SECRETARY OF LABOR,

Complainant,

v.

BETHLEHEM STEEL CORPORATION,

Respondent.

UNITED STEELWORKERS OF

AMERICA, LOCAL UNION 6787,

Authorized Employee
Representative.

OSHRC Docket No. 79-2597

ORDER

This matter is before the Commission on a Direction for Review entered by former Chairman Robert A. Rowland on April 12, 1982. The parties have now filed a Stipulation and Settlement Agreement.

Having reviewed the record, and based upon the representations appearing in the Stipulation and Settlement Agreement, we conclude that this case raises no matters warranting further review by the Commission. The terms of the Stipulation and Settlement Agreement do not appear to be contrary to the Occupational Safety and Health Act and are in compliance with the Commission's Rules of Procedure.

Accordingly, we incorporate the terms of the Stipulation and Settlement Agreement into this order. This is the final order of the Commission in this case. See 29 U.S.C. §§ 660(a) and (b).

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: October 12, 1990

ELISABETH DOLE, SECRETARY OF LABOR,

Complainant,

v.

BETHLEHEM STEEL CORPORATION,

Respondent.

OSHRC Docket No. 79-2597

STIPULATION AND SETTLEMENT AGREEMENT

In full settlement and disposition of the instant matter, it is hereby stipulated and agreed by and between complainant, the Secretary of Labor, and respondent, Bethlehem Steel Corporation, as follows:

1. This case is before the Commission upon respondent's contest of a citation which, as amended by the Secretary's complaint and by motion, alleged willful violation of the general duty clause, 29 USC §654(a)(1). The citation was affirmed by the Commission's administrative law judge, and a penalty of $10,000 was assessed. (Decision and order of March 11, 1982.)

2. The Secretary hereby amends the proposed citation to reclassify the violation of the general duty clause from Type of Violation "Willful" to Type of Violation "Section 17 of the Occupational Safety and Health Act."

3. The Secretary hereby amends the proposed penalty to $6,500.

4. Respondent hereby withdraws its notice of contest to the citation and to the notification of proposed penalty as amended above.

5. Respondent states that it has already taken steps to bring itself in compliance with 29 CFR 1910.147 at its Burns Harbor, Indiana facility and that such steps will be completed within 60 days from the date of this agreement.

6. Respondent agrees to submit to the OSHA Area Office $6,500 in full and complete payment of the penalty within 30 days of the date of this Agreement.

7. Respondent certifies that a copy of this Stipulation and Settlement Agreement was posted at the workplace on the ____day of August, 1990, in accordance with Rules 7 and 100 of the Commission's Rules of Procedures. In addition, a copy of this Stipulation and Agreement was served, by postage prepaid first class mail, on Mr. Paul E. Gipson, Jr., USWA Local 6787, 1086 N. Max Mochal Highway, Chesterton, Indiana, on the ____day of August, 1990.

8. This Stipulation and Settlement Agreement is made to avoid further protracted litigation and shall not be construed as an admission by respondent of fault or liability in any other case, cause or proceeding whatsoever other than one arising under the Occupational Safety and Health Act.

9. Complainant and respondent will bear their own litigation costs and expenses.

Dated this 31 day of August, 1990.

Bethlehem Steel Corporation

Robert P. Davis
Solicitor

Cynthia A. Attwood
Associate Solicitor for
Occupational Safety and Health

Donald S. Bauman, Esq.

Daniel J. Mick
Counsel for Regional
Trial Litigation

SECRETARY OF LABOR,

Complainant,

v.

BETHLEHEM STEEL CORPORATION,

a Corporation,

Respondent.

OSHRC Docket No. 79-2597

DECISION AND ORDER

Appearances:

T. TIMOTHY RYAN, Esq., Solicitor of Labor
HERMAN GRANT, Esq., Regional Solicitor,
JAMES BOWERS, Esq., Office of the Solicitor,
Chicago, Illinois, for Raymond J. Donovan, Secretary
of Labor, U.S. Department of Labor, Complainant.

JACK D. SHOFFNE Esq., for Bethlehem Steel Corporation,
Respondent.

BOBRICK, Judge

This proceeding was commenced pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, et seq., (hereinafter referred to as the Act), wherein Respondent, Bethlehem Steel Corporation, contested a Citation issued by Complainant, Raymond J. Donovan, Secretary of Labor, U.S. Department of Labor. The Citation charged Respondent with a serious violation of the general duty clause of the Act, 29 U.S.C. 654(a)(1), Section 5 (a) (1).[[1/]] The Citation, as amended in the Complaint, alleged that Respondent had violated Section 5(a)(1)

"by failing to furnish to employees of the Respondent employment and a place of employment which were free from recognized hazards that were causing or were likely to cause death or serious physical harm to employees of the Respondent in that: employees were not prevented from working on equipment without having positive control of the sources of power to the equipment and, where applicable, positive control of the materials in process by the equipment through the installation by the employee of the employee's personal padlock or equivalent device in such a manner as to prevent the unexpected application of power to the equipment or the unexpected exposure of the materials in process in that the employer failed to implement or use an effective lockout procedure or equivalent positive protection for minor repairs or adjustments to lance port seals on #3 Hood in the Basic Oxygen Furnace (BOF) Area. The Flag and Tag Procedure utilized by the employer for above-mentioned minor repairs and adjustments did not provide such positive control."

Trial in this matter was begun February 21, 1980. On April 21, 1980, the Complainant, at the conclusion of his case, presented a Motion to Amend the Complaint and Citation wherein the characterization of the Citation was to be changed from serious to willful-serious, as defined by Section 17(a) of the Act (Tr. 1035). After argument was afforded each party, the Motion to Amend was allowed with leave granted Respondent to recall all witnesses who had given testimony that may have related to those substantive matters giving rise to the amendment, and allowing Respondent to expand upon its cross examination of these witnesses as it believed necessary (Tr. 1122-1124). Respondent declined to recall any witnesses (Tr. 1786, 1787). The trial was concluded in June, 1980. This matter is now ready for decision.

FACTS OF THE CASE

Respondent is a corporation engaged in the steelmaking industry, operating a large steelmaking facility in Burns Harbor, Indiana. Steel products made at Respondent's facility are shipped outside the State of Indiana. On April 3, 1979, pursuant to an employee complaint, an Occupational Safety and Health Compliance Officer was detailed by Complainant to Respondent's workplace to conduct a safety inspection (Tr. 872-874, 949, Ex. C-4). The subject of the safety inspection was "a safety procedure utilized by the Respondent at its Number 3 Basic Oxygen Furnace to protect employees who might be performing repair or inspection work on its furnaces from the hazards associated with the inadvertent start-up of the furnace machinery". The inadvertent start-up of machinery could expose employees to the possibility of death or serious physical harm since their work placed them in close contact to the machinery and equipment comprising the Basic Oxygen Furnace (hereinafter referred to as BOF).

The investigation specifically concerned itself with the alleged inadequacy of Respondent's "Flag and Tag Rule", a work safety rule designed to prevent inadvertent activation of opened and tagged out power switches controlling the flow of power to equipment and machinery located on the BOF. As a result of the investigation, the Complainant concluded that Respondent's Flag and Tag Rule was an insufficient means to protect employees from the hazards associated with inadvertent start-up of the equipment when the employees were performing repair or inspection work. Accordingly, a Citation was issued alleging a violation of the general duty clause of the Act. The abatement provisions of the Citation required that Respondent utilize a positive lockout system on main power cutout switches which isolate sources of power from the equipment under repair. This would essentially require that employees use personal padlocks issued by the employer to lock the power switch in the open position. Respondent contested the Citation maintaining that its Flag and Tag Rule was an effective means to prevent inadvertent start-ups at its Number 3 BOF and further that the padlock lockout system was not feasible and presented other hazards.

The cited area, which is representative of the three basic oxygen furnaces operated by Respondent, consists of a large multi-story steel structured building housing a tiltable metal melting furnace (Tr. 1150-1151, Ex. C-1). The furnace is open at the top having a large work platform area just above its opening. The work platform makes up one story of the steel building. Located at the work platform area are two vertically situated I-beam type structures (approximately 70 feet in length) which act as a carriage for a large oxygen carrying pipe referred to as a "lance". Auxiliary equipment is also contained within the building and consists of teeming cars used to carry scrap metal to a scrap box, a teeming ladle car used for carrying away the molten metal and a teeming car used to transport the slag away from the furnace (Ex. C-1).

The BOF essentially starts its operation with the furnace rotating to a tilt position, the opening of the furnace is set at an angle and in line with a scrap box hopper. The BOF is then charged with scrap metal after which it rotates back to the upright position. Heat is then applied to the furnace.

During the heating process the lance is slewed from its parked position at the side of the work platform, traversely moving toward the opening in the work platform over the top of the furnace, finally being positioned at a point somewhere above the center of the opening to the furnace. The lance, at the appropriate time, is progressively lowered into the furnace to a point where the bottom of the lance is a set distance above the molten metal (Tr. 21-27, 1150-1155, 1165). Two large semi-circular metal plates, referred to as "lance port seals", move across the top of the furnace and surround the lance, thereby sealing the furnace (Ex. C-2, C-3). Oxygen is then introduced into the metal melting process. Once the metal is melted, the lance port seals are opened and the lance withdrawn through the seals into its upper position and slewed to its parked position. The furnace is rotated and tilted so that the molten metal can be tapped from the furnace. Lastly, the furnace is again rotated and tilted so that the slag in the bottom of the furnace is allowed to pour from the furnace into the slag pots.

The control and operation of all three of Respondent's BOF's, which include the slewing and lowering of the lance, the activation of the lance port seals, the tilting and rotating of the furnace, and introduction of oxygen through the lance, is done from a control room located at the side of the Number 2 BOF some 200 feet distant from the Number 3 BOF. The control room is referred to as the "Pulpit" and the operator is known as the "Pulpit Operator". The pulpit operator monitors a panel which contains various lights that show whether electrical power is going to the various motors that tilt and rotate the furnace and slew and lower the lance (Tr. 20-27). The pulpit operator can observe the immediate area at each of the lance port seals by means of a black and white TV monitor (Tr. 34-38). However, the visual resolution. of the TV screen leaves much to be desired in its ability to clearly discern employees who might be working at the lance port seal area (Tr. 43, 78, 83, 84).

Approximately every three months the furnace must be completely rebuilt and the larger components of the furnace repaired or overhauled. This takes about four and one half to twelve days, and is referred to by Respondent as "relining" (Tr. 1136-1139, 1181, 1437). All other repair work (occurring when the BOF is in operation) is referred to as minor repair work (Tr. 108, 145). Employees regularly throughout the work week perform repair work on or around the three furnaces. This includes work on the lance port seals and on components around the top of the furnace as well as work on the teeming cars and ladles (Tr. 102-107, 143, 174, Ex. C-7). The job of performing repair work to the lance port seals and other components of the furnace can become hazardous by reason of the possibility of inadvertent activation of either the lance drive motors or furnace tilt motors. This is true even though the employees who are to perform the repair work are to first isolate power going to those motors driving the equipment at the BOF. Isolation of power is done by having main power electrical switches placed in the open position, or pneumatic or hydraulic valves closed, thereby disrupting the flow of power to the motors driving equipment on the BOF during the period when the repair work is to take place. Employees working on the teeming cars would also have the main power switches controlling power to the motors that drive the cars placed in an open position.

The unexpected activation of the tilt furnace motors could cause the furnace to tilt, throwing men from the platform area to the ground (Tr. 42, 52). When working on the lance port seals, the furnace is normally turned upside down to prevent extreme heat and smoke being introduced into the work area, which could happen if the top of the furnace was inadvertently rotated to its upright position (Tr. 127, 128).

Other serious hazards can occur from the unexpected movement of the lance carriage. If the lance were unexpectedly slewed into an area where the employees were working, the employees could be hit by the carriage (Tr. 171, 950, 951). An additional hazard exists to workers who may be working on the upper platform over the furnace from any sudden movement of the lance which could cause large pieces of hardened metal, which had adhered to the lance during the melting process, to fall from the lance itself. Any movement of the lance causes these hardened metal globules, referred to as "skull", to dislodge from the lance and fall into the work area where it could hit an employee. All the above discussed hazards could cause death or serious physical injury to Respondent's employees (Tr. 126, 128, 883).

In order to prevent injuries which could occur from inadvertent or unexpected start-up of machinery under repair or inspection, whether at the BOF or any other work area, the Respondent maintained a work rule known as the "Lock-Out, Flag and Tag Rule". This rule is a part of Respondent's general safety rules and is published in a handbook given to all employees (Ex. C-5, C- 5-a). The work rule is also published as part of various Division safety rules, (Ex. C-6, C-6-a), and is mentioned in written job safety procedures known as Job Safety Analysis (Ex. C-8, Tr. 59, 109, 405, 455).

Respondent's Flag and Tag Rule was designed to work as follows: Employees who were to make repairs or inspections to machinery or equipment, which if moved or cycled could result in their injury, were to have the main power switch controlling the machinery under repair opened (valves closed) and a flag and tag attached to the opened switch or closed valve. With the main power switch opened (or valve closed) power, whether electrical, hydraulic or pneumatic, capable of cycling or starting the equipment would be isolated from the equipment thereby preventing its activation. The flag and tag was to be a warning to all other employees against closing the power switch or valve, which would cause a restoration of power to the machinery undergoing repairs.

The rule specifically provided that no one other than the person who placed the flag on the switch or valve was ever to remove the flag or tag. For example, employees who were to perform repair work on the Number 3 BOF would have the electrical breaker controlling power to the furnace tilt motors, lance slew motors and lance hoist motors placed in an open position, affixing their flags to the open switch. In cases where several switches were next to one another a wood bar would be placed on the open switches with a flag attached to the bar. The bar was to be a warning to all employees that all switches upon which it rested were not to be closed. Respondent believed, and holds firmly to its belief, that its Flag and Tag Rule would in all instances act as a positive means of preventing the unauthorized closing of "flagged" main power switches or valves, and that flags, once placed on a main power switch or valve, would not be removed by persons other than the individual who had initially affixed the flag to the open switch, and thus the power switch was considered "locked out" (Tr. 1198, 1402, 1403, 1663, 1725).

The procedure ostensibly established by Respondent in flagging a main power switch required the employee who was to perform the repairs or inspection to locate an electrician who then would open a locked door to the room where the electrical main power switches were located (referred to as control room); the electrician would enter the control room with the employee and open the appropriate power switches as desired by the employee, thereby disrupting the flow of power to those components of the BOF desired immobilized. Once the electrician had opened the needed power switches, the employee would place his flag and tag on the opened switch (Tr. 122). The number of individual flags and tags placed on a power switch could vary with the number of employees working at a particular location. Each employee working in the repair area who would be susceptible to injury from movement of any component of the BOF was required to place his flag on the open switch. [[2/]] Pursuant to this procedure, electrical switches were not to be closed until all flags were removed.

Removal of the flags was done in a fashion similar to that followed when flags were placed on electrical switches. The employee who had placed the flag on the switch was the only person authorized to remove his particular flag. Upon removal of all flags the electrician would close the switch thereby restoring the flow of power to the equipment.

As mentioned, the switches which control power to the motors operating the basic components of the BOF were located in various control rooms generally situated distant from the work area (Tr. 791). It had been the policy of Respondent that only electricians would be allowed to open the locked doors to the control rooms and manipulate the switches (Tr. 116, 148, 459, Ex. C-9, C-10). This was an adjunct to the security of flags placed on power switches. At times, however, the doors to the control room were not kept closed and locked but were left unlocked and open. This occurred with regular frequency during the summer months when the day's high temperatures combined with the heat generated by the electrical equipment, making it necessary to keep the doors to the rooms open as a means of obtaining additional cooling ventilation to the room.

This was done in an attempt to lower the high temperatures so as to avoid damage to the equipment (Tr. 116, 118, 751, 752). This, however, allowed for unauthorized individuals to enter the electrical control rooms thereby diminishing the security of the flags placed on the switches (Tr. 116, 118, 751, 752).

The basic flag in use at Respondent's Burns Harbor Plant consisted of a piece of blue cloth attached to a tag by way of a rubber or leather band, (hence the name "Flag and Tag Rule"). The tag contained information identifying the employee to whom the flag belonged (Exs. R-4, 2nd page, R-21, C-9, C-10). The stated purpose of the Flag and Tag Rule is "to protect personnel from injury" by serving as a "warning to all other employees not to operate the machine unit . . . whenever said employee is in danger of injury due to the nature of the job he is doing" (Exs. R-4, R-5, R-6).

Whether the flag and tag rule operated as an adequate means of protecting employees from the hazards associated with inadvertent application of power to equipment under repair or inspection (thus allowing equipment to cycle or move while employees were working on same), became a long term continuous virulent controversy between Respondent and Respondent's employees. This manifested itself in formal and informal grievances being filed by employees working at the BOF's (Ex. C-4, 20-26, 28, 29, 32, 33, 34, 35, 36, 37).

The Respondent has continuously maintained that its Flag and Tag Rule was a sufficient means to prevent unexpected or inadvertent application of power to the equipment or machinery during periods when employees were making repairs. Respondent considered its flagging rule equivalent to a physical lockout which did not incorporate into its meaning the required use of a padlock, notwithstanding the fact that its rule was entitled "Lockout, Flag and Tag Rule" (Tr. 1236, 1402, 1403, 1663, 1725, Ex. C-5-a). The Respondent considered its Flag and Tag Rule a generic approach to positively insuring the interruption of power to equipment under repair and was accordingly inclusive of the term "locked". The rule was considered by Respondent to have its own generic flexibility incorporating the concept of being "locked" without the need of a padlock. According to Respondent, the utilization of a flag and tag on an open switch obviated the need for a padlock or any other device that could physically prevent the disconnected power switch from being moved to the engaged position (Tr. 1236, 1402, 1403, 1663, 1725).

The employees, on the other hand, believed that the Flag and Tag Rule was an unreliable means of preventing the inadvertent application of power to equipment since the flag could be easily removed by someone other than the person who initially placed the flag on the opened electrical power switch (or closed valve), allowing for the closing of the electrical power switch or opening of a pneumatic or hydraulic valve. This belief of employees developed over a period of time after numerous instances of employees being subjected to inadvertent start-up of equipment or the unexpected restoration of power to the equipment under repair. These occurrences were directly attributed to the unauthorized removal of flags from main power switches by persons other than those who had placed the flags on the switch. Additionally, there were continued and numerous instances of the terms of the flag rule not being followed.

The incidents involving violations of Respondent's Flag and Tag Rule resulted in a loss of confidence by employees in the ability of the rule to protect them from the hazards associated with the unexpected and inadvertent application of power to machinery and equipment under repair. These incidents resulted in the filing of numerous formal and informal grievances by the employees with Respondent (Exs. C-19-29, 32, 33, 34, 37). This situation further resulted in the filing of a safety complaint by one of Respondent's employees with the Complainant alleging the presence of a hazard to employees working at Number 3 BOF by reason of the absence of an adequate lockout system to prevent the unexpected application of power to equipment under inspection or repair (Ex. C-4, Tr. 41-48). A safety inspection of Respondent's work practice involving the Flag Rule was made by Complainant as a result of the employee complaint; this gave rise to the instant contested Citation.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ALLEGED VIOLATION OF SECTION 5(a)(1) OF THE ACT

(a) Elements and proof in a general duty case under current case law

Section 5(a)(1) of the Act requires of an employer that he "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. Commission rulings concerning the Secretary's burden in establishing the existence of a 5(a)(1) violation, hold that there must be a showing that the employer failed to render its workplace "free" of a hazard, that the hazard was "recognized" and that the hazard was causing or likely to cause death or serious physical harm to its employees. Brown and Root, Inc., 1980 CCH OSHD para. 24,853. With respect to recognition of the hazard, the Commission rulings place upon the Secretary the burden to show that the manner in which an employer went about the activity criticized in the Citation was known by it to be hazardous or was generally recognized as such by the industry, or was reasonably foreseeable. Pratt & Whitney, 1980 CCH OSHD para. 24,447; SSC Corp., 1976-77 OSHD para. 20,814.

The Commission has further pointed out that it is upon the Secretary to show that there were feasible steps the employer could have taken to avoid the Citation -- in other words it is the Secretary who must establish the feasibility of its abatement charge within its Citation. Brown and Root, Inc., supra. The courts have adopted the Commission's views as to what proof the Secretary must establish in order to sustain its charge that an employer violated Section 5(a)(1) of the Act. Whirlpool Corp. v. OSHRC, 645 F. 2d 1096 (D.C. Cir. 1981); Pratt and Whitney Aircraft v. Secretary of Labor, 649 F. 2d 96 (2nd Cir. 1981); Usery v. Marquette Cement Manufacturing Co., 568 F. 2d 902 (2nd Cir. 1977); National Reality and Construction Co. v. OSHRC, 489 F. 2d 1257 (D.C. Cir. 1973).

Viewing the instant record, I find that the credible evidence in this case, by an overwhelming margin, has established that the Secretary has met his burden of proof in establishing that a violation of Section 5(a)(1) of the Act existed at Respondent's workplace, as that burden of proof has been articulated by both the Review Commission and reviewing courts.

(b) Application of the Decision and Affirmed Citation

In the instant case the Complainant has charged the Respondent with violating Section 5(a)(1) of the Act by allowing employees to work on equipment under repair or inspection without having in place a positive control of the sources of power to such equipment to prevent unexpected or unanticipated start-up of the equipment during the repair or inspection activities. The Citation charged that only through use of a system whereby employees use personal padlocks, or equivalent devices, to lock out power switches could the dangerous hazards associated with the unexpected application of power be eliminated. The Citation charged Respondent's "Flag and Tag Rule" as being ineffective in the prevention of safety hazards, also charging Respondent with failing to implement or use an effective lockout procedure when making repairs or adjustments to its lance port seals, or other equipment, at its Number 3 basic oxygen furnace (BOF). The Respondent answers the Citation denying that the employees did not have a positive lockout procedure in place, defending and forwarding its "Flag and Tag Rule" as a feasible method of locking out power sources to equipment which may be under repair. Respondent further maintained that use of "padlocks" as a means of locking out power switches was both technically and economically unfeasible, and presented other safety hazards.

While the Citation refers only to the Number 3 BOF, it is clear that the ruling in this case will directly apply to Respondent's other basic oxygen furnaces at its work place (as well as impacting throughout its plant) where employees, while making repairs or inspections to equipment, are subjected to hazards of serious injury or death resulting from unexpected application of power to the equipment under repair or inspection. This seems the only logical approach in this case since the facts have established that all three BOF work areas were substantially identical, were contiguous to one another, were operated as an integral operation, were worked on by the same employees, were all controlled from one operating station (pulpit), and had main power control switches for all three BOF's located in the same control rooms (Tr. 20-40, 118, 130, 743, 1147-1155, 1341-1343, Ex. C-31). Any other application of this Decision (and the affirmed Citation) would render the same work areas occupied by the same employees and employee groups with varying, conflicting lockout rules. This unquestionably would have the least desirable effect of uncertainty in providing for the safety of employees in all three BOF operations. Finally, the instances where the "Flag and Tag Rule" failed to protect employees from the inadvertent start-up of equipment exposing employees to the dangers of death or serious physical harm occurred not only in all three BOF work areas, but throughout the Respondent's workplace at its Burns Harbor Plant (Tr. 561, 565, 573-578, Exs. C-20, C-21, C-22, C-24, C-25, C- 26, C-27, C-30, C-31, C-32, C-34, C-37, C-44, C-47, Ex. R-1, R-11, R-14).

(c) The Workplace Environs and Operation of the Flag and Tag Rule

It is important to understand the massiveness of the equipment which is worked on by the employees and how that relates to the enormity of the hazard created by inadvertent application of power to the equipment and possible cycling of equipment while employees are in close and intimate proximity to it. The work area, which is the subject of the Citation, is at Respondent's Basic Oxygen Furnace (BOF) of which it has three (Tr. 1150, Ex. C-1). The basic oxygen steelmaking process is differentiated from other steel production processes through introduction of oxygen into the metal melting furnace through a large pipe structure called a lance. The lance is approximately 70 feet long and 10 inches in diameter and rides on an I-beam type carriage. During the melting process the lance is lowered into the furnace and oxygen is blown into the molten steel bath increasing the temperature of the molten metal and removing impurities from the molten metal. A heavy metal seal clamps around the lance holding it in place during its "blowing" process (Tr. 1151-1165).

Movement of the lance, as well as a tilting movement of the furnace, is controlled by a "pulpit operator" located in a control room ("pulpit") approximately 200-250 feet from the Number 3 furnace; all three BOF's are controlled by the one operator at the "pulpit" (Tr. 20, 88). The pulpit operator has no direct visual contact with the lance or lance port seal work area but observes this area on a black and white TV monitor. This is an aid to prevent the operator from swinging the lance into the work area or tilting the furnace while employees may be working there (Tr. 34, 35, 73, 74, 1151-1155). Additionally, the operator has a console that contains lights indicating whether power is going to the motors which move and operate the lance and furnace (Tr. 38). If employees are working in the area the lance must be in the parked position (Tr. 40).

There are two lances at each BOF; one is in the standby position and one in the ready position. When not in use, the lance which is in the ready position is kept in the "park" position which is about 10 feet away from the mouth of the furnace (Tr. 1151). At the beginning of the metal melting process ("a heat"), the lance traverses or "slews" from the parked position to the "ready" position, a point directly over the mouth of the furnace, the bottom of the lance being approximately 4-5 feet above the opening (Tr. 1151). It is then lowered into the "in hood" position at which point the lance is inside the lance port seal but a few feet above the mouth of the furnace. When the lance is lowered to a point directly above the molten metal bath, oxygen is then blown into the molten metal. After the melting process is completed, the lance is raised from the furnace, traversing to the parked position. The furnace is then tilted so as to allow for the pouring of the molten metal and pouring away of slag. The furnace is then turned in the upright position.

By reason of the tremendous heat associated with metal melting, and the dynamics in the movement of the massive equipment making up the BOF, the components of the BOF require continuous and frequent repairs (Tr. 103, 104, Ex. C-7). These repairs are referred to as "minor repairs", often involving the lance and lance port seals (Ex. C-7). In providing for the safety of Respondent's employees who must perform these repairs to this large equipment, power to the motors which move the lance and which move or tilt the furnace is disrupted at a main control point by breaking the main power circuits leading from the power source to the motors. This disruption in the flow of power is done at electrical control rooms where are located large knife-edge electrical switches. These switches once placed in an open position immobilize the equipment and keep it from moving while employees are in the repair work area. The same is true with electrically powered teeming cars that carry molten metal or slag from the furnace. These cars often need repair work done to them. The motors that drive these cars also have their main control switches at the electrical control rooms. The lance port seals are operated by compressed air, and during "minor repairs" are secured by closing off an air valve located near the seals at the side of the BOF.

The hazard associated with inadvertent or unexpected start-up or movement of BOF equipment to which employees making repairs or inspections are exposed involve their being struck or crushed by the moving equipment, or being knocked from the work platform to the ruble pit below, or being knocked into the furnace itself. Death or serious physical injury is likely to occur from any such encounter (Tr. 42, 46, 52, 83, 126-128, 171, 230-234, 600, 601, 706, 753-757, 872, 873, 883, 943, 952, 995-999, 1354, Exs. C-22, R-62). An additional hazard develops from falling pieces of hardened metal globs from off the lance when the lance is moved. These metal pieces form on the lance during the melting process. These hardened metal globs, or "skull" as they are called, readily fell from the lance into the work area when moved. Employees working in the swing radius of the lance could receive serious physical injury if the lance were suddenly moved into the work area causing the "skull" to fall from the lance onto the employees (Tr. 40, 126-128). Lastly, the furnace is generally placed in an upside down position when the lance port seals are undergoing repair. In the case of inadvertent or unexpected rotation of the furnace, smoke, fumes and heat could be omitted from the mouth of the furnace into the work area and could cause serious burns to employees working there (Tr. 127-28).

To prevent the situation where equipment under repair could be inadvertently activated, Respondent established its Flag and Tag Rule. This rule, in the main, required that main power switches controlling power to machinery under repair or inspection be placed in an open position [[3/]] and a flag and tag placed on the open switch by the individual who is to make the repairs. The tag would carry the name, department symbol or code of the man who placed the flag on the open switch. While Respondent's work rule mentions the use of a lock to accomplish a "lockout", Respondent specifically prohibited the use of locks. [[4/]] Cardinal to success of the rule's capability to protect workers from the hazards of unanticipated or inadvertent start-up of equipment under repair, as enforced by Respondent, was the prohibition of removal of the flag or tag from an open power switch by an employee other than the employee who placed it on the switch, except under certain controlled conditions (Exs. C-5-a, C-6-a).

(d) The Parties Positions

While Respondent's own rule refers to the use of a "lock", Respondent throughout these proceedings maintained that its rule did not intend for that word to mean a padlock and that the use of a flag and tag is a generic proposition that incorporates the concept of a lock. Respondent's view is that the flag and tag is comparable, equal, and inclusive of the act of using a padlock in locking main power switches in an open position (Tr. 1236, 1402, 1403, 1663, 1725).

The Complainant maintained that Respondent's failure to provide a work practice wherein employees who were repairing or inspecting machinery would lock out the power switches with a personal padlock, to which only the employee using same had the key, caused the work area to be hazardous since the flag could be easily removed by other employees, and indeed was done so by both hourly employees as well as Respondent's own supervisors. This allowed for power to be restored to the equipment, with the resultant hazard of unanticipated start-up, while those employees who had placed the flags on the switches were relying upon them for safety in their work. The Complainant further maintained that the hazard was easily recognized by Respondent at its workplace by reason of the many incidents arising from Respondent's Flag and Tag Rule being disregarded or violated. Complainant asserts that the hazard was not only recognizable, but all but ignored since it was Respondent's own supervisors who in many instances allowed or participated in the removal of employees' flags from open power switches without the knowledge or consent of the affected employee.

The Complainant has concluded that not only was the flag and tag system forwarded by Respondent an inherently ineffective and recognized unsafe procedure for protecting employees engaged in repair or inspection of machinery from the unexpected application of power to the equipment but in and of itself created a hazard if employees were required to work on machinery whose main power switches were merely flagged in an open position (Tr. 237, 238, 269, 271, 272, 273, 341, 342).

(e) Evaluation of Expert Testimony

As a prelude to resolving the contested factual issues, opinion evidence of the expert witness, together with the observations of the lay experts, will be considered first. I find the conclusions and observations of the Complainant's expert witnesses that with the use of padlocks for locking power switches in the open position there would be little to no possibility of unauthorized persons causing main power switches to be closed, and power unexpectedly restored to equipment being repaired, just too persuasive and logical to be ignored. The conclusions and observations of these experts resulted from many years of experience with the use of padlocks, as well as with the use of the flag and tag system. Their combined extensive experience with use of the padlock for positively locking out power switches clearly established that padlocks were not only effective in meeting the hazards involved herein but were completely compatible with the operation of virtually any type machinery, including that involved with electrical equipment and their components (Tr. 238, 239, 240, 253, 255, 257, 283, 284, 287, 288, 337, 342, 343, 344, 362). I find Complainant's experts' conclusions concerning the use of a lock, as opposed to a flag and tag, as a positive means of protecting employees from the inadvertent start-up of equipment singularly persuasive.[[5/]] I further find that the testimony of Complainant's expert witnesses established that use of padlocks to meet the hazards of inadvertent start-up of equipment under repair was a well entrenched procedure in industry in general, and the steel industry in particular. It simply cannot be said that the inherent inability of a flag and tag system to effectively protect employees from hazards similar to that involved in this case was not recognized in the steel making industry (Tr. 238, 239, 241-252, 335-340, 343, 399, 400, 401, 405, 878, 879, 883, 884). Thus in so far as it may need be established that there was industry recognition of the cited hazard, Complainant, in this regard, has borne his burden. National Reality and Construction Company v. OSHRC, supra; S. C. Corp, 1976-77 CCH OSHD para. 20,814.

Finally, it should be noted that the opinions, conclusions and observations reached by Complainant's expert and lay witnesses that a hazard existed at the worksite by reason of the use of flags and tags as a form of "lockout" was well substantiated by the repeated predicted shortcomings within the Flag and Tag Rule; there were indeed many instances of capricious removal of flags from open power switches without the knowledge or authority of the person who had placed the flags there in the first place, as will be more fully described below.

(f)   The Flag and Tag Rule's Failure to Operate as an Effective Safety Rule

This record is ladened with incident after incident where flags placed on open switches, under Respondent's Flag and Tag Rule, by employees who were to perform inspection or repair work were removed from the switches without the knowledge of the employees who had placed them there in the first place. These continuous recurring incidents subjected employees to the dangers and hazards of unexpected start-up of equipment undergoing repair, and was of significant concern to the employees. This concern manifested itself in the filing of grievances and the threat of a job walkoff.

The cited hazard in this case was well established by the Complainant with the testimony of employees who experienced their flags and tags being removed from flagged open main power switches of equipment undergoing repairs. These incidents, while dating prior to 1971 [[6/]] persisted nearly to the date of trial herein. The following describes the type of incidents which demonstrates the inherent shortcomings of a flag rule.

In April of 1971, the flags of employees working on a transfer car were removed by a laborer under the direction of the sub-foreman placing those employees working on the transfer car into hazardous situation by reason of the possibility of inadvertent and unexpected movement of the equipment (Tr. 577, 581, 589, 631, 639, 640, Ex. C-29). In late 1973, employees were working on coupling of a teeming car when a supervisor had an electrician remove their flags without their knowledge. The switches were energized causing the car to move and the coupling which they were working on to rotate. The employees narrowly missed sustaining severe injury (Tr. 600, 601, 753-756, Ex. C-33, pages 8, 9).

In January, 1974, one of the most serious incidents involving the Flag and Tag Rule occurred tragically illustrating the extreme hazards employees can be exposed to in the event of a failure in the integrity of the rule. A millwright in the BOF Mechanical Department lost his arm and leg when he was run over by an ingot car on which he was working. The ingot car was put into motion when a string of cars from another track was moved through an unlocked and unflagged rail switch onto the track where the employee was working (Tr. 565- 70, Ex. C-27). In Respondent's accident investigation report, and at the hearing, it was shown, that only strict application of the Flag and Tag Rule would have prevented the accident. The flag rule was violated by reason of the supervisor's decision to use a safety watchman on the track instead locking and flagging the actual switch. This decision was made in order to "expedite" the job (Tr. 1408, Ex. C-27).

Sometime in the first half of 1975, an employee who was engaged in lubricating equipment, and was in close proximity to said equipment had his flag removed from a flagged out power switch; this subjected him to injury by reason of the possible start-up of the equipment (Tr. 528). During that same period two employees working on a teeming car had their flags pulled off a main power switch allowing for the restoration of power to the teeming car. This was done by their foreman and placed the two employees in danger (Tr. 529, 530).

In December, 1977, a foreman attempted to have one employee flag out power switches for other employees who were to later work on BOF equipment controlled by said switches. This became the subject of a grievance (Tr. 585, 688, Ex. C-32). In February, 1979, a foreman removed an employee's flag from the Number 2 BOF tilt controls while the employee was working on the furnace (Ex. C-24). In August, 1979, a laborer removed flags on power switches placed there by employees who were repairing related equipment. This subjected the individuals to the possibility of inadvertent start-up of the equipment. The situation was averted by a safety watchman catching the infraction and having the flags restored to the power switches (Tr. 492, Ex. C-23).

In December, 1979, an employee working on a teeming car, who had placed a heavy metal slab across the tracks to prevent movement of a second teeming car into the work area, had the slab removed by order of management without his knowledge. This subjected the employee to the hazard of the second teeming car rolling into the work area causing injury to the individual (Tr. 615-617, 706-709, 713), 714 Ex. C-37.). As late as March, 1980, a foreman removed the flag from a power switch of an employee performing repairs on equipment, (the foreman admitting that this was regularly done). This incident became the subject of a grievance (Tr. 479, Ex. C-20).

All these above described incidents seemed representative of the experiences in the work place (Tr. 75, 79, 461, 473, 561, 749, 752). They are found to be a clear indication of a flag's inability to act as a positive protective lockout of power switches. These incidents amply demonstrate how flags used to prevent the reactivation of power can be easily removed by persons other than the individual who placed the flags on the open switches, thus leaving the employee unknowingly exposed to the dangers of injury from unexpected movement or start-up of the machinery under repair. This situation was exacerbated the fact that on many occasions the doors to the control rooms where power switches are located are left unlocked and open (Tr. 116, 118, 751, 752).

While Respondent attributes these incidents to improper Flag Rule procedures or to communication problems (Tr. 1173, 1175, 1222, 1379-1382, 1410), Respondent misses the mark in failing to recognize that the incidents are not deviations in the effectiveness of the Flag Rule but examples of the inherent fatal flaw in considering the flag a positive means to insure that equipment under repair will not be inadvertently started. This conclusion rings especially true since on many occasions it was Respondent's own supervisors who made a conscious deliberate decision not to comply with the explicit terms of the flag rule.

Considering the realities of the work place, I simply do not find the testimony of Respondent's witnesses who equated the use of a flag to a padlock as a means of "locking out" power switches to have any basis in reason or fact. In light of the evidence making the record in this case such a conclusion is found not only to be unrealistic, but has caused to exist at subject work place a hazard to those employees required to perform repair work on equipment seemingly protected by flags.

Respondent's Flag and Tag Rule was further shown to be a failure as a lockout safety rule by reason of the extent of deviations from compliance with the rule itself. This record contains significant evidence which shows that the Flag and Tag Rule, because of its inability and its ineffectiveness to positively protect employees engaged in repair work, had never won acceptance from employees as an effective means of protection from subject hazard; nor would it ever.

There apparently developed a derisive attitude by employees, both supervisors and hourly employees, towards compliance with the Flag and Tag Rule. This resulted in significant instances of noncompliance with the rule by both supervisors and hourly employees, but mainly by supervisors.[[7/]] This manifested itself in disenchantment with the rule by hourly employees and disregard of the rule by supervisors, all of which predictably further degraded the effectiveness of the rule. The record in this case contains significant examples of the many instances where compliance with the Flag and Tag Rule was simply ignored. Indeed, one of these instances resulted in the filing of a safety complaint with the Complainant and is demonstrative of this situation. The safety complaint was filed by the Pulpit Operator after he had experienced several incidents involving employees narrowly escaping from injury when he had activated the lance or other BOF equipment this complaint gave rise to this action (Tr. 71, 75, 77, 80).

The first of these incidents, occurring several months prior to the filing of the OSHA complaint, came to the Pulpit Operator's attention when an employee approached him claiming that the employee, while working on the lance port seals, had narrowly missed being killed when the lance was slewed by the Pulpit Operator in on him (Tr. 46-47). The employee had been instructed by his foreman to quickly adjustments on the lance port seal without flagging out the perform necessary breakers (Tr. 47, 170-171). A second similar incident occurred on February 26, 1979, which prompted the filing of the safety complaint (Tr. 41-48, Ex. C-4). The Pulpit Operator was again told to slew the lance, not knowing employees were working on the lance port seal (Tr. 43). A foreman working at the lance port seal did not cause to have the equipment flagged out even though employees were ordered to work there. According to Respondent's supervisors the foreman assumed that another individual's flag was on the lance's main power breaker (Tr. 1229-39, 1245-49). Had an effective lockout utilizing padlocks been in place these incidents would not have occurred.

Perhaps the most telling of the Flag and Tag Rule's inherent inability to be considered an effective and convincing means of protecting employees from these hazards discussed in this case was the continuous non-compliance with the rule by Respondent's own supervisors [[8/]] (Tr. 561, 578, 593 600, 621, 639, Exs. C-28, 32, 688, 699,700, 824, 857, 863). This situation had three distinct aspects to it. First, it showed in and of itself the inherent weaknesses ingrained within the flag rule, and the rule's perpetuation of the hazard to which employees, who had placed reliance upon said flag rule for protection, were exposed. Second, it had the effect of causing employees to lose faith in the flag rule as a means of protection and to insist that padlocks be used instead of flags to secure the open power switches (Tr. 133, 136, 140, 168, 461-469, 473, 561, 699, 749, 750, 772). Third, the lack of confidence of the employees in the rule manifested itself in diminished compliance with the rule, further degrading it as a legitimate means of hazard prevention. This last aspect is considered a reasonably foreseeable event since human nature does not respond or adhere to useless acts, specifically those that purport to be safety related when in fact they are not. Respondent's flag rule was such a rule.

(g)  Respondent broadly argues that the hazard to Which Employees Were Exposed

Respondent broadly argues that the hazard alleged in the Citiation was not recognizable and that this, accordingly,  fatally flawed the Citation.

Respondent's arguments in all its parts is singularly unpersuasive. The Commission, as well as the Courts, has held that the knowledge (or recognition) requirement within section 5(a)(1) of the Act can be satisfied by proving that the employer had actual knowledge that a condition was hazardous or by showing that the standard of knowledge in the relevant industry recognized the condition to be hazardous.[[9/]] National Reality Co. supra; Brennan v. Vy Lactose Laboratories, Inc., 494 F. 2d 460 (8th Cir. 1974); Brown & Root Inc., 1980 supra. In this case, the Complainant clearly showed that there was actual recognition of the hazard by Respondent and thus has met his burden of proof in this regard. Respondent's argument in defense of the Citation is rejected.

The employees, continually, over a prolonged period, and up to recent date voiced their concern about the effectiveness of the Flag and Tag Rule as a means or protecting them from the hazards of inadvertent start-up of equipment under repair. This was done directly on the job to supervisors, by way of safety complaints, and through the job grievance procedure. In 1976, employees refused to rely on the Flag and Tag Rule and began using locks by reason of the number of violations of the Flag and Tag Rule, many of which were by supervisors who simply disregarded the rule. After a confrontation with Respondent on this matter the employees agreed that use of the locks would be for a limited period, allowing to Respondent that time necessary to rehabilitate the rule so that it could be an effective means of protection. Though each time the employees were willing to use locks for a limited duration, so that Respondent could institute better training aimed at upgrading the effectiveness of the rule, it sorely appeared that rehabilitation of the Flag and Tag Rule as a means of avoiding the hazards associated with inadvertent startup was just not possible (Tr. 749, 788, 827, 853-855, 861).

Two separate grievance hearings held under the arbitration provisions of the Collective Bargaining Agreement were held concerning the reliability of the Flag and Tag Rule as a means of protecting employees and the employees' right to use padlocks supplied by Respondent. The arbitrations dealt with then recent breaches of the Flag and Tag Rule (Ex. C- 19, R-1). It was during the second grievance procedure that it became clear to Respondent's supervisors that the employees had totally lost faith in the Flag and Tag Rule and would not work without locks being provided to them for use in locking power switches in the open position. Respondent's supervisors recognized the fact that employees would not return to work without the protections which could only be afforded through the use of padlocks (Tr. 1469). At that time it was hoped by Respondent that with enhanced training the employees would come to have restored faith in the effectiveness of the Flag and Tag Rule, and not insist on the use of company provided locks; Respondent's hopes never materialized and the event never came about (Tr. 827, 1469-1472, 1475). The significance of this evidence in determining that a recognized hazard existed at the workplace, as charged in the Citation, simply cannot be ignored.

I need not rehash that evidence showing time after time an employee, who had placed a flag on a main power switch relying upon that flag for protection from the subject hazard, having the flag removed by a second employee, who all too often was one of Respondent's own supervisors, thereby placing the employee's safety in jeopardy -- all known to Respondent. Further, I will not discuss those cases where employees, by reason of a failure in the Flag and Tag Rule, were experiencing close calls due to the reactivation of power and the inadvertent start-up of equipment which was under repair and initially appropriately flagged out -- all known to Respondent. Finally it is hard to imagine there was not recognition of the hazard when Respondent's own safety work rules specifically provided for the use of padlocks to accomplish proper "locking out" of power switches (Ex. C-5, C-6).[[10/]]

(h) Feasibility

While I find Complainant has shown that a recognized hazard existed at Respondent's worksite by continuing the use of hanging flags to effect a "lockout" of power switches to equipment under repair and inspection, and that a system of using padlocks would eliminate this hazard, discussion of the feasibility in use of the padlock is necessary since under appropriate Commission and court law it is the Secretary's burden to establish this fact. Whirlpool v. OSHRC and MARSHALL supra.; National Realty, 489 F. 2d at 1268. Additionally, this issue was raised by Respondent as part of its defense to the Citation.

The credible evidence introduced in this matter established that the use of padlocks to effect a "lockout" of power switches to equipment under repair was not only feasible but a reasonable method to address the hazard associated with unexpected or inadvertent start-up of equipment. The singular ease a padlock can be issued to employees, the ease the padlock can be used by employees, and the ease that a lock can be affixed to power switch components of existing equipment at Respondent's plant belies any real issue that a well organized program would be anything other than a feasible method to effect lockout of power sources to equipment under repair. That padlocks are currently successfully used at Respondent's worksite (not to mention other similarly situated steelmaking facilities) is proof enough that padlocks, as a means to effect lockouts, are completely compatible devices for use on Respondent's machinery and equipment, and are completely compatible with the manufacturing processes carried on by Respondent (Tr. 132, 136, 153, 155, 156, 235, 253-257, 258, 273, 294, 295, 303, 335, 338, 342, 343, 362, 391, 396, 397, 460, 461, 469, 472, 473, 509, 513, 535, 561, 618, 619, 649, 711, 712, 744-749, 788, 794, 798, 827, 830, 838, 876-878, 883, Exs. C-9, C-10, C-12, C-13, C-14, C-15, C-16, C-17, C-18, C-51, C-53).

Respondent, in attacking the feasibility of use of padlocks, raises three separate arguments. First, Respondent argues that since some of its equipment was incapable of being padlocked, repair work would at times, by necessity, have to be done under a flag and tag rule and that this amounted to a "bastardized" safety rule rendering the use of padlocks ineffective. Respondent further argues that using padlocks on its electrical equipment would be a "jury rigged" proposition and by reason of the large numbers of padlocks which might be needed could cause a chain of locks capable of becoming entangled in the electrical leads resulting in an electrical hazard. Lastly Respondent argues that the use of padlocks would be costly requiring a significant outlay of money.

Respondent's argument that the operation of two systems (i.e. flag and tag, and padlock) would render uncertain the enforcement of either is specious at best. Most, if not all, electrical power switching equipment controlling power to production equipment is capable of being padlocked, or locked with the equivalent of a padlock [[11/]] (Tr. 118, 130, 131, 132, 153, 155, 156, 446, 447, 448, 459, 647, 648). As such, the advent of a two system program just does not appear probable to any significant degree to adversely impact upon the effectiveness of using padlocks. In any event there is no hiding from the fact that Respondent's Flag and Tag Rule was not working effectively and replacement of it in any degree is a constructive step toward eliminating or reducing hazards in the workplace.

With respect to Respondent's argument concerning the possibility of locks causing shorts or becoming enmeshed in the energized leads of the switching equipment, I find no persuasive evidence that such a hazard existed to any appreciable degree or that such a hazard, if it did exist, could not be corrected or prevented.

The most credible evidence seemed to show that the number of padlocks which would be used at any one time would be manageable. This evidence came through the testimony of employees who actually worked with the BOF equipment, such testimony being straightforward, truthful and compelling in the ordinary common sense of things (Tr. 140, 362, 514, 515, 647, 648, 649, 650, 794, 798, 826, 835, 956-962). There is little credible evidence in this record which would indicate that use of padlocks would result in huge cumbersome chains of locks hanging from switches, as portrayed by Respondent. Additionally, with a well supervised and effectively enforced optional "group lock system" (as currently provided in Respondent's General Safety Rules for Employees) the number of individual locks used could be significantly controlled (Tr. 258, 287-289, 344, 514, 515, 516, 519, 533, 699, 743, 746, 796-798, 799, 904- 906, 977, 1022, 1017, 1018, 1020, Ex. C-5, Section VII - paragraph 2).

Moreover, since under Respondent's own lockout rule (when it chooses to follow that rule) only skilled electricians are allowed to manipulate the electrical power switches an electrician could safely place the padlock on the power switch as desired by the employee. The employee could observe from a safe vantage point that his lock was indeed used to lock the appropriate power switch in an open position without incurring any risk of exposure to electrical hazards (Tr. 122, 956-962, 1763-1767). Finally, through the use of "lock expanders" large numbers of locks could be safely accommodated when attached to open power switches, without the postulated unwieldy chain of locks (Tr. 282, 283, 1321, 1322, Ex. C-12, figure 21-14).

However, assuming the occurrence of a possible electrical hazard which could not be satisfactorily overcome by use alone of the above discussed work practices or equipment, Complainant demonstrated that there still existed other well recognized and readily available means to deal with or effectively eliminate the hazard. These means could either be used by themselves or in conjunction with those above mentioned, and included electrical insulation of locks, use of non-conductive locks, and use of rubber shielding which could easily be hung from the switches to separate the locks from the energized leads (Tr. 283-285, 1319, 1320, 1333, 1334, 1337).

(i) Economic Feasibility

As to the issue of costs and economic feasibility raised by Respondent, first, I see no reason for Respondent to replace any of its electrical equipment, which would be extraordinarily expensive. Its equipment currently can accommodate use of padlocks as a lockout device. Further, with use of any of the above discussed means, methods or procedures to prevent electrical hazards, no modification of the equipment would be necessary with employment of the personal padlock lockout system. Hydraulic or pneumatic valves can easily be locked with a chain and padlock (Tr. 132, 136, 141, 153, 155, 156, 460, 461, 462, 469, 470, 538, 618, 647, 648, 711, 749, 762, 795, 826, 829, 838, 1318, 1321, 1322, 1472, 1473, Ex. C-9, C-10). Second, the costs associated with purchase of a large number of padlocks appears insignificant in comparison to the benefits received from a safer hazard-free workplace. Moreover, the cost of locks pales thin in comparison to the magnitude of costs associated with ordinary repair and maintenance of the equipment at the BOF (Tr. 258, 304-306, 362). Clearly, there exists in this case no legitimate economic bar to employment of a personal padlock system provided by Respondent to its employees.

(j) Possible Rehabilitation of Flag Rule Through Training

One last argument of Respondent needs to be considered, that being Respondent's perception that any failure in its Flag and Tag Rule's effectiveness to prevent hazards arising from unexpected start-up could be adequately resolved through proper training and supervision. Respondent essentially forwards the proposition that it is not the flag and tag system that is at fault when there is a failure in the projected protections against inadvertent start-up, but that this is merely a matter of need for enhanced training, communications, or supervision. I find Respondent's argument begs the basic question whether or not adherence to the Flag and Tag Rule, as opposed to use of a padlock to accomplish the lockout, was itself the hazard. It cannot be denied that all through Respondent's prolonged training efforts (Tr. 1354, 1459-1461, 1519-1523, Exs. R-5, R-6, R-15, R-16, R-17 R-19), there was no reduction or elimination in the number and seriousness of incidents involving the improper removal of one employee's flag by another employee (be he an hourly employee or supervisor), and that these incidents subjected employees who had relied upon the protection of the flag to possible serious injury from unexpected start-up of equipment under repair.

Considering the extensive record in this case, Respondent's argument, in and of itself, can only lead to the inescapable conclusion that its Flag and Tag Rule has an inherent unremediable inability to adequately deal with the recognized hazard it was designed to prevent. Respondent's argument as a defense to the Citation must be rejected. BSAF - Wyandotte Corporation, 1981 CCH OSHD para. 25,831.

(k) The Citation

Respondent has argued that the general duty clause was an inappropriate provision of the Act for Complainant to use in citing the alleged violation. I fail to see the logic of Respondent's argument, since the Citation is clearly worded in terms of Section 5(a)(1) of the Act, unequivocably informs Respondent of the violative condition -- a condition for which no current standard exists, and informs Respondent on how the hazard could feasibly be abated. Whirlpool Corporation v. OSHRC, 645 F. 2d 1096 (D. C. Cir. 1981); Whirlpool Corporation, 1979 OSHD para. 23,552 (Review Commission). I find that the amended Citation, on its face, to be an appropriate means for the Complainant to cite the offending condition. I do not find any authority in the cases cited by Respondent to hold otherwise.

(1) Conclusions

It has been made patently clear that maintenance of Respondent's Flag and Tag Rule created a serious hazard to employees. The recurring and continuing deviations in compliance with Respondent's Flag and Tag Rule points out both the rule's inherent inability to protect employees from the hazards involved in this case, and the validity of Complainant's position that only through use of a personal padlock system can there be achieved a realistic positive means to lockout power switches thus effectively disrupting power from reaching equipment worked on by employees. Further, the record is completely devoid of any evidence whatsoever which supports Respondent's conclusion that the term "lockout" really means the use of a Flag and Tag and not the use of a padlock. A simple, but persuasive and compelling, truth exists in this case and that is that none of the events in which an employee removed from an open power switch the flag of another employee who was then engaged in repair work, placing the latter employee in jeopardy of injury, would have occurred had there been in place a padlock, the key to which was on the person who placed the padlock on the switch in the first instance.

In summary, I find that the Complainant has shouldered his burden in demonstrating those elements establishing a violation of Section 5(a)(1) of the Act. BASF - Wyandotte Corporation, supra; Brown and Root, Inc., supra; Whirlpool Corp. v. OSHRC, supra; Pratt & Whitney Aircraft v. Secretary of Labor, supra; Usery v. Marquette Cement Manufacturing Co., supra; National Realty and Construction Co. v. OSHRC, supra. Ample evidence in this case established the existence of a known and recognized serious hazard in the use of flags and tags by employees attempting to accomplish a positive means of lockout for power sources to machines under repair or inspection. Ample proof exists in this record showing that the use of padlocks would virtually eliminate the possibility of unauthorized closing of main power switches which had been properly locked open with a padlock. The evidence further showed that personal padlocks, supplied by Respondent to employees, would be compatible with the operation and use of Respondent's equipment at all its BOF areas, and was a feasible means to eliminate the hazard to which employees are no exposed. Accordingly, I find Complainant has established that a violation of Section 5(a)(1) of the Act existed by reason of Respondent's failure to have as a work practice the use of padlocks as a means of positively locking out power sources during periods when equipment was under repair or inspection.

CHARACTERIZATION OF THE VIOLATION AS WILLFUL

The Complainant, by amendment,[[12/]] charged in its Citation and Complaint that Respondent's violation of Section 5(a)(1) of the Act was willful in nature. I find sufficient and convincing evidence to sustain Complainant's allegation that the violation of the general duty clause by Respondent was willful in nature. That Respondent was fully aware of the hazard to its employees and was fully aware of the failures in its own flag and tag rule to adequately cope with such hazard, simply cannot be denied under any reasonable understanding of the evidence making the record in this case. Indeed, it appears the vulnerability of employees to injury under Respondent's flag and tag work rule was all but ignored by Respondent and its supervision.

This case involves instance after instance of employees, while performing repair or inspection work on the BOF, being placed in jeopardy of serious or mortal injury by reason of the easy and inappropriate removal of flags from power switches. What makes this matter particularly egregious is the fact that in many instances it was Respondent's own supervisors who blatantly violated the Flag and Tag Rule or otherwise participated in having the flags removed from open main power switches without the consent or knowledge of the employee who had placed them there initially. This apparently was done in order to gain quick restoration of power to the BOF equipment which in turn allowed Respondent to speedily place its BOF, that had been under repair, back into production -- all taking place regardless of the safety consequences or considerations (Tr. 48, 473, 474, 593, 594, 857, 858, 1199). In these acts there did not seem to be any real thought or regard given to the safety of employees working on the equipment, and was in total contravention of the purpose of the flags as a device to safely secure power switches.

The record established that notwithstanding Respondent's championing of the virtues of its Flag and Tag Rule, there was little regard by Respondent's supervision in faithfully following the flag rule (Tr. 479, 528, 529, 530, 565-570, 577, 581, 583, 589, 600, 601, 615-617, 639, 706, 709, 713, 753, 756, 1408). It could be said that violations of the Flag and Tag Rule by Respondent's supervisors, with its hazardous component to employees, was done intentionally when it suited Respondent's purposes. After all this record shows that no supervisor was ever disciplined in the slightest for disregarding the rule (Tr. 621, 1195, 1264-1267, 1278, 1485, 1579-1583) -- even a supervisor who had seriously violated the rule at least twice, yet was still considered to have had an unblemished record (Tr. 1313).

There had been numerous grievances and safety complaints filed by employees concerning both the surreptitious removal of employees' flags from power switches and the fact that the provisions of the Flag and Tag Rule was being ignored. Respondent's only response to these grievances and complaints was its relentless imposition of the flag rule until that point when employees, in mortal fear of their safety, appeared ready to walk off the job unless something was done. Then, on a limited basis, and for the alleged purpose of attempting to obtain time to rehabilitate its rule so that some sort of faith could be restored to it, did Respondent allow select employees to use padlocks to positively lockout power sources. After a period of time, it should have been clear that it was impossible for the employees to regain faith in the Flag and Tag Rule since those other employees who were not allowed to use locks, but required to rely on the flag rule, continued to experience their flags being improperly removed from opened power switches. No such realization came to Respondent.

Time and time again the inherent shortcoming in the Flag and Tag Rule was brought to Respondent's attention but Respondent acted indifferently to these incidents plainly showing a willingness to subject its employees to otherwise avoidable dangers and hazards. Respondent's only answer to the failures of its Flag and Tag Rule was its strident, but baseless, fidelity to the belief that the rule presented the same degree of positiveness that a padlock system would have in securing power switches. I find that ordinary reason would have dictated that the continual and reoccurring episodes involving the failures in the workplace of Respondent's flag rule would have brought to mind the vulnerability for easy removal of the flags from opened power switches and the flag's failure as a safety device. Accordingly, the only objective conclusion that can be reached, in light of these facts, is that the belief or opinion of Respondent that the effectiveness of its Flag and Tag Rule was, vis-a-vis, comparable to that of a personal padlock program, was one not reached in good faith. A fortiori, there exists little to bar the way for the ultimate finding that this employer's conduct was willful in nature. KVS-TVM Builders, 10 BNA OSHC 1128, 1981 CCH OSHD para. 23,738; Wright & Lopez, Inc. (Docket No. 76-0256), 10 BNA OSHC 1108, 1981 CCH OSHD para. 25,728; Marshall v.M. W. Watson, Inc., 652 F. 2d 977 (10th Cir. 1981), Judge's Decision 1979 OSHD para. 24,009; Mel Jarvis Construction Co., 10 BNA OSHC 1053, 1981 CCH OSHD para. 25,713; Wright and Lopez, Inc. (Docket No. 76-3743), 8 BNA OSHC 1261, 1980 CCH OSHD para. 24,419; General Electric Co., 5 BNA OSHC 1448, 1977 CCH OSHD para. 21,853; Western Waterproofing Co. v. Marshall, supra; C. N. Flagg & Co., 2 BNA OSHC 1539, 1974-75, CCH OSHD para. 19,251.

I find the actions of Respondent in failing to have in place a program whereby padlocks are issued to employees, allowing them to lock open power switches while they are engaged in repair or inspection of equipment, to be an act showing a careless disregard of employee safety and an intentional disregard of, or plain indifference to, the Act's requirements. Wright & Lopez, Inc. (Docket No. 76-0256), supra; St. Joe Minerals Corp. v. OSHRC, 647 F. 2d 840, (8th Cir. 1981), and cases cited at Note 12 therein; Western Waterproofing Co., v. Marshall, supra; Babcock & Wilcox Co. v. OSHRC, 622 F. 2d 1160 (3rd Cir. 1980); Empire-Detroit Steel v. OSHRC, 579 F. 2d 378 (6th Cir. 1978).

Accordingly, I find that Respondent's conduct in violating the general duty clause, as alleged in the amended Complaint and Citation, was willful in nature.

ASSESSMENT OF PENALTIES

In the instant case, the Secretary has proposed an amended penalty of $10,000. This amount represents the maximum penalty that could be imposed for a willful violation.

In assessing the appropriateness of a penalty, the first consideration should be whether the proposed penalty satisfies the purposes of the Act. Next the Commission must consider "the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of the previous violations", as provided under Section 17(j) of the Act. St. Joe Minerals Corp., d/b/a St. Joe Lead Co.-- Smelting Division, 10 BNA OSHC 1023, 1981 CCH OSHD para. 25,644.

With respect to the size of Respondent's business, this employer is a large corporation with adequate facilities and personnel to expeditiously deal with its occupational safety problems. Viewing the gravity of the violation, the evidence established that literally hundreds of employees were exposed to the hazards caused by use of the Flag and Tag Rule as the means of obtaining positive lockout of equipment under repair. The evidence further established that unexpected activation of equipment while under repair, and ostensibly guarded by flags, could result in serious injury or even death. The gravity of the violation must be considered high.

In determining the good faith of the employer, the record established little good faith on the part of Respondent in addressing the hazards caused by imposition of its flag rule. Indeed, it was shown that expediency in bringing Respondent's equipment which had been under repair back into operation, as allowed under the flag rule, surpassed any consideration for the safety of employees. The history of this case involves just too many incidents of employees narrowly escaping injury, or being exposed to hazards, by reason of the failures in Respondent's flag rule -- many of which were caused by Respondent's own supervisors.

While an employer's training efforts would normally be a factor in adjusting a penalty in its favor, such is not appropriate in this case. Respondent's activities in establishing training programs, allegedly designed to deal with the hazards incident to the flag and tag rule, was done not so much to provide a safe work place as it was to legitimize its discredited flag rule long shown to be inherently flawed as a safety rule. This case deals with a long history of employees being exposed to otherwise avoidable dangers caused by Respondent's compassionless adherence to its flag rule over the much sought after personal padlock system.

I see no compelling reason why the maximum penalty should not be imposed in this case. After carefully reviewing the record, I find no supportive evidence or legal basis why the proposed maximum penalty should receive any adjustment. Imposition of the proposed penalty, it is believed, will serve as an inducement for quick abatement of the hazards throughout Respondent's workplace. Accordingly, I find the penalty of $10,000 in accord with the purpose of the Act in assuring employees a safe workplace. As such, that amount will be affirmed.

OTHER MATTERS

The Respondent, in its post trial brief, argues that it was not afforded fundamental due process by the Administrative Law Judge during the hearing (labeled Point I). While a review of the record will show that each party was afforded every opportunity to present that evidence it believed necessary to its case, and was afforded complete and unabridged examination and cross-examination of each witness (except when repetition became excessive), comment will be made to some of Respondent's arguments.

Respondent has argued that certain documents were admitted into evidence without proper foundation. While the record demonstrates that an adequate foundation was laid for the introduction of each of the documents listed in Respondent's argument, it should be recognized that in an administrative hearing the technical rules of evidence become less important when juxtaposed against considerations dealing with the reliability and probative value of the proffered evidence. Each document allowed into evidence herein had that quantum of reliability and relevancy which made it important to the issues in this case. Hurlock Roofing Company, 1979 CCH OSHD para. 24,006; Administrative Procedure Act, 5 U.S.C. 556(d). Only marginally relevant evidence and evidence confusing, misleading, prejudicial or time wasting was not allowed into the record.

Respondent further argues that its case was prejudiced because the Administrative Law Judge allowed into the record evidence and testimony which predated the six month period for issuance of a Citation under Section 9(c) of the Act. Respondents argument as a matter of law is without merit as has been determined so by the Commission and reviewing courts. Ford Motor Company, 1977-78 CCH OSHD para. 22,106; Empire Detroit Steel Division v. OSHRC, 1977 CCH OSHD para. 22,813, 579 F. 2d 378 (6th Cir. 1978). Additionally, such evidence was highly relevant in the determination of the issues in this case.

Respondent's next argument involves what it perceived as an inability of the Administrative Law Judge to render a decision on the various motions presented at the close of Complainant's case by reason of the fact that there existed a transcript of the hearing which had inaccuracies in it. While it is not the custom in these proceedings to have any part of the transcript completed prior to the close of the hearing, it so happened that the trial schedule was spread over a period of time so as to facilitate the personal schedules of the attorneys, and that this allowed for part of the transcript covering the first few days of the trial to become available prior to the close of Complainant's case. As someone who was more than a were casual observer to these proceedings, I found it unnecessary to review the transcript prior to the conclusion of the hearing and submission of post trial briefs. The content or condition of the transcript had no bearing whatsoever on the various rulings made in this case. It can safely be said that it was solely the quality of the motions and the persuasiveness of the arguments supporting those motions that was the basis for issuance of any order or ruling.

The final argument of Respondent that will be considered relates to what it describes as "inappropriate statements of the ALJ". In this regard, it will be for the reviewing bodies to determine whether any statements of the Administrative Law Judge were inappropriate, rendering an unfair prejudice to any party, or whether those statements impinged upon the fairness of the proceedings. However, in Respondent's listing of "inappropriate" statements, where Respondent has challenged the right of the Administrative Law Judge to ask questions of witnesses, I believe Respondent's argument tears at the basic fabric insuring a fair trial. It is the responsibility of the Administrative Law Judge to assure that the facts of the case are fully elicited. Indeed it is the Judge's obligation to ask questions so that record may reflect with clarity what the witnesses intended to convey. It is the Judge's responsibility to question witnesses to clarify any confusing or ambiguous testimony or to develop additional facts, and this is what was done. (Occupational Safety and Health Review Commission Rules of Procedure, Rules 66 and 66 (j); Federal Rules of Evidence, Rule 614 (b).

Finally, the undersigned has not lightly taken this line of argument made by Respondent and by reason of this has reviewed and re-reviewed the transcript to insure that fundamental fairness was given all parties in this case during the hearing and subsequently in rendering a decision. In this regard, I searched through the record and have been unable to find any instances where any party to these proceedings was not afforded fundamental due process. Additionally, I have taken particular pains and efforts in writing the decision in a manner in which each party will know exactly how and why a particular conclusion was reached -- all of which may account in some measure for the length of this decision. After due consideration, I find no rational basis to alter these proceedings in any matter by reason of these arguments made by Respondent.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, as set out in my Decision and Order, and for good cause shown, it is ORDERED:

1. That item 1 of the Willful-Serious Citation 1 is AFFIRMED.

2. A penalty of $10,000 is assessed.

Edward A. Bobrick
Judge, OSHRC

Dated: March 11, 1982
Chicago, Illinois

FOOTNOTES:

[[1/]] Section 5 (a) (1) reads in pertinent part:

(a) 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/]] The employee could also place a "group flag" whereby several employees working closely together would operate under one flag (Tr. 138, 798, Ex. C-5-a, pg. 13, para. No. 2).

[[3/]] In the case of electrical equipment, main power switches are placed in the open position. Pneumatic and hydraulic valves are placed in a closed position.

[[4/]] Respondent's "Lock-out, Flag and Tag Rule" found in Section VII of its General Safety Rules for Employees (Ex. C-5-a) provides in applicable part: (1) This rule is especially applicable to those employees who oil, inspect or work around machinery and includes those who repair cranes or crane runways. The main switch handle controlling machinery which will be repaired or inspected shall be opened and locked out whenever provisions allow a lock to be used.The lock shall be posted with a flag or tag before anyone shall be permitted to work around or on the machinery involved. Plant procedure is to be followed. All flags and tags shall have the name, department symbol or code and check number of the man who places them. The flags and tags are to be securely fastened with cord or non-metallic material. Wire is not to be used for this purpose. No one shall remove a lock, a flag or tag except the person who places it except under the following conditions: In the event that a person does not remove his lock, flag or tag and cannot be located, and it is necessary to put the machine in operation, the supervisor, after making a thorough check of the machinery in question in company with a repairman, on turn, may remove the lock, flag or tag. (Emphasis added)

[[5/]] After weighing the knowledge and experience of all expert witnesses concerning the subject matter of this case, the self interest of the witnesses and the reasoning upon which their testimony is based, I find I cannot ascribe to Respondent's witness the same degree of reliability as I did with Complainant's witnesses. I found Respondent's expert witness, while sincere in his views, not able to squarely deal with those hard issues involving the consequences of flags being inappropriately removed from open power switches (Tr. 1707, 1708). The witness's offering of a synergistic review of Respondent's basic flag rule did not bring any ready insight into the case (Tr. 1725). Further, the bulk of this witnesses' testimony dealt with equipment not analogous to that involved in this case (Tr. 1753-1759).

[[6/]] There was significant testimony and evidence introduced showing that prior to 1971 the Flag and Tag Program was not working as a means of positive lockout protection for employees. This evidence consisted of employee testimony as well as documentation of grievances relating to the removal by supervisors of flags from open switches (Tr. 578, Ex. C-28, Tr. 587, Ex. C-30, Tr. 1349-1530, Ex. R-4). Since these incidents occurred prior to the effective date of the Act, they cannot be considered actionable or relevant in any way and thus are viewed as not material to the issues in this case. Accordingly, all evidence of this nature has been disregarded in any conclusions reached herein.

With respect to evidence outside the statutory six-month period referred to in Section 9(c) of the Act, but occurring subsequent to the effective date of the Act, I do not agree with Respondent's view as to its lack of relevancy and admissibility. I find this evidence relevant, material, and admissible. Ford Motor Co., 1977-78 CCH OSHD para. 22,106; Empire Detroit Steel Division v. OSHRC, 579 F. 2d 378 (5th Cir. 1978).

[[7/]] The statement of a BOF Mechanical employee was illustrative of the fact that while hourly employees tried to adhere and rely on the flag rules for protection, supervisory employees did not feel a like compunction. "We know the importance of it because it is our lives and our friends lives that we work with that are involved" (Tr. 768).

[[8/]] The record, and the discussion of it, contains ample examples of violations of the terms, spirit and purpose of the Flag and Tag Rule by Respondent's supervisors. I will not re-review them except to make reference to two incidents that portray the typical workings of the Flag and Tag Rule, and the attitude of Respondent and its supervisors toward the rule as a means of obtaining employee job safety. One incident involves a foreman who attempted to have one set of employee's flags placed on open power switches for a second set of employees (Tr. 593, Ex. C-32). This subverted the entire purpose of the rule. A grievance was filed challenging the actions of the supervisor. Then there is the telling incident which took place as late as March 10, 1980. A foreman removed a flag from an open power switch placed by an employee who was then working on a generator controlled by the flagged out power switch. The foreman who admitted removing the employee's flag, without the employee's knowledge, found excuse for his conduct by stating "employees take each other's blue flag and tag off as commonplace don't they" (Tr. 479, Ex. C-20). Significantly, no disciplinary action was ever initiated by Respondent toward the supervisor even though this was the second such incident in which he was involved -- indeed, no disciplinary action had ever been taken by Respondent toward any supervisors for violating the flag and tag rule (Tr. 621, 1195, 1264-1267, 1278, 1485, 1579-1583).

[[9/]] As to industry recognition see pages 20-21 supra.

[[10/]] N. 4 supra

[[11/]] In support of its argument concerning the lack of lockout facilities, Respondent offered the testimony of an expert witness who described how significant amounts of equipment at the plant could not be padlocked. The testimony of this expert witness, however, concerned itself with high voltage electrical equipment which was a type of equipment substantially different than that involved in this case. The electrical equipment referred to by Respondent's expert in his opinions was different in character to the mechanical equipment involved in this case since it had its own electrical switching devices which were equivalent to padlocks, had these devices in close proximity to the equipment, was used only by skilled electricians, and was generally its own power source (Tr. 1693-1695, 1734-1737, 1753, 1754-1759). I find the testimony of Respondent's expert not on point, offering little insight into the contested issues by reason of the significant differences between the equipment and its uses and purposes which formed the basis of his opinion, and that equipment involved in this case.

[[12/]] At the close of Complainant's case, and immediately before Respondent proceeded with its part of the case, Complainant presented a Motion to Amend Complaint wherein paragraph IV(c) of the Complaint was amended to allege that the charged violation constituted a willful/serious violation within the meaning of Section 17(a) of the Act. Complainant further moved that paragraph IV(g) of the Complaint be amended with respect to the penalty proposed for Item 1 of Citation No. 1 to allege that the proposed penalty be $10,000 (Tr. 1034). After allowing the parties ample opportunity to prepare and present their arguments concerning the Motion to Amend (Tr. 1065, 1068, 1072, 1088-1122), for those reasons announced at trial, I allowed Complainant to amend his Complaint characterizing the alleged violation as willful in nature and changing the proposed penalty (Tr. 1122-1126).