“Docket No. 78-0799 SECRETARY OF LABOR, Complainant, v.ULYSSES IRRIGATION PIPE COMPANY, Respondent.OSHRC Docket No. 78-0799DECISION Before:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners. BY THE COMMISSION:Administrative Law Judge Vernon Riehl vacated a citation issued to Respondent, UlyssesIrrigation Pipe Company (\”Ulysses\”).\u00a0 The citation alleged that Ulyssesviolated section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”) [[1\/]] by allowing an employee to operate a motor vehicle atnight that was not equipped with lights or overhead protection. Judge Riehl’s decision isbefore the Commission for review under section 12(j) of the Act, 29 U.S.C. ? 661(i).\u00a0 We reverse the judge’s decision and affirm the citation.I. At approximately 11:50 p.m. on the night of January 13, 1978, Garcia, asupervisor for Ulysses, was crushed to death when he backed the tractor he was operatingunder a flatbed trailer parked in Ulysses’ plastic pipe storage yard.\u00a0 Garcia hadbeen pulling a trailer loaded with pipe.\u00a0 The tractor was equipped with neither frontor rear lights nor a protective enclosure.\u00a0 As a result of an investigation, theSecretary issued a citation alleging, as amended in the complaint, that:\”[Ulysses] failed to furnish a safe work area and equipment by allowingan employee to operate at night a motor vehicle without a protective enclosure or lightsin a dark, non-illuminated area where obstacles were present, exposing the employeeoperator to collision hazards which could result in severe injuries or death….. \”Garcia and his crew generally used a forklift equipped with lights and aprotective enclosure to move newly-manufactured pipe from the production facility topositions in Ulysses’ storage yard. Stephens, the crew leader, was removing pipe from theproduction facility with this vehicle at the time of the incident.\u00a0 A third vehicleassigned to Garcia’s crew had been unavailable for two months. When work was runningbehind schedule at night, as it was on the night of the incident, or when the forklift wasunavailable, Garcia and Stephens used the tractor involved in the citation.\u00a0 Stephenshad been instructed by Richards, the daytime foreman of the plastic pipe storage yard, towhom the tractor was assigned, not to use the tractor unless he had to, but he was notinstructed never to use it.\u00a0 Wilmore, Ulysses’ plant manager stated that he had neverforbidden the use of a tractor without lights, but Griffith, Ulysses’ quality controlmanager, testified that he was present when Garcia was instructed \”not [to] use thetractor, use the [Hyster] [a forklift truck], because it has lights on it and it isprotected.\”\u00a0 Griffith also indicated that this directive was never reduced towriting, nor did violations of the directive ever result in disciplinary action.Other than moonlight, the plastic pipe storage yard was illuminated bywhatever light emanated from the manufacturing facility and by lights at an adjacentplant.\u00a0 To prevent pilferage, Ulysses had installed perimeter lighting in the areaaround the storage yard but it was not operating on the night of the accident.\u00a0 Anumber of flatbed trailers were parked in the yard, and there were also posts at theentrance to each bay.\u00a0 The compliance officer, testifying on the basis of hisinvestigation, stated that the night of the accident was a clear moonless night.\u00a0 Hehad no difficulty in seeing around the yard on the nights of the inspection but indicatedthat the perimeter lighting had been turned on. Stephens testified that he had nodifficulty in seeing in the yard at night, but he claimed that he could see well in thedark, and that he always knew where everything was in the yard because he came to workearly in order to find out.\u00a0 Wilmore, who arrived at the plant just after theaccident, also testified that he had no difficulty in seeing around the yard; theperimeter lights were apparently not on.\u00a0 Padgett, a safety expert who testified forUlysses, inspected the yard more than a month after the incident.\u00a0 He stated that herecognized objects in the plastics storage yard from the door of the plastic plant on thenight of his inspection but he did not recall whether the perimeter lighting was turnedon.II. Judge Riehl vacated the citation.\u00a0 He found that there was sufficientlight in the plastics storage yard to see by, that Garcia violated one of the Ulysses’safety rules by operating the tractor at night, and that Garcia’s conduct could not beimputed to Ulysses because Ulysses did not know that the tractor had been used contrary toits rule.On review, the Secretary argues that the record establishes a violation ofsection 5(a)(1) of the Act.\u00a0 He objects to Judge Riehl’s reliance on testimony thatvisibility was good in the storage yard for his implicit conclusion that a recognizedhazard was not present.\u00a0 First, he argues that the usual reasons for deferring to ajudge’s credibility findings are absent because the judge who wrote the decision did notpreside at the hearing. [[2\/]]\u00a0 Second, the Secretary questions the judge’s relianceon the testimony of Stephens, who claimed that he had no difficulty seeing in the yard atnight but nevertheless came to work early in order to determine the location of thevarious objects in the yard.\u00a0 He also claims that the judge could not have properlyrelied on the testimony of the compliance officer and Padgett, Ulysses’ safety expert,because both viewed the storage yard with the perimeter lighting turned on. Third, theSecretary contends that by instructing its employees to use the properly equippedforklift, Ulysses recognized that the use of an unlighted and unprotected tractor washazardous.\u00a0 Even though Ulysses may not have anticipated the exact sequence of eventsleading to the accident, the Secretary maintains that it recognized the hazard.The Secretary also argues that there was no basis for the judge’s conclusionthat Garcia’s use of the tractor was contrary to Ulysses’ safety instructions. \u00a0According to the Secretary, the instruction not to use the tractor unless they \”hadto\” allowed employees to use the tractor at their discretion when the work requiredit.\u00a0 He maintains that even if Garcia had acted contrary to Ulysses’ safetyinstructions, the ambiguity of the direction made it too general to be an effectiveworkrule.\u00a0 He also argues that Ulysses failed to demonstrate the existence of amechanism to discover violations of its rule, or train employees to avoid this hazardousconduct.\u00a0 The Secretary also alleges that Ulysses failed to take the \”obviousprecautions embodied in overhead lighting, protective enclosures and an unclutteredstorage yard.\”Ulysses contends that the judge was correct in finding that Garcia’soperation of the tractor was a violation of its safety policies.\u00a0 It contends that itcould not have reasonably prevented the accident because Garcia, its supervisor, violateda safety rule that was directed specifically at him.\u00a0 Ulysses claims that itsemployees who testified that Garcia had used the tractor before did not state whether itwas day or night, and that a third employee could not recall Garcia having driven thetractor.\u00a0 Ulysses argues that this was not a case in which the supervisor had a badsafety record or his failure to follow company safety policies was well known.\u00a0 Italso contends that Garcia’s operation of the tractor was outside the scope of his dutiesas a supervisor.Ulysses argues that the Secretary failed to prove that, assuming the hazardexisted, it was \”likely\” to cause death or serious injury. It maintains that\”likely\” in section 5(a)(1) is the equivalent of \”substantialprobability\” in section 17(k) of the Act, and that the Secretary’s case wasirrevocably damaged by the failure of the compliance officer to testify that more than apossibility existed that the cited hazard \”was likely to cause death or seriousphysical harm.\”III. In order to establish a violation of section 5(a)(1) of the Act, theSecretary must prove that: (1) the employer failed to render its workplace free of ahazard, (2) the hazard was recognized either by the cited employer or generally within theemployer’s industry, (3) the hazard was causing or likely to cause death or seriousphysical harm, and (4) there was a feasible means by which the employer could haveeliminated or materially reduced the hazard. Little Beaver Creek Ranches, Inc., 82 OSAHRC36\/A2, 10 BNA OSHC 1806, 1810, 1982 CCH OSHD ? 26,125, p. 32,878 (No. 77-2096, 1982).In applying these principles to this case, we emphasize that although thecircumstances of an accident may provide relevant evidence, our inquiry is not necessarilyto find the cause of the accident or determine whether the violation caused the accident.See, e.g., Kansas City Power & Light Co., 82 OSAHRC 13\/A2, 10 BNA OSHC 1417, 1422,1982 CCH OSHD ? 25,957, p. 32,539 (No. 76-5255, 1982); Boeing Co., 77 OSAHRC 188\/D13, 5BNA OSHC 2014, 1977-78 CCH OSHD ? 22,266 (No. 12879, 1977) (whether a violation occursdoes not depend on the cause of the particular accident); Concrete Construction Co., 76OSAHRC 47\/A2, 4 BNA OSHC 1133, 1135 & n.3, 1975-76 CCH OSHD ? 20,610, p. 24,664 &n.3 (No. 2490, 1976) (circumstances of an incident may provide relevant evidence). Withthis in mind, we now consider whether the record establishes the elements of a section5(a)(1) violation.A recognized hazard is a condition or practice in the workplace that is knownto be hazardous either by the industry in general or the employer in particular. \u00a0Beaird-Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21\/D11, 7 BNA OSHC 1225, 1979CCH OSHD ? 23,493 (No. 12600, 1979).\u00a0 The judge’s implicit finding that conditionsin Ulysses’ plastic storage yard did not present a recognized hazard was based on hisfinding that there was sufficient light to see.\u00a0 The Commission considers the judge’sfindings as part of the record on review, but it is not bound by them. See AstraPharmaceutical Products, Inc., 81 OSAHRC 79\/D9, 9 BNA OSHC 2126, 2131 n.18, 1981 CCH OSHD? 25,578, p. 31,901 n.18 (No. 78-6247, 1981), aff’d, 681 F.2d 69 (1st Cir. 1982). It isthe Commission that is the ultimate finder of fact. See Franklin R. Lacy (Aqua ViewApartments), 81 OSAHRC 71\/A2, 9 BNA OSHC 1253, 1254, 1981 CCH OSHD ? 25,171, p. 31,073(No. 3701, 1981).\u00a0 Although there is some support in the record for the judge’sfinding, it is outweighed by other evidence.\u00a0 Only one witness, Wilmore, the plantmanager, plainly stated that he was able to see objects in the yard at night unaided.\u00a0 The compliance officer viewed the yard with the perimeter lighting on. Stephens,who claimed an exceptional ability to see at night, came to work early to locate objectsin the yard and usually drove a forklift equipped with headlights when moving pipe in theyard.\u00a0 The record does not show that Padgett, the safety expert who testified forUlysses, viewed the yard with the perimeter lights off.\u00a0 On the other hand, therecord indicates that parts of Ulysses’ obstacle-filled yard were as much as eighty toninety yards from any source of illumination.\u00a0 An employee who had to pull a trailerfull of pipe through the yard in a motor vehicle that was not equipped with lights or aprotective enclosure was clearly exposed to a hazard.\u00a0 Ulysses recognized the hazardby instructing Garcia to \”use the [Hyster], because it has lights on it and isprotected.\”\u00a0 See Ted Wilkerson Inc., 81 OSAHRC 70\/D8, 9 BNA OSHC 2012, 2016,1981 CCH OSHD ? 25,551, p. 31,856 (No. 13390, 1981).We also find that Ulysses failed to render its workplace free of therecognized hazard by taking feasible steps to protect its employees.\u00a0 Ulysses choseto rely on a workrule to ensure that no employee drove the tractor without lights in thedark.\u00a0 However, it failed to adequately implement this rule.\u00a0 When an employerrelies on safety rules, the employer must take all feasible steps to assure employeecompliance with the rules, including establishment of a rule designed to prevent theviolation at issue, effective communication of the rule to employees, efforts to discoverinfractions of the rule, and employer enforcement of the rules when infractions arediscovered.\u00a0 See K-Mart, 82 OSAHRC 49\/A2, 10 BNA OSHC 2202, 2204, 1982 CCH OSHD ?26,333, p. 33,344 (No. 77-270, 1982), appeal filed, No. 82-2735 (7th Cir. October 29,1982), and cases cited therein.The evidence establishes that Ulysses’ workrule was equivocal at best. \u00a0Although Garcia was instructed not to use the unlighted, unprotected tractor at night,Stephens was instructed not to use it at night unless necessary and Wilmore, the plantmanager, testified that he had never forbidden employees from using the unlightedtractor.\u00a0 Not surprisingly, when work was running behind at night, both Garcia andStephens used the tractor. Moreover, if safety rules are the means chosen to free theworkplace of a recognized hazard, employees must understand that rules will be enforced.\u00a0 We have recently observed that when a supervisor violates a rule, he not onlyendangers himself and others; he also suggests to his subordinates that safety rules arenot to be taken seriously. Farthing & Weidman, Inc., 82 OSAHRC 75\/A2, 11 BNA OSHC1069, 1983 CCH OSHD ? 26,389 (No. 78-5366, 1982).\u00a0 Here, Ulysses did not claim orshow that it made any effort to discover if Garcia followed the rule or if Garcia wasaware that the rule would be enforced if infractions were discovered.\u00a0 See Floyd S.Pike Elec. Contractor, Inc., 78 OSAHRC 50\/E1, 6 BNA OSHC 1675, 1978 CCH OSHD ? 22,805(No. 3069, 1978).\u00a0 Ulysses’ argument that it freed the workplace of the recognizedhazard by its workrule is therefore rejected.\u00a0 Ulysses’ argument that moving pipe wasoutside the scope of Garcia’s duties is also without merit. There is no evidence thatGarcia was prohibited from moving pipe. [[3\/]]A hazard is \”likely to cause death or serious physical harm\” withinthe meaning of section 5(a)(1) if the likely result would be serious physical harm ordeath in the event of an incident.\u00a0 See R.L. Sanders Roofing Co., 79 OSAHRC 61\/D7, 7BNA OSHC 1566, 1569, 1979 CCH OSHD ? 23,756, p. 28,805 (No. 76-2690, 1979), rev’d onother grounds, 620 F.2d 97 (5th Cir. 1980). Garcia’s death establishes that the likelyresult would be serious physical harm or death in the event of an incident.\u00a0 Thetestimony of the compliance officer that there was only a possibility the hazard waslikely to cause death or serious physical harm goes to the question of whether an accidentis likely to occur, which is not the inquiry here.\u00a0 Id.Inasmuch as all the elements of a section 5(a)(1) violation have beenestablished, we reverse the judge’s decision and affirm the citation.\u00a0 We must nowconsider the penalty to be assessed.\u00a0 Ulysses has no history of violations under theAct.\u00a0 It conducts safety meetings.\u00a0 The size of the employer is not indicated onthe record.\u00a0 As to the gravity of the violation, at least two employees were exposedto the hazard.\u00a0 In view of this, we conclude that the Secretary’s proposed penalty of$300 is appropriate.Accordingly, the judge’s decision is reversed.\u00a0 The citation is affirmed.\u00a0 Apenalty of $300 is assessed.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 MAR 24 1983The 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\/]] Section 5(a)(1), 29 U.S.C. ? 654(a)(1), provides:Sec. 5(a)\u00a0 Each employer–(1) shall furnish to each of his employees employment and a place of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees.[[2\/]] Judge Paul Dixon presided at the hearing in this case but, because ofan illness, the decision was written by Judge Riehl.[[3\/]] Because we find that an effectively communicated and enforced workrulewas a feasible means of reducing the hazards and that Ulysses’ workrule was inadequate, weneed not determine the feasibility and likely utility of other alleged means of abatementsuch as the provision of lights and cab protection for the tractor involved or use of theexisting perimeter lighting.\u00a0 We note, however, that Ulysses must free its workplaceof the hazards by any feasible means.\u00a0 Accordingly, Ulysses must select and implementa measure or combination of measures that will reduce the recognized hazard to the extentfeasible.\u00a0 See General Electric Co., 82 OSAHRC 56\/A2, 10 BNA OSHC 2034, 2040 n.6,1982 CCH OSHD ? 26,259, p. 33,165 n.6 (No. 79-504, 1982).”