“Docket No. 77-2200 SECRETARY OF LABOR,Complainant,v.PHILADELPHIA, BETHLEHEM ANDNEW ENGLAND RAILROAD COMPANY,Respondent,LOCAL 1586 UNITED TRANSPORTATION UNION,Authorized EmployeeRepresentative.OSHRC Docket No. 77-2200DECISIONBefore:\u00a0 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 (\”the Railroad\”)violated two personal protective equipment safety standards, 29 C.F.R. ??1910.132(a)[[1\/]] and 1910.133 (a) (1), [[2\/]] at a steel plant operated by BethlehemSteel Corporation (\”Bethlehem Steel\”) in Bethlehem, Pennsylvania. \u00a0Administrative Law Judge Joseph L. Chalk vacated the citation.\u00a0 The case is before usunder 29 U.S.C. ? 661(i).\u00a0 We affirm the judge’s disposition.Inasmuch as the judge’s decision adequately sets forth the facts, we shallset forth only some of them here.\u00a0 The worksite in question consists of an upperlevel (\”the cast floor\”) where blast furnace \”B\” is located and aground level (\”the track level\”) where four sets of railroad tracks enterbeneath the cast floor.\u00a0 Molten material from the blast furnace passes throughopenings in the cast floor and pours into railcars that are positioned on the track levelbelow.\u00a0 When the molten material descends into the railcars, it occasionally splashesand solidifies on the vertical and horizontal building girders on the track level. \u00a0Bethlehem Steel employees use hooks and jackhammers to chip off the hardened material whenit accumulates.\u00a0 Payloaders then remove the material from the ground. \u00a0 At leastonce every thirty-six hours, the hardened material is also removed from the railcarsthemselves by means of jackhammers and magnets.During an eight-hour shift, a single Railroad employee enters the track areabeneath the blast furnace not more than three times, for approximately 5-15 minutes eachtime, in order to shift the railcars.\u00a0 While the Railroad employee is in the trackarea aligning the railcars underneath the openings in the cast floor, he uses hand orlight signals to communicate with the engineer on the locomotive which pushes or pulls therailcars into position.\u00a0 The Railroad and Bethlehem Steel utilize a warning system ofcolored lights and whistles so that Railroad employees do not enter the track area whilemolten material is flowing from the cast floor into the railcars on the track level.\u00a0 In addition, Bethlehem Steel employees are instructed not to throw any debris fromthe cast floor through the openings while Railroad employees are working below.At the hearing, an OSHA compliance officer testified that during theinspection he had observed pieces of solidified material fall from an overhead verticalsupport and land within six feet of a Railroad employee after the support was struck orrubbed by a passing railcar.\u00a0 The employee was not wearing a hard hat or safetyglasses with side-shields.\u00a0 The officer stated that the largest of the pieces wasabout nine inches in diameter by an inch-and-a-half thick.\u00a0 A second complianceofficer observed golf-ball-size pieces of the solidified material fall to the ground froma vertical member on another occasion.\u00a0 The Secretary also introduced evidence thatthe build-up of solidified material upon electrical wires causes them to break from timeto time.\u00a0 In addition, he established that Bethlehem Steel officials had designatedthe track level as a hard hat area for its own employees.\u00a0 Finally, the Secretarydemonstrated that similarly engaged employees at another steel plant wore hard hats andsafety glasses at the track level.The Railroad established that its employees do not enter the track area whilepouring activity is taking place on the cast floor. Moreover, unrebutted testimony by theRailroad’s yardmaster indicated that only the largest of the three sizes of railcars usedin the operation were capable of rubbing against structural supports in the area of thetracks and, then, only when the receptacle mounted on the railcars was improperly aligned.[[3\/]]\u00a0 The yardmaster further testified he had never known solidified metal to falldown. Similarly a brakeman for the Railroad testified no material had fallen off theladles when he was under the cast floor.\u00a0 The same employee also said he had knownladles to hit a vertical member only four times in twelve years.\u00a0 The Railroad’sinjury records also show that for over 5 million man-hours no employee of the Railroad hadever been struck by flying or failing material dislodged by passing railcars. \u00a0Additionally, the Railroad’s acting superintendent, who had more than twenty-one years ofexperience in the railroad business, all of which was associated with the steel industry,testified that hard hats and safety glasses are not worn by railroaders in the steelindustry.\u00a0 He added that there had never been any concerted effort by any publicorganization or by any union to require the wearing of hard hats or safety glasses byrailroaders in the steel industry.Judge Chalk found that solidified material had been dislodged by movingrailcars in few instances.\u00a0 He noted however the Railroad’s low overall injuryrate–particularly the absence of injuries attributable to the hazards contemplated by thecitation.\u00a0 The judge further found that it is not customary in the steel railroadindustry to wear hard hats or safety glasses when entering the track area beneath thefloor of the blast furnace and that the Railroad had neither actual nor constructivenotice of the need to require its employees to wear such personal protective equipment.\u00a0 He therefore vacated the citation.On review, the Secretary asserts that the Railroad’s employees were exposedto head and eye injuries caused by failing solidified material dislodged by moving railequipment (as a result of contact or vibration) and also caused by Bethlehem Steelemployees’ dumping waste material from above through openings in the cast floor whileRailroad employees worked below at track level.\u00a0 The Secretary alleges that the judgeerred in relying upon the evidence concerning industry practice and the Railroad’s injuryhistory. The Secretary argues that the appropriate test here is whether a reasonableperson would recognize a hazard, that it is not necessary to examine industry practicewhen the hazard is readily 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 a reasonable personfamiliar with the circumstances surrounding an allegedly hazardous condition, includingany facts unique to a particular industry, would recognize a hazard warranting the use ofpersonal protective equipment.\u00a0 Lukens Steel Co., 81 OSAHRC 96\/A2, 10 BNA OSHC 1115,1123, 1981 CCH OSHD ? 25,742, p. 32,118 (No. 76-1053, 1981).\u00a0 See also Marshall v.Haysite, Division of Synthane-Taylor No. 80-1800 (3rd Cir. Nov. 17, 1980); VoegeleCompany, Inc., v, OSHRC, 625 F.2d 1075 (3rd Cir. 1980).\u00a0 Although not necessarilydispositive, evidence of industry custom and practice will aid in determining whether areasonable person familiar with the circumstances and with any facts unique to theindustry 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.2d 1285 (5th Cir. 1981).\u00a0 The Commission also will examine anemployer’s own understanding of the alleged hazard.\u00a0 Id.\u00a0 Finally, section1910.133(a)(1), like section 1910.132(a), is so broadly-worded that it is appropriate toapply the reasonable person test in assessing compliance with the standard.The evidence regarding industry custom and practice establishes that thewearing of hard hats and safety glasses is not customary in the steel railroad industry.\u00a0 The Railroad presented two witnesses with extensive industry experience whoreported that hard hats and safety glasses are not considered to be necessary protectiveequipment for railroaders in the steel industry.\u00a0 In contrast, the Secretary’switness on industry custom and practice was a steelworker rather than a railroader. \u00a0He never claimed any knowledge of steel railroad industry custom other than what he hadobserved in his work at an unrelated steel plant.\u00a0 Industry custom, therefore, doesnot afford a basis for concluding that reasonable persons familiar with the circumstanceswould have recognized the need for protective equipment.The remaining evidence is also unpersuasive either that the Railroadrecognized or that a reasonable person would have recognized the need for hard hats andsafety glasses.\u00a0 Railroad employees do not enter the track level beneath the castfloor while pouring operations are taking place.\u00a0 The solidified material isroutinely removed from both structural members and railcars–a task which requires the useof jackhammers and magnets.\u00a0 The testimony that electrical wires periodically breakunder the weight of accumulated solidified material and could swing down to strike anemployee is speculative.\u00a0 The evidence establishes that over the course of 5 millionman-hours no Railroad employee has ever been struck by flying or falling materialdislodged by passing railcars. Indeed, the record demonstrates that the occurrence of anincident where the material would thus dislodge was extraordinary, involving only thelargest railcars and only when these were improperly positioned.\u00a0 Moreover, theincidents involving the dumping of debris from the blast furnace level by Bethlehem Steelemployees were rare and were the result of Bethlehem Steel employees’ misconductspecifically prohibited by Bethlehem Steel workrules.\u00a0 See Cotter & Co. v.Marshall, 598 F.2d 911 (5th Cir. 1979). These incidents furnish insufficient basis forfinding that the Railroad had notice of the hazards cited by the Secretary. [[4\/]]Thus, we conclude that the Secretary failed to establish that a reasonable person familiarwith the working conditions at the cited workplace would recognize a hazard of debris orsolidified material falling 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:\u00a0 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 of hazards warranting theuse of personal protective equipment.\u00a0 Accordingly, I dissent from my colleagues’vacation of the citation item alleging noncompliance with 29 C.F.R. ? 1910.132(a) forfailure to provide hard hat protection.\u00a0 However, the record fails to establish thatthe safety glasses without side shields worn by the Railroad employee who was observed bythe compliance officers constituted inadequate eye protection under 29 C.F.R. ?1910.133(a)(1).\u00a0 I therefore concur in vacating that item. [[1\/]]The evidence establishes routine violations by Bethlehem employees of therule against dumping debris through the chutes into railroad cars while Railroad employeesare below the cast floor.\u00a0 Railroad employees have on several occasions complained toBethlehem employees about the practice.\u00a0 A Railroad brakeman with 30 years experiencetestified, \”[t]hese men continually throw things down when our men are shifting underthe floor.\”\u00a0 Similarly, a Bethlehem employee with 13 years experience testifiedthat Railroad employees have on approximately six occasions over a four year periodcomplained to Bethlehem cast floor personnel regarding violations of the green light rule.\u00a0 This witness also related an incident in which railroad employees complained abouthot water splashing down from the cast floor when a Bethlehem employee was attempting tocool molten metal on the runners for removal.\u00a0 The witness further testified to anoccasion when an incoming railroad car contacted the cast floor with sufficient force toraise the floor.\u00a0 The witness later observed a great deal of loose material,including iron pieces, 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 supporting the cast floor.\u00a0 The splash plate is installed to protect the beams from splashing molten metal andtends to sag from the weight of the metal.\u00a0 Slag also accumulates on electrical wiresunder the floor, causing the wire to tear.\u00a0 The witness testified that the torn wirewith accumulated slag could swing down and strike an employee on the head.\u00a0 Therecord further establishes that during the inspection an incoming ladle car struck avertical supporting member under the cast floor causing pieces of solidified metal thathad accumulated on the supporting framework to be propelled toward a Railroad employee.This record evidence of a hazard is corroborated by evidence that Bethlehememployees entering the area below the cast floor are required to wear hard hats and eyeprotection.\u00a0 According to the compliance officer, he had been informed by bothBethlehem’s Safety Director and its OSHA Coordinator that a hazard existed in the areathat required the use of these forms of personal protective equipment.\u00a0 In addition,the Safety Director informed the compliance officer that he had tried unsuccessfully onthree or four occasions to have Railroad employees working in the area wear hard hats andeye protection.\u00a0 The evidence also establishes that railroad employees working at theU.S. Steel plant in a blast furnace area similar to the Bethlehem furnace use hard hatsand safety goggles.The majority acknowledges that Bethlehem has designated the track level belowthe cast floor as a hard hat area and that the Secretary has demonstrated the use of hardhats and safety glasses by similarly engaged employees at another steel plant.Nevertheless, the majority concludes that the evidence is unpersuasive that the Railroadrecognized or that a reasonable person would have recognized the need for personalprotective equipment.\u00a0 In reaching this conclusion, the majority points to:\u00a0 (1)Bethlehem’s green light rule; (2) evidence that incidents of debris dumping were rare andwere the result of misconduct by Bethlehem employees; (3) evidence that only improperlypositioned large railcars could strike beams; (4) the routine removal of solidifiedmaterial from the structural members; and (5) the absence of a history of injury toRailroad employees from material dislodged by passing railcars.\u00a0 The majority furtherconcludes that the evidence establishes that the use of personal protective equipment isnot customary in the steel railroad industry.Whether the incidents previously described resulted from violations ofworkrules by Bethlehem employees or improper positioning of larger railcars, the resultinghazard to Railroad employees is apparent.\u00a0 Although the routine removal of solidifiedmetal adhering to the beams and chutes below the cast floor may reduce the hazard of beingstruck by dislodged metal pieces, it does not eliminate the hazard. [[2\/]] Furthermore, itdoes not affect the burn hazard from splashing molten metal to which Railroad employeesare exposed when Bethlehem employees dump material into cinder pots that may be filledwith molten material.The majority correctly notes the absence of a history of injuries frommaterials dislodged by passing railcars.\u00a0 However, the majority ignores the reportedinjury to a Railroad brakeman who was splashed on the head and burned by molten metal froman over-filled ladle car. [[3\/]] Nevertheless, an absence of injuries does not dispose ofthe issue of whether a hazard exists.\u00a0 The goal of the Act is to prevent the firstinjury.\u00a0 Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary of Labor& OSHRC, 674 F.2d 1177, 1185 (7th Cir. 1982); Mineral Industries & HeavyConstruction 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.\u00a0 These hazards and the need for precautionsare readily acknowledged by Bethlehem personnel.\u00a0 However, workplace hazards do notdiscriminate between employees of different crafts.\u00a0 The hazards exist regardless ofthe nature of the employment or the contrasting safety practices of the industriesinvolved. [[4\/]]\u00a0 The Commission interprets safety standards to provide the sameprotection to all employees exposed to the same hazards at a worksite.\u00a0 See GelcoBuilders, Inc., 77 OSAHRC 203\/B14, 6 BNA OSHC 1104, 1106, 1977-78 CCH OSHD ? 22,353 at p.26,941 (No. 14505, 1977).\u00a0 Furthermore, the Act has consistently been interpreted toreject adherence to industry practices that fail to protect against workplace hazards.\u00a0 E.g., General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453 (1stCir. 1979), citing with approval, S & H Riggers & Erectors, Inc., 79 OSAHRC 23\/A2,7 BNA OSHC 1260, 1979 CCH OSHD ? 23,480 (No. 15855, 1979), rev’d, 659 F.2d 1273 (5th Cir.1981); Bunkoff Constr. Co., 80 OSAHRC 117\/A2, 9 BNA OSHC 1043, 1980 CCH OSHD ? 24,988(No. 76-2760, 1980).\u00a0 The Act was designed to improve the safety of workingconditions in industry, not to maintain a hazardous status quo.\u00a0 Id. Citation item1(a) for failure to provide head protection should be affirmed on the grounds that areasonable person familiar with the circumstances would recognize a hazard that warrantsthe wearing of hardhats.\u00a0 See Lukens Steel Co., 81 OSAHRC 96\/A2, 10 BNA OSHC 1115,1981 CCH OSHD ? 25,742 (No. 76-1053, 1981); Tube-Lok Products, 81 OSAHRC 17\/B7, 9 BNAOSHC 1369, 1981 CCH OSHD ? 25,235 (No. 16200, 1981).The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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.\u00a0 Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, protective clothing, respiratory devices,and protective shields and barriers, shall be provided, used, and maintained in a sanitaryand reliable condition wherever it is necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanical irritants encounteredin a manner capable of causing injury or impairment in the function of any part of thebody through absorption, inhalation or physical contact.[[2\/]] 29 C.F.R. ? 1910.133(a)(1) provides:? 1910.133 Eye and face protection.(a) General.\u00a0 (1) Protective eye and face equipment shall be required where there isa reasonable probability of injury that can be prevented by such equipment.\u00a0 In suchcases, employers shall make conveniently available a type of protector suitable for thework to be performed, and employees shall use such protectors.\u00a0 No unprotected personshall knowingly be subjected to a hazardous environmental condition.\u00a0 Suitable eyeprotectors shall be provided where machines or operations present the hazard of flyingobjects, glare, liquids, injurious radiation, or a combination of these hazards.[[3\/]] The United Transportation Union participated actively at the hearing,but has not filed a brief on review, indicating by letter to the Commission that it is in\”full accord\” with the Railroad’s position.[[4\/]] The dissent speculates that Railroad employees are exposed to a burn hazard fromsplashing molten metal caused by Bethlehem employees’ dumping material into cinder potsthat may be filled with molten material.\u00a0 The record, however, does not disclose asingle instance of molten material splashing out of a cinder pot as a result of scrap orother material being dumped in, nor is there anything in the record which explains howsuch an accident could occur.\u00a0 The dissent also notes that a Railroad brakemanreportedly was burned by molten metal which splashed out of an over-filled ladle. \u00a0Nevertheless, the record contains no evidence that this incident–which did not produce alost-time injury–took place in or near the area cited by the Secretary. \u00a0 That thiscould happen, somewhere, does not establish hard hats are necessary in the location cited.[[5\/]] Chairman Rowland does not decide at this time whether the Commission’sreasonable person test or the Fifth Circuit’s industry custom\/actual knowledge test, seeOwens-Corning Fiberglas Corp. v. Donovan, supra, is more appropriate.\u00a0 He notes thatthe Secretary has failed to establish a violation of the cited standards under eithertest.\u00a0 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, dissentingin part and concurring in part).Chairman Rowland notes that the application of OSHA standards and regulationsto working conditions that are the subject of regulation by another agency is precluded by? 4(b)(1), 29 U.S.C. ? 653(b)(1), of the Act.\u00a0 Section 4(b)(1) provides in part:Nothing in this chapter shall apply to working conditions of employees withrespect to which other Federal agencies. . . exercise statutory authority to prescribe orenforce standards or regulations affecting occupational safety or health.Chairman Rowland has pointed out that, because ? 4(b)(1) is a jurisdictionalrequirement rather than an affirmative defense, it may be raised and considered at anystage of the proceedings.\u00a0 Gearhart-Owen Industries, Inc., 82 OSAHRC ___, 10 BNA OSHC2193, 1982 CCH OSHD ? 26,329 (No. 4263, 1982) (Rowland, Chairman, dissenting).\u00a0 Henotes that the Commission has held that ? 4(b)(1) precludes the Secretary from applyinghis standards to certain working conditions named in a policy statement by the FederalRailroad Administration (\”FRA\”), published at 43 Fed. Reg. 10583-90 (March 14,1978), over which the FRA has exercised jurisdiction.\u00a0 Consolidated Rail Corp., 82OSAHRC 25\/B6, 10 BNA OSHC 1577, 1982 CCH OSHD ? 26,044 (No. 79-1277, 1982), appealdismissed, No. 82-3302 (3rd Cir. Nov. 16, 1982).\u00a0 Nevertheless, because theinspection and citation occurred prior to the FRA policy statement, Chairman Rowlandconcludes that the FRA policy statement would not preempt, under ? 4(b)(1), enforcementof the cited OSHA standards in this case.\u00a0 See Consolidated Rail Corp., 10 BNA OSHCat 1858 n.18, 1982 CCH OSHD at p. 32,992 n.17 (Rowland, Chairman, dissenting in part andconcurring 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 placingladles and cinder pots.\u00a0 Item 2(a) alleges noncompliance with 1910.133(a) in that\”eye protection with sideshields was not worn by a conductor\” involved in thesame activity.[[2]] The evidence indicates that, despite Bethlehem’s efforts to remove thisaccumulation, a large amount of solidified metal, some not firmly adhered, was observed onthe structural beams and around the chutes.\u00a0 Additionally, pieces of solidified metalwere observed on the floor of the track level.[[3]] The compliance officer testified that during his inspection of theBethlehem plant he reviewed the Railroad’s accident records and observed the entry for aburn injury to a brakeman who had been working adjacent to a ladle car that\”apparently was too full.\” In addition, Bethlehem has issued a notice to itsemployees in the cited blast furnace area that overfilled pots may present a hazard toRailroad employees.[[4]] The record establishes that the eye protection worn by Bethlehememployees and railroad employees at the U.S. Steel plant includes side shields. \u00a0However, because the Secretary has introduced no independent evidence to show that safetyglasses without side shields would not provide adequate protection, the record evidence isinsufficient to sustain the violation alleged in citation item 2(a).\u00a0 See supra note1 and accompanying text.”