Bethlehem Steel Corporation

Plain-English summary

Bethlehem Steel used a flag-and-tag procedure to protect employees repairing equipment at its basic oxygen furnaces from unexpected movement or energization. OSHA alleged that the procedure did not provide positive control of power sources and cited the company under the general duty clause. An ALJ found the violation willful and assessed the then-maximum $10,000 penalty. During Commission review, the parties settled by changing the violation's characterization and reducing the penalty to $6,500. Bethlehem withdrew its contest and stated that it was bringing the Burns Harbor facility into compliance with the lockout/tagout standard at 29 C.F.R. § 1910.147. The Commission incorporated the settlement as its final order.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1910.147
• Outcome: Settlement approved; general duty clause lockout violation resolved for $6,500.
• Key point: A tag-and-flag procedure must provide effective positive control against unexpected equipment startup during repair work.

Full text (OSHRC public release)

Docket No. 79-2597

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).