SECRETARY OF LABOR,
Complainant,

v.

BETHLEHEM STEEL CORPORATION,
FABRICATED STEEL CONSTRUCTION DIV.,
Respondent.

OSHRC Docket No. 76-5004

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.

BY THE COMMISSION:

The Secretary of Labor issued to Bethlehem Steel Corporation a citation alleging a violation of 29 U.S.C. § 654(a)(1), section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  This provision, the Act's general duty clause, requires that employers furnish places of employment free from "recognized" hazards. [[1]]  Former Administrative Law Judge Usher vacated the citation because he found the Secretary had failed to prove that the hazard alleged in the citation was "recognized" within the meaning of the clause.  For the following reasons, we affirm the judge's decision.

Bethlehem Steel was repairing a blast furnace at its plant in Johnstown, Pennsylvania.   During the repair work, some of its employees ascended a skip hoist, a structure inclined about 70º from the horizontal that was used to convey charging cars to the top of the blast furnace.  Within the skip hoist, the employees removed rails, lugs, and metal plate.  The Secretary claimed before the judge and argues before us that as a result of this work, material could have fallen, bounced out of the skip hoist and landed on an employee working on a winch platform.  This employee, Mr. Earnest, was positioned about 18 feet away from the skip hoist; the employees who worked on the skip hoist were as high as 87 feet above Mr. Earnest's level but were a horizontal distance from him of about 50 feet.  The citation alleged that Bethlehem violated the general duty clause by not providing overhead protection against falling objects for Mr. Earnest.

A necessary element of proof in any general duty clause litigation is recognition of the alleged hazard.  The Secretary may prove this element by showing that the employer's industry recognized the cited hazard or that the employer himself recognized it.[[2]]  On review, the Secretary claims only that Bethlehem, rather than its industry, recognized the alleged hazard of objects falling onto the winch platform as a result of the work of the employees in the skip hoist.  He argues that the judge erred in not finding the evidence sufficient.  The Secretary points to several items of evidence and argues that the judge should have given them more weight.
The Secretary briefly argues that Bethlehem officials were aware of the hazard because a union steward and his assistant had requested overhead protection for Mr. Earnest, the winch operator.  At the hearing, there was sharply conflicting testimony on the point.  A union steward and his assistant testified that they had made such a request of two Bethlehem officials.  One of these officials testified, however, that he had understood the request to be one for overhead protection against rain.  The other Bethlehem official testified that he had not been told of any hazard by the union steward and his assistant, and he did not remember that any request for overhead protection against falling objects was made.  As the Secretary recognizes in his brief, the judge made a credibility evaluation and believed Bethlehem's witnesses.  The Secretary supplies no reason, and nothing in this record suggests, why the Commission should depart in this case from its practice of deferring to a judge's evaluation of the credibility of witnesses.[[3]]

The Secretary claims that a collective bargaining agreement evinces Bethlehem's recognition of the hazard.  This contract was never introduced into evidence.  It was instead described by a union official as requiring overhead protection for a machine operator where "there is a danger of anything falling and injuring" him.  Inasmuch as this provision does not apply until a hazard exists, it demonstrates nothing about whether Bethlehem recognized a hazard here.

The Secretary points to a statement by Mr. Oakes, a Bethlehem supervisor, that "pellets" had fallen onto the winch platform.  Yet, the record does not indicate what exactly these "pellets" were, how such they weighed, how large they were, or why they posed a danger to the winch operator.  If anything, the record suggests that the pellets were not dangerous, for when Mr. Oakes was asked whether metal objects had fallen onto the winch platform, he replied "[j]ust" pellets.

Finally, the Secretary lays much stress on Mr. Earnest's testimony that Mr. Oakes was present when a metal lug fell within a foot or so of Mr. Earnest.  Despite the vivid impression that such an incident could be expected to have left upon an eyewitness, Mr. Oakes testified that he did not remember it.  In addition, both Mr. Earnest and Mr. Oakes testified that Mr. Earnest had not asked Mr. Oakes for overhead protection from falling metal objects.  Judge Usher considered Mr. Earnest's account in light of Mr. Oakes' testimony, and it is apparent from his discussion that he was not convinced that Mr. Earnest's account supported a finding of actual knowledge.  The Secretary does not suggest a reason why we should disagree with the weight attached by the judge to Mr. Earnest's testimony.

For these reasons, we are not convinced by the Secretary's arguments that the judge's decision should be reversed.  We do, however, acknowledge that, as the Secretary maintains, other portions of the judge's decision focused too heavily on the precise circumstances of an accident that befell Mr. Earnest and whether it was foreseeable.[[4]]  Yet, to borrow somewhat from the judge's decision, though this accident was tragic and deep sympathy is due to the victim, we have no choice but to vacate a citation that is not supported by preponderant evidence that an employer violated the Act.  Inasmuch as such evidence is lacking here, the judge's decision vacating the citation is affirmed.

FOR THE COMMISSION

Ray H. Darling, Jr.
EXECUTIVE SECRETARY

DATED:  MAR 30 1984

CLEARLY, Commissioner, dissenting:

I respectfully disagree with the majority affirmance of the administrative law judge's decision.  Although I agree with them that the judge's decision focused too sharply on the circumstances of the accident and on the foreseeability of the accident, I find that the judge's decision does not come to grips with the pertinent evidence supporting the citation.

As the majority notes, Bethlehem employees were repairing a blast furnace.   Some were removing rails in a skip hoist, which was used to convey charging cars to the top of the blast furnace.  The rails had been welded in place with iron lugs, each of which weighed about ten-and-one-half pounds.  Bethlehem employees used torches to cut the lugs loose; they also cut loose sections of the rails and metal plate.   Some of the cut pieces were tugged with a winch to break them loose.  Although the employees were supposed to catch the lugs and secure all cut pieces, some lugs and metal pellets nevertheless got loose and fell down the skip hoist. The skip was inclined about 70º from the horizontal.

The skip hoist was not enclosed except on its bottom surface.  The top and sides were composed of various structural members (trusses and braces), somewhat like a structural steel bridge with an open framework.  The bottom surface, called the chute, was flat but was interrupted by rails, lugs and other metal objects.  Some metal pieces got loose, fell down the chute, ricocheted off the metal objects or the trusses of the hoist, and bounced out of the hoist before reaching the bottom.

A Bethlehem employee, Mr. Earnest, was operating the winch that was used to break loose metal pieces.  He was stationed on a work platform at a point 87 feet below the elevation of the employees who cut loose the metal pieces.  His work station faced the top side of the skip hoist and was 18 feet away from it.  He therefore faced the direction of travel of ricocheting metal pieces.  For the reasons discussed below, I credit Mr. Earnest's testimony that an iron lug had fallen within a foot or so of him and some debris and metal pellets had fallen to his work platform.   Mr. Earnest wore earphones to respond to requests from his fellow employees when they wanted the winch to be used and was required to concentrate on the instructions given over the earphones.  The earphones' wire restricted his ability to avoid ricocheting objects.  At least some of the work was performed late at night and Mr. Earnest was also blind in one eye.  Bethlehem furnished Mr. Earnest with no overhead protection from falling metal.

On the night of September 30, 1976, a metal lug flew out of the skip hoist and struck Mr. Earnest, blinding his good eye.  The administrative law judge found that the trajectory followed by the metal lug was "horizontal."  This, the judge reasoned, was "[o]f particular significance," for if the angle of the piece's trajectory were "horizontal" or "near-horizontal," the overhead protection required by the citation "would have been useless because the object would have traveled on a course below the 'overhead protection.'"  The judge then explored the testimony about how the accident happened and concluded his discussion with the following:

[The Secretary's] proof fails to establish recognition of the hazard in this instance.  His version of how the accident happened is incredible considering the gravitational attraction of the earth's mass and engineering principles based on that theory.  The accident doubtless occurred as [Bethlehem's] several engineers have thoughtfully theorized.  [The Secretary's] theory fails to address itself to the accident as it could have been foreseen.  The accident was not "reasonably foreseeable prior to the time such exposure occurred...[and it was] not preventable by the employer" [citation omitted].  It was totally unforeseeable.

As the majority recognizes, the judge erred in that he limited his analysis to the particular accident that occurred, and asked whether the employer could have "foreseen" it.  Our precedent establishes rather that the judge should have inquired whether the cited, generically-defined hazard of failing objects was shown to have existed and was "recognized."

A hazard was present.  The Commission defines hazards in terms of the physical agents or processes that could injure employees, and not in terms of the absence of protective measures.[[5]]  The hazard in this case, therefore, was not the absence of overhead protection but that alleged in the amended citation--falling material or, more precisely, falling pieces of metal.  That hazard existed on Bethlehem's worksite.  To say that there was no hazard of falling metal pieces is either to trust the employees repairing the skip hoist to catch every loose metal piece or to trust every falling piece to travel straight down the hoist without hitting any of its trusses, braces and rails and bouncing out of the hoist.  Joseph Arslan, a Bethlehem field engineer, testified that metal pieces would fall down the chute and be deposited in the pit "under perfect conditions."  Mr. Arslan also testified that conditions were not "perfect." Moreover, according to the testimony of Mr. Earnest and Mr. Oakes, respectively, a metal lug and metal pellets did fly out of the skip hoist and fall onto the winch operator's platform.  The circumstances of Mr. Earnest's accident also furnish relevant evidence on the point.  Specifically, the accident is evidence that metal pieces could fly out of the hoist with enough velocity to reach the winch operator.  The trajectory of the particular lug that injured Mr. Earnest--which the parties and the judge spent so much time and energy reconstructing--is beside the point.  It requires no more than common sense and a knowledge of physics to realize that a metal piece that flies out of the skip hoist at a so-called "horizontal" angle just a short distance above the employee's head can hit the employee on the top of his head because gravity will immediately accelerate the piece downward.

The record does contain testimony by Bethlehem witnesses that there was no hazard or that they did not recognize a hazard of metal pieces falling onto Mr. Earnest.   This testimony is worth little.  During much of it, the witnesses explained why the trajectory of the object that hit Mr. Earnest was "horizontal," a matter that is irrelevant.  During other testimony, the witnessess reasoned backwards from the accident, and stated that because the trajectory was "horizontal," the hazard either did not exist or was not recognized, or that overhead protection would not have prevented the accident.  For example, Mr. McKosky, a Bethlehem engineer, stated that because the trajectory of the lug that hit Mr. Earnest was "horizontal," there was no "recognizable hazard" of metal pieces falling onto Mr. Earnest's head.  In other portions of the testimony, witnesses stated that no hazard of pieces falling onto Mr. Earnest's head existed or was recognized because Mr. Earnest was not working directly under his fellow employees.[[6]] This testimony however, did not take account of the fact that the chute of the skip hoist conveyed metal pieces in Mr. Earnest's direction.

I therefore find that even if Bethlehem's theory of how the accident occurred were correct, a hazard of metal objects falling onto an employee's head was present at Bethlehem's worksite.

The hazard was "recognized."  As the majority recognizes, the administrative law judge vacated the citation on the ground that a hazard was not shown to be "recognized."  A recognized hazard is a condition that is known to be hazardous either by the industry in general or the employer in particular.   Beaird-Poulan, A Division of Emerson Electric Co., 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1979 CCH OSHD ¶ 23,493 (No. 12600, 1979).  I find that Bethlehem had actual knowledge of the hazard of falling metal pieces.  Mr. Oakes, a Bethlehem supervisor, acknowledged that metal pellets had fallen onto Mr. Earnest's work platform.[[7]]   Mr. Earnest also testified that Mr. Oakes was present when an iron lug fell within a foot or so of him at his work station and that Mr. Oakes then kicked the lug off the platform.  Mr. Oakes did not deny that this incident occurred; he testified only that he did not remember it.  Since there was no contradiction, the judge did not make a credibility finding on this issue,[[8]] and I conclude from the record that an iron lug did fall within a foot or so of Mr. Earnest in Mr. Oakes' presence.  Moreover, Mr. Oakes himself conceded that metal pellets had fallen onto the platform.  Because Mr. Oakes was a supervisor, his actual knowledge of the hazard of metal lugs and pellets falling near Mr. Earnest must be imputed to his corporate employer.

I also conclude that a falling piece of metal was substantially likely to cause death or serious physical harm if it hit an employee.  The record is clear and Bethlehem does not deny that overhead planks could feasibly be erected to protect employees.  That this step would materially reduce the hazard to employees is also beyond dispute.

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of the document, please request one from our Public Information Office by e-mail ( lwhitsett@oshrc.gov ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Section 5(a)(1) states:

Each employer--
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. . . .

[[2]] See, e.g., Phillips Petroleum Co., 84 OSAHRC __/__, 11 BNA OSHC 1776, 1779, 1984 CCH OSHD ¶ 26,783, p. 34,254 (No. 78-1816, 1984), and cases cited.

[[3]] "It is the policy of the Commission to ordinarily accept an Administrative Law Judge's evaluation of the credibility of witnesses, . . . for it is the judge who has lived with the case, heard the witnesses, and observed their demeanor."   C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1297, 1977-78 OCH OSHD ¶ 22,481, p. 27,099 (No. 14249, 1978).

[[4]] See 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, 5 BNA OSHC 2014, 1977-78 CCH OSHD ¶ 22,266 (No. 12879, 1977); United States Steel Corp., 83 OSAHRC 35/A2, 10 BNA OSHC 1752, 1756-7, 1982 CCH OSHD ¶ 26,123, pp. 32,869-32,870 (No. 77-1796, 1982) (foreseeability not a separate element of proof).

[[5]] Wheeling-Pittsburgh Steel Corp., 81 OSAHRC 102/A2, 10 BNA OSHC 1242, 1245, 1982 CCH OSHD ¶ 25,801, p. 32,244 (No. 76-4807, 1981), aff'd, 688 F.2d 828 (3d Cir. 1982), cert. denied, 103 S.Ct. 1188 (1983).  The Commission's holding that hazards ought not to be defined in terms of the proposed means of abatement, see Beaird-Poulan, 79 OSAHRC 21/D11, 7 BNA OSHC 1225, 1229, 1979 CCH OSHD ¶ 23,493, p. 28,459 (No. 12600, 1979), reflects its view that an abatement order issued under the general duty clause may require that work practices and safety precautions be upgraded to feasible levels greater than those taken by the employer or his industry.  Chevron Oil Co., 83 OSAHRC 19/B2, 11 BNA OSHC 1329, 1331 & n.5, 1983 CCH OSHD ¶ 26,507, pp. 33,721-33,722 & n.5 (No. 10799, 1983), pet. for rev. filed, No. 83-4371 (5th Cir. June 17, 1983).

[[6]] When Mr. Hardin, a former safety engineer for Bethlehem, was asked whether overhead protection would have prevented this particular accident, he answered "no" because there was nothing directly over Mr. Earnest's work station.   Similarly, Mr. Keyser, a Bethlehem safety engineer, relied on the fact that "[n]o one was actually working directly overhead."

[[7]] The majority attaches no weight to the fact that metal pellets had fallen onto the platform because the size and weight of the pellets is unknown.  At the very least, however, this fact shows that Bethlehem was aware, through Mr. Oakes, that the winch platform was within range of falling metal objects.

[[8]] Only on a different point--whether Mr. Earnest had specifically requested Mr. Oakes to provide overhead protection--did the judge seem to touch upon the credibility of Mr. Oakes and Mr. Earnest.  Yet, Mr. Earnest never testified that he had specifically made such a request of Mr. Oakes.

The majority finds that the judge did consider Mr. Earnest's testimony and implies that the judge did not find it believable enough to ground a finding on.  I too have examined the judge's decision but I cannot discern in it the careful evaluation that the majority suggests was made.