“Docket No. 81-0984 SECRETARY OF LABOR, Complainant, v. LAUHOFF GRAIN COMPANY, Respondent.OSHRC Docket No. 81-0984DECISIONBefore:\u00a0 BUCKLEY, Chairman; WALL, Commissioner. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).Lauhoff Grain Company processes and stores soybeansand corn at its Danville, Illinois workplace.\u00a0 The site includes a private railswitchyard at which rail cars are marshalled and trains assembled and disassembled. \u00a0On January 21, 1981, an employee of a subcontractor working in the rail yard was killedwhen an engine operated by a Lauhoff employee backed six rail cars into a forklift truck,crushing the subcontractor’s employee between it and a nearby crane.\u00a0 The Secretaryof Labor investigated the accident and then issued to Lauhoff a serious citation alleging,as amended, that Lauhoff violated 29 C.F.R. ? 1910.176(f) by failing to \”install aderail and\/or bumper blocks on track 16 to prevent railroad cars from entering a workarea.\”[[1]]Judge Edward A. Bobrick affirmed the citation andassessed a $900 penalty.\u00a0 We affirm the judge’s disposition.The fatality occurred at track 16, a spur track whichran parallel to and connected with track 17 at its northern terminus, and ended in acovered loading dock within Lauhoff building 203.\u00a0 Near its southern terminus,approximately 30 feet north of building 203, was a crossover track connecting it to track17.\u00a0 The central portion of track 16 was covered with dirt and unused in order toassure adequate clearance for cars being moved into and out of the building 203 loadingdock from the track 17 crossover.\u00a0 The northern portion of track 16 from its northernterminus to the dirt-covered area, was of a length which could accommodate six hopper carsand was used to store loaded hopper cars.\u00a0 West of, and parallel to, track 16 wastrack 15 where the Norfolk & Western Railroad Company would deliver empty hopper cars.The standard operating procedure was for a Lauhoffswitch engine to pick up empty hopper cars from track 15, and move them into the building203 loading dock via track 17 and the crossover at the southern end of track 16. \u00a0Loaded cars would then be pulled out of the loading dock via the crossover and track 17and then pushed south onto the northern portion of track 16 used for storing them untileventually picked up by Norfolk & Western for delivery elsewhere.\u00a0 As stated, thenorthern portion of track 16 could accommodate six cars.On the morning of January 21, 1981, Lauhoff employeesBright and Tuggle were moving cars on tracks 16 and 17.\u00a0 Bright, the engineer, lookedto Tuggle, the switchman, for directions in order to switch cars from one track toanother.\u00a0 Sometime after they started work that morning, the crane that wassubsequently involved in the accident was moved into position between tracks 15 and 16,with one set of outriggers inside the dirt-covered portion of track 16–just north of thesouthern part of track 16 and Lauhoff building 203.\u00a0 The crane was operated by theO’Neill Brothers Construction Company to assist the construction activities of theEllington Miller Company.\u00a0 Ellington Miller had contracted with Lauhoff to erectadditions to two buildings in Lauhoff’s soybean processing area, the above-mentionedbuilding 203, and building 205–located immediately to the east of building 203. During the time the crane was in use, the work of thesoybean plant continued on a normal basis.\u00a0 Track 15 continued to be used to storeempty rail cars; the northern part of track 16 continued to be used to hold soybean-filledrail cars; and the portion of track 16 south of the dirt-covered part continued to be usedas access to building 203.\u00a0 Lauhoff employees were in the construction area checkinggauges, connecting lines, crossing the rail tracks and going through the nearbybuildings.\u00a0 No derails or bumper blocks were used to protect work areas near tracks15, 16, and 17 during the construction. The crane was being used to lift steel reinforcingrods to the top of building 203.\u00a0 The rods were delivered to the crane by theforklift truck, operated by an employee of O’Neill Brothers.\u00a0 Around noon, theO’Neill Brothers employees stopped work for lunch. The forklift truck was left parkedabout two feet north of the crane, close to track 16, and south of the southernmost railcar then resting on the northern part of track 16.\u00a0 The forklift was 20 feet long and8 feet wide. At about 12:30 p.m., Lauhoff employees Bright andTuggle were switching a loaded hopper car to the northern part of track 16, for eventualpickup by the Norfolk and Western Railroad.\u00a0 The switch engine and hopper car movedbackwards at a speed of five miles per hour or less; the hopper car coupled to five othercars already standing on track 16.\u00a0 Engineer Bright operated the train from the right(east) side of the engine while Tuggle, ostensibly acting as watchman, also was positionedon the right side of the train.\u00a0 The entire train was backed up southward on track 16over track that curved right (west) so that neither Bright nor Tuggle could see either thesouthernmost car on the train or the forklift (a \”blind push\”).\u00a0 Thesouthernmost car hit the forklift and pushed it into the crane while the forklift operatorwas between 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.\u00a0 Derail and\/or bumper blocks shall be provided onspur railroad tracks where a rolling car could contact other cars being worked, enter abuilding, work or traffic area.To prove a violation of a standard, the Secretarymust establish its applicability.\u00a0 See Belger Cartage Service, Inc., 79OSAHRC 16\/B4, 7 BNA OSHC 1233, 1235, 1979 CCH OSHD ? 23,440, p. 28,373 (No. 76-1480,1979).\u00a0 Lauhoff contends that the words \”rolling car\” in the cited standardrefer to free rolling cars only–not cars being pushed by an engine. The Commission stated in Bunge Corp., 86OSAHRC ____, 12 BNA OSHC 1785, 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 the words of astandard represent terms of art in the discipline or industry that it regulates, however,the words should be construed accordingly.\u00a0 They may not be construed to depriveemployers of fair notice of the requirements of the law.\u00a0 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 \”rollingcar\” appears to encompass both cars that are rolling because they are attached to amoving engine and cars that are free rolling.\u00a0 Lauhoff argues, however, that thewords should be interpreted to apply only to free rolling cars.\u00a0 In support of itsposition, Lauhoff refers to certain language contained in a variance from the citedstandard issued by the Secretary in 1974 to another company with a private rail yard,Fisher Mills, Inc.\u00a0 That company used a switch engine to move cars over its spurtracks just as Lauhoff does.\u00a0 The variance referred to the terms \”rollingcar\” in section 1910.176(f) and stated:\u00a0 \”A rolling car is a car movingfreely and it is to such a situation that the standard is addressed.\”\u00a0 39 Fed.Reg. 1677 (1974).\u00a0 The variance authorized noncompliance with the standard so long asthe company performed its switching operations while complying with a series of mandatedsafety practices.Lauhoff points out that, relying primarily on theabove quoted language from the Fisher Mills variance, a Review Commission AdministrativeLaw Judge subsequently stated in an unreviewed decision that \”29 C.F.R. ?1910.176(f) is not applicable to railroad cars being switched while attached to alocomotive.\”\u00a0 Cargill, Inc., 79 OSAHRC 99\/C12, p. 17 (full text), 8 BNAOSHC 1101 (digest), 1979 CCH OSHD ? 24,034 (digest)(No. 78-3110, 1979)(ALJ). \u00a0Lauhoff also points to proposed changes to section 1910.176(f), which the Secretarypublished a short time after granting the variance in 1974.\u00a0 39 Fed. Reg. 14,352-53(1974).\u00a0 The proposed changes would have deleted the word \”railroad\” fromthe phrase \”spur railroad tracks,\” would have deleted the word \”and\”from \”[d]erail and\/or bumper blocks,\” and would have specifically referred toboth free rolling cars and cars attached to locomotives as \”Rolling railroadcars.\”\u00a0 The proposed changes to section 1910.176(f) were not adopted, however.The only testimony as to the industry’s understandingof the term came from Lauhoff expert witness Flint, the assistant superintendent forrailroad operations for a division of the Port of Galveston, who had 34 years of railroadexperience.\u00a0 He testified:To me, and I believe I could say to railroad people,the term \”rolling car\” describes the condition of the car.\u00a0 The car isrolling. \”Rolling equipment\” is any piece of equipment regardless of whether itis moving or standing still, that is capable of rolling on the track.Judge Bobrick found the regulation \”simple andunambiguous\”.\u00a0 The judge found that the term \”rolling car\” does notdistinguish between a rail car that is rolling on its own and a car that is attached to aswitch engine.\u00a0 He stated that the standard’s purpose was to prevent rail cars fromunexpectedly entering a work area, regardless of whether the cars were pushed by an engineor rollingfreely.\u00a0 The judge further stated that the variance granted to Fisher Mills would nothave been necessary if the standard did not apply to cars coupled to an engine.\u00a0 Thejudge found that Lauhoff recognized the need for derailers in that it used them elsewherein its rail yard where employees worked on rail cars.The Commission concludes, as did Judge Bobrick, thatthe meaning of \”rolling car\” is simple and unambiguous.\u00a0 A rolling carunder the cited standard 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 notsupport the company’s position on this issue.\u00a0 Nothing in his testimony suggests thatthe industry understands \”rolling car\” to refer only to a freely rolling car, asdistinguished from a car that is rolling because it is attached to a moving engine.Nor is there any basis in the history of thedevelopment of the standard that indicates an intent to give \”rolling car\” ameaning other than its plain and natural one.\u00a0 The cited standard was derived from avirtually identical standard at 41 C.F.R. ? 50-204.3(f) issued under the Walsh-HealeyAct.\u00a0 The record contains no legislative history or contemporaneous interpretationwhich supports Lauhoff’s definition, and none is recited in the Fisher Mills variance.\u00a0 The language in the Fisher Mill variance is not persuasive. There is no evidencethat it is authoritative, and it accompanied a variance that was granted.\u00a0 It was notindicated that the variance was unnecessary as being inapplicable to cars moving underpower of an engine.[[2]]\u00a0 Certain of the safety practices mandated by the FisherMills variance involved situations in which rail cars were connected to a moving engine.\u00a0 If, as the variance states, the standard applied only to cars \”movingfreely,\” the provisions of the variance governing cars connected to an engine wouldbe unnecessary.The unreviewed judge’s decision in Cargill,which did adopt the variance’s definition, does not compel a different result. Unreviewedjudge’s decisions do not constitute binding Commission precedent.\u00a0 LeoneConstruction 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 inthat the term \”and\/or\” permits derails and bumper blocks to be used togetherwhereas derails and bumper blocks serve separate functions and should not be usedtogether.\u00a0 Lauhoff’s contention is rejected.\u00a0 The term \”and\/or\” doesnot require the use of both devices together.\u00a0 The term means that derails may beused separately, bumper blocks may be used separately, or the two devices may be usedtogether, where appropriate.\u00a0 Here, Lauhoff used neither device.A further ambiguity asserted by Lauhoff is that theuse of the word \”where\” may refer either to the circumstances under whichderails and bumper blocks should be used or to the precise spot where those devices shouldbe placed; if the latter, then the devices would not only be inappropriate but dangerous.\u00a0 Albeit artlessly drafted, the standard in context demonstrates that\”where\” refers to the circumstances under which the specified safety devicesshould be used.Lauhoff contends that the words \”railroadtracks\” refer to tracks that are part of the \”common railroad operatingsystem,\” as opposed to \”private\” or \”industry tracks\” that areoperated within private facilities such as its own.\u00a0 But, Lauhoff has not pointed toany physical difference between its tracks and those tracks that are a part of the commonrailroad operating system.\u00a0 The Commission does not view the standard’s use of theterm \”railroad tracks\” (emphasis added) instead of \”rail tracks\” asintending to draw a distinction between pieces of track on the basis of who owns thetrack.\u00a0 Lauhoff’s attorney frequently used the term \”railroad\” where shewas referring to the rail operations at Lauhoff’s private facility.\u00a0 Further, it isdoubtful that OSHA would have adopted a standard governing only railroads serving ascommon carriers.\u00a0 See Cuyahoga Valley Railroad Co., 82 OSAHRC 59\/C3, 10BNA OSHC 2156, 1982 CCH OSHD ? 26,292 (No. 76-1188, 1982) (discussing preemptiveauthority of Federal Railroad Administration over the \”general railroad system . ..\”), aff’d without consideration of point, 748 F.2d 340 (6th Cir. 1985), rev’d,106 S.Ct. 286 (1985).\u00a0 Lauhoff’s tracks are therefore \”railroad tracks\”within the meaning of the cited standard.It is the Secretary’s burden, also, to establish thatthe employer knew or, with the exercise of reasonable diligence, could have known of theviolative condition.\u00a0 See Monarch Water Systems, Inc., 86 OSAHRC_______, 12 BNA OSHC 1897, 1898, 1986 CCH OSHD ?\u00a0 27,632, p. 35,932 (No. 83-943,1986).\u00a0 Here, the question is knowledge of the existence of a work area near track16.Lauhoff argues that the Secretary failed to establishthat any employee–supervisory or hourly–knew or could, with the exercise of reasonablediligence, have known of the positions of the forklift and crane, which Lauhoff assertswere not supposed to be on track 16.\u00a0 Lauhoff also contends that it could not beexpected to police a facility of this size, learn of every activity of every contractor’semployees, know of the work area on track 16, and know of the precise locations of thevarious cranes then in use.\u00a0 We disagree, as did the judge, who observed thatmanagement personnel who supervised the switchyard, processing plant, construction workand safety program were all fully aware of the crane’s location, the absence of a derailand blue flag, and the \”blind\” pushes of up to six cars close to the work areaon tracks 15 and 16 . . . . It is difficult to understand [Lauhoff’s] position that onJanuary 21, 1981 it was without knowledge of the activities of O’Neill since the crane andforklift truck were in the same location where it had been in use since December 17, 1979and [Lauhoff] was aware that an 18-foot wide crane could not sit on track 15 withoutstretching onto track 16.The judge also observed that the nature of the workrequired that the O’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 notplaced a derail or bumper block on either track on the day of the accident. Berry admittedknowing the crane would be working on track 15 on the morning of the accident. \u00a0 Witha 170-foot boom, the crane was highly visible, and he had seen the crane in the yard onother occasions; he had also observed that the outriggers of the crane extended beyond thebody of the crane.\u00a0 The fact that Berry admitted knowing that the crane would beworking on track 15 that morning but did not also admit knowing that the crane would be ontrack 16 as well is of no consequence.\u00a0 Berry knew the physical layout of the railyard and knew how close together tracks 15 and 16–and the other tracks in theyard–were.\u00a0 The crane had been in the same location on each of at least three otheroccasions within a month of the accident, and the particular location was the only onethat would interfere neither with Lauhoff’s grain and rail operations nor withconstruction.\u00a0 Berry should have known that the crane, which was 18 feet wide withits outriggers extended, would extend to track 16.Berry had seen the rail cars on track 16 on themorning of the accident.\u00a0 As the loading supervisor, Berry knew that Lauhoff wascontinuing to load soybeans on a regular basis while construction work proceeded and knewthat loaded rail cars were brought to track 16 to await being moved off the facility.\u00a0 As loading supervisor, Berry should have been aware that his loaders engaged inblind pushes of cars down track 16 and could not always see what was in front of thesouthernmost car being pushed.\u00a0 Berry was familiar with the construction activitiesbeing performed as they affected the soybean loadout area of the rail yard and knew thatthe construction work required the use of cranes.Since Berry knew cranes were being used inconjunction with the construction activities and since the forklift truck was being usedto bring steel to the crane for hoisting, Berry could have known that the forklift truckwould occasionally be near the crane and track 16.\u00a0 Indeed, the forklift had beenleft in that same position on other occasions.\u00a0 Both Lauhoff employees Tuggle andBright knew about the position of the forklift truck prior to the backing of the traindown track 16 and believed that the train would clear the forklift.\u00a0 The forklifttruck was a part of the work area near track 16 that required derail or bumper blockprotection under the terms of the cited standard.\u00a0 Lauhoff, through Berry, could haveknown of the existence of that work area.Lauhoff argues that the use of derails would havecreated a greater hazard.\u00a0 To prove a greater hazard defense, an employer must showthat (1) the hazards of compliance with a standard are greater than the hazards ofnoncompliance, (2) alternative means of protection are unavailable, and (3) a variance wasunavailable or inappropriate.\u00a0 Modern Drop Forge Co. v. Secretary of Labor,683 F.2d 1105 (7th Cir. 1982); Roofing Systems Consultants, 80 OSAHRC 51\/C13, 8 BNAOSHC 1446, 1449, 1980 CCH OSHD ? 24,504, p. 29,941 (No. 76-592, 1980).\u00a0 The partieshave primarily argued about whether the use of a derail would have presented a greaterhazard.\u00a0 The standard, however, provides that a bumper block may be used with, orinstead of, a derail.\u00a0 For Lauhoff’s greater hazard defense to prevail, thecompany must establish that both a derail and a bumper block presented greater hazards.\u00a0 We find that the record shows a bumper block would not have presented a greaterhazard.Lauhoff’s expert, Flint, testified that a bumperblock is a \”device of rather solid construction and weight . . . it is placed at theends of tracks to prevent cars or equipment from rolling over the end of the track.\”\u00a0 Flint initially stated that if a train that included four to six loaded rail carswere to hit a bumper block on level track while moving at less than five miles per hour,the train would derail. Flint almost immediately reconsidered that statement, however, andsubsequently testified that the \”more probable thing that would happen would be thebumper block would be somewhat damaged because of that much weight.\”The Secretary’s expert, Galvin, a supervisoryspecialist in railroad operating practices with the Federal Railway Administration,testified that the use of a bumper block at the southern end of the northern section oftrack 16 would not present a greater hazard than the failure to use a bumper block. \u00a0There is no evidence that a bumper block could not have been put there.The judge apparently believed that bumper blocks werenot involved in this case because they are normally used at the ends of sections oftrack.\u00a0 However, the southern end of the northern portion of track 16 was a de factoend of track 16, for Lauhoff never used track 16 all the way through, had covered part ofthe track over with dirt to prevent use, and had permanently set into position on track16, just below the dirt-covered section of that track, a section of cross-over track fromtrack 17.\u00a0 It would not have been safe to put rail cars on the unused, dirt-coveredsection of track 16 because rail cars placed there would have been hit by rail carsregularly using the crossover section of track.Therefore, since Lauhoff failed to show that bumperblocks would have presented a greater hazard, it has failed to establish a greater hazarddefense.\u00a0 The Commission need not determine whether Lauhoff established that derailswould have presented a greater hazard.[[3]]\u00a0 The Commission also need not determinewhether a variance was unavailable or inappropriate.[[4]]Finally, Lauhoff raises the multi-employer worksitedefense enunciated in Anning-Johnson Co., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193,1198-99, 1975-76 CCH OSHD ? 20,690 (No. 3694, 1976).\u00a0 Under the Commission’s Anning-Johnsonprecedent, to successfully escape liability for its alleged violation of a standard, asubcontractor on a multi-employer construction site must show that it neither created norcontrolled the alleged hazard, and that it had attempted to protect its employees byrealistic measures taken as an alternative to literal compliance with the cited standardor that it did not have, and with the exercise of reasonable diligence could not have had,notice that the condition was hazardous.\u00a0 We need not determine whether the Anning-Johnsondefense is applicable under the circumstances of this case, since it is clear that anemployer that creates a hazard to which its own employees are exposed may not escapeliability under Anning-Johnson.\u00a0 Here, it was Lauhoff employees who wereresponsible for backing the train into the work area.\u00a0 It was Lauhoff that determinedthat its rail operations would proceed on a normal basis while the construction activitieswere conducted close to track 16.\u00a0 It was Lauhoff that could have installed a bumperblock or derail device but did not do so.\u00a0 Further, the record clearly establishesthat Lauhoff employees were exposed to the cited hazard.\u00a0 Lauhoff employees were inthe construction area during the period of construction checking gauges, connecting lines,crossing the rail tracks, and working in and around buildings 203 and 205.\u00a0 If thecrane had been hit while it was lifting a load, the crane and load could have toppled ontoLauhoff employees working near the crane or in and around buildings 203 and 205. \u00a0Thus, the Anning-Johnson defense would not benefit Lauhoff. The Commission assesses a penalty of $900. \u00a0 Wefind that the gravity of the violation was high in that death could, and did, result fromnoncompliance with the cited standard.\u00a0 We do not credit Lauhoff with any significantdegree of good faith because it essentially took no action to protect the employees in thework area around the crane and forklift from rolling rail cars at any time that the cranewas positioned between tracks 15 and 16.\u00a0 Further, Lauhoff is a relatively largeemployer of over 100 employees and has been issued a prior citation which was partiallyaffirmed in a settlement agreement.Accordingly, the Commission affirms the citationalleging a serious violation of section 1910.176(f), and assesses a $900 penalty.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 February 4, 1987SECRETARY OF LABOR, Complainant, v. LAUHOFF GRAIN COMPANY, a Corporation, Respondent.OSHRC Docket No. 81-0984DECISION AND ORDERAppearance: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 for Lauhoff Grain Company, Respondent.BOBRICK, JudgeThis proceeding was commenced pursuant to Section 10(c) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. 651, et seq., (hereinafter referred to as the\”Act\”), wherein Respondent, Lauhoff Grain Company, contested a Citation issuedby Complainant, Raymond J. Donovan, Secretary of Labor, U.S. Department of Labor. [[1\/]]\u00a0 The Citation charged Respondent with a serious violation of Section 5(a)(2) of theAct and the 1980 Occupational Safety and Health Regulations 29 C.F.R. 1910.176(f), asfollows:Derail and\/or bumper blocks were not provided on spurrailroad tracks where rolling car(s) could contact other cars being worked or enter abuilding, work or traffic area:\u00a0 In that:\u00a0 On or about January 21, 1981, theLauhoff Grain Company did not install a derail and\/or bumper blocks on track #16 toprevent railroad cars from entering a work area.On January 22, 1981, a Compliance Officer of theOccupational Safety and Health Administration (hereinafter \”OSHA\”), in responseto a report of a fatality which had occurred on January 21, 1981, at Respondent’sworkplace, conducted a safety investigation at that site (Tr. 490).\u00a0 The ComplianceOfficer, prior to performing the investigation, first visited the Coroner’s office andthen the employer of the deceased employee killed at Respondent’s worksite.\u00a0 Once atRespondent’s workplace, pursuant to the agreements reached between the Respondent and theCompliance Officer, an abbreviated opening conference was held, after which theinvestigation was then begun (Tr. 495-500).As a result of this investigation, on March 25, 1981,a Citation was issued to Respondent initially charging it with a violation of the GeneralDuty Clause of the Act (Section 5(a)(1).\u00a0 This Citation was later amended to allege aviolation of Section 5(a)(2) of the Act and Safety Regulation 29 C.F.R. 1910.176(f), whichprovides:? 1910.176 Handling materials – general. (f) Rolling railroad cars.\u00a0 Derail and\/orbumper blocksshall be provided on spur railroad tracks where a rollingcar could contact other cars being worked, enter a building, work or traffic area.FINDINGS OF FACT AND CONCLUSION OF LAWFACTS OF CASERespondent is an employer engaged in the business of processing and storing corn andsoybeans.\u00a0 At the cited workplace, in Danville, Illinois, it operates a largefacility consisting of storage tanks, processing buildings, administrative offices, and anextensive rail switchyard (Ex. C-9, C-40).\u00a0 Hopper rail cars move Respondentsproducts into and out of the facility though its extensive network of rails making up itsswitchyard.During 1980 and 1981, Respondent engaged a number ofcontractors to perform some construction work at its bean processing area, in particular,in and around Buildings 203, 206 and 210.\u00a0 This work required that the contractorswork in and around its switchyard.\u00a0 Ellington Miller Construction Company(hereinafter \”Ellington Miller\”) was one of the contractors working in thisarea. This company was assisted by O’Neill Brothers Construction Company (hereinafter\”O’Neill\”), the employer of the deceased employee.Respondent’s operation, carried on at its processingfacility, required the use of a network of approximately 19 railroad tracks whichcomprised its rail switching yard.\u00a0 The accident which gave rise to the investigationtook place on track 16 near building number 203.\u00a0 The accident occurred when railcars being pushed onto track 16 by Respondent’s switch engine came in contact with aforklift truck, which had been parked alongside track 16, pushing the forklift against acrane partially situated on track 15 and 16.\u00a0 The forklift truck and the crane werebeing used in the construction activities going on in Respondent’s switchyard. \u00a0 Atthe exact instant of impact of the railcar, forklift and crane, an employee of O’Neill hadstepped between the crane and the forklift truck, was therein caught between them, and wascrushed as the forklift was pushed against the crane.A.\u00a0 Operation of Respondent’s SwitchyardIn the operation and switching of rail cars at Respondent’s switchyard, we find that theNorfolk & Western Railroad Company (hereinafter \”N&W\”) would deliver allhopper cars to Respondent (Tr. 25).\u00a0 An N&W spur track enters at the north end ofRespondent’s property (Tr. 44).\u00a0 Employees of the N&W would throw a switchlocated on the north side of a rail bridge to gain entry from the N&W main line ontothe N&W spur and then to Respondent’s property (Tr. 160, Ex. C-9).\u00a0 The throwingof the switch at the rail bridge would trigger an alarm bell and red light inside the railyard to alert Respondent’s employees that the N&W was about to enter the plant (Tr.160).\u00a0 The surface around the tracks at Respondent’s switchyard is asphalted (Tr.872).To reach track 16, where the accident took place, ortracks 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 only then ontoRespondent-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 means of a switch engine to which the cars are coupled (Tr. 30, 45, 48).\u00a0 The switch engine moves no faster than five miles per hour (Tr. 636).\u00a0 Theswitch engine would switch no more than two rail cars at one time (Tr. 131); however, itwould push together up to six cars on a single track (Tr. 179).In January, 1981, track 15 was used to hold emptyhopper cars until the bean plant was ready to load them (Tr. 47).\u00a0 The N&W wouldback empty cars onto track 15 and leave them (Tr. 129).\u00a0 Respondent pulled empty carsoff track 15 and generally would move them onto track 17 to load with product (Tr. 49 L.2-12).Tracks 16 and 17 were used by Respondent for loadingthe bean plant’s products into hopper cars via two loadout spouts in building 203 locatedat the south end of tracks 16 and 17 (Tr. 140, 177, 176).\u00a0 Hopper cars were broughtstraight down track 17 to the loadout spout on track 17.\u00a0 Cars also traveled downtrack 17, to a crossover track for locating them at track 16’s loadout location (Tr. 62,65, 128, 129, 665).Filled cars at the two loadout locations were pulledback north on track 17, and placed on other tracks for storage (Tr. 52, 129). They weregenerally placed on track 16 north of an inoperable section on that track.\u00a0 The carscould also be placed on tracks 17, 18 and 19 (Tr. 52, 129).Track 16, which as mentioned had an inoperablesection near its southern end, is divided into two clear and distinct functional sections.\u00a0 The southern section of track 16 is used as an entry into the loadout station inbuilding 203 (Tr. 62-63).\u00a0 Access to this section of track 16 is gained only bycoming south on track 17, and as above related entering a switch to a crossover track, andthen to a second switch on track 16 to the loadout section.\u00a0 Exit is possible only byreversing the process (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) hoppercars, and for filled hopper cars awaiting pick up by N&W (Tr. 62, 63, 67; see Ex. C-9).In storing cars on track 16, it was Respondent’susual practice for the crews to put the first car at an undesignated point at the southend of the storage section of track 16, but no further south than the crossover point,since clearance had to be maintained to permit cars to cross over from track 17 to theloadout section of track 16 (Tr. 65, 135-136, 178).\u00a0 Railroad cars have not beenmoved beyond the crossover point on track 16 for years due to the safety concern offouling the crossover point (Tr. 6, 62-65, 149, 666).Between the north or storage section of track 16 andthe south or loadout section of track 16, there is dirt over the track. Respondentreferred to this section of track 16, as being \”pegged out\” (Tr. 667). \u00a0This section of track 16 was out of service and has been out of service for a number ofyears (Tr. 63).\u00a0 The pegged out area, however, was only covered by a very thin anduneven layer of dirt.\u00a0 Most of the pegged out track was clearly visible through thedirt (Ex. C1-5, C2-1).\u00a0 There is no bumper block, derail, blue flag, or other deviceseparating the active 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 railtraffic on the crossover track between 16 and 17 and for rail traffic over the switch atthe north end of track 16, no more than six cars would be placed on track 16 (Tr. 134,135, 179).\u00a0 The practice of Respondent’s employees, who regularly performed theswitching work, was to position the first loaded car as far south on track 16 as one couldgo without creating a clearance problem for the crossover track (Tr. 178).\u00a0 As othercars were added on track 16, they were pushed slowly toward the car or cars alreadypositioned and then coupled to them (Tr. 178 L. 10-14).\u00a0 The N&W would pick upthe loaded cars on track 16, normally five or six cars in the morning and evening (Tr. 52,54, 55).Viewing Respondent’s loading and switching activitiesaround tracks 15, 16 and 17, once a hopper car is filled the switching engine would movenorth along track 17.\u00a0 The engineer operates the switch engine from the east side orright side of the cab of the engine with the switchman to his east (Tr. 191, 193).\u00a0The engineer and switchman remain in visual contact as the engine proceeds north and thencurves west on track 17 past the entry to track 16 (Tr. 191, Ex. C-9). \u00a0 If cars wereto be placed on track 16, the switchman would throw the switch to permit the train toenter track 16 (Ex. R10(c), R10(e).\u00a0 The full hopper car is then pushed south ontotrack 16 where it is positioned for eventual pick up by N&W (Tr. 177).\u00a0Respondent’s switching crew next pulls out of track 16 and picks up an empty car on track15 (Tr. 47).\u00a0 The empty car is then pulled out of track 15 by the engine and pusheddown track 17 and\/or the crossover onto 16 for filling at the bean plant (Tr. 131).Tracks 15 and 16 are utilized by train equipmentoperated by both N&W and Respondent.\u00a0 The N&W brings empty cars to track 15(Tr. 28, 47, 51).\u00a0 Filled cars are placed on track 16 by Respondent’s switching crewand then are picked up by N&W (Tr. 54-55).\u00a0 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 own schedule (Tr. 55, 134).\u00a0 InJanuary, 1981, there was no schedule for N&W to pick up on track 16 or drop off ontrack 15.Respondent’s switching crew is made up of two loaders(Tr. 175-176).\u00a0 The loaders operate the switching engine owned by Respondent (Ex.C-41).\u00a0 The loader-engineer (hereinafter \”engineer\”) sits on the right handside of the switching engine (Tr. 191-193, 861, Ex. C-41).\u00a0 He is always on this sameside of the switching engine, regardless of the direction in which the engine is moving(Tr. 200, 861).\u00a0 The loader switchman (hereinafter \”switchman\”) is invisual contact with the engineer at all times, except when his job requires him to stepout of the line of vision to throw a switch (Tr. 192, 634, 368).\u00a0 These employeesalternate jobs from day to day (Tr. 138, 175, 176).\u00a0 They get their basicinstructions from the management person referred to by Respondent as the \”LoadingSupervisor,\” but the everyday operations are within their own discretion (Tr. 152).\u00a0 These employees are responsible for loading the product into the rail cars (Tr.127, 138).\u00a0 When these employees are loading product, no other employee of Respondentwould be switching or moving rail cars on tracks 15 through 19 (Tr. 132).All cars entering tracks 15, 16, 17, and the track 16crossover section, enter from the north.\u00a0 The switch engine is to the north of thecars being pushed.\u00a0 The southern most or lead car is closest to the bean plant andfarthest from the engine (Ex. C-40).Respondent rail operating rules and safety practicesdo not require any member of the train crew, or any other person, to be at the lead end ofthe car’s being moved (Tr. 176, Ex. C-19).\u00a0 This means that no person is observingthe southern most car as the engine is pushing south onto tracks 13, 14, 15, 16 and 17 inorder to couple or uncouple a car.\u00a0 This system of \”pushing\” is called a\”blind shove\” or \”blind push\” (Tr. 1255).\u00a0 There is no radio orother means of communication among crew members other than visual hand signals (Tr.638).\u00a0 Cars are usually placed on tracks 15 and 16 one or two at a time, but 5 or 6may be pushed together at any one time (Tr. 131, 179).\u00a0 They may be removed in astring or one at a time (Tr. 130).\u00a0 Each time an engine picks up a car, its nextplanned move is to push that car into another car for the purpose of making a connectionor \”couple.\”\u00a0 This is done by bringing an open knuckle of the coupler oreach car together.\u00a0 Any time a couple is attempted a miscouple may occur resulting inan unintentional and uncontrolled car movement (Tr. 73-75, 739, 1326).\u00a0 The car orcars which fail to couple on track 17 may begin to roll south, toward building 203 and thetrack 16 crossover track (Tr. 73-75, 1326).B.\u00a0 Respondent’s Operating and Safety RulesRespondent maintained a comprehensive safety programboth in its plant and in the rail switchyard.\u00a0 This safety program included rules,operating procedures, training, and monitoring to insure the safety of its employees (Tr.628).\u00a0 Newly hired employees were indoctrinated on their first day at work byRespondent’s Plant Safety Director (Tr. 628).\u00a0 Thereafter, the employee’s supervisorwould present the additional training necessary for the employee’s specific department(Tr. 628).\u00a0 During these sessions, rules and procedures were discussed (Tr.628).\u00a0 Specialized training, both voluntary (e.g., first aid) and mandatory (e.g.,lift truck), was also provided (Tr. 631).Departmental safety meetings for all employees wereheld once a month.\u00a0 Different safety procedures were featured and discussed (Tr. 628,629).\u00a0 If an employee wanted a matter brought to the Company’s attention he or shewould contact a representative of the Union \/Management Safety Committee (Tr. 629).The Union\/Management Safety Committee would meet oncea month to discuss plant health and safety issues (Tr. 629).\u00a0 Safety committeerepresentatives make lists of items to discuss at these meetings (Tr. 629).\u00a0 TheSafety Committee included union representatives, plant managers, the Plant Safety Directorand the Corporate Safety Director (Tr. 629).\u00a0 Additionally, Respondent had variousincentive programs to foster plant safety (Tr. 199, 629, 630).As part of the safety program, Respondent completed abooklet of basic safety rules entitled \”Lauhoff Safety Rules\” which employeeswould carry with them (Tr. 611, Ex. J-2(b).\u00a0 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 relatingto work in the rail yard area (Tr. 632).\u00a0 Other rules on rail area safety werecommunicated orally to employees during indoctrination, during monthly departmental safetymeetings, and as problems arose (Tr. 632).C.\u00a0 Respondent’s Blue Flag RuleRules 5 [[2\/]] and 9 [[3\/]] in the \”GeneralSafety Rule\” section of the safety booklet relate to the \”blue flag\” ruleobserved at the workplace.\u00a0 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 rail equipment and it indicates that there are \”menworking on the track\” (Tr. 634, Ex. R-10(a) and (b).\u00a0 For better visibility atnighttime a blue light may also be used (Tr. 710).\u00a0 The blue flag communicates toanyone operating rail equipment that the track is out of service beyond the point of theblue flag.\u00a0 Rail equipment is not to pass beyond that point (Tr. 164, 634).\u00a0 Theabsence of a blue flag indicates that the track is open to rail traffic (Tr. 634).The Respondent had its employees follow the blue flagrule at its switchyard (Tr. 613, 616, 892, 893).\u00a0 Respondent used the blue flag toprotect access routes where employees or equipment had to cross a particular trackfrequently (Tr. 892, 893).\u00a0 Consistent with railroad practice, if an employee ofRespondent required the protection provided by the blue flag, he was required to erect it(Ex. J-2(b) Rule 9, Tr. 164, 614, 634).\u00a0 The employees who’s duties it was to switchcars were not responsible for erecting a blue flag (Tr. 613).Similar to a lockout system, only the person whoplaced the blue flag could remove it (Tr. 164, 635).\u00a0 Accordingly, if a blue flag wasleft on the track, before anyone else could remove it, an attempt had to be made to locatethe person who placed it.\u00a0 If that person could not be located, a thorough inspectionof the area was made to determine that no one was working on the track and that no onewould be exposed should the blue flag be removed (Tr. 635, 636).In January, 1981, Respondent had bumper blocks at theterminal points of its active tracks (Tr. 61).\u00a0 Respondent also had derail devices ontracks A and B which directly joined the N&W main line.\u00a0 These two tracks wereused by Respondent to clean rail cars (Tr. 69, 619).\u00a0 These tracks were located tothe west of the main N&W railroad line and outside and to the west of the switchyard.Blue flags or blue lights were used in conjunction with the derails at these locations(Tr. 620, 621).\u00a0 These flags warned that men were working on the track and had lockeda derail in the derailing position (Tr. 621).Except for bumper blocks at the end of most tracks inthe bean plantyard and the derails on tracks A and B, it was the policy and practice ofRespondent to use \”blue flags\” as the only means of preventing train trafficfrom passing certain designated points and moving into an area where employees wereworking or were located near or on a track (Tr. 59-61, 621, 634-635).\u00a0 No positivemeans of preventing unauthorized or inadvertent train traffic into a work area wasutilized by Respondent (Tr. 60, 158, 621, 654, 672).If Respondent determined that it would be impracticalto blue flag a track, such as for momentarily walking across rail tracks, Respondent’semployees were to then rely upon a \”ten foot rule.\”\u00a0 This rule wascontained in Respondent’s safety booklet (Ex. J- 2(b) Rule 8, Tr. 249, 250, 275, 613, 614,636, 637).\u00a0 This rule required that anyone who had to walk around rail equipmentwould be required to stay at least ten feet away from the ends of cars or engines (Ex.J-2(b) Rule 8).Respondent had a sister rule to the ten footclearance rule, which required that vehicles and all other obstructions be kept at leasteight and one-half feet from the center line of a rail track in order to allow rail carssufficient lateral clearance (Tr. 637).Respondent has several work practices directed atmaintaining safe operations in rail areas.\u00a0 The switchman would give hand signals todirect the engine operator and would throw switches to permit movement from one track toanother (Tr. 127).\u00a0 He would walk alongside the engine and keep a watch when it moved(Tr. 638).\u00a0 The engine operator will not move the engine unless he could see theswitchman; he would sound a horn before moving the engine (Tr. 637, 638).\u00a0 An amberlight flashes from the 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). \u00a0 Theswitch engine travels at very slow speeds, of less than 5 mph (Tr. 636).Wheel clocks are used to keep cars from moving and,during the coupling process, hand brakes are generally set (Tr. 682, 686). When additionalcars are to be placed on a track on which a car is already standing, the practice is toback the car slowly toward the standing car until the cars are coupled (Tr. 139).\u00a0Many times the engineer and switchman have no visual contact with the end of the carsbeing pushed.According to Respondent, it had not experienced anyinjury to employees at its switchyard, by reason of any movement of rail cars for at least32 years (Tr. 161, 162, 194, 614, 616, 638).D.\u00a0 Construction Activities at Respondent’sSwitchyard and PlantIn October of 1980, Respondent contracted withEllington Miller to erect an addition to building 205.\u00a0 The project was designed toprovide explosion release siding for building 205, [[4\/]] (Ex. R-3, C-3) and involvedremoval of the old roof and erecting a penthouse over building 205.\u00a0 After removingthe roof, Ellington Miller extended the height of the 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 wereinvolved in the above mentioned construction work, various other contractors and theiremployees were working in and about the area of building 205 and the network of activetrain track (Ex. C-9, R-3, Tr. 882-888, 902-903).In the Request for Quotation used for constructionprojects by Respondent, provisions were included to alert contractors that they had tocomply with Respondent’s safety rules and OSHA standards (Exs. C-4(e) Item 3, J- 2(b) pp12-13, Tr. 240, 241).\u00a0 The \”Lauhoff Safety Rules\” Booklet, the BungeCorporation [[5\/]] Safety Information and Instructions for Contractors booklet, (Ex.J-2(a),(b), printed material containing 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). Contractorswere also notified verbally, in the pre-bid meeting, of the safety requirements so thatthey could adjust their bids to reflect any extra expenses that might be incurred thereby(Tr. 643 L. 7-13).\u00a0 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 Safety Booklet\” to their employees; Respondent supplies enough copiesfor this purpose (Ex. J-2(b), Tr. 241).\u00a0 On November 18, 1980, Respondent sent amemorandum to contractors notifying them that each contractor would be required tomaintain a log signed by its employees to indicate they had received and read the safetybooklet (Tr. 241, 242, Ex. C-4(d).\u00a0 Outside contractor’s employees were to have readthe booklet and work by the rules contained therein [[6\/]] (Tr. 244, 693).\u00a0 Whetherthe information imparted to each of contractors reached employees working the railyard isclearly left to speculation (Tr. 318, 320, 322, 378, 440, 452, 453).Respondent held weekly meetings with its contractorsto discuss ongoing projects (Tr. 247, 641, 642, Ex. R-9).\u00a0 At these meetings, safetywas also addressed, including problems which may have arisen but were not covered by thewritten safety materials (Tr. 247, 248, 263).\u00a0 Other meetings were held at which timesafety was discussed and material handed out to remind the contractors to comply withRespondent’s safety program (Tr. 336, 348, 349, 641, 642, Ex. R-9, C-4(c) Item 5,8).\u00a0 In particular, Respondent’s blue flag system used on the rail switching area wasdiscussed with the outside contractors as late as December, 1980 and January, 1981 (Tr.694).\u00a0 According to Respondent’s witnesses, depending on the seriousness of aninfraction, it had required that a contractor’s employee be removed from the job or bepermanently barred from working at Respondent’s worksite (Tr. 214, 239, 651, 695, and696).Respondent expected the contractors, in theirperforming construction work at the worksite, to work around Respondent’s own productionneeds, unless the bid package stated otherwise, at which point the Respondent was to turnover an area to the contractor for a specified amount of time (Tr. 257).\u00a0 If acontractor needed to take a portion of the plant out of service temporarily, it wouldcontact Respondent’s \”New Work Supervisor\” (Tr. 258).\u00a0 The New WorkSupervisor would then contact the supervisor of the department involved to see if thecontractor could be accommodated; if the contractor could not be accommodated, it wouldnot get access to the area at that time (Tr. 258).\u00a0 If, after the New Work Supervisorhad agreed that a contractor could place equipment in a particular location, Respondentfound that it required the use of the area for rail movement, the contractor was obligatedto move its equipment.\u00a0 Respondent would then pay \”railroad interruptiontime\” for the time needed to move the contractor’s equipment out of the area and thenback again (Tr. 279).In performing the construction work at Respondent’sworksite, in particular that work being done from the rail switching area, a crane had tobe placed near building 203; this required that it be placed onto switchyard tracks.\u00a0The first crane so employed was that owned by Ellington Miller.\u00a0 This crane wasplaced in an area around tracks 16 and 17 and the crossover track (Tr. 426). \u00a0 Thecrane thus situated interfered with cars entering and leaving building 203 (Tr.426).\u00a0 If Respondent wanted to bring a car through on track 17, the loaders wouldinform an Ellington Miller representative that it had to move the crane out of the way(Tr. 427).\u00a0 The crane was then moved.\u00a0 When the rail car movement was completed,Ellington Miller would return the crane to the same location (Tr. 427).\u00a0 The cranewas then positioned for a 5 to 10 day period.\u00a0 No blue flag or derailer mechanism wasplaced on the tracks during that period the crane was located on tracks 16 and 17 (Tr.429).Due to the many interference’s with Respondent’sproduction schedule, and its concerns for paying Ellington Miller the railroadinterference time, another smaller crane was brought in to replace the first (Tr. 426-427,458).\u00a0 This second crane, a smaller truck crane, was brought to Respondent’s worksiteon December 16, 1980 [[7\/]] (Tr. 294).\u00a0 This crane, hired from O’Neill, was firstused on December 17, 1980 (Tr. 295).\u00a0 The exact location of where to place the cranewas left to the operator of the crane since he knew the crane’s capabilities (Tr. 472).\u00a0 Placement of the crane, however, was conditioned upon the provision that thecrane’s outriggers stay clear of the tracks, so that a rail car passing on the east sidewould not hit the outriggers of the crane (Tr. 318, 445, 492).The second crane was not left on the tracksthroughout the project.\u00a0 Each night the crane, after its use, was moved out of thework area.\u00a0 It would be moved back into the work area for use on the next day (Tr.58, 59, 315, 316, 317, 396).\u00a0 The crane was usually positioned approximately twentyfeet north of building 203, the bean loadout building, between tracks 15 and 16 (Tr. 293).\u00a0 The outriggers of the crane, used to stabilize the crane when the boom is inservice, were fully extended (Tr. 305, 307).\u00a0 Two of the outriggers were placed inthe gauge or open area between the two metal rails of track 15.\u00a0 The other twooutriggers were positioned in the gauge of track 16 (Ex. C-1-3 through C-1-10, C- 40,C-42).\u00a0 The crane body was positioned over the field or area between tracks 15 and 16with the rear or south outriggers against a pile of debris 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 andthen again on January 12, 13, 14 and 21, 1981.\u00a0 Each time it was used it was locatedin the exact same position in the switchyard (Tr. 161, 298, 326).\u00a0 Each time thecrane was positioned, the four outriggers were extended, two each on tracks 15 and 16 (Tr.159).\u00a0 A forklift truck was always used in conjunction with the crane and wastherefore required to position itself in and about the network of tracks near the crane.\u00a0 No blue flag or derailer was employed on tracks 15 or 16 at anytime during theabove mentioned period when the first or second crane was used in conjunction with work onbuilding 205.The forklift truck used in connection with the cranewas 20 feet long and 8 feet wide; it traveled in and around the entire construction area(Tr. 311-313, Ex. C- 20).\u00a0 It would usually be positioned somewhere around the areaof the crane (Tr. 311, 313). While assisting the crane, the forklift would often bedirectly north of the crane or to the east where steel was being hooked (Tr. 311, 312,324).\u00a0 Due to the length and width of both the forklift and the crane taken together,considering the very narrow open space between tracks 15 and 16, both pieces of equipmentwould have been inside or, at most, within a foot or two of the gauge of tracks 15 and 16whenever they were being used at or around building 205 (Tr. 311-312, 318).Employees of Ellington Miller, O’Neill and othercontractors had an access 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).\u00a0 The accessroute was used to move equipment, including the crane, across tracks and into position forwork or to bring supplies in and out of the area (Tr. 252, 261).On days the crane was to be used, Ellington Millerwould notify the New Work Supervisor, a member of Respondent’s management, that the cranewould be moving into position across the access road (Tr. 437-438).\u00a0 The new worksupervisor would then notify bean plant supervisor, who in turn, would notify theswitching crew that the crane was being moved into position (Tr. 143, 144, 184, Ex. C-19).When the switching crew responsible for track 15 and16 was notified that the crane would be working, they moved cars north on track 15 topermit the crane to enter (Tr. 144, 184, Ex. C-19).\u00a0 They did not clear the track ofrailroad cars but moved them far enough north to create what they considered ampleclearance for a work area (Tr. 144, 185).\u00a0 The crew never had to move cars north ontrack 16 to make room for the crane because the crane was positioned on the normallyunused section of track 16.The entire time that the crane worked on tracks 15,16 and 17, from October 1980 to January 21, 1981, switching and production in the beanplant continued uninterrupted and tracks 15 and 16 were used in the same manner as theyhad been used prior to setting up the construction project (Tr. 129-130, 144).Respondent’s employees had observed the crane in thearea of tracks 15, 16 and 17 in January, 1981 (Tr. 56, 57, 280, 281).\u00a0 It was largeand could be seen from a distance (Tr. 57).\u00a0 Respondent’s employees had also seen theHyster forklift hired from O’Neill moving back and forth, placing structured steel inposition for the crane to hoist (Tr. 57, 312).Railroad interruption time would be paid byRespondent if the access route to the Ellington Miller work area had been blocked bytrains (Tr. 437-438).\u00a0 After December 17, 1980, Respondent paid no interruption timeto Ellington Miller since Respondent considered that it had moved cars far enough north tocreate a work area each time the crane was to be used (Tr. 250, 252, 254, 265-266). \u00a0Respondent did not wish to \”blue flag\” out tracks 15 or 16, or any substantialpart of them, in order to avoid any accidental or unintended movement of rail cars intothe work area since to do so would disrupt its production schedule.E.\u00a0 Respondent’s Control of the WorksiteDuring the construction process, Respondent exercisedcontrol over the switchyard, which included the worksite, observed work being performedwithin that area, and retained authority to remove any employer from the worksite forviolation of its own safety rules, as well as OSHA regulations (Tr. 395, Ex. C-40C).\u00a0Once contracts were entered into between Respondent and the contractors, and work let out,its New Work Supervisor, its Safety Director, and some of its other management employees,would schedule and coordinate the construction work.\u00a0 They would control placement ofequipment, enforce safety rules and generally exercise control over the constructionarea.\u00a0 Respondent controlled the train traffic into the construction area, and all ofits own train movements were under its direct control; control of movement of N&Wtrains was done by that railroad (Tr. 134, 152).Respondent controlled train crew rules andoperations.\u00a0 During the period of construction, train crews continued to be limitedto two employees; blind pushes, which included up to six cars, were regularly made intothe construction work area (Tr. 129-130, 134, Ex. C-19).\u00a0 Respondent continued normalproduction with its need for train traffic in the construction area.\u00a0 Respondentcontinued to use its entire rail switchyards in the same manner, and at the sameproduction level, during construction as before (Tr. 144, 148, 149).Respondent required all contractors to give priorityto Respondent production requirements over the needs of the contractors (Tr. 54, 257, 259,457-458).\u00a0 All contractors were informed by Respondent that they had to work aroundRespondent production schedule and that if Respondent’s production and the contractor’swork were in conflict, production took precedence (Tr. 54, 257, 259). \u00a0 No contractorwas permitted to interfere in any way with production without prior permission from theNew Work Supervisor Dean Holycross (Tr. 431, 457, 458).In November 1980, Dean Holycross determined thatcosts were increasing from the inability of Ellington Miller to perform work due tofrequent delays caused by train traffic (Tr. 251-252).\u00a0 On these occasions EllingtonMiller had been unable to get the crane into position, or had been required to move thecrane off the tracks, to permit use of track 17.\u00a0 Holycross then ordered and requiredEllington Miller to notify him, personally, when access to the jobsite was needed so thathe, in turn, would have railroad cars moved far enough north to allow access to the crane(Tr. 252, 261).\u00a0 Thereafter, Ellington Miller notified Mr. Holycross each time theywere required to move the crane into the work area on tracks 15, 16 or 17 (Tr. 256).\u00a0 Ellington Miller was required to coordinate with Respondent regarding placement ofthe crane (Tr. 147, 258, 261, 277).\u00a0 The decision making authority to allow EllingtonMiller to position the crane was held by Respondent’s supervisor Holycross (Tr. 147, 258,261, 277).\u00a0 Additionally, Respondent created access routes across railroad tracksinto the construction area for all contractors (Tr. 252, 261, 271).\u00a0 With thisarrangement, Respondent was again able to move its rail cars on tracks 15, 16 and 17 withthe same alacrity as it had before the construction activities were brought to theworksite.All during the period that construction activities atRespondent’s worksite took place, as above described, and including January 21, 1981, theplacement of the blue flag on the rail tracks, as affected by location of the crane, hadto be coordinated between the various contractors and Respondent (Tr. 676, 678,679).\u00a0 The \”blue flag\” procedure was apparently the only means ofprotection authorized by Respondent for use by the various contractors who would beworking in and around the switchyard (Tr. 676, 678, 679).\u00a0 Use of rail bumpers orderailers was specifically coordinated by Respondent; their use was never affected (Tr.237).\u00a0 In fact, it was Respondent’s practice that trains would not be operated ontracks where a derailer would be, or had been, placed; this, not unexpectedly, had anadverse effect on its possible use in the main switchyard (Tr. 157, 158, 159). \u00a0Respondent maintained tight control over the use of its tracks with particular emphasisbeing placed on eliminating any interference in their use, since such interference wouldhave a significant adverse impact upon the production activities at Respondent’s plant(Tr. 261-263).Significantly, Respondent was fully aware of allactivities carried on by the contractors engaged in construction activities and made it apoint to observe the condition of its switching facilities, the location of thecontractors equipment, and the construction activities itself, as they all might possiblyimpact upon rail car switching activities (Tr. 147, 258, 261, 277, 651, 657).\u00a0 Theuse of derailers was not encouraged or promoted, by Respondent, for use by contractors whomight have equipment or employees working on or near tracks where injury could result frommovement of Respondent’s rail cars (Tr. 237, 268-269, 429, 434, 435). \u00a0Understandably, construction employees could not be expected to be familiar with railroadoperations, including the use of a blue flag or derailer (Tr. 1388, 1390).The use of a derailer is a positive means of stoppingthe unintended or uncontrolled movement of a rail car by dislocating and grounding it fromthe rail (Tr. 1394).\u00a0 A derailer [[8\/]] or bumper block [[9\/]] is a standardoperational piece of equipment, and their use is a standard practice in rail activities(Tr. 1361-68, 1394).\u00a0 With respect to the use of the derailer, we find that since thespeed of the cars pushed in the Respondent’s switchyard was approximately 5 miles per houror less, little travel by a grounded car could be expected (Tr. 1360, 1361, 1364).\u00a0Aside from the intended dislocation of the rail car from the rail, no other adverseeffects could be expected from use of a derailer; this is particularly true in the instantcase (Tr. 1297, 1312, 1329, 1361, 1364, 1368, 1390, 1391).\u00a0 The positive protectionfrom derailers afforded repair or construction employees working in or around a railswitchyard, such as the construction employees involved in the instant case, from theunanticipated movement of rail cars, could not be duplicated by implementation or use of ablue flag rule (Tr. 1318, 1319, 1324, 1325, 1330, 1331).\u00a0 Concerning bumper blocks,they are traditionally used at the end of tracks and are not the type of devices generallyfound in the middle of a railroad track (Tr. 1374, 1394).All during the construction period, the tracks wereused and switched by Respondent, and the Norfolk & Western, as if the constructionwork were not ongoing (Tr. 129-130, 262).\u00a0 Six cars were stored on track 16, despitethe fact that a crane and a forklift were in operation only a few feet south (Tr. 179, Ex.C-19).\u00a0 Cars continued to be pushed blind on tracks 15, 16 and 17, despite the workarea and the presence of an authorized access road (Tr. 129-130, 252, 261-262).\u00a0 Thisproduction activity continued in complete disregard of the hazards being created foremployees of Respondent, Ellington Miller, O’Neill and various other contractors in thearea.\u00a0 Respondent never requested or ordered Ellington Miller or O’Neill to blue flagany railroad track, nor did it reprimand any contractor for its failure to derail or blueflag a track, notwithstanding its previous declarations about safety at construction andsafety meetings; this was also in complete disregard of its own stated and written safetyprogram, and its construction bids and contractual provisions relating to safetyobservances.F.\u00a0 The January 21, 1981 FatalityOn the early morning of January 21, 1981, the cranewas stored between tracks 12 and 13 (Tr. 316).\u00a0 John Berry, the bean plantsupervisor, had been notified by others of Respondent’s management that the crane wasgoing to be placed in its usual working position between tracks 15 and 16.\u00a0 Mr. Berrythen informed the loaders-switching crew to clear the access path into the area for thecrane (Tr. 150, 184, Ex. C-19).\u00a0 The crew moved cars north on track 15 far enough tocreate the work area for the crane on tracks 15 and 16 (Tr. 184, Ex. C-19).\u00a0 Whenswitching began on the morning of January 21, 1981, cars were already sitting on track 16and cars were later coupled to these from the north (Tr. 151).\u00a0 This morning theremay have been some confusion by Respondent’s employees as to whether both tracks 15 and 16would be impacted by the presence of the crane (Tr. 130).The crane was driven across the access route to itsusual position between tracks 15 and 16 and was positioned by the O’Neill oiler and JamesGill, the crane operator (Tr. 296-298).\u00a0 The crane was placed in exactly the sameposition it had been placed at each time it had been used since December 16, 1980 (Tr.161, 298, 326).\u00a0 As on each prior occasion, the crane was positioned between tracks15 and 16 (Tr. 296-298).\u00a0 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).\u00a0 A forklift was being operated inand around the area of the crane (Ex. C-40; Tr. 312, 325).\u00a0 The forklift was operatedby Mr. Ralph Bruce, an experienced crane and forklift operator (Tr. 311). \u00a0 Mr. Brucehad a reputation as a safe workman (Tr. 313).\u00a0 Mr. James Gill, the crane operator,was also an experienced employee (Tr. 288). Cars were being switched on track 15 by N&W (Tr.115, Ex. C-17).\u00a0 The cars on 16 had not yet been picked up by N&W, which was toenter and pick up the cars positioned on track 16 when the track was full (Tr. 54-55).\u00a0 There were five cars on track 16.\u00a0 A sixth car was to be placed on the track,and this would have filled the track (Tr. 179).During the morning Mr. Bruce was operating theforklift around the crane, he would move steel beams into position for placement by thecrane (Tr. 311, 312).\u00a0 Before going to lunch, Mr. Bruce parked the forklift about twofeet to the north of the crane, close to track 16 (Ex. C-21(b) Tr. 325).\u00a0 At thattime five rail cars were positioned on track 16 in front of (north of) the forklift whenMr. Bruce parked it (Tr. 653).At about 12:30 p.m., the switch engine pulled aloaded car north on track 17 in order to set it on track 16 (Tr. 190).\u00a0 The switchmanthrew the switch from track 17 to track 16 and the engine with the car coupled to itproceeded backward, south on track 16 (Tr. 191).\u00a0 The car was then coupled to thefive cars already standing on track 16 (Tr. 653).\u00a0 The switch engine then pushed thecars back so that the north-most car would make the clearance between track 17 and track16 (Ex. C-19).\u00a0 Neither Paul Bright nor Marshall Tuggle, the train engineer andswitchman, could see the forklift as the engine backed onto track 16 since this was ablind push (Tr. 154, 193, 194).\u00a0 No blue flag was posted anywhere.\u00a0 Neither knewthe forklift was parked too close to the track or that the crane’s outriggers were insidethe rails of track 16.\u00a0 The engineer was on the east side of the train and theswitchman was to his east in visual contact with each other, but both having no view ofthe south portion of track 16 (Tr. 154, 191-193, 200).As the train car pushed south on track 16, both theswitchman and the engineer 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 at track 16 (Tr.193-194).\u00a0 At the same instant the cars neared the south end of the track, forkliftoperator Bruce was walking toward the forklift which was facing the last car of the trainon track 16 (Tr. 81, 83).\u00a0 As the last car of the train moved south, it came incontact with the forklift truck parked near the track and a few feet north of the crane,and pushed the forklift truck towards the crane.\u00a0 At this precise moment, Mr. Bruce,apparently unaware of the trains movement, stepped between the forklift truck and thecrane.\u00a0 As the crane and forklift truck were pushed together, he became caughtbetween them and was crushed to death.One of Respondent’s employees, who was near the areaheard the cries of Mr. Bruce, saw the situation and began to run back north shouting\”Stop the train!\” and waving his clip board (Tr. 86).\u00a0 He got theswitchman’s attention, who in turn shouted to the engineer in the switch engine to stopand then to pull forward (Tr. 81-87, 154, 192).\u00a0 This was done immediately. \u00a0Unfortunately Mr. Bruce was severely injured and died from the effects of being crushedbetween the forklift and the crane.\u00a0 The stopping of the train came too late.Respondent duly reported the fatality to the AreaOSHA Office.\u00a0 The fatality report then prompted a fatality investigation by OSHA ofRespondent’s worksite.\u00a0 This resulted in the issuance of the instant Citation.Before discussing the merits of the case and whetherthe Complainant established by a preponderance of evidence whether a violation, asalleged, existed or not, it will be necessary to discuss several affirmative mattersraised by the Respondent in defense to the Citation.CONCLUSIONS OF LAWI.\u00a0 The Cited Standard 29 C.F.R. ?1910.176(f) Was Allegedly Unenforceably Vague.Respondent argues as its first affirmative defensethat 29 C.F.R. 1910.176(f)[[10\/]] is unenforceably vague, ambiguous andinconsistent in that it fails to communicate the conduct it wishes to prohibit. \u00a0Respondent points to the phrase \”rolling car\” contained in the standard as beingthe focal point of its challenge and the linchpin of its argument. \u00a0 Respondentargues that this term is unclear as to how and in what manner it is to apply since thephrase \”rolling car,\” which is crucial to understanding the standard, could beinterpreted is a noun describing a car capable of being rolled, whether or not in motionat any given time, or it could be an adjective describing a car that is actuallymoving.\u00a0 It is in this setting that Respondent indicates the regulation is withoutany common meaning.Respondent in support of this argument points to agrant of a variance to Fisher Mills, Inc., published in the Federal Register, wherein theSecretary stated \”a rolling car is a car moving freely and is to such a situationthat the standard is addressed\” 39 Fed. Reg. 1676, 1677.\u00a0 Respondent points outthat this definition was used by a Commission Administrative Law Judge in vacanting acitation alleging a violation of 1910.176(f) against Cargill Inc. for its failure to usederails and\/or bumper blocks in connection with switching operations comparable toRespondents Cargill, Inc., 1979 CCH OSHD 24,034 (Docket #78-3110, 1979).\u00a0 Looking tothe testimony of the witnesses in the instant case, who were associated with railroading,we find different thoughts as to the meaning of the term rolling car (Tr. 524, 526, 700,701, 717).We do not find the variance or case cited byRespondent helpful in this case for the simple reason that each matter, ie., the instantcase, the variance proceeding, and the cited case, had their own particular factualsituation which finds no analogous element to one another, to the instance legal argument,and to the factual content of this case [[11\/]].\u00a0 Moreover with respect to avariance, it is a procedure resorted to only if the standard in question has applicationto the facts of the case and, despite its applicability, Respondent seeks exemption forits specific requirements.\u00a0 In effect, we find that the decision in Fisher Mills isconsistent with Complainant’s position herein that the requirements of 1910.176(f) areapplicable to Respondent’s switching operation.With respect to the cited case of Cargill,this case relied in part upon a 1974 proposed amendment to 1910.176(f).\u00a0 The proposedamendment would have permitted use of a \”blue flag\” as an alternative means ofprotection when switching operations are being carried out by a locomotive.\u00a0 Theproposed amendment to the standard was never adopted and thus the holding of the case hasno applicability to these proceedings.Looking to the core argument made by Respondent, wefail to discern the alleged insufficiency reached through the grammatical gymnasticsexercise Respondent has engaged in, in interpreting the standard.\u00a0 The standard isdesigned to meet a specific situation where a rail car could come in contact with anothercar.\u00a0 Quite obviously the term \”rolling car\” is meant to mean a car that iscurrently rolling or one that could be set in motion to roll against a second car whichwould hazardously impact upon employees in a particular work area.\u00a0 Under thedefinition forwarded by the Respondent one would have to adopt a meaning that only thoseemployees who would be entitled to the protection of the standard would be those inimmediate and imminent peril from a rail car out of control and rolling towards them withharm and injury a predictable result.\u00a0 We believe the standard should be read in amanner comparable with its intended purpose and not antagonistic towards the conduct orhazard to which it is addressed.\u00a0 The proposition forwarded by Respondent would causethe standard to essentially ignore the hazard to which it is addressed.After careful review of the standard, we find easyinterpretation and application in its meaning that derails are needed to prevent rollingcars, or the threat thereof, from coming into an area where employees are working. \u00a0We find this standard is aimed at preventing railroad cars from inadvertently being pushedupon employees who are working in or near a railroad track where harm could come to themfrom a rolling car coming in contact with other rail cars they are near, or into theirwork area, or from the rolling car itself.\u00a0 We find this remedial regulation a mostsimple and unambiguous one, and find easy application and interpretation to the potentialhazard involved.\u00a0 Dieabold, Inc. v. OSHRC, 585 Fed. 2d 1327 (6th Cir. 1978); VanceConstruction v. Donovan, 723 Fed. 2d 410 (5th Cir. 1984).It is axiomatic that when considering remediallegislation such as the Act and its implementing regulations, the purported vagueness of astandard is judged not on its face but rather in the light of its application to the factsof the case.\u00a0 Faultless Division v. Secretary of Labor, 674 F. 2d 1177(7th Cir. 1982); PBR, Inc. v. Secretary of Labor, 643 F. 2d 890, 897 (1st Cir.1981); McLean Trucking Co. v. OSHRC, 503 F. 2d 8, 10-11 (4th Cir. 1974).\u00a0 Moreover, the regulations will pass constitutional muster even though they are notdrafted with the utmost precision; all that due process requires is a fair and reasonablewarning.\u00a0 Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27, 30 (7th Cir.1976).\u00a0 It is clear the imposition of use of a derail is for the purpose ofpreventing railroad cars from inadvertently rolling into a work area creating a danger toemployees in that work area.\u00a0 It matters not that the railroad car was at rest, orrolling, as long as it had the potential to roll into the area and cause a hazard.The application of 29 C.F.R. 1910.176(f) to thehazard depicted in this case is clear and unambiguous.\u00a0 Moreover the readily apparentnature of the hazard involved in the instant case makes application of the standard easilydiscernable by anyone working, or tangentially involved, in rail activities.\u00a0 Thispresupposes any claim of vagueness and the standard is found fully enforceable.One last point does bear mention, in this caseRespondent itself recognized the need for derailers in that it used them in an area whereemployees were engaged in working on rail cars.\u00a0 It is difficult to find the logic orsincerity within Respondent’s argument that a standard requiring derailers to protectemployees occupying, as a worksite, active railtracks is vague and unenforceable.\u00a0 Wedo not find any infirmity in the enforcement of subject standard.II.\u00a0 29 C.F.R. 1910.176(f) Had No Applicationto the Cited Work Area.Respondent argues that if the cited standard has anyapplication, given its allegedly vague wording, it must be limited to locations in whichemployees are exposed to the hazard of free rolling cars.\u00a0 Respondent argues that itdoes not apply to its switching operation since rail cars move only when under the controlof an attached power source, i.e., a switch engine, and that other measures were taken toprevent inadvertent movement when rail cars were unattached.Respondent represents that by reason of itsswitchyard set-up no car could roll uncontrolled into the work area in that there wereswitches which would prevent such an incident.\u00a0 Moreover, according to Respondent, nocars could roll on their own since there was no incline to its switchyard and all cars arepositively attached to one another, and ultimately to the switch engine, therebyalleviating any possibility of the car rolling free.\u00a0 Lastly, Respondent argues thatair brakes are automatically set when rail cars are detached from the locomotive thuspreventing inadvertent movement.While Respondent’s argument is more factual thanlegal, we nonetheless find as a matter of law, as well as fact, that it must fail; we findthe standard fully applicable to the operations within its switchyard.As above mentioned the purpose of the standard is toprevent one car from rolling into another car, or into a work area, where employees may beunprotected from the hazards attributable to the rolling car.\u00a0 This standard does notdistinguish whether the rail car would be rolling on its own, or whether the rail carwould be attached to other cars, or a switch engine, or both, when they are pushed intothe unprotected work area.\u00a0 To view it otherwise would leave some workers protectedand other workers not at different times during the day as switching operations tookplace.\u00a0 If one were to follow the argument forwarded by Respondent, no protectionwould be provided employees from the very obvious hazard of cars being unintentionallypushed by an engine into a work area where employees were found. \u00a0 Additionally, whois to say whether a couple would fail, or whether brakes would give out, or whether theywere ever set or could be set,[[12\/]] and the impetus from a push by an engine setting astring of cars into motion rolling towards a work area where employees were located.\u00a0We find in this case multiple sources of possible unintended movements of rail cars onRespondent’s switching tracks and in particular 15, 16 and 17. \u00a0 The N&W movementof rail cars together with Respondent’s own movement of rail cars makes this obvious.As discussed above, the standard’s purpose is toprevent rail cars from coming unexpectedly into a work area, whether they are pushed orwhether they are rolling free.\u00a0 Respondent’s switchyard was indigenous, intregal andintimate to worksites which were permanent (the processing and loading facility) andtemporary (the construction activities), and as such is particularly suitable to theapplication of the standard.\u00a0 Accordingly, Respondent’s argument in this regard willbe rejected.III.\u00a0 Compliance With 29 C.F.R. 1910.176(f)Allegedly Presented A Greater Hazard.Respondent argues that derails are inherentlydangerous, since they are specifically designed to take the wheels of a railroad car off atrack to prevent it from continuing its movement down the track (Tr. 1290). \u00a0Respondent points out that those people knowledgeable in railroad activities, includingthe witnesses testifying in the instant case, held that derails were \”strongmedicine\” and a means of last resort.\u00a0 Respondent further argues that derailinga car could have extremely serious consequences since the car could continue to roll in anuncontrolled manner into the work area (Tr. 513, 533, 616, 715,1360).\u00a0 Respondentlists a significant number of possibilities wherein a rail car could strike employees orbuildings or areas once it was derailed.\u00a0 Respondent maintains that a derailing couldcause the car to tip and fall over onto other employees causing injury as well assignificant property damage. Respondent lastly argues that the irony of it all is that theaccident could not have been prevented by the derail, and when balanced against theadditional hazards, it should be relieved from complain with such standard.Significant case law establishes the principal thatthe \”greater hazard\” defense is narrowly construed and the burden of proof lieswith the employer.\u00a0 Greyhound Lines-West v. Marshall, 575 F. 2d 759, 762 (9thCir. 1978).\u00a0 The Commission as well as the courts have placed a three-fold burden onemployers, seeking to invoke this affirmative defense:\u00a0 \”[t]he employer mustdemonstrate:\u00a0 (1) that the hazards of compliance are greater than the hazards ofnon-compliance, (2) that alternative means of protecting employees are unavailable and (3)the unavailability or inappropriateness of obtaining a variance.\” \u00a0 PBR, Inc.v. Secretary of Labor, 643 F.2d 890 (1st Cir. 1981); Noblecraft Industries, et alv. Secretary of Labor, 614 F. 2d 199, 205 (9th Cir. 1980).We find little credible evidence by Respondent thatuse of derails would present such hazards as is alleged.\u00a0 The expert witness in thiscase testified that in using a derail a car would move less distance if it was derailedthen if it remained on the track (Tr. 1394), and that use of a derail would create a saferwork environment for employees in a work area in which an unattended car could roll freelyor be pushed by a locomotive (Tr. 1297, 1312, 1327, 1328, 1329). \u00a0 We find common useof derails in railroad yards themselves (Tr. 1391).\u00a0 We find no credible evidencethat established that a rail car would tip over if it were derailed in Respondent’sswitchyard.\u00a0 This is particularly true since the cars move no faster than 5 miles perhour and at that speed a car would simply be derailed onto the ground stopping itsmovement at the point of the derail (Tr. 1297, 1312, 1329, 1360, 1361, 1364, 1390,1391).\u00a0 The overwhelming evidence in the case proved that car derailment through useof derailers would not present a greater hazard to employees but in fact, was a means toaccomplish a positive stop to the movement of cars into the work area sought to beprotected by the use of the derail itself.We find, as earlier mentioned, Respondent’s blue flagrule no substitute for the positive protection of a derailer.\u00a0 Accordingly, sinceRespondent failed in all regards to carry its three-fold burden, and since as a matter offact we find derailers not to present a greater hazard, Respondent’s argument,notwithstanding, is herewith rejected.IV.\u00a0 Use of Derails and Bumper-Blocks WouldAllegedly Be Functionally ImpossibleRespondent argues that use of a derail and bumperblocks would render much of its track area useless and would seriously interfere with theloading operation.\u00a0 This would subject Respondent to gross inefficiency of operationand enormous economic hardship. (Respondent’s Post-trial Brief p. 55) With regards tobumper blocks, we find bumper blocks not to be the type of device which lends itself tothe issues in this case and as such not required under the Citation issued herein.\u00a0However, we do believe Respondent errors in challenging use of the derails as somethingbeing impractical by reason of the fact that it may interfere with its rail activities inits switchyard.Derails are portable and as such their use is easilyapplicable to the situation at Respondent’s worksite.\u00a0 They are not cumbersomedevices, as made out by Respondent, but devices which are easily transportable and can beinstalled and moved by a single employee (Ex. C-10a).We find Respondent’s argument to be more in thenature of one alleging imposition or inefficiency or inconvenience.\u00a0 Significant caselaw holds that these reasons are not within the scope of proof of the defense ofimpossibility.In order to establish the defense of impossibilityRespondent must bear the burden of proving that (1) compliance with the standard wasfunctionally impossible or would preclude the performance of work, and (2) thatalternative means of employee protection were unavailable or were in use.\u00a0 F.H.Lawson Co., 1980 CCH OSHD 24,277; M.J. Lee Construction Co., 7 BNA OSHC 1140,1979 CCH OSHD par. 23,330 (1979).\u00a0 Notwithstanding who’s burden it was to demonstrateimpossibility or possibility, this record well demonstrates that use of a derail was arealistic and reasonable method to guard the south part of tracks 15 and 16 for employeeswho occupied same as a work area.\u00a0 Respondent never proved otherwise with anycompelling evidence.The construction activities carried on on behalf ofRespondent required that 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 was allegedly placedout of commission in any event.\u00a0 That a derailer would have occupied some ofRespondent’s workable track area does not make the use of derail impossible. HughesBrothers, Inc., 6 BNA OSHC 1830, 1978 CCH OSHD par. 22,909.\u00a0 True Respondent maynot be able to store six rail cars onto a rail protected by a derailer which had beenplaced there for the benefit of employees working in the construction zone. This fact,however, will not carry the day for Respondent on the issue of impossibility, especiallyin view of the fact that had a derail been used initially the accident would not haveoccurred.We fail to see use of a easily portable derail as animpossible task by Respondent to protect employees who worked on the south part of tracks15 and 16.\u00a0 It should also be brought to mind that the location of the crane neverdid block full use of track 16 since no traffic was ever intended to go beyond thecrane.\u00a0 Track 16 ended, for all practical purposes, at that point where Respondentheld the track to be \”pegged out…\” a point north of the location of the crane.\u00a0 A derailer could have been placed a bit further north of the area which had been\”pegged out\” and thus no more than a temporary inconvenience to Respondent wouldhave resulted from taking out of service a small part of track 16.\u00a0 As a matter offact and law, we find no merit to Respondent’s argument that compliance with the standardwas impossible.V.\u00a0 Respondent Allegedly Neither Created NorControlled The Hazardous Condition Which Prompted The Citation.Respondent argues that it did not create nor did itcontrol the alleged hazardous condition.\u00a0 It argues that the work area was amulti-employee worksite, that it was a non-controlling employer which took realisticmeasures as an alternative to literal compliance to protect employees (i.e., the blue flagrule).\u00a0 Respondent specifically relies on the holding in Anning-Johnson Co., 4BNA OSHC 1193, 1975-1976 CCH OSHD ? 20,690 (1976) and Grossman Steel & AluminumCorp., 4 BNA OSHC 1185, 1975-1976 CCH OSHD ? 20,691 (1976).\u00a0 Respondent arguesthat responsibility for the accident lies with the employer of the deceased employeebecause the work area in which the employee worked changed from minute to minute and thusit was not controlled by Respondent. We find Respondent’s argument fatally deficient as amatter of fact and law.We find the Anning-Johnson defense notapplicable to Respondent for several major reasons:\u00a0 First, as a matter of fact, asabove discussed, Respondent both created and controlled the hazard.\u00a0 Second,Respondent acted as a general contractor, in effect, and is therefore responsible underthe Act.\u00a0 Thirdly, even if the defense were available, Respondent failed to provethat it provided adequate alternative protection or, that it could not, with the exerciseof reasonable diligence, have known of the violation.Respondent cannot invoke the claimed defense unlessit proves that it neither created nor controlled the hazardous condition. Central ofGeorgia Railroad Co. v. OSHRC, 576 F. 2d 620 (5th Cir. 1978); New England Telephone& Telegraph Co. v. Secretary of Labor, 589 F. 2d 81, (1st Cir. 1978); Marshallv. Knutson Construction Co., 56 F. 2d 596, (8th Cir. 1977). \u00a0 The Anning-Johnsonmulti-employer worksite defense is available only to a sub-contractor who did not createand did not control the hazard and who lacked the ability to abate that hazard.\u00a0 Cotnerand Cotner, 6 OSHC 1163, (1977). \u00a0 Respondent failed to meet this criteria sinceit was the controlling employer whose relationship to its other contractors was like thatof a general contractor.Additionally, Respondent controlled the use of theblue flag rule and\/or derails, and it was the only authority which could authorize use ofthe blue flag or derail in a manner which would take a track out of service.\u00a0 Itessentially created the hazard (holding control over abatement of the hazard) bycontinuing switching operations immediately adjacent to the work area on tracks 15 and 16.\u00a0 Its continued blind pushes of six rail cars towards the construction areaessentially was the instrumentality which caused the hazard of railroad cars entering anunprotected employee work area.\u00a0 As such, Respondent’s argument that it neithercreated nor controlled the hazard is rejected.VI.\u00a0 Respondent was not contradictionallyresponsible for the violation or abatement.Respondent argues that by virtue of its constructionagreements it placed responsibility on the various contractors to follow the OSHAstandards.\u00a0 Respondent points to its bid request package, bid meetings, and varioussafety handbooks provided contractors to demonstrate that if derails were indeed required,for separation of the two work areas, (i.e., crane work area – switching work area),responsibility, as a matter of law and contract, and common sense and practice, was withthe employer of the employees involved and not with it.It is axiomatic that it is the Act, and not acontract or contractual relationship, that is the source of an employer’s responsibilitiesfor its employees safety and for avoiding hazards to which employees are exposed.\u00a0 PBR,Inc. v. Secretary of Labor, supra; Central of Georgia Railroad Co. v.OSHRC and Marshall, 576 F. 2d 620, 625 (5th Cir. 1973).\u00a0 See also:\u00a0 FrolicCrane Service, Inc. v. OSHRC, 521 F. 2d 628, 631 (10th Cir. 1975).\u00a0 Wefind adequate evidence in this record to establish Respondent’s responsibility for hazardabatement both in the construction work area and throughout its switchyard.The record, as earlier discussed, established thatRespondent, as owner and coordinator of the project, exercised considerable control overthe workplace.\u00a0 The Respondent had the ability to effect abatement and held aposition \”akin to that of a general contractor;\” therefore the responsibility toabate falls upon Respondent as it would on any general contractor regardless ofcontractual agreements.\u00a0 Red Lobster Inns of America, 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.\u00a0 Lastly the Commission has held, as in the caseherein, that an employer is responsible for violations of other employers where it couldbe reasonably expected to prevent or detect and abate the violations due to itssupervisory authority and control over the worksite.\u00a0 See Gil Haugan, Red LobsterInns of America, Inc., supra; 7 BNA OSHC 2004, 1979 CCH OSHD ? 24,105; KnustonConstruction Co., 4 BNA OSHC 1759, 1967-77 CCH OSHD ? 21,185 (No. 765, 1976), aff’d566 F. 2d 596 (81th Cir. 1977).\u00a0 Respondent’s argument in this regard is rejected.VII.\u00a0 Complainant’s Alleged Failure toConduct a Reasonable Inspection or Investigation and the Alleged Denial to Respondent ofIts Walk-around Rights, 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 theAct which are mandatory and not merely directory, require that OSHA inspectors present\”appropriate credentials to the owner\” before commencing an inspection and thata representative of the employer shall be given an opportunity to accompany the[inspector] during the physical inspection of any workplace…for the purpose of aidingsuch inspection\” 29 U.S.C. ? 657(a)(e).\u00a0 Respondent cites as authority, ChicagoBridge & Iron Company v. Occupational Safety and Health Review Commission,535 F. 2d 371 (7th Cir. 1976).Respondent maintains that the cited cases requiredismissal of the Citation since the Compliance Officer failed to present his credentialsupon arrival at Respondent’s worksite, did not conduct a formal opening conference, aformal closing conference, and an onsite inspection.\u00a0 Additionally, Respondent listsa series of reasons why the inspection should be considered wanting in completeness.\u00a0We find little merit, as a matter of fact and law, to Respondent’s argument that theinspection was procedurally inadequate and formed the basis for dismissal of the Citation.The Compliance Officer, under the circumstances ofthe case, substantially complied with the requirements of Sections 8(a) and 8(e) of theAct, 29 U.S.C. Section 657(a) and Section 657(e).\u00a0 He conducted an opening conferenceand an investigation which solicited information from Respondent, other employees involvedand hourly employees of Respondent (Tr. 490-500).\u00a0 Respondent had removed theequipment involved in the accident prior to the Compliance Officer’s arrival, and on thisbasis, the Compliance Officer had decided it was not necessary to go to the area toconduct an onsite investigation, which in any event is of no legal consequence.Respondent was in no way prejudiced in thepresentation or preparation of its defense by the alleged failure of the ComplianceOfficer to strictly comply with the procedural requirements of Section 8 of the Act by ashow of his credentials or in any other manner.\u00a0 Respondent knew full well who theCompliance Officer was (Tr. 430, .484).\u00a0 Respondent adduced no evidence at the trialof any prejudice suffered due to the Compliance Officers failure to do an onsiteinspection.\u00a0 The safety director of Respondent conducted an accident investigationimmediately after the fatality and before the OSHA investigation.\u00a0 Managementofficials were present during the coroners investigation.\u00a0 In fact, members ofRespondent’s management were actual witnesses to the fatality. Under the circumstances, wefind that no prejudice could flow to Respondent from any alleged procedural violation ofthe Act whether real or imagined.Assuming there was some procedural problem in theinvestigation, we still find no reason to vacate the Citation.\u00a0 An agency’sprocedural failures will not vitiate regulatory actions absent a specific showing that thecomplaining party has been concretely prejudiced thereby.\u00a0 United States v. PierceAuto Freight Lines, 327 U.S. 515, 528, 530 (1946); National Roofing ContractorsAssociation v. Brennan, 495 F.2d 1294, (7th Cir. 1974), cert denied, 419U.S. 1105 (1975); City of Chicago v. F.P.C., 458 F.2d 731, 745-748 (D.C. Civ.1971).\u00a0 This rule of harmless error or procedural error rests upon policies which areparticularly applicable to the OSHA statute which should be entitled to a liberalconstruction to afford maximum protection to employees it seeks to protect.\u00a0 See:\u00a0 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 (4th Cir.), cert denied, 429 U.S. 999(1976).\u00a0 Respondent has failed to show any prejudice to its case.VIII.\u00a0 The Complainant Should Allegedly beDismissed Because It Was Served Out of TimeRespondent’s last argument, as an affirmative defenseto 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 casenine (9) days beyond the period for filing required by Commission Rule 33(a)(1). \u00a0Commission law is clear that a Citation should not be vacated unless the noncomplianceresults from contumacious conduct or causes prejudice to the opposing party. \u00a0 RefractoryConstruction, Inc., 9 BNA OSHC 1192, 1981 CCH OSHD ? 25,088; Henry C. Beck Co.,9 BNA OSHC 1191, 1981 CCH OSHD ? 25,087.\u00a0 Respondent relies upon TRG DrillingCorp., 1982 CCH OSHD ? 25,837 for the proposition that Respondent need show noprejudice in order to warrant dismissal of the action.\u00a0 TRG Drilling, however,specifically recites a two prong test to claim this defense:\u00a0 contumacious action orprejudice to Respondent (1982 CCH OSHD at 32,319).\u00a0 In TRG Drilling theSecretary filed the complaint 39 days out of time, failed to respond to a Motion toDismiss, and made no assertion of a good faith reason for late filing.\u00a0 The majorityopinion therefore upheld the Administrative Law Judge’s finding of contumacious conduct onthe part of the Secretary.Respondent in the present case made no motion todismiss, but proceeded to trial without pursuing the issue of late filing in any mannerand at trial offered no proof of prejudice at all.\u00a0 Furthermore, there being noprejudice to Respondent shown, and there being no contumacious conduct by Complainant’slate filing, ordinary due process and fundamental fairness require rejection ofRespondent’s argument.ALLEGED VIOLATION OF 29 C.F.R.-1910.176(f) -ROLLING RAILROAD CARSThe burden of proof lies with the Complainant inestablishing a violation of a particular standard.\u00a0 In cases dealing with seriousviolations of a standard, the Commission and courts have translated that burden into theSecretary being required, as part of his prima facie case, to establish the followingfacts:\u00a0 (1) that a particular standard applies to the facts, (2) that the citedemployer failed to comply with the standard, (3) that the cited employer’s employees hadaccess to the hazard, and (4) that the employer knew or with the exercise of reasonablediligence could have known of the presence of the violation.\u00a0 Seaboard Foundry,Inc., 11 BNA OSHC 1398, 1983 CCH OSHD 26,522, 1981 CCH OSHD ? 25,358, 9 BNA OSHD1864; General Electric Co., 19 BNA OSHD 1722, 1981 CCH OSHD ? 25,345; UnitedGeophysical Corporation, 9 BNA OSHC 2117, 1981 CCH OSHD ? \u00a0 25,579; MarionPower Shovel Corp., 8 BNA OSHC 2244, 1980 CCH OSHD ? 24,915; Brennan v. OSHRCand Raymond Hendrix 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).\u00a0 We find that the Complainant has not only made his prima facie case but has met hisburden in preponderating on the issues involved in establishing a violation of thestandard and Act by the Respondent.In the instant case the cited standard, 29 C.F.R.1910.176(f), had particular application to the facts of this case in that Respondent’sswitchyard was integral to and terminated in a material handling and storage facility,i.e., Respondent’s grain processing operation.\u00a0 A temporary construction work areathat adjoined the processing facility was situated on and between tracks 15 and 16 ofRespondent’s switchyard.\u00a0 Employees were in need of protection from the hazards ofrail cars unexpectedly coming into the work area on tracks 15 and 16.\u00a0 (pp. 13,16-19, 24-26, supra).\u00a0 The cited standard required, in applicable part, that a\”…derail … be provided on spur railroad tracks where a rolling car could contactother cars being worked (or) enter a… work … area.\”\u00a0 No such derail wasprovided all during the period of construction for the worksite located on or proximate tothe tracks where switching took place.In the instant case we find that Respondentunequivocally controlled the operation of the rail switchyard where the accident,resulting in an employee’s death, took place.\u00a0 Rail cars were continually moved andswitched from one track to another, notwithstanding the temporary construction site.\u00a0 Respondent kept tight control of the movement of its locomotive and all rail cars.It had close supervision of the rail switching facilities.\u00a0 The facts showed thatvirtually nothing took place at the switchyard without Respondent’s knowledge, supervisionand acquiescence.\u00a0 (pp. 15, 19-22, supra.)Significant emphasis was placed by Respondent onkeeping its switchyard fully operational since any disruption in the ability to movefilled or empty 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 wasused to directly or indirectly handle or supply product to one of its processingbuildings, out of service or partially out of service was unacceptable to Respondent.\u00a0 Such tracks were tracks 15, 16 and 17, used to shift empty and full rail carsinconjunction with its processing activities.\u00a0 Significant testimony in this caseindicated that any obstruction to these tracks would be closely supervised and managed byRespondent.\u00a0 Use of a blue flag or derail to take a portion of or the entire trackout of service had to be coordinated and cleared through Respondent’s managementpersonnel.\u00a0 (pp. 20, 21, 22, supra).\u00a0 Accordingly, with Respondent’suncompromising emphasis on keeping the production rail tracks clear (pp. 16, 20, 21, 24, supra)use of derails or blue flags was effectively curtailed in the construction areas, or inrail areas which could have kept switching activities reasonably distant from that workarea.In narrowing the factual issues of this case we willprimarily concentrate on that construction work area which comprised the south end oftracks 15 and 16, notwithstanding that construction work crews were located on othertracks within Respondent’s switchyard beginning approximately in November 1980. \u00a0Employees in these work areas worked without access to derails or reasonable use ofRespondent’s blue flag rule.In December 1980, after it had been determined byRespondent that a large crane operating near building 203 was significantly hamperingmovement of the rail cars on tracks 15 and 16, Respondent arranged for a small crane towork in this area.\u00a0 On December 16, 1980 the O’Neill Company arrived with a smallercrane and with a forklift truck used to handle the structural steel in conjunction withthe crane operations.\u00a0 The crane and forklift truck were placed into operation onDecember 17, 1980 and were situated each day in essentially the same position on the southend of tracks 15 and 16 up to and including January 21, 1981, the date of the accident(pp. 16, 17, 18, 19, supra).The layout of Respondent’s switchyard is such thattrack 17 curved into tracks 15 and 16.\u00a0 Tracks 15 and 16 were curved at its northernend.\u00a0 Thus the engineer and switchman, when pushing a five or six rail car train,could not see the area where the fifth and sixth car would be pushed.\u00a0 (Ex. C-9,C-40) Nor could they see much of tracks 15 and 16 when pushing cars into those tracks fromtrack 17.\u00a0 This accounted for the \”blind\” pushes.\u00a0 No derail devicewas placed on the track north of the location of the crane or forklift, nor were any blueflags positioned on tracks 15 and 16 at such a point where it would be visible to theengineer if his locomotive were on the north part of track 17 at the switchover to tracks15 or 16.\u00a0 Indeed no blue flag was used at all.Respondent was fully aware of this situation andcontinued to require the locomotive to push six rail cars in the blind onto tracks 15 and16 during the period of the construction work.\u00a0 Significantly, Respondent’smanagement personnel who supervised the switchyard, processing plant, construction workand safety program were all fully aware of the crane’s location, the absence of a derailand blue flag, and the \”blind\” pushes of up to six cars close to the work areaon tracks 15 and 16.Respondent argues that the activities of O’Neill insetting up a work area using a crane and a forklift truck, was something it was unawareof, and could not control.\u00a0 We fail to recognize any credence to such an argument.\u00a0 The facts show that the nature of the work required that the O’Neill crane, as wellas the forklift, be in the area near building 203 occupying tracks 15 and 16 and the spacebetween them.\u00a0 It is without question that Respondent should have expected the craneor forklift truck to be closer than 8 to 8 1\/2 feet to the train tracks, or the designatedend of the track, since the crane itself with its outriggers extended straddled bothtracks 15 and 16.\u00a0 It is difficult to understand Respondent’s position that onJanuary 21, 1981 it was without knowledge of the activities of O’Neill since the crane andforklift truck were in the same location where it had been in use since December 17, 1979and Respondent was aware that an 18 foot wide crane could not sit on track 15 withoutstretching onto track 16.We find that Respondent created a hazardous work areawithin its facility and had a duty to inspect the area to determine the extent of hazardsto which its employees and subcontractors employees would be exposed, and the necessityfor protective controls to reduce or eliminate the hazard.\u00a0 The Commission has heldthat an employer must make a reasonable effort to anticipate the particular hazards towhich its employees may be exposed in the course of their scheduled work. \u00a0Specifically, an employer must inspect the area to determine what hazards exist or mayarise during the work before permitting employees to work in an area, and the employermust then give specific and appropriate instructions to prevent exposure to unsafeconditions.\u00a0 Southwestern Bell Telephone Co., 7 BNA OSHC 1058, (1979)CCH OSHD ?\u00a0 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 with the standard since thehazard was patently obvious and it was fully aware of the entire situation.\u00a0 Howeveras can be seen from the credible evidence within this record it failed in such obligation.It is important to digress at this point and focus onthe incident of January 21, 1981 to place that incident in its proper perspective withrespect to any conclusions reached in this case.\u00a0 The complaint correctly does notrely upon the fact of the employee’s death as proof of the core issues in this case, sinceto do so would, in essence, make of this employer an insurer of the employee’s well beingand a guarantor of the employee’s compliance with the safety and health standards. \u00a0Such a result has not been sanctioned by the courts or the Commission.\u00a0 Brennan v.OSHRC and Raymond Heidrix d\/b\/a\/ Alesa Lumber Company, supra; NationalRealty & Construction Co. v. OSHRC, 489 F. 2d 1257 (D.C. Cir. 1973). \u00a0Complainant in arguing for affirmation of the Citation, focuses upon the conditionsexisting at Respondent’s workplace, these conditions existing from the start ofconstruction in October 1980, and particularly since December 17, 1980, to establish theviolative condition.\u00a0 We agree in this view.\u00a0 We further agree that the incidentgiving rise to the death of the employee was the result of the violative condition ofnoncompliance by Respondent with 29 C.F.R. 1910.137(f).Respondent portrays the positioning of the forklifttruck by the O’Neill employees as an idiosyncratic act, and his walking between theforklift and the crane, at the moment that the train pushed these two pieces of equipmenttogether, as part of that idiosyncratic act.\u00a0 We do not view the incident as doesRespondent; we find that the facts show otherwise.The accident occurring January 21, 1981, whichresulted in the death of Mr. Bruce, is viewed as a foreseeable circumstance thatinevitably came about after the creation of a particularly hazardous and dangeroussituation at the worksite.\u00a0 This accident, or some similar type accident, could nothave been unexpected since Respondent’s employees regularly made blind pushes of five andsix railroad cars towards the construction area.\u00a0 The engineer and the switchman wereout of visual contact with the rearward part of their train as they pushed towards andclose to the construction area.\u00a0 This was done on a day to day basis and it was onlya matter of time until some complication occurred.\u00a0 While Respondent, in defense ofthe alleged violation, relies on the existence of the blue flag rule, even use of its blueflag rule would have been to no avail in protecting the construction employees.\u00a0 Theblue flag would have been obscured to the conductor and switchman in any event since inorder to comply with Respondent’s intentions and directions for placement of the flag, itwould have been placed adjacent to the construction area quite out of sight of the traincrew. Respondent never allowed 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 placedsomewhere at midpoint of track 15 and 16 perhaps the switchman and engineer could haveobserved same and stopped their train short, avoiding contact with the constructionequipment.\u00a0 This transcript is replete with evidence indicating the urgency to whichRespondent mandated that it keep its track in full operation, so that it could carry outits processing activities.\u00a0 All the time work crews were situated on the last quarterof two of its most active tracks and Respondent continued to have its train crews pushrail cars on the tracks to their fullest capacity (pp. 17, 18, 19, 21, 22, 23, 24, 25, 26,supra).\u00a0 This created a hazard which could have been abated only through useof a properly placed derail, as required by the standard.\u00a0 Respondent’s actions, asabove described, resulted in a violation of the standard and Section 5(a)(2) of the Act.Accordingly, the Citation herein will beaffirmed.\u00a0 We find that had there been initial compliance by Respondent with 29C.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 to its coming incontact with the forklift truck which was then pushed against the crane.\u00a0 Anemployee’s death would have been averted.\u00a0 We find this conclusion inescapable andnothing in this record ameliorates reaching such conclusion.\u00a0 Since the hazardaddressed by the standard is immediate, we find the abatement time specified in theCitation reasonable and as such will be affirmed.PENALTYIn reviewing the appropriateness of the proposedpenalty, we can not help but be affected by the serious consequences that could, and did,flow from Respondent’s failure to comply with the cited standard.\u00a0 Respondent notonly allowed the violative condition to exist all during the construction period, butindeed, created the hazardous condition.\u00a0 Accordingly, after giving due considerationto those factors as set forth in Section 17(j) of the Act, the penalty will be affirmed asproposed in the Citation.ORDER Based upon the foregoing Findings of Fact andConclusions of Law, as set out in my Decision and Order, and for good cause shown,it is ORDERED:1.\u00a0 That item 1 of Serious Citation 1 isAFFIRMED.2.\u00a0 A penalty of $900 is assessed.Edward A. Bobrick Judge, OSHRCDate:\u00a0 February 28, 1985Chicago, Illinois\u00a0FOOTNOTES: [[1]] A derail is a device attached to a rail trackwhich, when contacted by the flange of a rail car wheel passing over it, causes the car togo off the track.\u00a0 A bumper block is a heavy, solid structure placed at the end of arail track to prevent rail cars or equipment from rolling over the ends of the track.[[2]] There is no evidence in the record that priorto the citation Lauhoff relied to its detriment on the definition employed in the FisherMills variance.[[3]] While we do not discuss the greater hazardissue with respect to derailers, we take note of testimony indicating that derailers wereplaced on other tracks in Lauhoff’s yard.[[4]] Lauhoff has also argued that it hadalternatively protected employees by its blue flag rule.\u00a0 The argument is rejected.\u00a0 The cited standard clearly states that derails and\/or bumper blocks are the twoforms of protection to be provided against rolling cars.\u00a0 The standard does not statethat a blue flag may be used instead of those devices.\u00a0 But even if we were toconsider whether a blue flag is an adequate alternative means of protection, Lauhoff didnot blue flag this track.\u00a0 It continued to conduct blind pushes into a constructionarea.[[1\/]] Jurisdiction of the parties and the subjectmatter herein is confirmed upon the Occupational Safety and Health Review Commission bySection 10(c) of the Act.[[2\/]] Rule 5 states:\”Signs and safety signals constitute safetyrules and must be obeyed.\” [[3\/]] Rule 9 states:\”Employees shall place a blue flag on the trackor turn on the blue light above the track beyond the rail car they are going to workin.\”[[4\/]] Building 205 is in what is known as the\”extraction area\” at Lauhoff (Tr. 334).\u00a0 Soy bean oil is extracted from soybeans utilizing a piece of equipment called a \”rotocel.\”\u00a0 A gas, hexane, isused to extract the oil; then the hexane is evaporated from the oil, leaving the soy oil.\u00a0 The hexane is recondensed and recirculated through the \”rotocel\” (Tr.345).\u00a0 Hexane is flammable and volatile (Tr. 345).\u00a0 During the entire timeEllington Miller was engaged in construction in the extraction area, hexane continued tobe pumped through lines in building 205 while Lauhoff employees continued work relatedactivities in the building (Tr. 345).[[5\/]] Bunge Corporation is Lauhoff’s parentcorporation.[[6\/]] The only documents Lauhoff distributed toEllington Miller dealing with safety were Exhibits C-4A,B,C,D, and E and Joint Exhibit 2Aand 2B (Tr. 340).\u00a0 Among these documents, only two safety rules in any way dealt withrailroad safety, (Rules 8 and 9 of the Lauhoff Safety Rules) which stated:Do not climb under, over, or go between railroadequipment.\u00a0 When necessary to walk around railroad equipment, stay at least ten feetaway from end of cars or engines, except when equipment is on loading or cleaning trackand blue flag is in place (No. 8)Employees shall place a blue flag on the track orturn on the blue light 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’sfacility was approximately 32 feet long and was equipped with a boom 170 feet high (Tr.295, 297, 304).\u00a0 The body of the crane was positioned on a truck body and was 10 1\/2feet wide (Tr. 295).\u00a0 The cab of the crane was capable of rotating 360 degrees (Tr.297).\u00a0 To stabilize the crane, the crane was equipped with two stabilizers oroutriggers on each side (Tr. 305, 307).\u00a0 The outriggers extended 9 feet from thecenter of the crane to a total distance of 18 feet wide (Tr. 923-924).[[8\/]] A \”derail\” is a device attached tothe rail of a railroad track which drives the wheels of the train car off the track andonto the gauge and ground outside the track, thus preventing the car from continuing toroll on the track.\u00a0 The derail is used to prevent railroad traffic beyond a givenpoint (Tr. 712-713, 1289).\u00a0 It is an emergency device and is intended to be used onlyif a train car inadvertently strays or rolls beyond a safe section of track (Tr. 716).\u00a0 It can be set to derail a car to the right or left of the track (Tr. 762).\u00a0 Aderail is a device of last resort to prevent the more serious consequences and hazardsassociated with unauthorized and\/or controlled train car movement (Tr. 716, 1297). \u00a0Derails are often hinged so they can either be locked to derail traffic or locked topermit traffic to pass the derail point (Tr. 762).\u00a0 They can be made to be easilyportable (Ex. C-10-a).[[9\/]] A bumper block is a solid obstacle set between the two rails of a track.\u00a0 Itis used to prevent cars from going beyond a given point (Tr. 719).\u00a0 Because traintraffic cannot pass a bumper block, they are most often positioned at the end of arailroad track (Tr. 719-763, 876, C-40 track 17).[[10\/]] Subpart n – materials handling and storage1910.176 – Handling materials – General (f) Rolling railroad cars.Derail and\/or bumper blocks shall be provided on spur railroad tracks where a rolling car could contact other cars being worked, enter a building, work or traffic area.[[11\/]] A variance was granted in Fisher Millsfor a switching operation which involved only cars moved under power of engines.Fisher Mills Company requested a variance to use flags instead of derails recognizing that1910.176(f) was applicable to their switching operation.\u00a0 The grant of variance in FisherMills is consistent with affirmation of the citation in the present case.\u00a0 Theeffect of the grant of variance in Fisher Mills was to grant the variance requestapplication to provide a different but adequate means of abatement of the hazard addressedby the OSHA regulation applicable to locomotive switching operation, 1910.176(f).\u00a0 InFisher Mills, 1910.176(f) was applicable to the kind of switching beingdone.\u00a0 Therefore, Fisher Mills would have been required to derail or bumperits tracks unless the Secretary found that special facts in the request for varianceprovided employees with adequate alternative means of protection from the hazard.\u00a0 Wefurther see that the facts in Fisher Mills concerning worker protection areinapposite to the present case.\u00a0 In the variance, all work on the track was forbiddenduring switching.\u00a0 There was no work area on the track.\u00a0 Switching was done onlyby an outside railroad and after notice to Fisher Mills management and wasconducted at their direction.\u00a0 Also, there were no blind pushes.\u00a0 These factsand many others in the Fisher Mills matter assured the Secretary that employeeswould be adequately protected by means other than the use of a derail or bumperblock.\u00a0 The facts in the instant case in no way assure such a degree of protection.[[12\/]] Most of the cars on track 16 had been ontrack 17 and if the air brakes were set then they had to be removed with the totaldepletion of air from its system in order to switch them again.\u00a0 There is no mentionin the record of reconnecting the air brakes.\u00a0 We must conclude none were set.”