Sharon Steel Corporation

Plain-English summary

OSHA alleged that Sharon Steel exposed maintenance employees to flying steel fragments while they changed a bridle roll and sheet steel moved through a temper mill from a payoff reel. The Commission found that earlier reported incidents fell outside the Act’s six-month limitations period. On the inspection date, the mill was only being jogged slowly during an electrical malfunction, and the record did not show that steel could shatter into hazardous fragments at that speed. The company’s policy permitting the work during normal operation could not support a citation for a violation that had not occurred. The Commission reversed the judge and vacated the general duty clause citation. Chairman Buckley also concluded that the Secretary had not proven that Sharon recognized the alleged hazard.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: General duty clause citation vacated.
• Key point: A citation requires a violation within the limitations period, not an unimplemented policy that might create a hazard in the future.

Full text (OSHRC public release)

Docket No. 80-7251

SECRETARY OF LABOR,

Complainant,

v.

SHARON STEEL CORPORATION,

Respondent.

UNITED STEELWORKERS OF AMERICA,

LOCAL 1197,

Authorized Employee

Representative.

OSHRC Docket No. 80-7251

DECISION

Before:  BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and
Health Review Commission under 29 U.S.C. � 661(i), section 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 651-678 ("the Act").  The
Commission is an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration ("OSHA").  It was established
to resolve disputes arising out of enforcement actions brought by the Secretary of Labor
under the Act and has no regulatory functions.  See section 10(c) of the Act,
29 U.S.C. � 659(c).

Sharon Steel Company ("Sharon")
operates a steel processing facility in Farrell, Pennsylvania.  Following an OSHA
inspection of the worksite on August 19, 1980, the Secretary of  Labor issued a
citation alleging that Sharon violated the Act's "general duty" clause[[1]] in
that employees performing a certain maintenance operation were exposed to a hazard of
being struck by flying fragments of steel.  Administrative Law Judge George O.
Taylor, Jr. concluded that Sharon violated the Act as alleged.  We reverse and vacate
the citation.

The citation alleged that employees were exposed
to the hazard of flying steel while working on machinery Sharon uses to temper, or harden,
the surface of sheet steel.  Sheet steel arrives at Sharon's Number 28 Temper Mill on
large rolls.  A roll is placed vertically on a device called a vertihort, the
function of which is to change the sheet steel's orientation from vertical to horizontal.
The horizontally-oriented steel that emerges from the vertihort is then threaded around
and past two rollers before passing through the temper mill.  The function of these
rollers, called "bridle rolls," is to maintain the proper tension in the steel.
 Sharon's temper mill is the only one in North America that uses such a vertihort
arrangement.

Normal wear of the bridle rolls requires their
replacement two or three times per year.  The rolls are also replaced on infrequent
occasions when unexpected defects develop.  When the bridle rolls are being changed,
sheet steel cannot be run off the vertihort. However, operation of the mill can continue
by placing the roll of steel being fed into the mill on a horizontal reel, called the
payoff reel, located between the bridle rolls and the temper mill.  It was Sharon's
policy to shut down the mill when employees were changing bridle roll No. 1 to avoid the
possible hazard of contacting the rotating steel on the payoff reel, which was 9 feet 6
inches from bridle roll No. 1.  However, since bridle roll No. 2 was 6 feet farther
away from the payoff reel, employees could change bridle roll No. 2 while sheet steel was
being fed into the mill from the payoff reel.  The Secretary alleges that employees
who changed bridle roll No. 2 while steel was being fed off the payoff reel were exposed
to the hazard of flying fragments of steel in violation of section 5(a)(1) of the Act.

The evidence in the record indicates that on
occasion the sheet of steel breaks while being fed off the payoff reel at high speeds.
When that occurs, the broken end could shatter upon striking a solid object, producing
fragments of steel.  There was conflicting evidence as to whether these fragments
could endanger employees working on bridle roll No. 2.  Several Sharon employees
testified that they were nearly struck by flying fragments of steel while they were
working on or near bridle roll No. 2 and steel was being run off the payoff reel.  On
the other hand, the company presented testimony that employees changing bridle roll No. 2
would be protected by floor plates and other barriers and hence would not be exposed to a
hazard even if flying fragments of steel were produced.

There was also conflicting evidence as to
whether Sharon knew that the operation of the mill off the payoff reel could produce
flying steel fragments.  There was testimony that some employees had attempted to
bring the problem to management's attention. However, all of Sharon's management personnel
who had responsibility for the safety of the mill's operation testified that they were
unaware of any incidents of flying steel and had never been informed by employees of any
concern over flying steel.  We need not resolve these conflicts, however, because we
find that there was no hazard established on the day of the inspection, or within the
preceding 6 months, and because we may not affirm a citation based upon the possibility of
a future or prospective violation.

To prove that an employer violated section
5(a)(1), the Secretary must first show that a condition or activity in the employer's
workplace presents a hazard to employees.  Aluminum Co. of America , 83 OSAHRC
24/E10, 11 BNA OSHC 1520, 1522-23, 1983-84 CCH OSHD � 26,526, pp. 33,794-95 (No. 78-3157,
1983).  He must then prove that the cited employer or the employer's industry
recognizes the hazard.  Davey Tree Expert Co ., 84 OSAHRC 11/D11, 11 BNA OSHC
1898, 1984 CCH OSHD � 26,852 (No. 77-2350, 1984).  The Secretary must further prove
that the hazard is likely to cause death or serious physical harm and that feasible means
exist to eliminate or materially reduce the hazard.  Phillips Petroleum Co .,
84 OSAHRC 2/E7, 11 BNA OSHC 1776, 1779, 1983-84 CCH OSHD � 26,783, p. 34,524 (No.
78-1816, 1984), aff'd , No. 84-1425 (10th Cir. Sept. 19, 1985).

To establish the existence of a hazard in this
case, the Secretary asserts that fragments of flying steel can be generated when Sharon's
Number 28 Temper Mill is being fed from the payoff reel, and that these fragments endanger
employees if they are performing maintenance on bridle roll No. 2 at the same time.
 The Secretary presented the testimony of several Sharon employees who said that they
had, in the past, worked on bridle roll No. 2 while the mill was running off the payoff
reel.  The latest such incident occurred in December, 1979, eleven months before the
citation was issued.  Sharon cannot be charged with a violation of the Act based on
these occurrences because they took place outside the six month statute of limitations
period imposed by section 9(c) of the Act.  29 U.S.C. 658(c).[[2]]  The only
evidence tending to show that the allegedly hazardous activity occurred within six months
of the citation's issuance pertains to the day of the OSHA inspection.[[3]]  The
Secretary does not argue that any prior instances form the basis of his allegations;
indeed, at the hearing he specifically stated that the alleged violation occurred on the
day of the inspection, Aug. 19, 1980.  Accordingly, the events of that day are
critical in determining whether there was a violation.

On the morning of the inspection, steel was being fed into the mill off the vertihort, not
the payoff reel.  The bridle roll No. 2 was observed to be slightly misshapen.  
Mill superintendent Bible therefore decided to replace that bridle roll after the roll of
sheet steel that was then on the vertihort had been completely processed.   The last
of the steel on the vertihort passed through the mill at 1:10 p.m.[[4]]  At
approximately noon, millwrights Griffin and Lizzie were assigned the task of changing
bridle roll No. 2.  According to Griffin, they gathered their tools and went to the
area at about 12:30, when the mill was still running off the vertihort.  Griffin, the
only one of the two millwrights to testify, was uncertain whether the mill was in
operation during the time they were replacing the bridle roll.

Shortly after lunch, the inspection party,
consisting of OSHA compliance officer Sutton and a number of Sharon representatives,
arrived at the mill.  Sutton testified that he observed the millwrights replacing the
No. 2 bridle roll while steel was running off the payoff reel into the temper mill.
 However, Sharon's assistant superintendent, Schell, explained that they were
attempting to run the mill while the inspection party was there, but were not able to do
so due to an electrical malfunction.  Schell testified that the mill was being
"jogged" back and forth in an attempt to cure the electrical problem, but this
proved unsuccessful and the mill was shut down entirely at 1:30 until after the bridle
roll change was completed.

Judge Taylor accepted Schell's version of what
transpired during the inspection, i.e ., that the mill was being jogged.  
Nevertheless, he found that on the way of the inspection, Sharon's employees were exposed
to the hazard of flying steel during the replacement of the No. 2 roll.  He concluded
that the fact the mill was being jogged was sufficient to establish that steel was being
fed into the mill off the payoff reel within the meaning of the citation.   Moreover,
the judge said that even if the steel was unlikely to break during the jogging procedure,
Sharon's intent to operate the mill if the electrical problem had been corrected
established that Sharon's employees were "within the zone of danger that exists when
steel is being processed off the payoff reel under normal conditions."

We believe the evidence is clear that no hazard existed on the day of the inspection.
 The preponderance of the evidence establishes that the mill was not operating during
the inspection, but was only being jogged. [[5]]  There is no evidence suggesting
that a flying steel hazard exists when the mill is being jogged.  When the mill is
operated with steel being fed from the payoff reel, the steel normally moves through the
mill at a speed of 1000 feet per minute.  The record does not establish precisely how
fast the steel moves when the mill is being jogged, but it does indicate that the speed is
much lower than during normal operation.  One of the employees who testified he was
nearly struck by flying steel, Paul Dzaja, testified that the steel shattered when the
broken end on the payoff reel hit an I-beam between the payoff reel and the bridle
rolls.  For the sheet steel to shatter in this manner, it must have been moving at a
relatively high speed.  Another of the employees who experienced an incident of
flying steel, Robert Alter, testified that the mill was operating at high speed at the
time.[[6]]  It thus appears that flying steel fragments were generated only when the
steel broke as it was moving through the mill at high speed.  There is no evidence
tending to show that the steel could shatter into fragments at slow speed when the mill is
being jogged, and accordingly, the Secretary did not prove that a hazard existed on the
day of the inspection.

The judge essentially concluded that a violation
occurred because Sharon intended to operate the mill during the bridle roll change if the
electrical malfunction had been corrected.[[7]]  The Secretary, reasoning similarly,
argues that a violation should be found because Sharon's policy to replace bridle roll No.
2 with the mill operating made it reasonably predictable that employees would be exposed
to the hazard alleged in the citation.[[8]]  It is clear that both the judge and the
Secretary are relying on the possibility of a prospective violation.  The Act,
however, does not permit citations founded on the possibility of future violations.  
Section 9(c) of the Act is unambiguous.  A citation may be issued only within six
months of the "occurrence" of a "violation."  The mere existence
of an unimplemented policy is not the "occurrence" of a
"violation."  In the absence of evidence of a violation within six months
of the issuance of a citation, Sharon cannot be found in violation of the Act.

We conclude that Sharon did not violate section
5(a)(1) of the Act.  The judge's decision is reversed and the citation is vacated.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED:  November 19, 1985

BUCKLEY, Chairman, concurring:

I concur with the conclusions of the lead
opinion, and with the reasons stated therein.  It is clear that, offered by the ALJ
an opportunity to amend the complaint, the Secretary's solicitor declined and expressly
stated that he intended to prove that the violation of the general duty clause (29 U.S.C.
654 (a)(1)) occurred on the date of the compliance officer's inspection, August 19, 1980.
 It is also clear that he failed to prove that violation for the reasons stated in
the lead opinion.

But even had the amendment to the complaint been
made, I would find that the Secretary failed to carry his burden of establishing any
violation of the general duty clause because he failed to establish the existence of a
recognized hazard in the workplace at any time.

In order to show that a hazard is recognized
within the meaning of section 5(a)(1), the Secretary must prove that an allegedly
violative condition or practice was known both to exist in the workplace and to be
hazardous either by the cited employer or generally within the employer's industry.  National
Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1265 n.32 (D.C. Cir. 1973).
 As the alleged hazard in this case results from practices associated with machinery
that is unique to Sharon, the hazard could not have been known generally within the steel
industry.  Thus, the Secretary would have to show either that, at the time of the
alleged violation, Sharon itself knew of the hazard, or that a reasonable person familiar
with Sharon's operation would have known of the hazard.  See Usery v.
Marquette Cement Manufacturing Co ., 568 F.2d 902, 910 (2d Cir. 1977); Litton
Systems, Inc ., 81 OSAHRC 101/C12, 10 BNA OSHC 1179, 1182, 1982 CCH OSHD � 25,817, p.
32,270 (No. 76-900, 1981); cf . Ray Evers Welding Co. v. OSHRC , 625
F.2d 726, 731 (6th Cir. 1980) (29 C.F.R. � 1926.28(a)).  The Secretary did not make
such a showing.

The No. 28 Temper Mill had been in operation
since 1966 with no injuries from flying steel.  Moreover, several Sharon supervisors
had worked in the plant during most or all of the time the No. 28 Temper Mill had been
operating and could reasonably believe they were thoroughly familiar with its operation
and that the operation's safety was not open to serious dispute.  Sharon could not
have learned of any hazard from the experience of other companies in its industry since
the arrangement of the machinery giving rise to the complaint was unique to Sharon's
plant.  Thus, the accumulated experience of Sharon and its industry in operating
temper mills did not put Sharon on notice that it might be dangerous to replace bridle
roll No. 2 with the mill in operation.

Although two employees who testified they had
experienced incidents of flying steel said that they brought the problem to the attention
of their foremen, their testimony was contradicted by the two foremen.  Sharon's
superintendent, Charles Bible, as well as three supervisors, also testified categorically
that they were unaware of any incidents of flying steel and had received no complaints or
reports of any such incidents.  One of these, the Corporate Safety Director, who was
a member of, and regularly attended meetings of, the Management-Union Safety Committee,
testified that in his three and one-half years no report had ever been made of a hazard of
flying steel.  The Secretary elicited testimony purporting to demonstrate the effort
by employees to bring the problem to the company's attention through evidence of a
grievance filed following an incident on December 12, 1979.  According to the
grievance, two employees assigned to change the bridle roll complained to their foreman
that the job was "unsafe."  The foreman insisted the job was not unsafe and
told the employees they would be subject to discipline if they refused to do it.  The
employees then performed the task.  Notably, the employees did not tell the foreman
why they thought the job was unsafe, and the grievance papers did not mention any problem
of flying steel.  Indeed, the relief sought by the grievance was only that the
foreman apologize for threatening the employees with discipline, not that Sharon change
its policy of replacing the bridle roll while the mill was in operation.  The
grievance therefore gave Sharon no reason to believe that the employees were concerned
with a hazard other than the obvious one of contacting the rotating roll of steel on the
payoff reel, a hazard that Sharon believed had been eliminated by its policy of not
working on bridle roll No. 1 with the mill running off the payoff reel.  Sharon could
certainly expect that employees concerned about a hazard associated with a bridle roll
change would have been much more specific about the nature of the hazard. The grievance
therefore did not put Sharon on notice that flying steel fragments could endanger
employees working on bridle roll No. 2.

In finding that Sharon recognized that a hazard
of flying steel existed while employees were changing bridle rolls, Judge Taylor relied
primarily on testimony of employee Rocky Vadala, a crane operator and Union Safety
Officer.  Vadala was first called to testify by the Secretary.  His testimony
was that he operated overhead cranes in all of the Sharon mills and had seen flying steel
many times in the No. 28 Temper Mill.  However, he was unable to state that he had
seen flying steel when the steel was running off of the payoff reel or that millwrights
were changing a bridle roll at a time that he observed flying steel.

After the Respondent rested, he was recalled as
a witness by the authorized employee representative to rebut Bible's testimony that lie
was not aware of any flying steel hazard.  On direct examination, Vadala did not say
that he had told Bible about flying steel, but only that working on the bridle rolls with
the mill running was "unsafe."  After the completion of Vadala's direct
testimony, Sharon's counsel pointed out that Vadala had not rebutted Bible's statement
that he had never been told about flying steel.  Following some colloquy,
Respondents' attorney proceeded to cross-examine the witness.  Vadala was at first
evasive.  Asked whether he told Bible about flying steel, he answered, "I wasn't
asked to tell him that."  On being pressed, he responded that he told Bible
there was a "safety problem," and only after being pressed further did he state,
"I explained to Mr. Bible...that there was flying steel...." When asked whether
he told Bible about a specific incident of flying steel, his answer was that he could not
remember the entire conversation.  He later stated that he "might have told him
about the incident of flying steel."

I find Vadala's testimony on the whole to be
self-contradictory and vague, and inadequate to establish that Respondent knew or should
have known that a hazard of flying steel existed in the No. 28 Temper Mill.

For the foregoing reason, I find that the
Secretary failed to carry his burden of establishing that a recognized hazard existed in
the workplace.  I therefore concur for this additional reason in the vacation of the
citation.

FOOTNOTES:

[[1]] The general duty clause is section 5(a)(1) of the Act, 29 U.S.C. � 654(a)(1), which
provides:  "[e]ach employer . . . 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]] Section 9(c) of the Act provides:

"No citation may be issued under this
section after the expiration of six months following the occurrence of any
violation."

[[3]] The record indicates that the bridle rolls
were changed a week before the inspection, but there is no evidence that the mill was
operating off the payoff reel at the time.

[[4]] The Secretary does not allege, nor does the record suggest, that there is any hazard
to employees when steel is run off the vertihort.

[[5]] Compliance officer Sutton was the only
witness who testified that the mill was "operating" during the inspection. 
However, Sutton was not familiar with the mill's operation and could well have equated the
movement of steel through the mill during the jogging procedure with the mill being
"in operation."  Moreover, Sutton testified that he was informed during the
inspection that the mill was "not operating up to normal."

[[6]] Alter testified that the steel was moving at 2000 feet per minute when the incident
occurred.  This cannot be entirely accurate, for the mill's maximum speed is 1500
feet per minute.  It does suggest, however, that the mill was engaged in its normal
high-speed operation.

[[7]] It is not clear from the record that this
was Sharon's intent.  There is some testimony indicating that Sharon was not
attempting to operate the mill during the inspection but was only trying to demonstrate
the process to the compliance officer.  Other testimony indicates that Sharon would
have operated the mill if the electrical malfunction had been corrected.  We need not
resolve the point for the critical fact is that the mill did not operate.

[[8]] The Secretary borrows, as did the judge,
from Commission decisions employing a reasonable predictability approach to determining
whether employees will be in a "zone of danger" created by a violative
condition.  E.g ., Gilles & Cotting, Inc ., 76 OSAHRC 30/D9, 3 BNA
OSHC 2002, 1975-76 CCH OSHD � 20,448 (No. 504, 1976).  These decisions presuppose,
however, that the violative condition already exists.  See Clement Food Co .,
84 OSAHRC , 11 BNA OSHC 2120, 2123-24, 1984 CCH OSHD � 26,972, p. 34,633 (No. 80-607,
1984).  They do not provide a basis for concluding that a violative condition exists
within the meaning of section 5(a)(1).