“Docket No. 88-2691 SECRETARY OF LABOR,Complainant,\u00a0v.\u00a0TRINITY INDUSTRIES, INC., \u00a0Respondent.UNITED STEELWORKERS OF AMERICA, DISTRICT 30, LOCAL7629, Authorized Employee Representative.Docket No. 88-2691DECISION Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:The employer, Trinity industries, Inc. (\”Trinity\” or\”the Company\”), manufactures chemical processing tanks at a plant inSharonville, Ohio. In 1988, the Occupational Safety and Health Administration(\”OSHA\”), of the United States Department of Labor, inspected Trinity’sSharonville plant and issued two citations, which included a four-item serious citationand a one-item repeat citation. Trinity contested both citations and the parties presentedevidence to an administrative law judge of the Commission. After the hearing, the judgeaffirmed the repeat citation’s one item, although he reduced its classification to seriousand assessed a reduced penalty of $600 rather than $800. The judge vacated item 1 of theserious citation. He affirmed the remaining three items and assessed the proposedpenalties, which were $700, $700, and $800 for serious citation items 2, 3, and 4,respectively. Trinity takes exception to the $800 penalty for serious citation item 4 andtakes exception to the affirmance of the other two serious citation items. Trinity alsotakes exception to the affirmance of the one item of the citation that the judgereclassified as serious.For the following reasons, we reduce the penalty for seriouscitation item 4 from $800 and affirm the remainder of the judge’s decision. That is, wefind violations as alleged in items 2 and 3 of the serious citation and as alleged in item1 of the citation that the judge reclassified as serious.I. The Merits of Citation Item 1,Reclassified as Serious A. BackgroundThe reclassified item alleges that Trinity failed to usescreens to protect the eyes of employees \”adjacent to\” welding arcs. [[1]]During the OSHA inspection of the Sharonville plant, compliance officer Dennis Collins wasable to view welding arcs at two locations as he walked down the main aisle of a workarea. The compliance officer took a photograph of one location. The photograph does notshow a welding arc, but it does show the welder at work. According to the complianceofficer’s testimony explaining what the photograph is intended to illustrate, he was ableto view the, welding work, and any arc created by it, because there was no screen betweenthe aisle and the welding work. Compliance officer Collins also testified that a weldingarc at the other location was visible because the welding work was being performed from aladder at a level above the screen that was in use. [[2]]According to compliance officer Collins, the main aisle was a\”high traffic area.\” The compliance officer further testified that Trinity’sshop superintendent, Paul Vied, who accompanied him on the inspection, agreed that theexisting screens were inadequate. Therefore, the compliance officer believed that therewas a serious hazard of flash burns to the employees. He testified that screens need nottotally enclose the welding work such that even a crane operator cannot peer in fromabove: \”Not from that distance, I wouldn’t be concerned.\” But he was concernedabout the extent of the arcs’ visibility to employees passing on the main aisle. Thecompliance officer did not testify specifically that he saw employees using the aisle, butthe administrative law judge, Joe D. Sparks, inferred from this evidence that employeesdid use the aisle, could view the arcs, and could suffer flash burns.B. AnalysisTo establisih a violation of a standard, the Secretary mustshow by a preponderance of the evidence that: (1) the cited standard applies, (2) itsterms were not met, (3) employees had access to the violative condition, and (4) theemployer knew or could have known of it with the exercise of reasonable diligence. See,e.g., Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD ? 29,239, p.39,157 (No.87-1359, 1991), citing Astra Pharmaceutical Prod., Inc., 9 BNA OSHC 2126, 2129, 1981 CCHOSHD ? 25,578, pp.31,899-31,900 (No. 78-6247, 1981). Trinity does not dispute that thecited standard applies to the Company’s operations, that the abatement method prescribedby the cited standard was not being deployed where the Secretary would require, and thatthe company knew or could have known of the alleged deficiencies. Trinity does dispute,however, that the abatement method was necessary to protect any employees. That is,Trinity disputes that employees had access to any hazard as a result of the allegeddeficiencies in the placement of screens. In particular, Trinity asserts that theSecretary failed to show the distance of the welding operations from the main aisle, thesize of the openings through which the arcs were visible, the hazard associated withexposure to welding arcs at whatever distance was involved, and whether any employees usedthe main aisle. In other words, the Secretary failed to show that there were\”[w]orkers or other persons adjacent to the welding areas,\” in the language ofthe cited standard.The evidence, however, is sufficient in these respects. Thecited standard does not define \”adjacent,\” but the dictionary meaning of theterm is \”relatively near\” or \”not distant or far off\”; also, thingsneed not be right next to each other or touching each other to be \”adjacent,\” ifthey are not separated by similar things. Webster’s Third New International Dictionary,Unabridged 26 (1986). The compliance officer’s photograph of one location, depicting onewelding operation as seen from the main aisle, shows that any employees who might walkdown the main aisle could have been \”adjacent\” to that particular weldingoperation. The welder and some equipment next to him are plainly visible, not far away, inthe middle of a room-like area that the compliance officer described as a \”bay\”between \”columns.\” There are no intervening operations and no interveningobstructions to viewing the welding operation.Particularly worthy of notice is the fact that, as Collinstestified about his photograph, there was \”one welding screen present on one side ofthe operation,\” but the \”lack of a screen on the adjacent side\” renderedwelding arcs \”observable from the main center bay aisle.\” The welding screenshown in the photograph appears to block the view of the welding operation from part ofthe main aisle; the screen is positioned parallel to the viewer and to his right. Theviewer, however, can plainly see the employee who was performing the welding work because,immediately beside the existing screen, there is a large gap that looks at least one-halfas wide, and possibly almost as wide, as the one welding screen shown in the photograph.We therefore determine from the photograph that one of the two locations of welding worklacked welding screens adequate to protect any employees from viewing welding arcs whilepassing on the adjacent main aisle.Moreover, this photograph showing a welding screen at onelocation demonstrates Trinity’s own belief that its employees could be exposed to hazardsof flash burns from welding arcs visible along the main aisle, and this photograph is notthe only evidence of Trinity’s belief. There is also Collins’ unrebutted testimony thatTrinity had a screen on the main aisle at another location, although the screen was nothigh enough to shield the are from view. More significantly, there is the shopsuperintendent’s acknowledgement, as reported by compliance officer Collins in histestimony, that the existing screens were inadequate at both locations. Collins’ testimonyregarding this admission was unrefuted, and therefore the admission constitutes proof thatone of Trinity’s managers who was familiar with the existing working conditions, includingthe use of welding screens at both locations, believed that screens were necessary andthat the existing screens were inadequate to protect employees from the hazard presentedby these welding operations along the main aisle. [[3]] Collins’ view that the main aisle had \”traffic\”enough to warrant the use of screens is,therefore,corroborate by the words of one ofTrinity’s supervisory personnel, and by the actions of the Company itself in deploying thewelding screens that the Company did decide to use. See infra note 8. Furthermore, weaccept the compliance officer’s assessment of the traffic on the main aisle because it isthe assessment of a reliable witness who inspected the work area and whose assessment isunrebutted. We also accept Collins’ testimony that there was a serious hazard of flashburns to the employees. When he agreed in testimony that screens would not be neededoverhead to protect any crane operators, he demonstrated awareness that distance reducesthe hazard. We therefore accord dispositive weight to his judgment that there was a hazardto employees passing on the main aisle; his judgment is that of an informed safetyprofessional. Accordingly, we find that Trinity’s employees had access to the hazardousconditions, see Gilles & Cotting Inc., 3 BNA OSHC 2002, 2003, 1975-76 CCH OSHD ?20,448. p.24.424 (No. 504, 1976), and affirm the judge’s decision affirming the citationitem. The violation was serious, based on the compliance officer’s testimony that viewinga welding arc can produce a burn on the outer layer of the eye. Compare Vanco Constr.,Inc., 11 BNA OSHC 1058,1061-62 1983-84 CCH OSHD ? 26,372, p.33,454 (No. 79-4945, 1982),aff’d, 723 F.2d 410 (5th Cir. 1984) (serious physical harm is substantially probable inview of the \”delicateness of the eye\”). The judge’s assessment of a penalty of$600 is appropriate. Nacirema Operating Co., 1 BNA OSHC 1001, 1003, 1971-73 CCH OSHD ?15,032, p.20,044 (No. 4, 1972) (in general, the gravity of an offense is the principalfactor in penalty assessment).II. The Merits of Item 2 of theSerious CitationA. BackgroundSerious citation item 2 alleges that, in a particular instance,Trinity failed to ensure use of safety belts. [[4]] During the OSHA inspection,complianceofficer Collins photographed an employee walking across the top of a cylindrical tank,which was approximately 20 feet long, 5 feet in diameter, and 9 feet above a concretefloor. There were no guardrails or other means of protection against falling to the floor.The compliance officer testified that, if the employee did fall, he would suffer anythingfrom \”sever bruises\” to \”broken bones\” or a \”concussion.\”Trinity made safety belts available to its employees and had asafety rule requiring employees to tie off when \”working\” 48 inches above theground.[[5]] The expected practice was for employees at work on tanks to tie off to tanknozzles in the vicinity of their work stations or task areas. The employee photographed bythe compliance officer had tied off in this manner while he was at work at his workstation. There was testimony indicating, however, that Trinity’s managers did not requireemployees to tie off while walking upon a tank to approach or leave a work station, andthe usual practice was not to tie off at those times. According to Trinity’s productionmanager, Mark Lane, these activities could not be called \”working,\” ascontemplated by the Company’s safety rule. In this case, the employee ventured unprotectedacross the tank when he needed to retrieve a wrench from his work station.During the inspection and at the hearing, compliance officerCollins expressed the view that it was necessary to tie off at such times: \”You wouldhave the fall potential the entire time you were walking on that particular vessel.\”The production manager, who accompanied the compliance officer during his inspection andtestified regarding his belief that it was unnecessary for an employee to tie off until hewas stationary and performing an actual task of work, nevertheless gave testimony showingsome agreement with the compliance officer that there was a hazard. According toproduction manager Lang’s testimony regarding his reaction to the compliance officer’sviews expressed during the OSHA inspection, he indicated to the compliance officer thatthe employee should have found some way to be off because \”basically … a man, whenhe’s up there, should be tied off.\” At the hearing, the production manager alsoindicated agreement that crossing a tank without being tied off is a hazard, because afall would be hazardous. [[6]]According to Collin’s unrefuted testimony, the Company had notprovided any appropriate place for an employee to tie off while crossing the tank. Langsuggested that the employee could tie off to an overhead crane, if the crane were lockedout. The compliance officer disagreed, however, noting that the employee would be yankedoff the tank if the crane should move. According to Collins, Lang then suggested thatTrinity would have to adopt at this location a means of tying off (details not given) thatTrinity was using elsewhere in the plant. According to the compliance officer, othermanufacturers of storage tanks use height- adjustable catwalks to gain access to tank-topwork stations, or the manufacturers install height-adjustable bars or static lines, toprovide continuous fall protection for their employees. [[7]]B. AnalysisSection 1910.132(a) is a general standard, broadly worded toencompass many hazardous conditions or circumstances. If the duty to comply with thestandard is not defined, it could run the risk of being almost indefinitely applicable. Toavoid that result, and in order to carry her burden of proof as to applicability, see,e.g., Walker Towing Corp., 14 BNA OSHC at 2074, 1991 CCH OSHD at p. 39,157, the Secretarymust establish that a reasonably prudent employer, concerned about the safety of employeesin the circumstances involved in a particular case, would recognize the existence of ahazardous condition and provide protection as required by the Secretary’s citation.Advance Bronze, Inc v. Secretary, 917 F.2d 944, 951 (6th Cir. 1990). Evidence that otheremployers in the industry actually provide the particular personal protective equipmentsatisfies this test. Id. Also allowed for consideration is evidence of accidents, evidenceof industrial safety standards or recommendations, or opinion testimony from personsexperienced in performing the work or familiar with the working conditions. Id.; see also,Ray Evers Welding Co. v. OSHRC, 625 F.2d 726,732-33 (6th Cir. 1980) (concerning theconstruction industry standard that generally requires personal protective equipment).In this case, we have the unrefuted testimony of theexperienced compliance officer that other employers in the industry use scaffolds orlifelines (or bars) with safety belts to provide constant fall protection on tanks. Also,although Trinity had not had any accidents, the opinion testimony of Trinity’s productionmanager evinces an awareness that crossing a tank without a tied-off safety belt ishazardous; essentially, he agreed with the experienced compliance officer that there was afall hazard against which some form of protection would be appropriate. Significantly, theonly rationales put forth by Trinity’s production manager for failing to provide fallprotection were the possible difficulty in rigging a lifeline, the comparative brevity ofan employee’s exposure while crossing a tank, and a belief that this activity was not aform of \”working.\” He actually recognized, however, that employees must tie offwhile performing an actual task of work upon the tank. Therefore the rule adds furthersupport to the overall picture of recognition.[[8]] In short, a preponderance of theevidence shows that a reasonable person, familiar with the circumstances, would haverecognized a hazard necessitating the use of the personal protective equipment that thecited standard requires.[[9]]The Secretary has therefore estatblished the cited standard’sapplicability. The remaining elements of the Secretary’s case are not disputed: a foremancould have seen the lack of protection for the employee who walked across the tank. See,Walker Towing Corp., 14 BNA OSHC at 2074, 1991 CCH OSHD at p. 39,157. Also, the use offall protection in other manufacturers’ plants indicates its feasibility here, and Trinityhas not presented any specific rebuttal. See supra note 7. [[10]] Accordingly, we turn towhether Trinity has established any affirmative defense.In Brock v. L.E. Myers Co., 818 F.2d 1270, 1277 (6th Cir.1987), the court stated that \”an employer may defend . . . on the ground that, due tothe existence of a thorough and adequate safety program which is communicated and enforcedas written, the conduct of its employee(s) in violating that policy was idiosyncratic andunforeseeable.\” In this case, however, Trinity’s work rule was not enforced aswritten. The production manager realized that there could be a fall hazard, but he did notthink that gaining access to a work station or retrieving a tool was sufficient exposureto count as \”working,\” and did not expect that employees would tie off at suchtimes. Therefore, Trinity cannot claim that it \”could not reasonably have foreseenthe aberrant behavior\” of the employee and, at least in the circumstances involved inthis case, cannot successfully maintain its claim to the safety \”program’seffectiveness in practice as well as in theory.\” Id.Accordingly, we affirm the judge’s decision finding a seriousviolation as set forth in citation item 2. The violation was serious, in view of theunrebutted evidence that a fracture or all impairment as severe as a concussion couldresult from falling onto a concrete floor. Compare Spancrete Northeast, Inc., 15 BNA OSHC1020, 1024, 1991 CCH OSHD ? 29,313, p. 39,358 (No. 86-521, 1991) (major fractures areserious injuries). The judge’s assessment of a $700 penalty :s appropriate for the seriousviolation.III. The Merits of Item 3 of theSerious CitationA. BackgroundSerious citation item 3 alleges that a gas cylinder inTrinity’s plant lacked a valve cap.[[11]] Near the main aisle that was a \”hightraffic area,\” compliance officer Collins observed a pair of gas cylinders, one ofwhich was not equipped with a valve cap. The capless cylinder had on it a regulator but nohoses; it was not connected for use and was not being used. In fact, shop superintendentVied told the compliance officer that the cylinders probably had been there for two tothree days.Vied partially opened the valve of the capless cylinder anddetermined that it contained gas compressed to a pressure of 40 pounds, at a minimum. Viedalso told Collins that the cylinder contained oxygen, and Collins himself looked at thelabel on the cylinder and saw that it indicated oxygen. Relying on this evidence, seesupra note 3, the judge found that the cylinder contained oxygen.[[12]] Collins believedthat, without a cap to protect the valve of the cylinder, the valve could be damaged andthe pressurized gas could rapidly escape, causing the cylinder to be propelled as adanderous missile. Futhermore, the evidence presented showed that even if the pressurewere low, the gas could be a fire hazard.[[13]]Apparently, the cylinder was designed to accept a cap; whileCollins was in the plant, the Company’s employees removed the regulator from it and put acap on it. Also, according to Lang, the Company has a work rule requiring gas cylinders to\”have caps in place.\” Lang stated that he had communicated the rule to theemployees and that the rule was covered in safety meetings. In general, according to thiswitness, the rule was followed. B. AnalysisTrinity asserts that the Secretary failed to establish that thecited gas cylinder was, as the cited standard puts it, \”designed to accept acap.\” Trinity offered no rebuttal, however, to the compliance officer’s testimonythat the cylinder did accept a cap during the inspection. Moreover, as the Secretary notesin her brief, Trinity’s own safety rule requiring caps would have been overbroad andinappropriate if some of the cylinders could not accept them.Trinity further asserts that the Secretary failed to prove a hazard, but no such proof isnecessary; the cited standard presumes a hazard, it does not require proof. See StanBest,Inc., 11 BNA OSHC 1222, 1231, 1983-84 CCH OSHD ? 26,455, p. 33,625 (No. 76-4355, 1983)(citing cases); American Steel Works, Inc., 9 BNA OSHC 1549, 1551 n.4 1981 CCH OSHD ?25,285, p. 31,270 n.4 (No. 77-553, 1981) (citing cases); cf,. Ormet Corp., 14 BNA OSHC2134, 2137-38, 1991 CCH OSHD ? 29,254, p. 39,202 (No. 85,531, 1991) (\”the standardanticipates the possiblity that the load will fall\”). Moreover, on the basis ofcredible evidence, the ALJ found that the tanks contained oxygen pressurized to at least40 pounds. Trinity did not convincingly establish that the gas was inert, see supra note12, and Trinity did not present any evidencethat there was a negligible amount of gas or anegligible pressure, see supra note 13.\u00a0\u00a0 Therefore, Trinity has not shown thatthe particular instance of noncompliance involved in this case would have had such anegligible effect on employee safety as to be properly classifiable as de minimis. SeeWhiting-Turner Contrac. Co., 13 BNA OSHC 2155, 2156, 1987-90 CCH OSHD ? 28,501, p. 37,771(No. 87-1238, 1989) (negligible relationship to safety), Pratt & Whitney Airfcraft, 9BNA OSHC 1653,1658,1981 CCH OSHD ? 25,359, p. 31,506 (No. 13401, 1981) (theclassification is \”reserved for those unusual situations where the hazard is sotrifling that an abatement order would not significantly promote the objective of employeesafety\”); Turner Co., 4 BNA OSHC 1554, 1564, 1976-77 CCH OSHD ? 21,023, p. 25,281(No. 3635, 1976) (\”the particular facts presented here show no circumstances whichwould take [the employer] out of the range of cases covered by the Secretary’s rulemakingaction\”); Huber, Hunt & Nichols, Inc., 4 BNA OSHC 1406, 1409, 1976-77 CCH OSHD ?20,837, p. 25,012 (No. 6007, 1976) (\”if on the facts of a particular case it appears,for example, that the cylinders are so completely empty as to negate the possibility ofinjury, the presumption will be considered to have been rebutted\”).Accordingly, we affirm the judge’s decision affirming theserious citation item. In view of the evidence that establishes a potential for hazardsfrom a fire or an instance of missile-like propulsion, the violation was serious. The $700penalty that the judge assessed is appropriate.The Penalty for Item 4 of theSerious CitationA. BackgroundIn his decision, the judge found and the parties do not nowdispute that Trinity violated ? 1910.303(b)(1). [[14]] During the inspection, complianceofficer Collins found two\u00a0 \”mall grinders\” that did not have suitableplugs. The plugs were rated at 120 to 208 volts, but the grinders operated at 480 volts.Also, certain openings in the plugs allowed metal dust generated by Trinity’s grindingoperations to leak inside and accumulate there. Plugs having these deficiencies had causedshorts and shocks, arcs and explosions, by which employees had been burned. Collinstestified that there could have been serious burns, or even an electrocution.In February 1988, approximately six months prior to theinspection in this case, there was a serious accident involving a welder, Lionel Harris.As he was attaching an extension cord to a mail grinder, he received a shock that threwhim backward against a gas cylinder, from which position he fell onto a skid containingmanufacturing parts. Harris suffered a lower lumbar strain, a pinched nerve in the lowerlumbar region, a concussion, and a neck strain. He was away from work for more than ayear. Immediately after the accident, when certain employees took apart the plug ofHarris’ grinder, it was found to have been \”burnt black on the inside, just totallyburned out.\” Also, there was some grinding dust inside.The Harris incident was not the first occasion on which aTrinity employee had experienced a problem with this kind of plug; it was just the mostserious. Another employee had suffered burns several times when, in the words of thecompany’s maintenance electrician, William Tittle, \”he would be plugging it into areceptacle and it would flash back onto his arm.\” For several years, according toTittle and according to a welder, Thomas Brockman, who was also a grievance committeemanin the employees’ union, this kind of plug had been shorting out, burning out, andexploding, and employees had suffered minor shocks and burns. It was further noted that,after the Harris incident, three more plugs shorted out.Until the Harris incident, the Company had been replacing theburned out or exploded plugs with new plugs of the same kind, deficient in rating andquality. According to Tittle, he replaced approximately 50 plugs a year. He had worked atthe plant for more than ten years, and the employee who had trained him for maintenancework had told him that \”this was going to be a common thing that I’ll be doing a lotof, is replacing these plugs.\” Furthermore, Tittle explained that \”(i)t was acommon thing throughout the shop and everyone knew about it [,] so I have to assume thatManagement had to know about it[,] since it was before my time.\” Also, approximatelythree years prior to the Harris incident, the voltage rating of the plugs changed, from arating at 480 volts to a rating at 120 to 208 volts. At that time, the plant receivedcautions and notices.[[15]] The cautions and notices were brought to the attention of theplant’s maintenance supervisor.[[16]]Trinity’s welders had wrapped the plugs in tape, in an attemptto close off the openings in them and keep metal dust out. This precaution was notentirely successful; during the inspection, the compliance officer found \”asignificant amount\” of metal dust inside a tape-wrapped plug, and maintenanceelectrician Tittle testified that tape-wrapped plugs continued to short out.In April 1988, after the Harris incident, Trinity beganreplacing the deficient plugs with ones that were rated for the 480 voltage at which thegrinders operated.\u00a0 After the Harris incident and after each of the three subsequentshorts, welder Brockman, as a union member, went to production manager Lang and told himthat the problem was the deficient voltage rating of the plugs [[17]].\u00a0 Brockman alsoclaimed that after the Harris incident he proposed to summon OSHA–by filing acomplaint–unless the company took appropriate action concerning the shock hazards in theplant. \”Management\” asked him to wait, then embarked upon a program of replacingthe deficient plugs. Lang claimed that he himself investigating the matter and made thedecision to replace the plugs, after Brockman only described to him the deficiency in thevoltage ratings; Brockman had not asked for any corrective action. Tittle testified thatthe decision was voluntary; the Company \”was getting pressure from our localunion…but voluntarily the Company did it,\” without OSHA’s involvement, as far as heknew.Brockman further testified that, after the Harris incident, he consulted the personnelmanager about the plugs. This manager responded that he was already aware of the problem.Also, in \”early\” 1988, a Company manager assigned only temporarily to theSharonville plant told Lang that there were problems with the plugs. To the best of Lang’sknowledge, prior to early 1988 no one had worked on a cost estimate for replacing theplugs.In early 1988, Lang authorized the expenditure of approximately $20,000 to replaceapproximately 600 plugs (and install receptacles capable of accepting the new plugs). Inaddition, the manager assigned a particular maintenance, employee to do the jobsystematically–from one end of the plant to the other. In August 1988, when thecompliance officer inspected the plant, the employee had completed his systematicprogression and most of the plugs had been replaced. There remained only approximatelyseven or eight that had escaped his notice, as equipment had been moved back and forthover the months. Thus, the compliance officer believed that, to a large degree, thedeficient plugs had been replaced; he found plugs having an acceptable voltage rating.Also, the new plugs were dust-tight and, according to Brockman’s knowledge, the new plugshad not produced any shorts.Trinity had a safety program including not only safety manuals but safety meetings andreprimands. There was a corporate safety coordinator, Neale Foreman, who testified. TheCompany was large and operated several plants. To the best of the compliance officer’sknowledge, there were more than 100 employees at this one plant alone. The Company had ahistory of OSHA violations. This particular inspection was conducted under warrant afterTrinity declined to allow a complaint inspection on February 24, 1988, and, as Trinity didnot allow the compliance officer to examine the Company’s records regarding its safetyprogram, the compliance officer did not give the Company any credit for good faith.B. AnalysisThe Secretary proposed a penalty of $800, primarily because of Trinity’s Iarge size andprior violations, as well as this particular violation’s significant gravity. We reducethe penalty to $600, however, on the basis of good faith. The Company had substantiallyeliminated the hazard by the time of the inspection, and the Company’s failure to haveentirely eliminated the hazard was the result of difficult operating circumstances ratherthan a careless attitude toward abating the hazard. Once Trinity’s management officialsdetermined to take action about the hazard, they implemented a program capable of entirelyabating it. We do not disagree with the Secretary that, generally, the gravity of a hazardis to be given great weight in assessing an appropriate penalty. In this case, however, wegive credit for good faith in order to encourage a large employer to protect its employeesand to cooperate with the Federal occupational safety and health program, by takingvoluntary measures to abate genuinely and obviously serious hazards.OrderAccordingly, we modify the judge’s decision in one respect, byreducing the penalty for serious citation item 4 from $800 to $600. We otherwise affirmthe judge’s decision finding violations as alleged in items 2 and 3 of the seriouscitation and as alleged in item 1 of the citation that has been reclassified as serious.Edwin G Foulke, Jr.ChairmanDonald G. WisemanCommissioner Velma Montoya CommissionerDated: January 23, 1992\u00a0SECRETARY OF LABOR,Complainant, v. TRINITY INDUSTRIES, INC., Respondent, andUNITED STEELWORKERS OF AMERICA, DISTRICT 30, LOCAL 7629, Authorized EmployeeRepresentative.OSHRC Docket No. 88-2691APPEARANCES: Janice L. Thompson, Esquire, Office of the Solicitor,U. S. Department of Labor, Cleveland, Ohio, on behalf ofcomplainant.Frederick W. Addison, III, Esquire, Locke, Purnell, Rain andHarrellDallas, Texas, on behalf of respondent.Harry W. Sorgs, President, Local 7629, UnitedSteelworkers of AmericaCincinnati, Ohio, on behalf of authorized employeerepresentative.DECISION AND ORDERSPARKS, Judge: Respondent, Trinity Industries, Inc., operates afoundry business at 11861 Mosteller Road, Sharonville, Ohio. As a result of an inspectionconducted in August 1988, serious and repeat citations were issued. The Secretary proposedpenalties of $3,800.I.SERIOUS CITATION NO. 1Item one of the serious citation alleges a violation of 29C.F.R. ? 1910.22(a)(1) [[1]] as follows:1 29 CFR 1910.22(a)(l): Places of employment were not kept clean and orderly, or in asanitary condition:(a) Spent welding rods were scattered on the floor at thewelding areas in the center bay.The evidence shows that approximately 8 to 12 used welding rodswere scattered about the floor in an area of the center bay where welding operations weregoing on. The spent rods were about the size of a small pencil, approximately inch indiameter and 3 to 4 inches long. A welder was seated in the area near the rods (Tr. 113,132-137, 273-276). The Secretary contended that the spent rods constituted a hazard toemployees who might step on them because of a ball-bearing effect–that assumption wasdisputed by respondent’s manager who was of the opinion that the rods would be crushed bya person stepping on one, without any danger of slipping (Tr. 113, 134, 276-277). The rodswere observed at approximately 2:40 p.m. on August 5, 1988, which was about an hour andten minutes before the shift quitting time. It is undisputed that the floors of the plantfacility were cleaned daily and that a crew would be called to immediately clean up anyspills. Moreover, the only employee shown to be exposed to the condition was a welder whowas seated and not walking around the area. The rods were not in a walkway or othertraffic area. Under the conditions described, it is to be expected that the waste rodswould remain on the floor of the area until cleaned up at the end of the shift. Theevidence indicates such waste was removed at least once a day.The burden of proof is upon the Secretary to show exposure to ahazard caused by the condition. There is no evidence that an injury had ever occurred. Asno one was walking in the area and the slipping hazard was remote, the evidence does notshow that a realistic danger of injury was presented to the welder or any other employee;and, accordingly, the evidence does not establish a violation as alleged.Item two of citation number one alleges a serious violation of29 C.F.R. ? 1910.132(a)[[2]] as follows:29 CFR 1910.132(a): Protective equipment was not used whennecessary whenever hazards capable of causing injury and impairment were encountered:(a) In the north bay, an employee was exposed to a fall ofapproximately 9′ while walking on a tank and while stepping from a stepladder onto thetank and had no means of fall protection.The Secretary proposed a penalty of $700. The evidence shows that an employee, AlanThomas, was standing or walking on a large cylindrical tank approximately nine feet abovethe floor without a safety belt or other means of personal protection (Ex. C-1, C-2; Tr.27, 286). The employee was observed walking on the tank. The employee, a welder, waspreparing the tank for shipment by installing the bolting and accessories (Tr. 287). Afall from the tank car to the concrete floor below would likely result in severe injuriessuch as broken bones, a concussion or serious bruises (Tr. 27-28). Thomas Brockman, aClass A welder who also worked in the north bay, testified that, at the time of theinspection, the practice was to not tie off while walking across the tank but to tie offto nozzles while at the work stations (Tr. 228). compliance officer Dennis Collins did notsee any appropriate place to tie off a safety belt at that location (Tr. 29). Mark Lang,respondent’s production manager, suggested that the employee could tie off to an overheadcrane, but the employee could be subjected to being pulled off the tank car should thecrane be placed in operation (Tr. 28-29, 289). The compliance officer testified that atother manufacturers he had seen catwalks and static lines used to provide safe access towork areas (Tr. 29).Respondent contends that the evidence does not show that theemployer had knowledge of the conditions. Yet, the employee was working in an open portionof the facility and the conditions were or, with proper diligence, should have been seenby his foreman or other supervisor. That is especially true as it was common practice notto tie off while walking across the tanks (Tr. 228). Respondent further suggests theemployee was engaged in an isolated incident of misconduct an he was in violation ofrespondent’s safety rules. As defined in Brock v. L. E. Myers Co., High Voltage Div., 818F.2d 1270, 1277 (6th Cir. 1987), the defense requires the following elements of proof:. . . an employer may defend the citation on the ground that,due to the existence of a thorough and adequate safety program which is communicated andenforced as written, the conduct of its employee(s) in violating that policy wasidiosyncratic and unforeseeable. By its nature, information with respect to theimplementation of its written safety program will be in the hands of the employer, and itis not unduly burdensome to require it to come forward with such evidence. If theemployer’s evidence preponderates, it has successfully established the defense ofunforeseeable employee misconduct. We emphasize that the employer who wishes to rely onthe presence of an effective safety program to establish that it could not reasonably haveforeseen the aberrant behavior of its employees must demonstrate that program’seffectiveness in practice as well as in theory.Mr. Lang testified that the company’s work rules requiredemployees to use a safety belt attached to a lanyard when working above 48 inches (Tr.285-286). Respondent contends employees were informed of such rules at safety meetings(Tr. 290). However, the work rule was not enforced. Employees did not tie off whilewalking across the tanks and supervisors did not regularly require employees to even tieoff to nozzles[[3]] (Tr. 229). Therefore, respondent’s affirmative defense must fail. TheSecretary has established a serious violation of item two as alleged.Item three charged a violation of 29 C.F.R. ?1910.252(a)(2)(ii)(d) [[4]] as follows:3 29 C.F.R. 1910.252(a)(2)(ii)(d): Valve protection caps werenot in place, hand-tight, on compressed gas cylinders not in use or connected for use:(a) Beside the center bay aisle, there was an oxygen\/actylenetorch which was not connected for use and which had no valve protection cap on the oxygencylinder.Compliance officer Collins observed several compressed gascylinders located near the center bay aisle. One of the cylinders had a regulator attachedto it, but did not have any hoses and so could not have been in use. Companyrepresentative Paul Vied indicated there was at least 40 pounds of pressure in the tank(Ex. C-3; Tr. 35-36). The tank had been sitting in a high traffic area for two to threedays (Tr. 37-38). Collins described the hazard presented by the missing valve cap asfollows (Tr. 38):A The hazard would be damage to that valve which could releasethe pressure in the tank. It would release oxygen. If there’s a sufficient amount ofpressure in that tank you could have a missile. Even if there’s not a sufficient amount ofpressure in the tank to create a missile, you still have fire potential by releasingoxygen compressed oxygen, into the ambient air.Death or serious injury would probably result from an accident.From reading the label on the cylinder, Collins determined it contained oxygen gas (Tr.154-155). Thomas G. Brockman, a welder, indicated the cylinder looked like one containingacetylene because it was in a red cylinder, but he did not read the label. He testified itwas common for cylinders within the plant to be without valve caps because caps were notmaintained in any organized fashion (Tr. 230-231, 245). Plant manager Lang disagreed withtestimony that the red color of the cylinder indicated it contained acetylene but thoughtthe type of regulator and size of the cylinder did suggest it contained acetylene (Tr.292- 293).The testimony of Compliance officer Collins that it containedoxygen is convincing since his statement is based upon his observation of the label on thecylinder. Even if it contained acetylene, equally great hazards are present.Respondent contends the Secretary failed to prove a prima faciecase, because there is no specific testimony that the cylinder in question\”. . . isdesigned to accept a cap.\” The only reasonable inference to be drawn from the findingand testimony of Compliance Officer Collins was that the cylinder was so designed. Thatwas at the heart of the alleged violation and had the cylinder not been designed to accepta cap, company officials would have quickly resolved the allegation on the walkaround.Respondent suggests it had a work rule requiring caps oncylinders, but as the testimony of welder Brockman makes clear, the work rule, if any, wasnot enforced.A violation of 29 C.F.R. ? 1910.252(a) (2)(ii)(d) has beenestablished as alleged in item three.A penalty of $700 was proposed by the secretary.Item four of serious citation one alleges a violation of 29C.F.R. ? 1910.303(b)(1)[[5]] under the following circumstances: 29 CFR 1910.303(b)(1): Electrical equipment was not free fromrecognized hazards that were likely to cause death or serious physical harm to employees:(a) Mall grinder No. CL located between columns B12 and C12 wasoperated at 4880V and was equipped with an extension cord which had a 4-prong twist lockattachment plug rated for only 120\/208V. In addition, the attachment plug had opennessbetween its cord grips and cord and was not suitable for exposure to conductive dusts.(b) Mall grinder No. 6 located between column B12 and C12 wasoperated at 480V and was equipped with attachment plugs on its cords which were onlyapproved for 120\/208V. In addition, the cord grips of the plugs were not designed forexposure to conductive dusts and were not adequately sealed by application of dust tape tothe cord and plug.Compliance Officer Collins testified he had two concernsregarding mall grinder number CL described in item 4a as follows (Tr. 64-65):. . . The first concern was this piece of equipment was beingoperated at 480 volts and this particular plug is not an approved plug at 480 volts. It’sUL approval is only for a 120\/208 voltage rating.The second concern which was raised during the inspection, andthis was one of the complaint items, was the fact that there were problems with theseplugs due to getting metal dust inside the plugs and having them arc.The mall grinder number six was operated at 480 volts ratherthan the 120\/208 for which it was designed and also had problems with metal dust insidethe plugs (Tr. 76, 202-206).Respondent contends the Secretary cited the wrong standard inher contention that tools were being used at an unapproved voltage and that metal dustinside taped connections to the plugs was not a recognized hazard (Resp. brief p. 13).The evidence showed that respondent had experienced problemswith equipment with the defects cited for some time and had been replacing its electricalcircuits and equipment (Tr. 335). It was recognized that the problems cited had causedelectrical shorting and shocks (Tr. 236) Lionel Harris, a welder, had been seriouslyinjured after receiving an electrical shock at a plug shown to contain metal dust and tobe burnt black (Tr. 186-190).In spite of these accidents, respondent was still usingunderrated plugs and equipment containing metal dust at the time of the inspection. Mr.Lang estimated seven or eight plugs, several mall grinders and several extension cordswere in use (Tr. 300).The facts of record establish that respondent violated 29C.F.R. ? 1910.303(b)(1) as alleged.II.REPEAT CITATION NO. 2Citation number two alleges a repeat violation of 29 C.F.R. ?1910.252(e)(2)(iii)[[6]] under the following conditions: (a) Along the center bay aisle, there was an arc weldingoperation located between columns B9 and B10 which had only 1 welding screen and had thewelding being performed at a level above the screen exposing employees in the aisle to thewelding flash.(b) At the center bay aisle between columns B5 and B6, therewas a welding operation in process which had welding screen protections from the east sidebut none from the west side.Compliance officer Dennis Collins testified that at the twolocations described in the citation, he observed welding operations being performed sothat the arc could be seen. The arc from the welding going on between columns B5 and B6could be seen from the main center bay aisle, because there was no screen to shield therays. The arc from the welding processing being performed between columns B9 and B11 couldbe seen from the main aisle because the welding was taking place at a height higher thanthe screens (Ex. C-4; Tr. 40-41). Welder Brockman testified that, at the time of theinspection, respondent did not have enough screens for all the welding stations (Tr. 243).During the walkaround inspection, Paul Vied, a company representative, agreed that thewelding screens were inadequate (Tr. 21, 57-58). As stated by Compliance officer Collins,the absence of adequate welding screens could result in serious flash burns to the eyes(Tr. 58).Respondent contends the Secretary failed to prove a violationon the grounds that there was no showing of employee exposure. The citation states and thecompliance officer testified; however, that the work was being done along the center bayaisle and the arc was seen from that location. The reasonable inference to be drawn fromthose facts was that employees walking along the center bay aisle could see and saw thearc. It is concluded they were thereby exposed to the hazard. A flash burn of the eyes isa serious injury (Tr. 58).The Secretary contends that the violation was a repeated one.Under precedent of the Commission, \”a violation is repeated … if, at the time ofthe alleged repeated violation, there was a Commission final order against the sameemployer for a substantially similar violation.\” Potlatch Corp., 79 OSAHRC 6\/A2, 7BNA OSHC 1061, 1063, 1979 CCH OSHD ? 23,294, p. 28,171 (No. 16183, 1979). Under Potlatch,a prima facie case of similarity is established by a showing that the prior and presentviolations were for failure to comply with the same standard. If the standards were notthe same; however, the Secretary must present other evidence that the violations weresubstantially similar and in such cases evidence that the violations involved similarhazards is relevant. Id.Exhibit C-9 is a copy of a citation issued May 27, 1986, toBrighton Corporation charging a violation of 29 C.F.R. ? 1910.252(e)(2)(iii) under thefollowing circumstances:1910.252(e)(2)(iii): workers or other persons adjacent towelding were not protected from the rays by noncombustible or flameproof screens orshields, nor were they required to wear appropriate goggles:(a) At the center bay near column B7, screens or shields werenot used to protect persons from rays of the Thermol Arc cutting system.Not only was the citation issued under the same standard, butthe violation took place in the same general area of the plant. Brighton Corporation didnot contest the citation, and it became a final order (Tr. 59-62). Respondent acquired theplant from Brighton on January 1, 1987 (Tr. 344, 346).The Secretary lists eight factors which she contends, undernational labor and civil rights law, determine whether respondent is a successorcorporation bound by the earlier final order and asserts such factors should be applied inthis case. The factors are as follows:(1) whether successor company had notice of charge,(2) ability of predecessor to provide relief,(3) whether there has been a substantial continuity of businessoperations, (4) whether successor used the same plant, (5) whether successor uses the sameor substantially the same work force, (6) whether successor uses the same or substantiallythe same supervisory personnel, (7) whether the same jobs exist under substantially thesame working conditions, (8) whether successor uses the same machinery, equipment andmethods of production, and (9) whether successor produces the same product.Golden State Bottling Co. v. N.L.R.B. 414 U.S. 168 (1973);John Wiley & Sons Inc. v. Livington, 376 U.S. 543 (1963);E.E.O.C. v. MacMillan Bloedel containers, Inc., 503 F.2d 1086(6th Cir. 1974).The record in this case, however, fails to establish the extentto which each of the eight factors are present in this case. Without question, manyemployees, including some managers and supervisors who had worked for Brighton continuedtheir work for Trinity after it acquired the facility. Except for Lang who was plantsuperintendent from 1984 to 1987 it is not shown to what extent the managers who dealtwith the OSHA inspection for Brighton continued their employment under Trinity. InFlexible Corp., 84 OSAHRC 43\/A2, 12 BNA OSHC 1053, 1984-85 CCH OSHD ? 27,063 (No.83-1013, 1984), Judge Burroughs noted there was no showing of \”. – – common identityof directors, officers or stockholders of the predecessor and successor corporation\”and, therefore, the successor corporation \”. . . cannot be held liable for theviolations of its predecessor.\” It might be added that the safety personnel andpolicies have been changed.In any event, there has been no showing of sufficient nexusbetween Brighton and Trinity that a prior citation to Brighton should cause a similarcitation to respondent to be a repeated one.A serious violation, but not a repeated violation, of 29 C.F.R. ?1910.252(e)(2)(iii) hasbeen established.III.PENALTY It is concluded that items two, three and four ofcitation oneand item one of citation two constitute serious violations. Section 17(b) of the Actrequires that a civil penalty of up to $1,000 be assessed for each serious violation.Section 17(j) gives the Review Commission authority to assess penalties givingconsideration to the gravity of the violations and the size, good faith and history ofprior violations of the employer.Respondent’s corporate headquarters is in Dallas, Texas. It hasapproximately 3,000 employees nationwide and over 100 employees at its Mosteller Roadfacility involved in this proceeding (Tr. 329-331, 353). There is no evidence of priorinspections of this plant after it was bought from Brighton, nor is there evidence ofanything other than good faith by the company.The Secretary proposed a penalty of $700 for citation one, itemtwo. Employees working on the tanks without safety protection were subject to seriousinjury due to the fall hazard. The evidence shows that any safety rules regarding thedangerous practice were not enforced. The proposed penalty of $700 is reasonable andwarranted.The absence of caps on gas cylinders as alleged in citationone, item three, creates a realistic hazard due to fire or explosion. The penalty proposedby the Secretary of $700 is reasonable.Citation one, item four, concerned the mall grinders connectedto improper electrical circuits with metal dust in their plugs. That there have beenserious injuries demonstrates the gravity of the violation. A penalty of $800 iswarranted.Citation two, item one, was charged as a repeat violation butfound to constitute a serious, rather than a repeat violation. The Secretary proposed an$800 penalty; however; as a serious a penalty of $600 is reasonable. CONCLUSIONS OF LAW1. Respondent is an employer subject to the Act and thisproceeding.2. Respondent did not violate 29 C.F.R. ? 1910.22(a)(l) asalleged in citation one, item one.3. Respondent violated the Act as alleged in items two, threeand four of citation one under conditions constituting serious violations.4. Respondent violated 29 C.F.R. ? 1910-252(e)(2)(iii) asalleged in citation two, item one, under conditions constituting a serious violation.ORDER 1. Citation one, item one, is vacated.2. Citation one, items two, three and four, are affirmed.3. Citation two, item one, is affirmed as a serious violation.4. Penalties of $2,800 are assessed. Dated this 14th day of February, 1990. Joe D. SPARKSJudgeFOOTNOTES: [[1]] The cited standard is 29 C.F.R. ? 1910.252(e)(2)(iii),which in 1990 was renumbered as 29 C.F.R. ? 1910-252(b)(2)(iii). The standard states, inpertinent part:Protection from arc welding rays. Where the work permits, thewelder should be enclosed in an individual booth …. Booths and screens shall permitcirculation of air at floor level. Workers or other persons adjacent to the welding areasshall be protected from the rays by noncombustible or flameproof screens or shields, orshall be required to wear appropriate goggles.[[2]] At the time of the hearing, Collins had worked for OSHAfor 16 1\/2 years and had conducted over 1200 inspections, mainly Involving safetystandards.[[3]] The Commission has previously upheld the sufficiency ofunrebutted testimony regarding admissions by an employer’s employees. See, Anoplate Corp,12 BNA OSHC 1678,1682 n,10. 1986-87 CCH OSHD ? 27,519, p.35,684 n.10 (No. 80-4109,1986)StanBest, Inc. 11 BNA OSHC 1222,& 1227 & 1228, 1983-84 CCH OSHD ? 26,455.pp.33,621-22 (No. 76-4355, 1983). Astra Phamaceutical Prod. Inc.. 9 BNA OSHC at 2131-32,1981 CCH OSHD at pp.31,901-02.[[4]] The cited standard is 29 C.F.R. ? 1910.132(a), whichstates:Personal 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 in a manner capable of causing injury or impairment in the function of any part ofthe body through absorption, inhalation or physical contact.[[5]]The Company’s, production manager testified that Trinity’ssafety rule had been only orally communicated, and, we note that it does not appear ineither of the Company’s safety manuals.[[6]] At the hearing, when cross examined as to whether hethought that crossing a tank without a safety belt constituted a fall hazard, Langreplied. \”I would say, yes. If a man fell it would be a fall hazard.\” He furtherstated: \”Basically, the man should be able to [gain] access to his work site. [I]fhe’s walking across… going to his station … [he] should maybe [have] had a laddergoing to the actual work site.\” The company’s safety manuals refer to ladders andscaffolds, without actually requiring their use in the kind of work involved here.Nevertheless, according to some testimony, the employee involved here may have, beendisciplined for failing to use a tied-off safety belt.[[7]] Lang testified, however, that he did not recall anyfurther discussion after Collins gave his opinion that the crane was not a suitableanchor. In his testimony, Lang also summarily posited that putting up a lifeline would not[be] impossible, but impractical, probably.\”[[8]] An employer’s voluntary safety efforts may properly beconsidered in conjunction with other evidence demonstrating that the employer or itsindustry recognized the hazard in question. Compare Durion Co. v. Secretary. 750 F.2d 28,30 (6th Cir. 1984); with Donovan v. General Motors Corp., 764 F.2d 32, 36-37 (1st Cir.1985). Cotter & Co. v. OSHRC, 598 F.d 911, 914- 15 (5th Cir. 1979); and DieboId, Inc.v. Marshall, 585 F.2d 1327, 1337-38 (6th Cir. 1978). See also Otis Elevator Co. v. OSHRC,581 F.2d 1056 1058 (2d Cir. 1978); Lukens Steel Co., 10 BNA OSHC 1115, 1123, 1981 CCH OSHD? 25,742, p. 32,119 (No. 76-1053, 1981). Addressing this case law, Trinity argues as ifits workrule were the only evidence of hazard recognition. The Company erroneously assumesthat all other related evidence is relevant to a separate matter, i.e., recognition of aneed for the particular personal protective equipment. That is not the case, however.Evidence concerning equipment used by other employers is relevant to hazard recognitionbecause the evidence demonstrates a broad perception, throughout an industry, thatprotection was necessary in the circumstances.[[9]] Trinity did not present any sufficient evidence inrebuttal. Trinity asserts that common sense would \”dictate\” not bothering withsafety belts, because \”one could reasonably predict that the risk of injuryassociated with tying off a safety belt may actually be greater than the risk involved inretrieving the wrench,\” which \”might take 30 seconds at most.\” Trinityquestions why an employee should \”go to the further time, trouble, and risk of tyingoff a safety belt.\” There is no evidence specifically supporting these assertions,however, whether they are taken as a rationale demonstrating why reasonable persons wouldnot recognize a hazard requiring personal protective equipment or as an attempt to raise agreater hazard defense. Compare Ray Evers Welding v. OSHRC. 625 F.2d 726.732 (\”hetestified that the proposed means of protecting employee from falling were not feasibleand would in fact subject employees to a greater hazard of falling because of theirreduced mobility\”).[[10]] Regarding feasibility as an element of a violation of ageneral standard such as the one cited in this case. see Granite City Terminals Corp. 12BNA OSHC 1741, 1746 n.11, 1986-87 CCH OSHD ? 27,547, p. 35,775 n. 11 (No. 83 882-S,1986).[[11]] The cited standard is 29 C.F.R. ?1910.252(a)(2)(ii)(d), which in 1990 was renumbered as 29 C.F.R. ? 1910.253(b)(2)(iv). .The standard states. in pertinent part:Valve protection caps, where [a] cylinder is designed to accepta cap, shall always be in place, hand-tight, except when cylinders are in use or connectedfor use.[[12]] Trinity tried to prove that the cylinder containedsomething other than oxygen. When Trinity’s attorney cross-examined Collins, he askedwhether the cylinder contained argon. an inert gas (noncombustible and nonflammable).Collins replied that, to the best of his recollection, the gas was not argon, and Collinsagain reffered to the label that had indicated oxygen. Another witness, a longtimeemployee who was a welder and a union grievance committeeman, posited that the cylindercontained acetylene, although he was not sure; he reasoned entirely on the basis of thered color of the cylinder. Lang testified that the cylinder contained acetylene, based onthe appearance of the gauges of the regulator and the size of the cylinder, he said thatthe color (if the cyIinder is not a significant factor in determining what substance acylinder contains. He had not looked at the cylinders label.[[13]] Both oxygen and acctylene can be fire hazards; theCompany’s production manager agreed that this is so. On review, Trinity asserts that therewas no showing that acetylene could be a fire hazard at low pressures, but productionmanager Lang agreed, without qualification, that both gases presented this hazard. Also,obviousIy, a cyclinder can become a missile regardless of the kind of gas it contains, ifthe gas is sufficiently pressurized. Thus, even if the cyclinder contained acetylenerather than oxygen, the judge correctly found hazards existed.[[14]] This standard pertains to \”[e]xamination\” ofelectrical equipment, and requires:Electrical equipment shall be free from recognized hazards thatare likely to cause death or serious physical harm to employees. Safety of equipment shallbe determined using the following considerations:(i) Suitability for installation and use in conformity with theprovisions of this subpart Suitability of equipment for an identified purpose may beevidenced by listing or labeling for that identified purpose.(ii) Mechanical strength and durability, including, for partsdesigned to enclose and protect other equipment, the adequacy of the protection thusprovided.[[15]] The record does not establish the source of theseparticular cautions and notices, but on the basis of certain evidence indicating thatcautions and notices may appear on or inside the boxes that contain such plugs, we inferthat the cautions and notices came from the manufacturer.[[16]] At the time, the Sharonville plant was operated underthe name of Brighton Corporation which, according to Trinity’s corporate statement filedin this case, is one of the names under which Trinity has previously transacted business.In January 1987, however, Trinity began operations in its own name at the Sharonvilleplant. In this case, there is no evidence indicating that the Sharonville plant’smaintenance supervisor resigned thereafter. Moreover, inasmuch as, the ownership of theplant evidently did not change, we find no reason to infer a change of managementpersonnel [[17]] Because Brockman was not yet aware that metal dust hadcontributed to the electrical hazards, Brockman did not mention it to Lang. Thus, notuntil OSHA inspected in August 1988 did Lang learn of the employees’ practice of wrappingtape around the old plugs to keep dust out of them.\u00a0[[1]] Section 1910.22(a)(l) of 29 C.F.R. states as follows:(a) Housekeeping. (1) All places of employment, passageways,storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.[[2]]Section 1910.132(a) of 29 C.F.R. provides as follows:Protective equipment, including personal protective equipmentfor eyes, face, head, and extremities, protective clothing, respiratory devices, andprotective shields and barriers, shall be provided, used, and maintained in a sanitary andreliable 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[[3]] Brockman testified as follows (Tr. 229):Q Do you know If the tying off, even if it’s just on thenozzles, if that’s enforced by a supervisory personnel?A Regularly, it’s not. Unless one of the safety committee orgrievance committee complained about it. It has been a practice of them getting right upthere and working with nothing on.Q Or, without even tying off to the nozzles? A Yes.[[4]] Section 1910.252(a)(2)(ii)(d) of 29 C.F.R. states asfollows:(d) Valve protection caps, where cylinder is designed to accepta cap, shall always be in place, hand-tight, except when cylinders are in use or connectedfor use.[[5]]Section 1910.303(b)(1) of 29 C.F.R. provides:(b) Examination, installation, and use of equipment –(1)Examination. Electrical equipment shall be free from recognized hazards that are likely tocause death or serious physical harm to employees. . . .[6]]Section 1910.252(e)(2)(iii) of 29 C.F.R. provides:(iii) Protection from arc welding rays. Where the work permits,the welder should be enclosed in an individual booth painted with a finish of lowreflectivity such as zinc oxide (an important factor for absorbing ultraviolet radiations)and lamp black, or shall be enclosed with noncombustible screens similarly painted. Boothsand screens shall permit circulation of air at floor level. Workers or other personsadjacent to the welding areas shall be protected from the rays by noncombustible orflameproof screens or shields or shall be required to wear appropriate goggles.”