“SECRETARY OF LABOR,Complainant,v.PHILADELPHIA, BETHLEHEM ANDNEW ENGLAND RAILROAD COMPANY,Respondent,LOCAL 1586 UNITED TRANSPORTATION UNION,Authorized EmployeeRepresentative.OSHRC Docket No. 77-2200_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:An amended citation issued by the Secretary of Labor alleges thatPhiladelphia, Bethlehem and New England Railroad Company (\”theRailroad\”) violated two personal protective equipment safety standards,29 C.F.R. ?? 1910.132(a)[[1\/]] and 1910.133 (a) (1), [[2\/]] at a steelplant operated by Bethlehem Steel Corporation (\”Bethlehem Steel\”) inBethlehem, Pennsylvania. Administrative Law Judge Joseph L. Chalkvacated the citation. The case is before us under 29 U.S.C. ? 661(i). We affirm the judge’s disposition.Inasmuch as the judge’s decision adequately sets forth the facts, weshall set forth only some of them here. The worksite in questionconsists of an upper level (\”the cast floor\”) where blast furnace \”B\” islocated and a ground level (\”the track level\”) where four sets ofrailroad tracks enter beneath the cast floor. Molten material from theblast furnace passes through openings in the cast floor and pours intorailcars that are positioned on the track level below. When the moltenmaterial descends into the railcars, it occasionally splashes andsolidifies on the vertical and horizontal building girders on the tracklevel. Bethlehem Steel employees use hooks and jackhammers to chip offthe hardened material when it accumulates. Payloaders then remove thematerial from the ground. At least once every thirty-six hours, thehardened material is also removed from the railcars themselves by meansof jackhammers and magnets.During an eight-hour shift, a single Railroad employee enters the trackarea beneath the blast furnace not more than three times, forapproximately 5-15 minutes each time, in order to shift the railcars. While the Railroad employee is in the track area aligning the railcarsunderneath the openings in the cast floor, he uses hand or light signalsto communicate with the engineer on the locomotive which pushes or pullsthe railcars into position. The Railroad and Bethlehem Steel utilize awarning system of colored lights and whistles so that Railroad employeesdo not enter the track area while molten material is flowing from thecast floor into the railcars on the track level. In addition,Bethlehem Steel employees are instructed not to throw any debris fromthe cast floor through the openings while Railroad employees are workingbelow.At the hearing, an OSHA compliance officer testified that during theinspection he had observed pieces of solidified material fall from anoverhead vertical support and land within six feet of a Railroademployee after the support was struck or rubbed by a passing railcar. The employee was not wearing a hard hat or safety glasses withside-shields. The officer stated that the largest of the pieces wasabout nine inches in diameter by an inch-and-a-half thick. A secondcompliance officer observed golf-ball-size pieces of the solidifiedmaterial fall to the ground from a vertical member on another occasion. The Secretary also introduced evidence that the build-up of solidifiedmaterial upon electrical wires causes them to break from time to time. In addition, he established that Bethlehem Steel officials haddesignated the track level as a hard hat area for its own employees. Finally, the Secretary demonstrated that similarly engaged employees atanother steel plant wore hard hats and safety glasses at the track level.The Railroad established that its employees do not enter the track areawhile pouring activity is taking place on the cast floor. Moreover,unrebutted testimony by the Railroad’s yardmaster indicated that onlythe largest of the three sizes of railcars used in the operation werecapable of rubbing against structural supports in the area of the tracksand, then, only when the receptacle mounted on the railcars wasimproperly aligned. [[3\/]] The yardmaster further testified he hadnever known solidified metal to fall down. Similarly a brakeman for theRailroad testified no material had fallen off the ladles when he wasunder the cast floor. The same employee also said he had known ladlesto hit a vertical member only four times in twelve years. TheRailroad’s injury records also show that for over 5 million man-hours noemployee of the Railroad had ever been struck by flying or failingmaterial dislodged by passing railcars. Additionally, the Railroad’sacting superintendent, who had more than twenty-one years of experiencein the railroad business, all of which was associated with the steelindustry, testified that hard hats and safety glasses are not worn byrailroaders in the steel industry. He added that there had never beenany concerted effort by any public organization or by any union torequire the wearing of hard hats or safety glasses by railroaders in thesteel industry.Judge Chalk found that solidified material had been dislodged by movingrailcars in few instances. He noted however the Railroad’s low overallinjury rate–particularly the absence of injuries attributable to thehazards contemplated by the citation. The judge further found that itis not customary in the steel railroad industry to wear hard hats orsafety glasses when entering the track area beneath the floor of theblast furnace and that the Railroad had neither actual nor constructivenotice of the need to require its employees to wear such personalprotective equipment. He therefore vacated the citation.On review, the Secretary asserts that the Railroad’s employees wereexposed to head and eye injuries caused by failing solidified materialdislodged by moving rail equipment (as a result of contact or vibration)and also caused by Bethlehem Steel employees’ dumping waste materialfrom above through openings in the cast floor while Railroad employeesworked below at track level. The Secretary alleges that the judge erredin relying upon the evidence concerning industry practice and theRailroad’s injury history. The Secretary argues that the appropriatetest here is whether a reasonable person would recognize a hazard, thatit is not necessary to examine industry practice when the hazard isreadily apparent, and that the hazard of flying or falling material wasshown to be readily cognizable in this case.The Commission has held that a hazardous condition requiring the use ofpersonal protective equipment exists under section 1910.132(a) if areasonable person familiar with the circumstances surrounding anallegedly hazardous condition, including any facts unique to aparticular industry, would recognize a hazard warranting the use ofpersonal protective equipment. Lukens Steel Co., 81 OSAHRC 96\/A2, 10BNA OSHC 1115, 1123, 1981 CCH OSHD ? 25,742, p. 32,118 (No. 76-1053,1981). See also Marshall v. Haysite, Division of Synthane-Taylor No.80-1800 (3rd Cir. Nov. 17, 1980); Voegele Company, Inc., v, OSHRC, 625F.2d 1075 (3rd Cir. 1980). Although not necessarily dispositive,evidence of industry custom and practice will aid in determining whethera reasonable person familiar with the circumstances and with any factsunique to the industry would perceive a hazard. Lukens Steel Co., supra;Owens-Corning Fiberglas Corp., 79 OSAHRC 26\/D6, 7 BNA OSHC 1291, 1295,1979 CCH OSHD ? 23,509, p. 28,491 (No. 76-4990, 1979), aff’d, 659 F.2d1285 (5th Cir. 1981). The Commission also will examine an employer’sown understanding of the alleged hazard. Id. Finally, section1910.133(a)(1), like section 1910.132(a), is so broadly-worded that itis appropriate to apply the reasonable person test in assessingcompliance with the standard.The evidence regarding industry custom and practice establishes that thewearing of hard hats and safety glasses is not customary in the steelrailroad industry. The Railroad presented two witnesses with extensiveindustry experience who reported that hard hats and safety glasses arenot considered to be necessary protective equipment for railroaders inthe steel industry. In contrast, the Secretary’s witness on industrycustom and practice was a steelworker rather than a railroader. Henever claimed any knowledge of steel railroad industry custom other thanwhat he had observed in his work at an unrelated steel plant. Industrycustom, therefore, does not afford a basis for concluding thatreasonable persons familiar with the circumstances would have recognizedthe need for protective equipment.The remaining evidence is also unpersuasive either that the Railroadrecognized or that a reasonable person would have recognized the needfor hard hats and safety glasses. Railroad employees do not enter thetrack level beneath the cast floor while pouring operations are takingplace. The solidified material is routinely removed from bothstructural members and railcars–a task which requires the use ofjackhammers and magnets. The testimony that electrical wiresperiodically break under the weight of accumulated solidified materialand could swing down to strike an employee is speculative. The evidenceestablishes that over the course of 5 million man-hours no Railroademployee has ever been struck by flying or falling material dislodged bypassing railcars. Indeed, the record demonstrates that the occurrence ofan incident where the material would thus dislodge was extraordinary,involving only the largest railcars and only when these were improperlypositioned. Moreover, the incidents involving the dumping of debrisfrom the blast furnace level by Bethlehem Steel employees were rare andwere the result of Bethlehem Steel employees’ misconduct specificallyprohibited by Bethlehem Steel workrules. See Cotter & Co. v. Marshall,598 F.2d 911 (5th Cir. 1979). These incidents furnish insufficient basisfor finding that the Railroad had notice of the hazards cited by theSecretary. [[4\/]]Thus, we conclude that the Secretary failed to establish that areasonable person familiar with the working conditions at the citedworkplace would recognize a hazard of debris or solidified materialfalling on Railroad employees, requiring the protection of either hardhats or safety glasses.[[5\/]]Accordingly, we affirm the judge’s disposition.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983COTTINE, Commissioner, concurring in part and dissenting in part:Contrary to the finding of the majority, the record in this case doesestablish that a reasonable person would recognize the existence ofhazards warranting the use of personal protective equipment. Accordingly, I dissent from my colleagues’ vacation of the citation itemalleging noncompliance with 29 C.F.R. ? 1910.132(a) for failure toprovide hard hat protection. However, the record fails to establishthat the safety glasses without side shields worn by the Railroademployee who was observed by the compliance officers constitutedinadequate eye protection under 29 C.F.R. ? 1910.133(a)(1). I thereforeconcur in vacating that item. [[1\/]]The evidence establishes routine violations by Bethlehem employees ofthe rule against dumping debris through the chutes into railroad carswhile Railroad employees are below the cast floor. Railroad employeeshave on several occasions complained to Bethlehem employees about thepractice. A Railroad brakeman with 30 years experience testified,\”[t]hese men continually throw things down when our men are shiftingunder the floor.\” Similarly, a Bethlehem employee with 13 yearsexperience testified that Railroad employees have on approximately sixoccasions over a four year period complained to Bethlehem cast floorpersonnel regarding violations of the green light rule. This witnessalso related an incident in which railroad employees complained abouthot water splashing down from the cast floor when a Bethlehem employeewas attempting to cool molten metal on the runners for removal. Thewitness further testified to an occasion when an incoming railroad carcontacted the cast floor with sufficient force to raise the floor. Thewitness later observed a great deal of loose material, including ironpieces, lying on the floor and noticed two or three twisted structuralbeams that were subsequently replaced by Bethlehem.Bethlehem’s motor inspector-electrician testified that he was aware of asubmarine car striking the splash plate under the main beam supportingthe cast floor. The splash plate is installed to protect the beamsfrom splashing molten metal and tends to sag from the weight of themetal. Slag also accumulates on electrical wires under the floor,causing the wire to tear. The witness testified that the torn wire withaccumulated slag could swing down and strike an employee on the head. The record further establishes that during the inspection an incomingladle car struck a vertical supporting member under the cast floorcausing pieces of solidified metal that had accumulated on thesupporting framework to be propelled toward a Railroad employee.This record evidence of a hazard is corroborated by evidence thatBethlehem employees entering the area below the cast floor are requiredto wear hard hats and eye protection. According to the complianceofficer, he had been informed by both Bethlehem’s Safety Director andits OSHA Coordinator that a hazard existed in the area that required theuse of these forms of personal protective equipment. In addition, theSafety Director informed the compliance officer that he had triedunsuccessfully on three or four occasions to have Railroad employeesworking in the area wear hard hats and eye protection. The evidencealso establishes that railroad employees working at the U.S. Steel plantin a blast furnace area similar to the Bethlehem furnace use hard hatsand safety goggles.The majority acknowledges that Bethlehem has designated the track levelbelow the cast floor as a hard hat area and that the Secretary hasdemonstrated the use of hard hats and safety glasses by similarlyengaged employees at another steel plant. Nevertheless, the majorityconcludes that the evidence is unpersuasive that the Railroad recognizedor that a reasonable person would have recognized the need for personalprotective equipment. In reaching this conclusion, the majority pointsto: (1) Bethlehem’s green light rule; (2) evidence that incidents ofdebris dumping were rare and were the result of misconduct by Bethlehememployees; (3) evidence that only improperly positioned large railcarscould strike beams; (4) the routine removal of solidified material fromthe structural members; and (5) the absence of a history of injury toRailroad employees from material dislodged by passing railcars. Themajority further concludes that the evidence establishes that the use ofpersonal protective equipment is not customary in the steel railroadindustry.Whether the incidents previously described resulted from violations ofworkrules by Bethlehem employees or improper positioning of largerrailcars, the resulting hazard to Railroad employees is apparent. Although the routine removal of solidified metal adhering to the beamsand chutes below the cast floor may reduce the hazard of being struck bydislodged metal pieces, it does not eliminate the hazard. [[2\/]]Furthermore, it does not affect the burn hazard from splashing moltenmetal to which Railroad employees are exposed when Bethlehem employeesdump material into cinder pots that may be filled with molten material.The majority correctly notes the absence of a history of injuries frommaterials dislodged by passing railcars. However, the majority ignoresthe reported injury to a Railroad brakeman who was splashed on the headand burned by molten metal from an over-filled ladle car. [[3\/]]Nevertheless, an absence of injuries does not dispose of the issue ofwhether a hazard exists. The goal of the Act is to prevent the firstinjury. Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary ofLabor & OSHRC, 674 F.2d 1177, 1185 (7th Cir. 1982); Mineral Industries &Heavy Construction Group v. OSHRC, 639 F.2d 1289, 1294 (5th Cir. 1981).The record as a whole clearly establishes the existence of hazards topersonnel working below the cast floor. These hazards and the need forprecautions are readily acknowledged by Bethlehem personnel. However,workplace hazards do not discriminate between employees of differentcrafts. The hazards exist regardless of the nature of the employment orthe contrasting safety practices of the industries involved. [[4\/]] TheCommission interprets safety standards to provide the same protection toall employees exposed to the same hazards at a worksite. See GelcoBuilders, Inc., 77 OSAHRC 203\/B14, 6 BNA OSHC 1104, 1106, 1977-78 CCHOSHD ? 22,353 at p. 26,941 (No. 14505, 1977). Furthermore, the Act hasconsistently been interpreted to reject adherence to industry practicesthat fail to protect against workplace hazards. E.g., General DynamicsCorp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453 (1st Cir. 1979),citing with approval, S & H Riggers & Erectors, Inc., 79 OSAHRC 23\/A2, 7BNA OSHC 1260, 1979 CCH OSHD ? 23,480 (No. 15855, 1979), rev’d, 659 F.2d1273 (5th Cir. 1981); Bunkoff Constr. Co., 80 OSAHRC 117\/A2, 9 BNA OSHC1043, 1980 CCH OSHD ? 24,988 (No. 76-2760, 1980). The Act was designedto improve the safety of working conditions in industry, not to maintaina hazardous status quo. Id. Citation item 1(a) for failure to providehead protection should be affirmed on the grounds that a reasonableperson familiar with the circumstances would recognize a hazard thatwarrants the wearing of hardhats. See Lukens Steel Co., 81 OSAHRC96\/A2, 10 BNA OSHC 1115, 1981 CCH OSHD ? 25,742 (No. 76-1053, 1981);Tube-Lok Products, 81 OSAHRC 17\/B7, 9 BNA OSHC 1369, 1981 CCH OSHD ?25,235 (No. 16200, 1981).————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] 29 C.F.R. ? 1910.132(a) provides:? 1910.132 General requirements.(a) Application. Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, protective clothing,respiratory devices, and protective shields and barriers, shall beprovided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact.[[2\/]] 29 C.F.R. ? 1910.133(a)(1) provides:? 1910.133 Eye and face protection.(a) General. (1) Protective eye and face equipment shall be requiredwhere there is a reasonable probability of injury that can be preventedby such equipment. In such cases, employers shall make convenientlyavailable a type of protector suitable for the work to be performed, andemployees shall use such protectors. No unprotected person shallknowingly be subjected to a hazardous environmental condition. Suitableeye protectors shall be provided where machines or operations presentthe hazard of flying objects, glare, liquids, injurious radiation, or acombination of these hazards.[[3\/]] The United Transportation Union participated actively at thehearing, but has not filed a brief on review, indicating by letter tothe Commission that it is in \”full accord\” with the Railroad’s position.[[4\/]] The dissent speculates that Railroad employees are exposed to aburn hazard from splashing molten metal caused by Bethlehem employees’dumping material into cinder pots that may be filled with moltenmaterial. The record, however, does not disclose a single instance ofmolten material splashing out of a cinder pot as a result of scrap orother material being dumped in, nor is there anything in the recordwhich explains how such an accident could occur. The dissent also notesthat a Railroad brakeman reportedly was burned by molten metal whichsplashed out of an over-filled ladle. Nevertheless, the recordcontains no evidence that this incident–which did not produce alost-time injury–took place in or near the area cited by the Secretary. That this could happen, somewhere, does not establish hard hats arenecessary in the location cited.[[5\/]] Chairman Rowland does not decide at this time whether theCommission’s reasonable person test or the Fifth Circuit’s industrycustom\/actual knowledge test, see Owens-Corning Fiberglas Corp. v.Donovan, supra, is more appropriate. He notes that the Secretary hasfailed to establish a violation of the cited standards under eithertest. See Consolidated Rail Corp., 82 OSAHRC 41\/D3, 10 BNA OSHC 1851,1858 n.19, 1982 CCH OSHD ? 26,165, p. 32,992 n.18 (No. 78-238, 1982)(Rowland, Chairman, dissenting in part and concurring in part).Chairman Rowland notes that the application of OSHA standards andregulations to working conditions that are the subject of regulation byanother agency is precluded by ? 4(b)(1), 29 U.S.C. ? 653(b)(1), of theAct. Section 4(b)(1) provides in part:Nothing in this chapter shall apply to working conditions of employeeswith respect to which other Federal agencies. . . exercise statutoryauthority to prescribe or enforce standards or regulations affectingoccupational safety or health.Chairman Rowland has pointed out that, because ? 4(b)(1) is ajurisdictional requirement rather than an affirmative defense, it may beraised and considered at any stage of the proceedings. Gearhart-OwenIndustries, Inc., 82 OSAHRC ___, 10 BNA OSHC 2193, 1982 CCH OSHD ?26,329 (No. 4263, 1982) (Rowland, Chairman, dissenting). He notes thatthe Commission has held that ? 4(b)(1) precludes the Secretary fromapplying his standards to certain working conditions named in a policystatement by the Federal Railroad Administration (\”FRA\”), published at43 Fed. Reg. 10583-90 (March 14, 1978), over which the FRA has exercisedjurisdiction. Consolidated Rail Corp., 82 OSAHRC 25\/B6, 10 BNA OSHC1577, 1982 CCH OSHD ? 26,044 (No. 79-1277, 1982), appeal dismissed, No.82-3302 (3rd Cir. Nov. 16, 1982). Nevertheless, because the inspectionand citation occurred prior to the FRA policy statement, ChairmanRowland concludes that the FRA policy statement would not preempt, under? 4(b)(1), enforcement of the cited OSHA standards in this case. SeeConsolidated Rail Corp., 10 BNA OSHC at 1858 n.18, 1982 CCH OSHD at p.32,992 n.17 (Rowland, Chairman, dissenting in part and concurring in part).[[1]] Citation item 1(a) alleges noncompliance with section 1910.132(a)in that \”[h]ead protection was not worn by conductors and brakemen\”moving and placing ladles and cinder pots. Item 2(a) allegesnoncompliance with 1910.133(a) in that \”eye protection with sideshieldswas not worn by a conductor\” involved in the same activity.[[2]] The evidence indicates that, despite Bethlehem’s efforts to removethis accumulation, a large amount of solidified metal, some not firmlyadhered, was observed on the structural beams and around the chutes. Additionally, pieces of solidified metal were observed on the floor ofthe track level.[[3]] The compliance officer testified that during his inspection of theBethlehem plant he reviewed the Railroad’s accident records and observedthe entry for a burn injury to a brakeman who had been working adjacentto a ladle car that \”apparently was too full.\” In addition, Bethlehemhas issued a notice to its employees in the cited blast furnace areathat overfilled pots may present a hazard to Railroad employees.[[4]] The record establishes that the eye protection worn by Bethlehememployees and railroad employees at the U.S. Steel plant includes sideshields. However, because the Secretary has introduced no independentevidence to show that safety glasses without side shields would notprovide adequate protection, the record evidence is insufficient tosustain the violation alleged in citation item 2(a). See supra note 1and accompanying text.”