment would have been inside or, at most, within a foot or two ofthe gauge of tracks 15 and 16 whenever they were being used at or aroundbuilding 205 (Tr. 311-312, 318).Employees of Ellington Miller, O’Neill and other contractors had anaccess route, authorized by Respondent, across the southern sections oftracks 11, 12, 13, 14, 15, 16, and 17 (Tr. 437-438, Ex. C-9, line E). The access route was used to move equipment, including the crane, acrosstracks and into position for work or to bring supplies in and out of thearea (Tr. 252, 261).On days the crane was to be used, Ellington Miller would notify the NewWork Supervisor, a member of Respondent’s management, that the cranewould be moving into position across the access road (Tr. 437-438). Thenew work supervisor would then notify bean plant supervisor, who inturn, would notify the switching crew that the crane was being movedinto position (Tr. 143, 144, 184, Ex. C-19).When the switching crew responsible for track 15 and 16 was notifiedthat the crane would be working, they moved cars north on track 15 topermit the crane to enter (Tr. 144, 184, Ex. C-19). They did not clearthe track of railroad cars but moved them far enough north to createwhat they considered ample clearance for a work area (Tr. 144, 185). The crew never had to move cars north on track 16 to make room for thecrane because the crane was positioned on the normally unused section oftrack 16.The entire time that the crane worked on tracks 15, 16 and 17, fromOctober 1980 to January 21, 1981, switching and production in the beanplant continued uninterrupted and tracks 15 and 16 were used in the samemanner as they had been used prior to setting up the constructionproject (Tr. 129-130, 144).Respondent’s employees had observed the crane in the area of tracks 15,16 and 17 in January, 1981 (Tr. 56, 57, 280, 281). It was large andcould be seen from a distance (Tr. 57). Respondent’s employees had alsoseen the Hyster forklift hired from O’Neill moving back and forth,placing structured steel in position for the crane to hoist (Tr. 57, 312).Railroad interruption time would be paid by Respondent if the accessroute to the Ellington Miller work area had been blocked by trains (Tr.437-438). After December 17, 1980, Respondent paid no interruption timeto Ellington Miller since Respondent considered that it had moved carsfar enough north to create a work area each time the crane was to beused (Tr. 250, 252, 254, 265-266). Respondent did not wish to \”blueflag\” out tracks 15 or 16, or any substantial part of them, in order toavoid any accidental or unintended movement of rail cars into the workarea since to do so would disrupt its production schedule.E. _Respondent’s Control of the Worksite_During the construction process, Respondent exercised control over theswitchyard, which included the worksite, observed work being performedwithin that area, and retained authority to remove any employer from theworksite for violation of its own safety rules, as well as OSHAregulations (Tr. 395, Ex. C-40C). Once contracts were entered intobetween Respondent and the contractors, and work let out, its New WorkSupervisor, its Safety Director, and some of its other managementemployees, would schedule and coordinate the construction work. Theywould control placement of equipment, enforce safety rules and generallyexercise control over the construction area. Respondent controlled thetrain traffic into the construction area, and all of its own trainmovements were under its direct control; control of movement of N&Wtrains was done by that railroad (Tr. 134, 152).Respondent controlled train crew rules and operations. During theperiod of construction, train crews continued to be limited to twoemployees; blind pushes, which included up to six cars, were regularlymade into the construction work area (Tr. 129-130, 134, Ex. C-19). Respondent continued normal production with its need for train trafficin the construction area. Respondent continued to use its entire railswitchyards in the same manner, and at the same production level, duringconstruction as before (Tr. 144, 148, 149).Respondent required all contractors to give priority to Respondentproduction requirements over the needs of the contractors (Tr. 54, 257,259, 457-458). All contractors were informed by Respondent that theyhad to work around Respondent production schedule and that ifRespondent’s production and the contractor’s work were in conflict,production took precedence (Tr. 54, 257, 259). No contractor waspermitted to interfere in any way with production without priorpermission from the New Work Supervisor Dean Holycross (Tr. 431, 457, 458).In November 1980, Dean Holycross determined that costs were increasingfrom the inability of Ellington Miller to perform work due to frequentdelays caused by train traffic (Tr. 251-252). On these occasionsEllington Miller had been unable to get the crane into position, or hadbeen required to move the crane off the tracks, to permit use of track17. Holycross then ordered and required Ellington Miller to notify him,personally, when access to the jobsite was needed so that he, in turn,would have railroad cars moved far enough north to allow access to thecrane (Tr. 252, 261). Thereafter, Ellington Miller notified Mr.Holycross each time they were required to move the crane into the workarea on tracks 15, 16 or 17 (Tr. 256). Ellington Miller was requiredto coordinate with Respondent regarding placement of the crane (Tr. 147,258, 261, 277). The decision making authority to allow Ellington Millerto position the crane was held by Respondent’s supervisor Holycross (Tr.147, 258, 261, 277). Additionally, Respondent created access routesacross railroad tracks into the construction area for all contractors(Tr. 252, 261, 271). With this arrangement, Respondent was again ableto move its rail cars on tracks 15, 16 and 17 with the same alacrity asit had before the construction activities were brought to the worksite.All during the period that construction activities at Respondent’sworksite took place, as above described, and including January 21, 1981,the placement of the blue flag on the rail tracks, as affected bylocation of the crane, had to be coordinated between the variouscontractors and Respondent (Tr. 676, 678, 679). The \”blue flag\”procedure was apparently the only means of protection authorized byRespondent for use by the various contractors who would be working inand around the switchyard (Tr. 676, 678, 679). Use of rail bumpers orderailers was specifically coordinated by Respondent; their use wasnever affected (Tr. 237). In fact, it was Respondent’s practice thattrains would not be operated on tracks where a derailer would be, or hadbeen, placed; this, not unexpectedly, had an adverse effect on itspossible use in the main switchyard (Tr. 157, 158, 159). Respondentmaintained tight control over the use of its tracks with particularemphasis being placed on eliminating any interference in their use,since such interference would have a significant adverse impact upon theproduction activities at Respondent’s plant (Tr. 261-263).Significantly, Respondent was fully aware of all activities carried onby the contractors engaged in construction activities and made it apoint to observe the condition of its switching facilities, the locationof the contractors equipment, and the construction activities itself, asthey all might possibly impact upon rail car switching activities (Tr.147, 258, 261, 277, 651, 657). The use of derailers was not encouragedor promoted, by Respondent, for use by contractors who might haveequipment or employees working on or near tracks where injury couldresult from movement of Respondent’s rail cars (Tr. 237, 268-269, 429,434, 435). Understandably, construction employees could not beexpected to be familiar with railroad operations, including the use of ablue flag or derailer (Tr. 1388, 1390).The use of a derailer is a positive means of stopping the unintended oruncontrolled movement of a rail car by dislocating and grounding it fromthe rail (Tr. 1394). A derailer [[8\/]] or bumper block [[9\/]] is astandard operational piece of equipment, and their use is a standardpractice in rail activities (Tr. 1361-68, 1394). With respect to theuse of the derailer, we find that since the speed of the cars pushed inthe Respondent’s switchyard was approximately 5 miles per hour or less,little travel by a grounded car could be expected (Tr. 1360, 1361,1364). Aside from the intended dislocation of the rail car from therail, no other adverse effects could be expected from use of a derailer;this is particularly true in the instant case (Tr. 1297, 1312, 1329,1361, 1364, 1368, 1390, 1391). The positive protection from derailersafforded repair or construction employees working in or around a railswitchyard, such as the construction employees involved in the instantcase, from the unanticipated movement of rail cars, could not beduplicated by implementation or use of a blue flag rule (Tr. 1318, 1319,1324, 1325, 1330, 1331). Concerning bumper blocks, they aretraditionally used at the end of tracks and are not the type of devicesgenerally found in the middle of a railroad track (Tr. 1374, 1394).All during the construction period, the tracks were used and switched byRespondent, and the Norfolk & Western, as if the construction work werenot ongoing (Tr. 129-130, 262). Six cars were stored on track 16,despite the fact that a crane and a forklift were in operation only afew feet south (Tr. 179, Ex. C-19). Cars continued to be pushed blindon tracks 15, 16 and 17, despite the work area and the presence of anauthorized access road (Tr. 129-130, 252, 261-262). This productionactivity continued in complete disregard of the hazards being createdfor employees of Respondent, Ellington Miller, O’Neill and various othercontractors in the area. Respondent never requested or orderedEllington Miller or O’Neill to blue flag any railroad track, nor did itreprimand any contractor for its failure to derail or blue flag a track,notwithstanding its previous declarations about safety at constructionand safety meetings; this was also in complete disregard of its ownstated and written safety program, and its construction bids andcontractual provisions relating to safety observances.F. _The January 21, 1981 Fatality_On the early morning of January 21, 1981, the crane was stored betweentracks 12 and 13 (Tr. 316). John Berry, the bean plant supervisor, hadbeen notified by others of Respondent’s management that the crane wasgoing to be placed in its usual working position between tracks 15 and16. Mr. Berry then informed the loaders-switching crew to clear theaccess path into the area for the crane (Tr. 150, 184, Ex. C-19). Thecrew moved cars north on track 15 far enough to create the work area forthe crane on tracks 15 and 16 (Tr. 184, Ex. C-19). When switching beganon the morning of January 21, 1981, cars were already sitting on track16 and cars were later coupled to these from the north (Tr. 151). Thismorning there may have been some confusion by Respondent’s employees asto whether both tracks 15 and 16 would be impacted by the presence ofthe crane (Tr. 130).The crane was driven across the access route to its usual positionbetween tracks 15 and 16 and was positioned by the O’Neill oiler andJames Gill, the crane operator (Tr. 296-298). The crane was placed inexactly the same position it had been placed at each time it had beenused since December 16, 1980 (Tr. 161, 298, 326). As on each prioroccasion, the crane was positioned between tracks 15 and 16 (Tr.296-298). Two outriggers were in the gauge of each of the tracks (Tr.Ex. J-1, C-2(1), C-2(3), C-1(3) through (9) C-40). A forklift was beingoperated in and around the area of the crane (Ex. C-40; Tr. 312, 325). The forklift was operated by Mr. Ralph Bruce, an experienced crane andforklift operator (Tr. 311). Mr. Bruce had a reputation as a safeworkman (Tr. 313). Mr. James Gill, the crane operator, was also anexperienced employee (Tr. 288).Cars were being switched on track 15 by N&W (Tr. 115, Ex. C-17). Thecars on 16 had not yet been picked up by N&W, which was to enter andpick up the cars positioned on track 16 when the track was full (Tr.54-55). There were five cars on track 16. A sixth car was to beplaced on the track, and this would have filled the track (Tr. 179).During the morning Mr. Bruce was operating the forklift around thecrane, he would move steel beams into position for placement by thecrane (Tr. 311, 312). Before going to lunch, Mr. Bruce parked theforklift about two feet to the north of the crane, close to track 16(Ex. C-21(b) Tr. 325). At that time five rail cars were positioned ontrack 16 in front of (north of) the forklift when Mr. Bruce parked it(Tr. 653).At about 12:30 p.m., the switch engine pulled a loaded car north ontrack 17 in order to set it on track 16 (Tr. 190). The switchman threwthe switch from track 17 to track 16 and the engine with the car coupledto it proceeded backward, south on track 16 (Tr. 191). The car was thencoupled to the five cars already standing on track 16 (Tr. 653). Theswitch engine then pushed the cars back so that the north-most car wouldmake the clearance between track 17 and track 16 (Ex. C-19). NeitherPaul Bright nor Marshall Tuggle, the train engineer and switchman, couldsee the forklift as the engine backed onto track 16 since this was ablind push (Tr. 154, 193, 194). No blue flag was posted anywhere. Neither knew the forklift was parked too close to the track or that thecrane’s outriggers were inside the rails of track 16. The engineer wason the east side of the train and the switchman was to his east invisual contact with each other, but both having no view of the southportion of track 16 (Tr. 154, 191-193, 200).As the train car pushed south on track 16, both the switchman and theengineer were at the north end of the train and unable to see the lastcar of the train, the forklift, or the crane which were positioned attrack 16 (Tr. 193-194). At the same instant the cars neared the southend of the track, forklift operator Bruce was walking toward theforklift which was facing the last car of the train on track 16 (Tr. 81,83). As the last car of the train moved south, it came in contact withthe forklift truck parked near the track and a few feet north of thecrane, and pushed the forklift truck towards the crane. At this precisemoment, Mr. Bruce, apparently unaware of the trains movement, steppedbetween the forklift truck and the crane. As the crane and forklifttruck were pushed together, he became caught between them and wascrushed to death.One of Respondent’s employees, who was near the area heard the cries ofMr. Bruce, saw the situation and began to run back north shouting \”Stopthe train!\” and waving his clip board (Tr. 86). He got the switchman’sattention, who in turn shouted to the engineer in the switch engine tostop and then to pull forward (Tr. 81-87, 154, 192). This was doneimmediately. Unfortunately Mr. Bruce was severely injured and diedfrom the effects of being crushed between the forklift and the crane. The stopping of the train came too late.Respondent duly reported the fatality to the Area OSHA Office. Thefatality report then prompted a fatality investigation by OSHA ofRespondent’s worksite. This resulted in the issuance of the instantCitation.Before discussing the merits of the case and whether the Complainantestablished by a preponderance of evidence whether a violation, asalleged, existed or not, it will be necessary to discuss severalaffirmative matters raised by the Respondent in defense to the Citation.CONCLUSIONS OF LAWI. _The Cited Standard 29 C.F.R. ? 1910.176(f) Was AllegedlyUnenforceably Vague._Respondent argues as its first affirmative defense that 29 C.F.R.1910.176(f)[[_10_\/]] is unenforceably vague, ambiguous and inconsistentin that it fails to communicate the conduct it wishes to prohibit. Respondent points to the phrase \”rolling car\” contained in the standardas being the focal point of its challenge and the linchpin of itsargument. Respondent argues that this term is unclear as to how and inwhat manner it is to apply since the phrase \”rolling car,\” which iscrucial to understanding the standard, could be interpreted is a noundescribing a car capable of being rolled, whether or not in motion atany given time, or it could be an adjective describing a car that isactually moving. It is in this setting that Respondent indicates theregulation is without any common meaning.Respondent in support of this argument points to a grant of a varianceto Fisher Mills, Inc., published in the Federal Register, wherein theSecretary stated \”a rolling car is a car moving freely and is to such asituation that the standard is addressed\” 39 Fed. Reg. 1676, 1677. Respondent points out that this definition was used by a CommissionAdministrative Law Judge in vacanting a citation alleging a violation of1910.176(f) against Cargill Inc. for its failure to use derails and\/orbumper blocks in connection with switching operations comparable toRespondents Cargill, Inc., 1979 CCH OSHD 24,034 (Docket #78-3110,1979). Looking to the testimony of the witnesses in the instant case,who were associated with railroading, we find different thoughts as tothe meaning of the term rolling car (Tr. 524, 526, 700, 701, 717).We do not find the variance or case cited by Respondent helpful in thiscase for the simple reason that each matter, ie., the instant case, thevariance proceeding, and the cited case, had their own particularfactual situation which finds no analogous element to one another, tothe instance legal argument, and to the factual content of this case[[11\/]]. Moreover with respect to a variance, it is a procedureresorted to only if the standard in question has application to thefacts of the case and, despite its applicability, Respondent seeksexemption for its specific requirements. In effect, we find that thedecision in Fisher Mills is consistent with Complainant’s positionherein that the requirements of 1910.176(f) _are_ applicable toRespondent’s switching operation.With respect to the cited case of _Cargill_, this case relied in partupon a 1974 proposed amendment to 1910.176(f). The proposed amendmentwould have permitted use of a \”blue flag\” as an alternative means ofprotection when switching operations are being carried out by alocomotive. The proposed amendment to the standard was never adoptedand thus the holding of the case has no applicability to these proceedings.Looking to the core argument made by Respondent, we fail to discern thealleged insufficiency reached through the grammatical gymnasticsexercise Respondent has engaged in, in interpreting the standard. Thestandard is designed to meet a specific situation where a rail car couldcome in contact with another car. Quite obviously the term \”rollingcar\” is meant to mean a car that is currently rolling or one that couldbe set in motion to roll against a second car which would hazardouslyimpact upon employees in a particular work area. Under the definitionforwarded by the Respondent one would have to adopt a meaning that onlythose employees who would be entitled to the protection of the standardwould be those in immediate and imminent peril from a rail car out ofcontrol and rolling towards them with harm and injury a predictableresult. We believe the standard should be read in a manner comparablewith its intended purpose and not antagonistic towards the conduct orhazard to which it is addressed. The proposition forwarded byRespondent would cause the standard to essentially ignore the hazard towhich it is addressed.After careful review of the standard, we find easy interpretation andapplication in its meaning that derails are needed to prevent rollingcars, or the threat thereof, from coming into an area where employeesare working. We find this standard is aimed at preventing railroadcars from inadvertently being pushed upon employees who are working inor near a railroad track where harm could come to them from a rollingcar coming in contact with other rail cars they are near, or into theirwork area, or from the rolling car itself. We find this remedialregulation a most simple and unambiguous one, and find easy applicationand interpretation to the potential hazard involved. _Dieabold, Inc. v.OSHRC_, 585 Fed. 2d 1327 (6th Cir. 1978); _Vance Construction v.Donovan_, 723 Fed. 2d 410 (5th Cir. 1984).It is axiomatic that when considering remedial legislation such as theAct and its implementing regulations, the purported vagueness of astandard is judged not on its face but rather in the light of itsapplication to the facts of the case. _Faultless Division v. Secretary__of Labor_, 674 F. 2d 1177 (7th Cir. 1982); _PBR, Inc. v. Secretary ofLabor_, 643 F. 2d 890, 897 (1st Cir. 1981); _McLean Trucking_ _Co. v.OSHRC_, 503 F. 2d 8, 10-11 (4th Cir. 1974). Moreover, the regulationswill pass constitutional muster even though they are not drafted withthe utmost precision; all that due process requires is a fair andreasonable warning. _Allis-Chalmers Corp. v._ _OSHRC_, 542 F.2d 27, 30(7th Cir. 1976). It is clear the imposition of use of a derail is forthe purpose of preventing railroad cars from inadvertently rolling intoa work area creating a danger to employees in that work area. Itmatters not that the railroad car was at rest, or rolling, as long as ithad the potential to roll into the area and cause a hazard.The application of 29 C.F.R. 1910.176(f) to the hazard depicted in thiscase is clear and unambiguous. Moreover the readily apparent nature ofthe hazard involved in the instant case makes application of thestandard easily discernable by anyone working, or tangentially involved,in rail activities. This presupposes any claim of vagueness and thestandard is found fully enforceable.One last point does bear mention, in this case Respondent itselfrecognized the need for derailers in that it used them in an area whereemployees were engaged in working on rail cars. It is difficult to findthe logic or sincerity within Respondent’s argument that a standardrequiring derailers to protect employees occupying, as a worksite,active railtracks is vague and unenforceable. We do not find anyinfirmity in the enforcement of subject standard.II. _29 C.F.R. 1910.176(f) Had No Application to the Cited Work Area._Respondent argues that if the cited standard has any application, givenits allegedly vague wording, it must be limited to locations in whichemployees are exposed to the hazard of free rolling cars. Respondentargues that it does not apply to its switching operation since rail carsmove only when under the control of an attached power source, i.e., aswitch engine, and that other measures were taken to prevent inadvertentmovement when rail cars were unattached.Respondent represents that by reason of its switchyard set-up no carcould roll uncontrolled into the work area in that there were switcheswhich would prevent such an incident. Moreover, according toRespondent, no cars could roll on their own since there was no inclineto its switchyard and all cars are positively attached to one another,and ultimately to the switch engine, thereby alleviating any possibilityof the car rolling free. Lastly, Respondent argues that air brakes areautomatically set when rail cars are detached from the locomotive thuspreventing inadvertent movement.While Respondent’s argument is more factual than legal, we nonethelessfind as a matter of law, as well as fact, that it must fail; we find thestandard fully applicable to the operations within its switchyard.As above mentioned the purpose of the standard is to prevent one carfrom rolling into another car, or into a work area, where employees maybe unprotected from the hazards attributable to the rolling car. Thisstandard does not distinguish whether the rail car would be rolling onits own, or whether the rail car would be attached to other cars, or aswitch engine, or both, when they are pushed into the unprotected workarea. To view it otherwise would leave some workers protected and otherworkers not at different times during the day as switching operationstook place. If one were to follow the argument forwarded by Respondent,no protection would be provided employees from the very obvious hazardof cars being unintentionally pushed by an engine into a work area whereemployees were found. Additionally, who is to say whether a couplewould fail, or whether brakes would give out, or whether they were everset or could be set,[[12\/]] and the impetus from a push by an enginesetting a string of cars into motion rolling towards a work area whereemployees were located. We find in this case multiple sources ofpossible unintended movements of rail cars on Respondent’s switchingtracks and in particular 15, 16 and 17. The N&W movement of rail carstogether with Respondent’s own movement of rail cars makes this obvious.As discussed above, the standard’s purpose is to prevent rail cars fromcoming unexpectedly into a work area, whether they are pushed or whetherthey are rolling free. Respondent’s switchyard was indigenous, intregaland intimate to worksites which were permanent (the processing andloading facility) and temporary (the construction activities), and assuch is particularly suitable to the application of the standard. Accordingly, Respondent’s argument in this regard will be rejected.III. _Compliance With 29 C.F.R. 1910.176(f) Allegedly Presented AGreater Hazard_.Respondent argues that derails are inherently dangerous, since they arespecifically designed to take the wheels of a railroad car off a trackto prevent it from continuing its movement down the track (Tr. 1290). Respondent points out that those people knowledgeable in railroadactivities, including the witnesses testifying in the instant case, heldthat derails were \”strong medicine\” and a means of last resort. Respondent further argues that derailing a car could have extremelyserious consequences since the car could continue to roll in anuncontrolled manner into the work area (Tr. 513, 533, 616, 715,1360). Respondent lists a significant number of possibilities wherein a railcar could strike employees or buildings or areas once it was derailed. Respondent maintains that a derailing could cause the car to tip andfall over onto other employees causing injury as well as significantproperty damage. Respondent lastly argues that the irony of it all isthat the accident could not have been prevented by the derail, and whenbalanced against the additional hazards, it should be relieved fromcomplain with such standard.Significant case law establishes the principal that the \”greater hazard\”defense is narrowly construed and the burden of proof lies with theemployer. _Greyhound Lines-West v. Marshall_, 575 F. 2d 759, 762 (9thCir. 1978). The Commission as well as the courts have placed athree-fold burden on employers, seeking to invoke this affirmativedefense: \”[t]he employer must demonstrate: (1) that the hazards ofcompliance are greater than the hazards of non-compliance, (2) thatalternative means of protecting employees are unavailable and (3) theunavailability or inappropriateness of obtaining a variance.\” _PBR,Inc. v. Secretary of Labor_, 643 F.2d 890 (1st Cir. 1981); _NoblecraftIndustries, et al v. Secretary of Labor_, 614 F. 2d 199, 205 (9th Cir.1980).We find little credible evidence by Respondent that use of derails wouldpresent such hazards as is alleged. The expert witness in this casetestified that in using a derail a car would move less distance if itwas derailed then if it remained on the track (Tr. 1394), and that useof a derail would create a safer work environment for employees in awork area in which an unattended car could roll freely or be pushed by alocomotive (Tr. 1297, 1312, 1327, 1328, 1329). We find common use ofderails in railroad yards themselves (Tr. 1391). We find no credibleevidence that established that a rail car would tip over if it werederailed in Respondent’s switchyard. This is particularly true sincethe cars move no faster than 5 miles per hour and at that speed a carwould simply be derailed onto the ground stopping its movement at thepoint of the derail (Tr. 1297, 1312, 1329, 1360, 1361, 1364, 1390,1391). The overwhelming evidence in the case proved that car derailmentthrough use of derailers would not present a greater hazard to employeesbut in fact, was a means to accomplish a positive stop to the movementof cars into the work area sought to be protected by the use of thederail itself.We find, as earlier mentioned, Respondent’s blue flag rule no substitutefor the positive protection of a derailer. Accordingly, sinceRespondent failed in all regards to carry its three-fold burden, andsince as a matter of fact we find derailers not to present a greaterhazard, Respondent’s argument, notwithstanding, is herewith rejected.IV. _Use of Derails and Bumper-Blocks Would Allegedly Be FunctionallyImpossible_Respondent argues that use of a derail and bumper blocks would rendermuch of its track area useless and would seriously interfere with theloading operation. This would subject Respondent to gross inefficiencyof operation and enormous economic hardship. (Respondent’s Post-trialBrief p. 55) With regards to bumper blocks, we find bumper blocks not tobe the type of device which lends itself to the issues in this case andas such not required under the Citation issued herein. However, we dobelieve Respondent errors in challenging use of the derails as somethingbeing impractical by reason of the fact that it may interfere with itsrail activities in its switchyard.Derails are portable and as such their use is easily applicable to thesituation at Respondent’s worksite. They are not cumbersome devices, asmade out by Respondent, but devices which are easily transportable andcan be installed and moved by a single employee (Ex. C-10a).We find Respondent’s argument to be more in the nature of one allegingimposition or inefficiency or inconvenience. Significant case law holdsthat these reasons are not within the scope of proof of the defense ofimpossibility.In order to establish the defense of impossibility Respondent must bearthe burden of proving that (1) compliance with the standard wasfunctionally impossible or would preclude the performance of work, _and_(2) that alternative means of employee protection were unavailable orwere in use. _F.H. Lawson Co_., 1980 CCH OSHD 24,277; _M.J. LeeConstruction Co_., 7 BNA OSHC 1140, 1979 CCH OSHD par. 23,330 (1979). Notwithstanding who’s burden it was to demonstrate impossibility orpossibility, this record well demonstrates that use of a derail was arealistic and reasonable method to guard the south part of tracks 15 and16 for employees who occupied same as a work area. Respondent neverproved otherwise with any compelling evidence.The construction activities carried on on behalf of Respondent requiredthat employees work on the south part of tracks 15 and 16. Access wasprovided by Respondent to this work area and part of track 15 and 16 wasallegedly placed out of commission in any event. That a derailer wouldhave occupied some of Respondent’s workable track area does not make theuse of derail impossible. _Hughes Brothers, Inc._, 6 BNA OSHC 1830, 1978CCH OSHD par. 22,909. True Respondent may not be able to store six railcars onto a rail protected by a derailer which had been placed there forthe benefit of employees working in the construction zone. This fact,however, will not carry the day for Respondent on the issue ofimpossibility, especially in view of the fact that had a derail beenused initially the accident would not have occurred.We fail to see use of a easily portable derail as an impossible task byRespondent to protect employees who worked on the south part of tracks15 and 16. It should also be brought to mind that the location of thecrane never did block full use of track 16 since no traffic was everintended to go beyond the crane. Track 16 ended, for all practicalpurposes, at that point where Respondent held the track to be \”peggedout…\” a point north of the location of the crane. A derailer couldhave been placed a bit further north of the area which had been \”peggedout\” and thus no more than a temporary inconvenience to Respondent wouldhave resulted from taking out of service a small part of track 16. As amatter of fact and law, we find no merit to Respondent’s argument thatcompliance with the standard was impossible.V. _Respondent Allegedly Neither Created Nor Controlled The HazardousCondition Which Prompted The Citation._Respondent argues that it did not create nor did it control the allegedhazardous condition. It argues that the work area was a multi-employeeworksite, that it was a non-controlling employer which took realisticmeasures as an alternative to literal compliance to protect employees(i.e., the blue flag rule). Respondent specifically relies on theholding in _Anning-Johnson Co._, 4 BNA OSHC 1193, 1975-1976 CCH OSHD ?20,690 (1976) and _Grossman Steel & Aluminum Corp_., 4 BNA OSHC 1185,1975-1976 CCH OSHD ? 20,691 (1976). Respondent argues thatresponsibility for the accident lies with the employer of the deceasedemployee because the work area in which the employee worked changed fromminute to minute and thus it was not controlled by Respondent. We findRespondent’s argument fatally deficient as a matter of fact and law.We find the _Anning-Johnson_ defense not applicable to Respondent forseveral major reasons: First, as a matter of fact, as above discussed,Respondent both created and controlled the hazard. Second, Respondentacted as a general contractor, in effect, and is therefore responsibleunder the Act. Thirdly, even if the defense were available, Respondentfailed to prove that it provided adequate alternative protection or,that it could not, with the exercise of reasonable diligence, have knownof the violation.Respondent cannot invoke the claimed defense unless it proves that itneither created nor controlled the hazardous condition. _Central ofGeorgia Railroad Co. v. OSHRC_, 576 F. 2d 620 (5th Cir. 1978); _NewEngland Telephone & Telegraph Co. v. Secretary_ _of Labor_, 589 F. 2d81, (1st Cir. 1978); _Marshall v. Knutson Construction Co_., 56 F. 2d596, (8th Cir. 1977). The _Anning-Johnson_ multi-employer worksitedefense is available only to a sub-contractor who did not create and didnot control the hazard and who lacked the ability to abate that hazard. _Cotner and Cotner_, 6 OSHC 1163, (1977). Respondent failed to meetthis criteria since it was the controlling employer whose relationshipto its other contractors was like that of a general contractor.Additionally, Respondent controlled the use of the blue flag rule and\/orderails, and it was the only authority which could authorize use of theblue flag or derail in a manner which would take a track out ofservice. It essentially created the hazard (holding control overabatement of the hazard) by continuing switching operations immediatelyadjacent to the work area on tracks 15 and 16. Its continued blindpushes of six rail cars towards the construction area essentially wasthe instrumentality which caused the hazard of railroad cars entering anunprotected employee work area. As such, Respondent’s argument that itneither created nor controlled the hazard is rejected.VI. _Respondent was not contradictionally responsible for the violationor abatement._Respondent argues that by virtue of its construction agreements itplaced responsibility on the various contractors to follow the OSHAstandards. Respondent points to its bid request package, bid meetings,and various safety handbooks provided contractors to demonstrate that ifderails were indeed required, for separation of the two work areas,(i.e., crane work area – switching work area), responsibility, as amatter of law and contract, and common sense and practice, was with theemployer of the employees involved and not with it.It is axiomatic that it is the Act, and not a contract or contractualrelationship, that is the source of an employer’s responsibilities forits employees safety and for avoiding hazards to which employees areexposed. _PBR, Inc. v. Secretary of Labor_, _supra_; _Central of__Georgia Railroad Co. v. OSHRC and Marshall_, 576 F. 2d 620, 625 (5thCir. 1973). See also: _Frolic Crane Service, Inc. v._ _OSHRC_, 521 F.2d 628, 631 (10th Cir. 1975). We find adequate evidence in this recordto establish Respondent’s responsibility for hazard abatement both inthe construction work area and throughout its switchyard.The record, as earlier discussed, established that Respondent, as ownerand coordinator of the project, exercised considerable control over theworkplace. The Respondent had the ability to effect abatement and helda position \”akin to that of a general contractor;\” therefore theresponsibility to abate falls upon Respondent as it would on any generalcontractor regardless of contractual agreements. _Red Lobster Inns ofAmerica, Inc._, 8 BNA OSHC 1762 (RC 1980) 1980 CCH OSHD p. 24,636;_Harvey_ _Workover, Inc_., 7 BNA OSHC 1687, (1979 RC) 1979 CCH OSHD p.23,830. Lastly the Commission has held, as in the case herein, that anemployer is responsible for violations of other employers where it couldbe reasonably expected to prevent or detect and abate the violations dueto its supervisory authority and control over the worksite. See _GilHaugan, Red Lobster Inns of_ _America, Inc_., _supra_; 7 BNA OSHC 2004,1979 CCH OSHD ? 24,105; _Knuston Construction Co_., 4 BNA OSHC 1759,1967-77 CCH OSHD ? 21,185 (No. 765, 1976), _aff’d_ 566 F. 2d 596 (81thCir. 1977). Respondent’s argument in this regard is rejected.VII. _Complainant’s Alleged Failure to Conduct a Reasonable Inspectionor Investigation and the Alleged Denial to Respondent of Its Walk-aroundRights, in Violation of Section 8 of The Act and The RegulationsPromulgated Thereunder, Rendered the Citation Void_.Respondent argues that Sections 8(a) and 8(e) of the Act which aremandatory and not merely directory, require that OSHA inspectors present\”appropriate credentials to the owner\” before commencing an inspectionand that a representative of the employer shall be given an opportunityto accompany the [inspector] during the physical inspection of anyworkplace…for the purpose of aiding such inspection\” 29 U.S.C. ?657(a)(e). Respondent cites as authority, _Chicago Bridge & IronCompany v._ _Occupational Safety and Health Review Commission_, 535 F.2d 371 (7th Cir. 1976).Respondent maintains that the cited cases require dismissal of theCitation since the Compliance Officer failed to present his credentialsupon arrival at Respondent’s worksite, did not conduct a formal openingconference, a formal closing conference, and an onsite inspection. Additionally, Respondent lists a series of reasons why the inspectionshould be considered wanting in completeness. We find little merit, asa matter of fact and law, to Respondent’s argument that the inspectionwas procedurally inadequate and formed the basis for dismissal of theCitation.The Compliance Officer, under the circumstances of the case,substantially complied with the requirements of Sections 8(a) and 8(e)of the Act, 29 U.S.C. Section 657(a) and Section 657(e). He conductedan opening conference and an investigation which solicited informationfrom Respondent, other employees involved and hourly employees ofRespondent (Tr. 490-500). Respondent had removed the equipment involvedin the accident prior to the Compliance Officer’s arrival, and on thisbasis, the Compliance Officer had decided it was not necessary to go tothe area to conduct an onsite investigation, which in any event is of nolegal consequence.Respondent was in no way prejudiced in the presentation or preparationof its defense by the alleged failure of the Compliance Officer tostrictly comply with the procedural requirements of Section 8 of the Actby a show of his credentials or in any other manner. Respondent knewfull well who the Compliance Officer was (Tr. 430, .484). Respondentadduced no evidence at the trial of any prejudice suffered due to theCompliance Officers failure to do an onsite inspection. The safetydirector of Respondent conducted an accident investigation immediatelyafter the fatality and before the OSHA investigation. Managementofficials were present during the coroners investigation. In fact,members of Respondent’s management were actual witnesses to thefatality. Under the circumstances, we find that no prejudice could flowto Respondent from any alleged procedural violation of the Act whetherreal or imagined.Assuming there was some procedural problem in the investigation, westill find no reason to vacate the Citation. An agency’s proceduralfailures will not vitiate regulatory actions absent a specific showingthat the complaining party has been concretely prejudiced thereby. _United States v. Pierce Auto Freight Lines_, 327 U.S. 515, 528, 530(1946); _National Roofing Contractors_ _Association v. Brennan_, 495F.2d 1294, (7th Cir. 1974), _cert denied_, 419 U.S. 1105 (1975); _Cityof Chicago v. F.P.C._, 458 F.2d 731, 745-748 (D.C. Civ. 1971). Thisrule of harmless error or procedural error rests upon policies which areparticularly applicable to the OSHA statute which should be entitled toa liberal construction to afford maximum protection to employees itseeks to protect. See: _Whirlpool Corp. v. Marshall_, 445 U.S. 1, 13(1980); _Bristol Steel & Iron Works, Inc. v. OSHRC_, 601 F.2d 717, 721(4th Cir. 1979); _Southern Railway Co. v. OSHRC_, 539 F.2d 335, 388 (4thCir.), _cert_ _denied_, 429 U.S. 999 (1976). Respondent has failed toshow any prejudice to its case.VIII. _The Complainant Should Allegedly be Dismissed Because It WasServed Out of Time_Respondent’s last argument, as an affirmative defense to the Citation,is that the Complaint should be dismissed since it was filed twenty daysafter receipt of the Notice of Contest.The Secretary filed its complaint in the instant case nine (9) daysbeyond the period for filing required by Commission Rule 33(a)(1). Commission law is clear that a Citation should not be vacated unless thenoncompliance results from contumacious conduct or causes prejudice tothe opposing party. _Refractory Construction, Inc._, 9 BNA OSHC 1192,1981 CCH OSHD ? 25,088; _Henry C. Beck Co_., 9 BNA OSHC 1191, 1981 CCHOSHD ? 25,087. Respondent relies upon _TRG Drilling Corp_., 1982 CCHOSHD ? 25,837 for the proposition that Respondent need show no prejudicein order to warrant dismissal of the action. _TRG Drilling_, however,specifically recites a two prong test to claim this defense: contumacious action or prejudice to Respondent (1982 CCH OSHD at32,319). In _TRG Drilling_ the Secretary filed the complaint 39 daysout of time, failed to respond to a Motion to Dismiss, and made noassertion of a good faith reason for late filing. The majority opiniontherefore upheld the Administrative Law Judge’s finding of contumaciousconduct on the part of the Secretary.Respondent in the present case made no motion to dismiss, but proceededto trial without pursuing the issue of late filing in any manner and attrial offered no proof of prejudice at all. Furthermore, there being noprejudice to Respondent shown, and there being no contumacious conductby Complainant’s late filing, ordinary due process and fundamentalfairness require rejection of Respondent’s argument._ALLEGED VIOLATION OF 29 C.F.R.-1910.176(f) – ROLLING RAILROAD CARS_The burden of proof lies with the Complainant in establishing aviolation of a particular standard. In cases dealing with seriousviolations of a standard, the Commission and courts have translated thatburden into the Secretary being required, as part of his prima faciecase, to establish the following facts: (1) that a particular standardapplies to the facts, (2) that the cited employer failed to comply withthe standard, (3) that the cited employer’s employees had access to thehazard, and (4) that the employer knew or with the exercise ofreasonable diligence could have known of the presence of the violation. _Seaboard Foundry, Inc_., 11 BNA OSHC 1398, 1983 CCH OSHD 26,522, 1981CCH OSHD ? 25,358, 9 BNA OSHD 1864; _General Electric Co_., 19 BNA OSHD1722, 1981 CCH OSHD ? 25,345; _United Geophysical Corporation_, 9 BNAOSHC 2117, 1981 CCH OSHD ? 25,579; _Marion_ _Power Shovel Corp_., 8BNA OSHC 2244, 1980 CCH OSHD ? 24,915; _Brennan v. OSHRC_ and _RaymondHendrix d\/b\/a\/ Alesa_ _Lumber Co_., 511 F. 2d 1139 (9th Cir. 1975); _S &H Riggers and Erectors, Inc. v. Marshall_, 650 F. 2d 1273 (5th Cir.1981). We find that the Complainant has not only made his prima faciecase but has met his burden in preponderating on the issues involved inestablishing a violation of the standard and Act by the Respondent.In the instant case the cited standard, 29 C.F.R. 1910.176(f), hadparticular application to the facts of this case in that Respondent’sswitchyard was integral to and terminated in a material handling andstorage facility, i.e., Respondent’s grain processing operation. Atemporary construction work area that adjoined the processing facilitywas situated on and between tracks 15 and 16 of Respondent’sswitchyard. Employees were in need of protection from the hazards ofrail cars unexpectedly coming into the work area on tracks 15 and 16. (pp. 13, 16-19, 24-26, _supra_). The cited standard required, inapplicable part, that a \”…derail … be provided on spur railroadtracks where a rolling car could contact other cars being worked (or)enter a… work … area.\” No such derail was provided all during theperiod of construction for the worksite located on or proximate to thetracks where switching took place.In the instant case we find that Respondent unequivocally controlled theoperation of the rail switchyard where the accident, resulting in anemployee’s death, took place. Rail cars were continually moved andswitched from one track to another, notwithstanding the temporaryconstruction site. Respondent kept tight control of the movement ofits locomotive and all rail cars. It had close supervision of the railswitching facilities. The facts showed that virtually nothing tookplace at the switchyard without Respondent’s knowledge, supervision andacquiescence. (pp. 15, 19-22, _supra_.)Significant emphasis was placed by Respondent on keeping its switchyardfully operational since any disruption in the ability to move filled orempty rail cars, to and from its processing building, would result in asignificant interruption in its processing activities (pp. 15, 16, 18,19, 20, 21, 22, 24, _supra_.)To this end the placing of a rail track, which was used to directly orindirectly handle or supply product to one of its processing buildings,out of service or partially out of service was unacceptable toRespondent. Such tracks were tracks 15, 16 and 17, used to shift emptyand full rail cars inconjunction with its processing activities. Significant testimony in this case indicated that any obstruction tothese tracks would be closely supervised and managed by Respondent. Useof a blue flag or derail to take a portion of or the entire track out ofservice had to be coordinated and cleared through Respondent’smanagement personnel. (pp. 20, 21, 22, _supra_). Accordingly, withRespondent’s uncompromising emphasis on keeping the production railtracks clear (pp. 16, 20, 21, 24, _supra_) use of derails or blue flagswas effectively curtailed in the construction areas, or in rail areaswhich could have kept switching activities reasonably distant from thatwork area.In narrowing the factual issues of this case we will primarilyconcentrate on that construction work area which comprised the south endof tracks 15 and 16, notwithstanding that construction work crews werelocated on other tracks within Respondent’s switchyard beginningapproximately in November 1980. Employees in these work areas workedwithout access to derails or reasonable use of Respondent’s blue flag rule.In December 1980, after it had been determined by Respondent that alarge crane operating near building 203 was significantly hamperingmovement of the rail cars on tracks 15 and 16, Respondent arranged for asmall crane to work in this area. On December 16, 1980 the O’NeillCompany arrived with a smaller crane and with a forklift truck used tohandle the structural steel in conjunction with the crane operations. The crane and forklift truck were placed into operation on December 17,1980 and were situated each day in essentially the same position on thesouth end of tracks 15 and 16 up to and including January 21, 1981, thedate of the accident (pp. 16, 17, 18, 19, _supra_).The layout of Respondent’s switchyard is such that track 17 curved intotracks 15 and 16. Tracks 15 and 16 were curved at its northern end. Thus the engineer and switchman, when pushing a five or six rail cartrain, could not see the area where the fifth and sixth car would bepushed. (Ex. C-9, C-40) Nor could they see much of tracks 15 and 16when pushing cars into those tracks from track 17. This accounted forthe \”blind\” pushes. No derail device was placed on the track north ofthe location of the crane or forklift, nor were any blue flagspositioned on tracks 15 and 16 at such a point where it would be visibleto the engineer if his locomotive were on the north part of track 17 atthe switchover to tracks 15 or 16. Indeed no blue flag was used at all.Respondent was fully aware of this situation and continued to requirethe locomotive to push six rail cars in the blind onto tracks 15 and 16during the period of the construction work. Significantly, Respondent’smanagement personnel who supervised the switchyard, processing plant,construction work and safety program were all fully aware of the crane’slocation, the absence of a derail and blue flag, and the \”blind\” pushesof up to six cars close to the work area on tracks 15 and 16.Respondent argues that the activities of O’Neill in setting up a workarea using a crane and a forklift truck, was something it was unawareof, and could not control. We fail to recognize any credence to such anargument. The facts show that the nature of the work required that theO’Neill crane, as well as the forklift, be in the area near building 203occupying tracks 15 and 16 and the space between them. It is withoutquestion that Respondent should have expected the crane or forklifttruck to be closer than 8 to 8 1\/2 feet to the train tracks, or thedesignated end of the track, since the crane itself with its outriggersextended straddled both tracks 15 and 16. It is difficult to understandRespondent’s position that on January 21, 1981 it was without knowledgeof the activities of O’Neill since the crane and forklift truck were inthe same location where it had been in use since December 17, 1979 andRespondent was aware that an 18 foot wide crane could not sit on track15 without stretching onto track 16.We find that Respondent created a hazardous work area within itsfacility and had a duty to inspect the area to determine the extent ofhazards to which its employees and subcontractors employees would beexposed, and the necessity for protective controls to reduce oreliminate the hazard. The Commission has held that an employer mustmake a reasonable effort to anticipate the particular hazards to whichits employees may be exposed in the course of their scheduled work. Specifically, an employer must inspect the area to determine whathazards exist or may arise during the work before permitting employeesto work in an area, and the employer must then give specific andappropriate instructions to prevent exposure to unsafe conditions. _Southwestern Bell_ _Telephone Co_., 7 BNA OSHC 1058, (1979) CCH OSHD ? 23,278; _J. H. McKay Electric Co_., 6 BNA OSHC 1947, 1978 CCH OSHD ?22,494; _Automatic Sprinkler Corporation of America_, 8 BNA OSHC 1384,1387-1388, 1980 CCH OSHD ? 24,495. Respondent had a duty to comply withthe standard since the hazard was patently obvious and it was fullyaware of the entire situation. However as can be seen from the credibleevidence within this record it failed in such obligation.It is important to digress at this point and focus on the incident ofJanuary 21, 1981 to place that incident in its proper perspective withrespect to any conclusions reached in this case. The complaintcorrectly does not rely upon the fact of the employee’s death as proofof the core issues in this case, since to do so would, in essence, makeof this employer an insurer of the employee’s well being and a guarantorof the employee’s compliance with the safety and health standards. Such a result has not been sanctioned by the courts or the Commission. _Brennan v. OSHRC_ and _Raymond Heidrix d\/b\/a\/ Alesa Lumber Company_,_supra_; _National Realty &_ _Construction Co. v. OSHRC_, 489 F. 2d 1257(D.C. Cir. 1973). Complainant in arguing for affirmation of theCitation, focuses upon the conditions existing at Respondent’sworkplace, these conditions existing from the start of construction inOctober 1980, and particularly since December 17, 1980, to establish theviolative condition. We agree in this view. We further agree that theincident giving rise to the death of the employee was the result of theviolative condition of noncompliance by Respondent with 29 C.F.R.1910.137(f).Respondent portrays the positioning of the forklift truck by the O’Neillemployees as an idiosyncratic act, and his walking between the forkliftand the crane, at the moment that the train pushed these two pieces ofequipment together, as part of that idiosyncratic act. We do not viewthe incident as does Respondent; we find that the facts show otherwise.The accident occurring January 21, 1981, which resulted in the death ofMr. Bruce, is viewed as a foreseeable circumstance that inevitably cameabout after the creation of a particularly hazardous and dangeroussituation at the worksite. This accident, or some similar typeaccident, could not have been unexpected since Respondent’s employeesregularly made blind pushes of five and six railroad cars towards theconstruction area. The engineer and the switchman were out of visualcontact with the rearward part of their train as they pushed towards andclose to the construction area. This was done on a day to day basis andit was only a matter of time until some complication occurred. WhileRespondent, in defense of the alleged violation, relies on the existenceof the blue flag rule, even use of its blue flag rule would have been tono avail in protecting the construction employees. The blue flag wouldhave been obscured to the conductor and switchman in any event since inorder to comply with Respondent’s intentions and directions forplacement of the flag, it would have been placed adjacent to theconstruction area quite out of sight of the train crew. Respondent neverallowed the blue flag to be placed at a point on the track where itwould always be visible to the engineer or switchman.Had the Respondent allowed the blue flag to be placed somewhere atmidpoint of track 15 and 16 perhaps the switchman and engineer couldhave observed same and stopped their train short, avoiding contact withthe construction equipment. This transcript is replete with evidenceindicating the urgency to which Respondent mandated that it keep itstrack in full operation, so that it could carry out its processingactivities. All the time work crews were situated on the last quarterof two of its most active tracks and Respondent continued to have itstrain crews push rail cars on the tracks to their fullest capacity (pp.17, 18, 19, 21, 22, 23, 24, 25, 26, _supra_). This created a hazardwhich could have been abated only through use of a properly placedderail, as required by the standard. Respondent’s actions, as abovedescribed, resulted in a violation of the standard and Section 5(a)(2)of the Act.Accordingly, the Citation herein will be affirmed. We find that hadthere been initial compliance by Respondent with 29 C.F.R. 1910.176(f)when construction began, and had a derail been installed, the rail carpushed into the work area would have been derailed and stopped prior toits coming in contact with the forklift truck which was then pushedagainst the crane. An employee’s death would have been averted. Wefind this conclusion inescapable and nothing in this record amelioratesreaching such conclusion. Since the hazard addressed by the standard isimmediate, we find the abatement time specified in the Citationreasonable and as such will be affirmed._PENALTY_In reviewing the appropriateness of the proposed penalty, we can nothelp but be affected by the serious consequences that could, and did,flow from Respondent’s failure to comply with the cited standard. Respondent not only allowed the violative condition to exist all duringthe construction period, but indeed, created the hazardous condition. Accordingly, after giving due consideration to those factors as setforth in Section 17(j) of the Act, the penalty will be affirmed asproposed in the Citation._ORDER_Based upon the foregoing Findings of Fact and Conclusions of Law, as setout in my _Decision and Order_, and for good cause shown, it is ORDERED:1. That item 1 of Serious Citation 1 is AFFIRMED.2. A penalty of $900 is assessed.Edward A. BobrickJudge, OSHRCDate: February 28, 1985Chicago, Illinois FOOTNOTES:[[1]] A derail is a device attached to a rail track which, whencontacted by the flange of a rail car wheel passing over it, causes thecar to go off the track. A bumper block is a heavy, solid structureplaced at the end of a rail track to prevent rail cars or equipment fromrolling over the ends of the track.[[2]] There is no evidence in the record that prior to the citationLauhoff relied to its detriment on the definition employed in the FisherMills variance.[[3]] While we do not discuss the greater hazard issue with respect toderailers, we take note of testimony indicating that derailers wereplaced on other tracks in Lauhoff’s yard.[[4]] Lauhoff has also argued that it had alternatively protectedemployees by its blue flag rule. The argument is rejected. The citedstandard clearly states that derails and\/or bumper blocks are the twoforms of protection to be provided against rolling cars. The standarddoes not state that a blue flag may be used instead of those devices. But even if we were to consider whether a blue flag is an adequatealternative means of protection, Lauhoff did not blue flag this track. It continued to conduct blind pushes into a construction area.[[1\/]] Jurisdiction of the parties and the subject matter herein isconfirmed upon the Occupational Safety and Health Review Commission bySection 10(c) of the Act.[[2\/]] Rule 5 states:\”Signs and safety signals constitute safety rules and must be obeyed.\”[[3\/]] Rule 9 states:\”Employees shall place a blue flag on the track or turn on the bluelight above the track beyond the rail car they are going to work in.\”[[4\/]] Building 205 is in what is known as the \”extraction area\” atLauhoff (Tr. 334). Soy bean oil is extracted from soy beans utilizing apiece of equipment called a \”rotocel.\” A gas, hexane, is used toextract the oil; then the hexane is evaporated from the oil, leaving thesoy oil. The hexane is recondensed and recirculated through the\”rotocel\” (Tr. 345). Hexane is flammable and volatile (Tr. 345). During the entire time Ellington Miller was engaged in construction inthe extraction area, hexane continued to be pumped through lines inbuilding 205 while Lauhoff employees continued work related activitiesin the building (Tr. 345).[[5\/]] Bunge Corporation is Lauhoff’s parent corporation.[[6\/]] The only documents Lauhoff distributed to Ellington Millerdealing with safety were Exhibits C-4A,B,C,D, and E and Joint Exhibit 2Aand 2B (Tr. 340). Among these documents, only two safety rules in anyway dealt with railroad safety, (Rules 8 and 9 of the Lauhoff SafetyRules) which stated:Do not climb under, over, or go between railroad equipment. Whennecessary to walk around railroad equipment, stay at least ten feet awayfrom end of cars or engines, except when equipment is on loading orcleaning track and blue flag is in place (No. 8)_Employees shall place a blue flag on the track or turn on the bluelight above the track beyond the rail car they are going to work in._(No. 9) (Emphasis added).(Joint Exhibit 2B, p. 12, Tr. 340, 343-344, 350).[[7\/]] The second crane brought to the Respondent’s facility wasapproximately 32 feet long and was equipped with a boom 170 feet high(Tr. 295, 297, 304). The body of the crane was positioned on a truckbody and was 10 1\/2 feet wide (Tr. 295). The cab of the crane wascapable of rotating 360 degrees (Tr. 297). To stabilize the crane, thecrane was equipped with two stabilizers or outriggers on each side (Tr.305, 307). The outriggers extended 9 feet from the center of the craneto a total distance of 18 feet wide (Tr. 923-924).[[8\/]] A \”derail\” is a device attached to the rail of a railroad trackwhich drives the wheels of the train car off the track and onto thegauge and ground outside the track, thus preventing the car fromcontinuing to roll on the track. The derail is used to prevent railroadtraffic beyond a given point (Tr. 712-713, 1289). It is an emergencydevice and is intended to be used only if a train car inadvertentlystrays or rolls beyond a safe section of track (Tr. 716). It can beset to derail a car to the right or left of the track (Tr. 762). Aderail is a device of last resort to prevent the more seriousconsequences and hazards associated with unauthorized and\/or controlledtrain car movement (Tr. 716, 1297). Derails are often hinged so theycan either be locked to derail traffic or locked to permit traffic topass the derail point (Tr. 762). They can be made to be easily portable(Ex. C-10-a).[[9\/]] A bumper block is a solid obstacle set between the two rails of atrack. It is used to prevent cars from going beyond a given point (Tr.719). Because train traffic cannot pass a bumper block, they are mostoften positioned at the end of a railroad track (Tr. 719-763, 876, C-40track 17).[[10\/]] _Subpart n – materials handling and storage_1910.176 – Handling materials – General(f) _Rolling railroad cars_.Derail and\/or bumper blocks shall be provided on spur railroad trackswhere a rolling car could contact other cars being worked, enter abuilding, work or traffic area.[[11\/]] A variance was granted in _Fisher Mills_ for a switchingoperation which involved _only_ cars moved under power of engines.Fisher Mills Company requested a variance to use flags instead ofderails recognizing that 1910.176(f) was applicable to their switchingoperation. The grant of variance in _Fisher Mills_ is consistent withaffirmation of the citation in the present case. The effect of thegrant of variance in _Fisher Mills_ was to grant the variance requestapplication to provide a different but adequate means of abatement ofthe hazard addressed by the OSHA regulation applicable to locomotiveswitching operation, 1910.176(f). In _Fisher_ _Mills_, 1910.176(f) wasapplicable to the kind of switching being done. Therefore, _FisherMills_ would have been required to derail or bumper its tracks unlessthe Secretary found that special facts in the request for varianceprovided employees with adequate alternative means of protection fromthe hazard. We further see that the facts in _Fisher Mills_ concerningworker protection are inapposite to the present case. In the variance,all work on the track was forbidden during switching. There was no workarea on the track. Switching was done only by an outside railroad andafter notice to _Fisher Mills_ management and was conducted at theirdirection. Also, there were no blind pushes. These facts and manyothers in the _Fisher Mills_ matter assured the Secretary that employeeswould be adequately protected by means other than the use of a derail orbumper block. The facts in the instant case in no way assure such adegree of protection.[[12\/]] Most of the cars on track 16 had been on track 17 and if the airbrakes were set then they had to be removed with the total depletion ofair from its system in order to switch them again. There is no mentionin the record of reconnecting the air brakes. We must conclude nonewere set.”