The Timken Company

Plain-English summary

A Timken mechanic lost both feet when a moving traverser's rails meshed with rails beside the teeming car she was repairing. The two participating Commission members agreed that the lockout/tagout standard did not apply because the traverser operated independently of the teeming car. They split on the alternative general duty clause charge: Commissioner Rogers would have found that Timken recognized the vehicular-type shear hazard, while Chairman Railton would have found hazard recognition unproven. Because Commission action required two affirmative votes, the direction for review was vacated and the judge's order vacating the citation became final with the precedential value of an unreviewed judge's decision.

Decision snapshot

• Cited standard(s): General Duty Clause, 29 U.S.C. § 654(a)(1), and 29 C.F.R. § 1910.147(c)(4)(i)
• Outcome: The direction for review was vacated, leaving the judge's vacation of the citation as the final order.
• Key point: When only two Commissioners participate and split on the merits, vacating review leaves the judge's decision final but does not create a majority Commission holding on the disputed issue.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. Docket No. 97-0970
THE TIMKEN COMPANY,
Respondent.
UNITED STEEL WORKERS OF AMERICA,
GOLDEN LODGE, LOCAL NO. 1123,
Authorized Employee Representative.

                                  DECISION

Before: RAILTON, Chairman; ROGERS, Commissioner.*
BY THE COMMISSION
This case is before the Occupational Safety and Health Review Commission under
29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29
U.S.C. §§ 651-78 (“the Act”). The facts are relatively undisputed. The Timken Company
(“Timken”) produces steel ingots in the Bottom-Pouring Department at its Faircrest
Avenue steel plant in Canton, Ohio. In the Bottom-Pouring Department, ingot molds are
moved from station to station on top of teeming cars. The teeming car is a flat railroad-

*Commissioner Stephens has recused himself from participation in this case.
type of car that is moved from station to station by a traverser. The traverser is an
independent motorized unit that moves along rails in a seven-foot deep pit in a north-
south direction within the Bottom-Pouring Department. The traverser has railroad tracks
on top of it that allow teeming cars to move from slots onto the traverser. Once the
traverser aligns with a slot, two sets of rails one on the traverser and one in the slot line
up and the teeming car is moved into the slot along the rails. The distance between the
end of the teeming car to the edge of the traverser pit is approximately 15 to 18 inches. In
the Bottom-Pouring Department, there are ten slots and teeming cars, each associated
with a different procedure in the ingot making process, and one traverser.
On February 6, 1997, a Timken mechanical maintainer was in a slot working alone
repairing the underside of a teeming car. Because her feet were at the meshing point
between the rails of the teeming car and those of the traverser, the employee’s right foot
and the toes of her left foot were amputated when the rails atop the traverser aligned with
those of the teeming car as the traverser moved along the traverser pit perpendicular to
the end of the slot where she was working.
The Secretary cited Timken for a serious violation of the lockout/tagout (“LOTO”)
standard at 29 C.F.R. § 1910.147(c)(4)(i). 1 This standard requires that certain industrial
machines and equipment be shut down and disconnected from their power source for the
duration of servicing or repair operations. The teeming car that the employee was
repairing had been locked out and tagged out. However, the traverser was not locked out
or tagged out. The citation specifically alleged that Timken violated the standard
because, while the employee was repairing the drive bar on the teeming car in a slot
adjacent to the traverser pit, “[t]here was no procedure in place to require the locking out
of the traverser so as to prevent the employee from being exposed to the shear point
created by the meshing of the rails atop the traverser with the rails in Slot #5.” Timken
contested the citation. Timken contended that the standard does not apply to the cited
condition.2

1
Section 1910.147(c)(4)(i) provides: “Procedures shall be developed, documented and
utilized for the control of potentially hazardous energy when employees are engaged in the
activities covered by this section.”

2
According to the LOTO scope provision, “This standard covers servicing and maintenance
of machines and equipment in which the unexpected energization or start up of the machines
or equipment, or release of stored energy[,] could cause injury to employees….” 29 C.F.R.
§ 1910.147(a)(1)(i) (emphasis in original).
 The Secretary thereafter moved to amend the citation to allege, in the alternative,
that Timken violated section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), which is
commonly referred to as the general duty clause.3 The basis for the alternative charge
was that employees performing maintenance work, and particularly the employee
repairing part of the drive bar on the teeming car, were “within close proximity” to the
moving traverser and were thus exposed to the “[h]azards associated with this
movement…includ[ing] the shear point created by the meshing of the rails atop the
traverser with the rails in the slot….” Administrative Law Judge Covette Rooney granted
the motion to amend the citation. Following a hearing and post-hearing briefs, the judge
issued her decision vacating the citation. The judge found that the LOTO provision did
not apply as cited, noting that the cited traverser functioned independently and was,
therefore, not part of the same equipment as the teeming car being serviced.4
The judge also rejected the alternative section 5(a)(1) charge based on her finding
that the record did not establish that Timken recognized the hazard.5 The Secretary filed a
petition for discretionary review of the judge’s decision, which was granted. The issues
on review, as noted in the briefing notice, are: (1) whether the cited LOTO standard,

3
Section 5(a)(1) provides: “Each 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.”

4
The judge found that, because the traverser and teeming car functioned independently, they
were distinguishable from the three examples relied on by the Secretary: the conveyor
described in the Preamble to the Final Rule, 54 Fed. Reg. 36,644, 36,646 (September 1,
1989), as an operating component of the waste hogger being serviced; the group of machines
described as involved in a single operation in the August 12, 1994 Interpretive Letter to Ms.
Joanne B. Linhard; and the coal hopper bin considered so related to the car dumper as to
constitute an appurtenance as discussed in the unreviewed administrative law judge’s
decision in Armco Steel Co., L.P., 1993 OSAHRC LEXIS 198 (No. 93-0641, 1993 ALJ).

5
To prove a violation of section 5(a)(1) of the Act, the Secretary must establish that: (1) a
condition or activity in the employer’s workplace presented a hazard to employees; (2) the
cited employer or the employer’s industry recognized the hazard; (3) the hazard was causing
or likely to cause death or serious physical harm; and (4) feasible means existed to eliminate
or materially reduce the hazard. See, e.g., Waldon Health Care Center, 16 BNA OSHC 1052,
1058, 1993-95 CCH OSHD ¶ 30,021, p. 41,151 (No. 89-2804, 1993) (consolidated).
section 1910.147(c)(4)(i), applies to the particular circumstances in this case; and (2)
whether a violation of section 5(a)(1) was proven.
While agreeing that the LOTO standard does not apply, the two participating
Commission members are divided on the appropriate disposition of the case on the merits
regarding the section 5(a)(1) alternative charge. However, section 12(f) of the Act, 29
U.S.C. § 661(e), requires that official action of the Commission must have the affirmative
vote of two members. To resolve this impasse, the Commission herein vacates the
direction for review, thereby allowing the judge’s decision and order to become the final
appealable order of the Commission with the precedential value of an unreviewed judge’s
decision. See, e.g., Texaco, Inc., 8 BNA OSHC 1758, 1760, 1980 CCH OSHD ¶ 24,634,
p. 30,218 (Nos. 77-3040 & 77-3542, 1980); Rust Engineering Co., 11 BNA OSHC 2203,
2205, 1984-85 CCH OSHD ¶ 27,024, p. 34,777 (No. 79-2090, 1984). See also sections
10(c), 11(a) and (b), and 12(j) of the Act, 29 U .S.C. §§ 659(c), 660(a) and (b), and 661(i).
Accordingly, the direction for review is vacated.6 However, the separate opinions of the
two participating Commission members follow.
It is so ordered.

                                                     /s/
                                                     W. Scott Railton
                                                     Chairman



                                                     /s/
                                                     Thomasina V. Rogers
                                                     Commissioner

Dated: April 15, 2003

6
Notwithstanding our action vacating the direction for review in this case, as the separate
opinions of the Commission members make clear, this was an appropriate case for review.
The order vacating the direction for review is entered in order to allow the parties to bring
finality to this case. The decisions of some United States courts of appeals have rejected
alternative forms of dispositions of our cases when only two members are available to decide
cases. See, e.g., Cox Brothers v. Secretary of Labor, 574 F.2d 465 (9th Cir. 1978); Shaw
Construction, Inc. v. OSHRC, 534 F.2d 1183 (5th Cir. 1976).
Separate Opinion of Commissioner Rogers

ROGERS, Commissioner:
I.
Commissioner Rogers agrees with the judge that the Secretary failed to prove that
the cited LOTO standard at 29 C.F.R. § 1910.147(c)(4)(i) applies. Commissioner Rogers
finds that “equipment” in this context lacks plain meaning. She therefore must consider
whether the Secretary’s interpretation of “equipment” to include the traverser here is
reasonable and entitled to deference. Reviewing courts must defer to the Secretary’s
reasonable interpretation of an ambiguous regulation if it “ ‘sensibly conforms to the
purpose and wording of the regulation[]’ ” taking into account “whether the Secretary has
consistently applied the interpretation embodied in the citation,” “the adequacy of notice
to regulated parties,” and “the quality of the Secretary’s elaboration of pertinent policy
considerations.” Martin v. OSHRC (CF & I Steel Corp.), 499 U.S. 144, 150-51, 157-58
(1991) (citation omitted). See Union Tank Car Co., 18 BNA OSHC 1067, 1069, 1995-97
CCH OSHD ¶ 31,445, p. 44,472 (No. 96-0563, 1997).
The record shows that the traverser and the teeming cars operate independently.
The sole function of the traverser is to transport the teeming cars. The traverser is not
fixed nor permanently attached to a particular teeming car, but rather is continually
moving. It is programmed to go to different points along the traverser pit to match up its
top rails with the rails at different slots at different times. When, as in this case, repairs
are done to a teeming car, Timken has a program for locking it out; as the judge found,
Timken followed that procedure here. Timken also has a program for locking out the
traverser when the traverser itself is being repaired, but that was not the case here.
Commissioner Rogers concludes that the Secretary falls far short in this case of
demonstrating that her interpretation is reasonable. Commissioner Rogers agrees with the
judge that the documents on which the Secretary relies are distinguishable. In
Commissioner Rogers’ view, the machines described in those documents are more
permanently interconnected in a single, integrated system distinctly different from the
independently operated teeming car and traverser.
She also notes that the Secretary issued an interpretation subsequent to the citation
in this case that casts doubt on the consistency of the Secretary’s interpretation here. In
an October 5, 1999 memorandum from Richard E. Fairfax, Director, OSHA’s Directorate
of Compliance Programs, to Michael Connors, Regional Administrator,1 regarding 29
C.F.R. § 1910.147, the following question was addressed.
Issue No. 2: The standard appears to apply only to the
specific piece of equipment where the servicing and
maintenance work is performed. However, when employees
are working on a piece of equipment or machinery, additional
hazards associated with adjacent or auxiliary equipment or
machines may pose hazards to these employees. The standard
does not appear to adequately address the issue.

The response is instructive: “[T]he machine guarding Subpart O requirements would
apply in the scenario where an authorized employee is performing servicing or
maintenance activities on one machine and is exposed to machine hazards from an
adjacent machine or piece of equipment in the normal production mode of operation
(without service or maintenance activities taking place).” The described scenario is
strikingly similar to the facts here.
In Commissioner Rogers’ view, a reasonable employer could conclude that,
because the traverser was not the equipment being serviced nor was it a component of,

1
Administrative notice can be taken of this document because it is available to the public on
the Internet at www.osha.gov. See, e.g., Union Tank Car Co., 18 BNA OSHC at 1068 & n.6,
1995-97 CCH OSHD at p. 44,471 & n.6.
nor permanently attached to, the teeming car, the LOTO standard did not apply to the
circumstances here. Commissioner Rogers therefore concludes that the Secretary’s
interpretation of “equipment” as including the traverser here is not reasonable and entitled
to deference. For that reason, the Secretary has therefore not proven that the standard
applies.
II.
Commissioner Rogers concludes that the Secretary did establish the alternative
charge — a violation of section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1). To prove a
violation of section 5(a)(1), the Secretary must establish that (1) a condition or activity in
the employer’s workplace presented a hazard to employees, (2) the cited employer or the
employer’s industry recognized the hazard, (3) the hazard was causing or likely to cause
death or serious physical harm, and (4) feasible means existed to eliminate or materially
reduce the hazard. E.g., Waldon Healthcare Center, 16 BNA OSHC 1052, 1058, 1993-95
CCH OSHD ¶ 30,021, p. 41,151 (Nos. 89-2804 & 89-3097, 1993).
As the judge found, the Secretary established that the condition presented a hazard
because the injured employee working under the teeming car 2 was required to position
herself in such a way that her feet would be in close proximity to the meshing point
between the rails of the teeming car and those of the traverser as the traverser went by.3
The record shows that the operator in the pulpit who controlled the traverser had an
obstructed view of the slot in which the injured employee worked. Timken’s operations
coordinator for the department testified that he knew that repairs on the teeming cars were

2
The record establishes that to perform such repairs the employees would need to lie on their
stomachs or backs underneath of the teeming cars.

3
Commissioner Rogers notes that the mechanical maintainer was 6 feet, 1 inch tall, and the
part of the drive bar she was repairing was 36 to 42 inches from the closest edge of the
traverser pit.
done “daily” in the slots “on or near the edge of the traverser pit.” As the judge found,
the serious nature of the employee’s injuries established that the hazard caused serious
physical harm. With respect to the feasibility of abatement,4 the record includes
unrebutted testimony that, following the accident, teeming cars were positioned so that
the repair work would be done on the end facing away from the traverser. This was one of
the feasible abatement methods suggested by the Secretary in the citation.
Regarding the main element of proof at issue here — employer recognition of the
hazard, Commissioner Rogers concludes for the following reasons that it was established
by the evidence as a whole.
Under section 5(a)(1), “[a] hazard is deemed ‘recognized’ when the potential
danger of a condition or activity is either actually known to the particular employer or
generally known in the industry.” Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2003,
1995-97 CCH OSHD ¶ 31,301, p. 44,014 (No. 89-0265, 1997) (citations omitted); accord
Continental Oil Co. v. OSHRC, 630 F.2d 446, 448 (6th Cir. 1980), cert. denied, 450 U.S.
965 (1981). The Sixth Circuit, to which this case may be appealed under 29 U.S.C. §
660(a) and (b), has found evidence of employer safety efforts to be relevant in
determining whether the employer recognized the hazard. Duriron Co. v. Secretary, 750
F.2d 28, 30 (6th Cir. 1984) (precautionary steps taken to protect employees from heat
stress).
Commissioner Rogers finds Timken’s recognition and actual knowledge of the
hazard based on the presence on the traverser of a horn that sounds and a warning light
that blinks whenever the traverser moves. She finds that the horn and light indicate
Timken’s recognition that the traverser, in its continuous movement along the pit, creates

4
The judge did not specifically address the feasible abatement issue as she found no violation
because, in her view, the hazard was not recognized.
a hazard and must be avoided by those in or near its path. Whether the horn and light
were effective in alerting employees is another matter, as the videotape indicates the high
noise level in the plant, and the record establishes that employees repairing teeming cars,
as the injured employee was here, may be on their stomachs or backs with their heads
underneath the cars.
The record establishes that Timken knew the traverser was operating where an
employee performing such repairs would be working. Timken’s operations coordinator
for the Bottom Pouring Department testified that he “knew” that repairs on teeming cars
by mechanical maintainers were “a daily event” on his shift, such repairs were done with
the teeming cars in the slots, and the repairs were done “on or near the edge of the
traverser pit.” As a supervisory employee, his knowledge is imputable to his employer.
E.g., Hamilton Fixture, 16 BNA OSHC 1073, 1089, 1993-95 CCH OSHD ¶ 30,034, p.
41,184 (No. 88-1720, 1993), aff’d without published opinion, 28 F.3d 1213 (6th Cir.
1994).
The record also shows that Timken was actually aware of the vehicular nature of
the hazard and the danger that posed. Timken’s Principal Industrial Hygienist testified
that he considered the traverser to be “a vehicular piece of equipment just like a truck or
locomotive,” and described it as “vehicular traffic and would have to be accounted for
accordingly.”5 In light of this testimony, Commissioner Rogers finds that the Timken

5
Employer recognition of vehicular traffic hazards posed to employees performing their
assigned tasks triggers employer obligations to protect employees in several contexts. See
W.G. Fairfield Co., 19 BNA OSHC 1233, 1236, 2000 CCH OSHD ¶ 32,216, p. 48,865 (No.
99-0344, 2000), aff’d, 285 F.3d 499 (6th Cir. 2002) (Commission found that “having its
employees cross an active, multiple lane, high-speed highway poses an obvious hazard that
was recognized as such by Fairfield” and triggered the obligation to instruct employees in
recognition and avoidance of the hazard under 29 C.F.R. §§ 1926.20(b)(1) and
1926.21(b)(2)). As in Fairfield, the hazard here was recognized as such by the employer yet
an experienced employee was put in harm’s way without, in Fairfield, instruction, or, here,
work rules addressing such matters as clearing the way before operating equipment
become more relevant and specific to what is essentially a vehicular hazard here. Work
rules may appropriately be considered in determining hazard recognition. See generally
Secretary v. General Dynamics, Land Systems Div, 15 BNA OSHC 1275, 1285, 1991-93
CCH OSHD ¶ 29,467, p. 39,757 (No. 83-1293, 1991), aff’d without published opinion,
985 F.2d 560 (6th Cir. 1993) (several company safety bulletins go toward showing
recognition); Ulysses Irrigation Pipe Co., 11 BNA OSHC 1272, 1275, 1983-84 CCH
OSHD ¶ 26,462, p. 33,644 (No. 78-799, 1983) (instruction not to use unlighted,
unprotected tractor at night goes toward recognition of hazard of unlit, obstacle-filled
pipe storage yard).
For example, Timken work rule no. 69 directs employees to “[w]atch where you
place your hands and feet when working with machinery, and don’t get caught in a pinch
point.” This addresses the hazard here caused by the nearby moving traverser.6 Work
rule no. 70 tells employees to “[a]lways make sure all personnel are clear before
operating any equipment.” Here the traverser operator’s view of some of the slots was
obstructed while the traverser was moving. Work rule no. 67 advises employees that
“[c]aution should be used at all RR crossings due to Radio Controlled Locomotives,” to
which the traverser may be analogized. Thus, these work rules show hazard recognition
by Timken.
In addition, Commissioner Rogers notes that employer recognition of a hazard has
been found “absent direct evidence of subjective belief,” where a hazard is “ ‘obvious and
glaring’ ” “without reference to industry practice or safety expert testimony.” Kelly
Springfield Tire Co. v. Donovan, 729 F.2d 317, 321 (5th Cir. 1984), quoting Tri-State

implementation of a feasible means of abatement.
6
Timken did not argue that the injured employee’s conduct was unpreventable.
Roofing v. OSHRC, 685 F.2d 878, 880-81 (4th Cir. 1982) (unguarded platform 40 feet
above concrete floor and no protective equipment). The Sixth Circuit, to which, as noted
above, this case may be appealed, has acknowledged this as well. In Southern Ohio
Building Systems, Inc. v. OSHRC, 649 F.2d 456, 460 (6th Cir. 1981) (“So. Ohio”), the
Sixth Circuit stated that “[i]n cases where the evidence establishes that employees have
been exposed to obvious danger the general duty clause may be the basis of a finding of
violation. E.g., Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871 (3d Cir. 1979).” W hile
admitting that a hazard could be so obvious as to be the basis for a section 5(a)(1) charge,
and thus could equate to actual knowledge, the Sixth Circuit in So. Ohio found that
particular level of obviousness not to be present there because of deficiencies in the
evidence. 649 F.2d at 459-60. Insofar as the judge indicated that the Sixth Circuit in So.
Ohio required a showing of industry recognition before an obvious hazard could be found
recognized by the employer, Commissioner Rogers respectfully concludes that the
judge’s reliance on that decision was misplaced.7

7
Nowhere in So. Ohio does the court state that proof of industry recognition is required
before obviousness can establish hazard recognition. The court throughout its decision in
that case, but especially at 649 F.2d at 459, was particularly critical of the Secretary’s failure
of proof on several key points — one of them being her failure to prove that the wind was
at such a velocity that it was an obvious danger. As the Sixth Circuit noted in So. Ohio, the
court in Bethlehem, as a number of courts have done in cases involving obvious hazards,
went on to find that the evidence there established as well that a recognized standard of the
industry was violated. The Sixth Circuit then contrasted the proof of weather conditions in
Bethlehem with those in So. Ohio. Commissioner Rogers considers the fact that the court did
not contrast the industry recognition evidence in the two cases to underscore her reading of
So. Ohio as not requiring such evidence for recognition where an obvious hazard has been
found.

She also finds that the judge’s reliance on Davis-McKee, Inc. v. OSHRC, 709 F.2d 1501 (6th
Cir. 1983) (decision without published opinion) and Kokosing Construction Co., 17 BNA
OSHC 1869, 1873 n. 15, 1995-97 CCH OSHD ¶ 31,207, p. 43,725 n.15 (No. 92-2596, 1996),
is also misplaced because those cases were tried and decided on evidence of industry
 Having reviewed the record in this case and considered the testimony and exhibits,
especially the videotape jointly entered into evidence, Commissioner Rogers concludes
that the hazardous condition here was obvious, and strikingly similar to the “vehicular”
hazard at issue in Litton Systems, Inc., 10 BNA OSHC 1179, 1182, 1982 CCH OSH D
¶ 25,817, p. 32,270 (No. 76-900, 1981), where the Commission, like the circuit courts
noted above, found that employer recognition under section 5(a)(1) “can be inferred from
the obvious nature of the hazard,” citing Eddy’s Bakeries Co., 9 BNA OSHC 2147, 2150,
1981 CCH OSHD ¶ 25,604, p. 31,940 (No. 77-1084, 1981) (“danger presented by the
presence of gasoline vapors near a source of ignition is a matter of common knowledge”
also confirmed by fire and safety expert testimony). The Commission’s statements in
Litton about the “obvious nature of the hazard” apply equally here: “The hazard in this
case is a large vehicle moving with obstructed vision through areas commonly used by
employees. The danger presented by this type of machinery is a matter of common
knowledge.” Litton, 10 BNA OSHC at 1182, 1982 CCH OSHD at p. 32,270. The
operator in the cab of the “straddle carrier” in Litton had a 25 to 30 foot blind spot in
front. Here, the traverser is programmed by an operator in the pulpit who had an
obstructed view of some parts of some slots, including the one where the injured
employee was working.8
In Litton, it was clear that the carrier operated in areas commonly used by
employees. Here, as noted above, the evidence shows that Timken, through its operations
coordinator for the department, knew that the traverser was operating where an employee

recognition, not on an obviousness theory.

8
Unrebutted testimony established that the traverser operator at the time of the accident, who
did not testify, had been told by the injured employee herself that she would be doing repair
work in the slot.
would be performing repairs daily on or near the edge of the traverser pit. Thus,
Commissioner Rogers also finds hazard recognition based on the obvious nature of the
hazard here.
Based on all the facts above, taken together, Commissioner Rogers concludes that
the Secretary established that the vehicular-type hazard here was actually known to
Timken, and, in any event, was so obvious as to be equated with actual knowledge of a
reasonable person, and thus recognized by Timken. She believes the evidence of
obviousness, together with the other facts showing actual recognition, distinguish this
case factually from So. Ohio. She thus finds that the Secretary has proven employer
recognition of the hazard.
As discussed above, the Secretary has established the other requisite elements for
proving a section 5(a)(1) violation, including evidence that: the hazard could, and did,
cause serious physical harm; and abatement was not only feasible but easily implemented,
as Timken instituted a new program following the accident providing that the end of the
teeming car being repaired would be away from the traverser pit. Because she finds that,
based on the record as a whole, the Secretary proved the requisite elements of the section
5(a)(1) charge, Commissioner Rogers would affirm the citation item on that ground.
 Separate Opinion of Chairman Railton

RAILTON, Chairman:
I.
Chairman Railton agrees with the judge’s determinations that the cited LOTO
standard, section 1910.147(c)(4)(i), does not apply and that the Secretary failed to prove a
violation of section 5(a)(1).
The Chairman agrees that the LOTO standard does not apply for the reasons given
by the judge on pages 6 and 7 of her decision. The judge found, and the Chairman
agrees, that the traverser functioned independently of the teeming cars. Indeed, on the
day of the accident, after the teeming car was locked out in order to conduct repairs, the
traverser continued to operate in a completely independent manner. Operations in the
Bottom-Pouring Department, such as pouring of steel, the preparation of ingot molds, and
the movement of the other teeming cars onto the traverser, continued.1 Accordingly, as
the traverser and teeming cars are not part of the same equipment, the LOTO standard
does not apply to the cited condition.
Moreover, the Chairman finds that the standard does not apply because the
Secretary has not proven that the movement of the traverser was “unexpected.” 2 See, e.g.,

1
The position asserted by the Secretary in this case is extreme. The Secretary would require
the lockout of the traverser and thus would entirely shut down the teeming operation. The
Secretary has failed to demonstrate that the result for which she advocates is reasonable in
these circumstances. The traverser car operation appears to be similar to the role played by
a switch engine in a railroad switchyard. Under the Secretary’s line of argument, for
example, the engine used to move railcars in a switchyard would have to be locked out
whenever repairs are made to a freight car that had been shunted off onto a side track.

2
The LOTO standard’s scope provision limits the applicability of the standard to “the
servicing and maintenance of machines or equipment in which the unexpected energization
Reich v. General Motors Corp., Delco Chassis Division, 89 F.3d 313, 315-16 (6th Cir.
1996). 3 In Reich v. General Motors, the Court of Appeals for the Sixth Circuit made the
following observations about the term “unexpected” as used in the standard:
We conclude that the plain language of the lockout standard unambiguously
renders the rule inapplicable when an employee is alerted or warned that the
machine being serviced is about to activate. In such a situation,
“energization” of the machine cannot be said to be “unexpected” since the
employee knows in advance that machine startup is imminent and can
safely evacuate the area. The standard is meant to apply where a service
employee is endangered by a machine that can start up without the
employee’s foreknowledge. In the context of the regulation, use of the
word “unexpected” connotes an element of surprise, and there can be no
surprise when a machine is designed and constructed so that it cannot start
up without giving a servicing employee notice of what is about to happen.

Id. at 315.
In this case, unrebutted testimony established that the employee maintaining the
teeming car was aware that the traverser would be operating as usual, as it had when the
employee had done such repairs in the past. Each move of the traverser was
programmed, specific, and intended. While the employee may not have been thinking
about the traverser in the moment before the accident, her actions do not change the facts
that the start up and movement of the traverser was not unexpected. Thus, as there is no
“element of surprise,” the activation and operation of the traverser would not fall under
the standard’s definition of “unexpected.”

or start up of the machines or equipment, or release of stored energy could cause injury to
employees.” 29 C.F.R. § 1910.147(a)(1)(i) (emphasis in original).

3
This case can be appealed to the Sixth Circuit because the principal office of Timken and
the location of the alleged violation are in Ohio. 29 U.S.C. § 660(a) & (b). Where it is clear
that the case can be appealed to a particular circuit, the Commission will apply the law of that
circuit. See, e.g., Farrens Tree Surgeons, 15 BNA OSHC 1793, 1794-95, 1991-93 CCH
OSHD ¶ 29,770, p. 40,489 (No. 90-998, 1992).
 In sum, for the reasons set forth in the judge’s decision and above in his separate
opinion, the Chairman finds that the Secretary has failed to prove that section
1910.147(c)(4)(i) applies to the cited condition.
II.
Chairman Railton also agrees with the judge’s conclusion, for the reasons she
gave, that the Secretary failed to prove a violation of section 5(a)(1). The Secretary did
not establish that the hazard was actually known to Timken. He also agrees with the
judge’s conclusion that the record here does not support or establish that the hazard
should have been recognized because it was obvious.
“A hazard is deemed ‘recognized’ when the potential danger of a condition or
activity is either actually known to the particular employer or generally known in the
industry.” Seward Motor Freight Inc., 13 BNA OSHC 2230, 2234, 1987-90 CCH OSHD
¶28,506, p. 37,787 (No. 86-1691, 1989). The Secretary asserts that Timken recognized
the hazard associated with operating the traverser adjacent to the slots occupied by the
teeming car. However, as the judge discussed, the safety rules cited by the Secretary in
support of this contention are not persuasive. As the judge noted, Timken’s generalized
work rules that warn employees to “be alert for uneven spots, holes, chains, pinch points
and other hazards or obstructions”; to “[not] get [your hands or feet] caught in a pinch
point”; and to “make sure all personnel are clear before operating any equipment” do not
establish recognition of the hazard created by the movement of the traverser while
performing work upon the teeming car. While Timken does have other hazard specific
work rules such as rules regarding cranes and hazardous materials, these rules neither
explicitly address the traverser nor the cited hazard. The Chairman also believes that it is
worth noting that the rules upon which the Secretary relies are corporate-wide; yet,
Timken presented evidence that the design of the Bottom-Pouring Department at its
Faircrest plant is unique; thus, they could not have been intended to be specific as to the
particular operations in this department.
The Chairman also agrees with the judge’s determination that the Secretary failed
to prove an obvious hazard. Here, the Commission’s job “is not to look for a proximate
cause relationship between the accident which preceded the inspection and the specific
violation charged, but to determine whether there is substantial evidence in the record
supporting the charge that the employer maintained, at the time and place alleged, a
recognized hazard to the safety of its employees.” Bethlehem Steel Corp. v. OSHRC, 607
F.2d 871, 874 (3d Cir. 1979). The Chairman finds that the Secretary failed to present
such evidence. Rather, the Chairman finds that the Secretary’s logic regarding the fact
that an employee may face death or serious physical harm by getting caught in the shear
point created by the meshing of the rails atop the traverser with the rails in a teeming car
slot is exactly the type of logic the Court of Appeals for the Sixth Circuit cautioned
against in Southern Ohio Building Systems, Inc. v. OSHRC, 649 F.2d 456, 459-60 (6th
Cir. 1981). In Southern Ohio Building Systems, the court noted that the fact that serious
injury may occur, as it did in this case, is not proof of a hazard so obvious as to require
recognition — in other words, it admonished the Secretary against “Monday morning
quarterbacking.” Here, this is exactly how the Secretary tries to persuade the
Commission of the existence of an obvious hazard — she relies upon the fact that the
proximate cause of the serious injuries suffered by the mechanical maintainer was the
cited hazard and claims, in retrospect, that the employer should have foreseen the
possibility of injury.
Yet, the Secretary presented no evidence that anyone in the Faircrest plant
recognized that a hazard was presented by performing maintenance work adjacent to the
traverser pit with the traverser in operation. For example, the record lacks evidence that
there had been complaints from employees about working on the teeming car in the cited
area and does not contain evidence that employees had discussed or that employees had
been warned about the danger of positioning oneself in any particular manner with
respect to the task of working on the teeming car. Despite the fact that Timken had an
experienced safety department, which had developed many specific work rules
evidencing a high concern for the safety of Timken’s employees, the practice used by this
mechanical maintainer was customary for repairing the teeming cars. The record
demonstrates that she had previously repaired teeming cars in slots adjacent to the
traverser pit knowing that the traverser was in operation. At the time the accident
occurred, she knew that the traverser would be operating but unfortunately positioned
herself so as to be exposed to injury. On this record, it is apparent that neither Timkin’s
safety department nor any of the persons working at the specific plant concluded that the
hazard presented by the operation of the traverser car while performing repairs on
teeming cars was obvious.
To call this lack of evidence into question, the Chairman concludes that something
more is required than the mere claim by the Secretary that the hazard should have been
obvious to the employer. While Southern Ohio recognized the possibility that a hazard
can be so obvious to be the basis of a finding of a section 5(a)(1) violation, without
specific industry knowledge and where there are contrary facts of record, additional proof
of the hazard must be required.4 Bethlehem Steel is illustrative of this point. In
4
In reaching this conclusion, the Chairman does not need to address the issue of whether the
judge was correct in her understanding that Southern Ohio requires proof of industry
recognition before an obvious hazard would be enforceable under section 5(a)(1). However,
the Chairman merely notes that, in failing to provide substantial evidence of an obvious
hazard, the Secretary in this case presented no evidence of industry recognition of the hazard.
Bethlehem Steel, where an employer was charged with a violation of the general duty
clause following an employee’s fall from a crane resulting in death, the Court of Appeals
for the Third Circuit found that there was substantial evidence of an obvious hazard
where the employer operated a crane during high winds and a snowstorm causing 12 to
14 inches of accumulation. In establishing that the hazard should have been obvious to
the employer, the Secretary presented not only evidence that there was limited visibility
by the crane operator because the window of the cab had fogged up and the cab lacked
wiper blades, but also evidence that gusts of wind exceeded the safe operating limit of the
crane as established in two separate industry standards, which made it difficult for the
operator to control the swing of the boom, and evidence that management was aware of
the high wind conditions and made several calls regarding the weather that day. In
addition, the Secretary presented testimony that other companies in the industry ceased
operations during such conditions. Id. Thus, even though the danger of operating a crane
in high winds and a snowstorm may appear obvious to the layperson, the Secretary
adduced substantial evidence regarding the hazardous condition, such as industry
standards and the practice of other crane operators, in addition to the facts of high winds
and snow. Here, the Secretary has failed to do this;5 thus, she has failed to meet her
burden of establishing recognition of a hazard. For these reasons, the Chairman agrees
with the judge’s determination that the Secretary failed to prove a violation of section
5(a)(1).

5
While the Secretary has cited several cases where the Commission or the courts have found
a hazard so obvious that a recognized hazard was established, the Chairman finds these
distinguishable from the instant case. He respectfully disagrees with his colleague’s
conclusion that the hazardous condition here was strikingly similar to the vehicular hazard
at issue in Litton Systems, 10 BNA OSHC 1179, 1182, 1982 CCH OSHD ¶ 25,817, p. 32,270
(No. 76-900, 1981). In Litton Systems, the hazard was a large vehicle driven with obstructed
vision through areas commonly used by employees as a walkway. Here, the traverser is not
“driving around” like a vehicle. Employees know that once the traverser’s next move is
computer-programmed, the pulpit operator does not direct the traverser’s movement. Once
programmed, the traverser moves two ways in a pit: “back” and “forth.” Employees do not
use the pit as a walkway. Moreover, employees know that the traverser moves back and
forth in the pit without a driver who could “brake” if an employee crossed its path. The
Chairman, therefore, finds reliance upon Litton Systems to be misplaced.
 SECRETARY OF LABOR,
Complainant,
v. DOCKET NO. 97-0970
THE TIMKEN COMPANY,
Respondent,
and
USWA, GOLDEN LODGE, LOCAL NO.
1123,
Authorized Employee Representative.

Appearances : For Complainant: Heather A. Joys, Esq., Office of the Solicitor, U. S. Department of
Labor, Cleveland, O H.; For Respondent : W illiam S. C line, Esq. and Shannon L. Shinaberry, E sq., Day,
Ketterer, Raley, Wright & Rybolt, Ltd., Canton, OH.; Authorized Employee Representative For USWA,
Local No. 1123: Art Maurer, Vice-President Local 1123

Before: Judge Covette Rooney

                               DECISION AND ORDER
    This proceeding is before the Occupational Safety and Health Review Commission

pursuant to Section 10(c) the Occupational Safety and Health Act of 1979 (29 U.S.C. §651, et
seq.)(“the Act”). Respondent, the Timken Company, at all times relevant to this action
maintained at a worksite at 4511 Faircrest Avenue, S.W., Canton, OH., where it was engaged in
the business of producing steel ingots which were transferred to other areas of the plant for
further processing. Respondent admits that it is an employer engaged in a business affecting
commerce and is subject to the requirements of the Act.
On February 6, 1997, accident which occurred in the Bottom-Pouring department of this
job site. Compliance Officer (“CO”) Edward Dill conducted an accident inspection of the
subject job site on February 12, 1997. As a result of his inspection, on June 3, 1997, Respondent
was issued a citation alleging a serious violation with a proposed total penalty in the amount of
$7,000.00. By timely Notice of Contest, Respondent brought this proceeding before the Review
Commission. A hearing was held before the undersigned on June 16, 1998, in Cleveland OH.
Counsel for the parties have submitted Post-Hearing Briefs and Reply Briefs, and this matter is
ready for disposition.

Background
There are four different processes which occur at the Bottom-Pouring Department. The
operations are continuous -24 hours, 7 days a week (Tr. 221, 257, 275)1. There is a prepping
station, pouring station, stripping station, and a rolling area (Tr. 197). The prepping, pouring and
stripping operations all occur in teeming cars.2 In the prepping station, the molds are placed onto
teeming cars by crane and are prepared to receive molten steel. After being prepped, the molds
are transferred on a teeming car to the pouring station where another crane uses a ladle to fill the
molds with molten steel. Once the steel is poured, it sits in the slot and cools. After it cools, the
mold is stripped and the ingot is moved to the rolling-mill area by a crane (Tr. 189-98, 193-94,
222).
The ingot molds are moved from station to station on top of teeming cars. The teeming
car is a flat railroad-type car which is moved from station to station by a traverser. The traverser
is an independent motorized unit which moves along rails in a seven foot deep pit in a north-
south direction within the Bottom-Pouring Department. There are ten teeming cars with one
traverser. The traverser has railroad tracks on top of it which allow the teeming cars to move
from slots onto the traverser. The traverser moves along rails in a seven foot deep pit. The
traverser moves from one slot to another. When the traverser aligns with a slot, two sets of rails,
one on the traverser and one in the slot, line up and the teeming cars is moved into the slot along
the rails. The distance between the end of the teaming car to the edge of the traverser pit is
approximately 15 to 18 inches (Tr. 227, 238). There are ten slots in the bottom pour area. Each

1
The term “Tr.” refers to the official transcript which began at page 180. The term “Ex” refers
to the exhibits introduced into evidence at the hearing.
2
The official transcript and the Secretary’s brief refer to this car as the “teaming” car. The
undersigned has utilized the Respondent’s spelling of the term “teeming” in light of the fact that
Respondent was responsible for the car.
slot is associated with a different procedure in the ingot making process (Tr. 194-96, 268, 276,
281; Joint Ex. 1, Exs. G-1-4).
Maintenance and repair work was performed on the teeming cars in any one of the slots.
It was usually performed in the spare slot or in the side board deck area (Tr. 223). At the time
of the subject inspection, Ms. Haney had just received an assignment from the previous shift to
repair the hanger rod of a teeming car. This rod was a component of the car’s drive bar located
beneath the car. In order to preform the job she had to position herself on her stomach or back
and slide back to the location of the drive bar (Tr. 227-28). The teeming car was located in the

5 W slot. The drive bar was approximately 36 to 42 inches from the edge of the traverser pit.

Ms. Haney had just begun to set up the work and had positioned herself in such a matter that her
feet hung over the edge of the traverser pit (Tr. 231, 262). Ms. Haney was seriously injured
when the traverser moved past the slot in which she was working and amputated her feet (Tr.
267-68, 298).
Secretary’s Burden of Proof
The Secretary has the burden of proving his case by a preponderance of the evidence.
In order to establish a violation of an occupational safety or health standard, the Secretary has
the burden of proving: (a) the applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access to the violative conditions, and
(d) the employer’s actual or constructive knowledge of the violation (the employer either knew
or with the exercise of reasonable diligence could have known, of the violative conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Citation 1, Item 1
29 C.F.R.§1910.147(c)(4)(i)"Energy control procedure" Procedures shall be developed,
documented and utilized for the control of potentially hazardous energy when employees are
engaged in the activities covered by this section - servicing/maintenance of equipment.
In the Bottom Pouring Department, mechanical maintainers perform a variety of
maintenance activities which include repairs on teeming cars while they are
located in “slots” perpendicular and adjacent to the traverser, which moves the
teeming cars from the “slots” in a north and south direction Such maintenance
 activity would include repairs on the drive bar and replacement of plats or
bumpers on the teeming cars. On or before February 12, 1997, an employee was
engaged in such activity, preparing to repair the drive bar on the east end of a
teeming car which was located in slot #5E.(sic). This activity placed the
employee within close proximity to the movement of the traverser car. There was
no procedure in place to require the locking out of the traverser so as to prevent
the employee from being exposed to the shear point created by the meshing of the
rails atop the traverser with the rails in Slot #5.
OR IN THE ALTERNATIVE3
Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The employer did not furnish
employment and a place of employment which were free from recognized hazards that were
causing or likely to cause death or serious physical harm to employees in that employees were
exposed to:
The hazards associated with performing maintenance work adjacent to the
traverser with that equipment in operation. In the Bottom Pouring Department,
mechanical maintainers perform a variety of maintenance activities which include
repairs on teeming cars while they are located in “slots” perpendicular and
adjacent to the traverser, which moves the teeming cars from the “slots” in a north
and south direction. Such maintenance activity would include repairs on the drive
bar and replacement of plates or bumpers the teeming cars. On or before
February 12, 1997, an employee was engaged in such activity, preparing to repair
the drive bar on the east end of the teeming car which was located in Slot
#5E.(sic). This activity placed the employee within close proximity (5 feet or
less) to the traverser car. Hazards associated with this movement would include
the shear point created by the meshing of the rails atop the traverser with the rails
in the slot and/or falling into the traverser pit itself and being crushed by the
machine.
The feasible and acceptable abatement methods to correct the hazard were:

1. To deenergize and lock out the traverser while the maintenance work was being performed, or,
2. To design and implement the use of a barricade to be used to protect the maintainer from
   inadvertently entering the danger zone created by the movement of the traverser, or,
3. To require that no maintenance activity be performed adjacent to the traverser, i.e., require
   that work performed at the end of a teeming car be done with the working end of the car
   positioned away from the traverser pit, or
4. To use a “spotter” with direct radio communication with the pulpit during maintenance
   activity performed adjacent to the traverser, the “spotter” would insure that the traverser does not

3
The citation was amended to allege in the alternative by Order of the undersign dated January
28, 1998.
travel adjacent to the “slot” being worked in until the maintainer is specifically warned and both
employees move to a safe location.
29 C.F.R.§1910.147(c)(4)(I)
The cited standard addresses practices and procedures that are necessary to disable
machinery or equipment and to prevent the release of potentially hazardous energy while
maintenance and servicing activities are being performed. Control of Hazardous Energy Sources
(Lockout/Tagout): Final Rule, 54 Fed. Reg. 36,644 (1989), as corrected by 55 Fed. Reg. 38,677
(1990). The standard's “Scope, application and purpose” provision sets forth that, “[t]his
standard covers servicing and maintenance in general industry where the unexpected
energization or start-up of machines or equipment or the release of stored energy could cause
injury to employees.” §1910.147(a). There is no dispute that the traverser was not locked out on
the day of the accident. The record is clear that the equipment upon which maintenance work
was being performed at the time of the accident was the teeming car. The teeming car had been
properly locked out. It is the Secretary’s position that the Respondent violated the cited standard
when it failed to develop and implement procedures for the control of potentially hazardous
energy on the traverser during maintenance operations on the teeming cars. Respondent contends
that the cited standard is not applicable and that under Section 1910.147(c)(4)(I) the only piece
of equipment that should have been locked out on the day of the accident was the teeming car
upon which maintenance work was being performed.
It is the Secretary’s position that under the cited standard, all related components of a
single operating system, or related machines, which pose a hazard during maintenance or
servicing, are subject to the requirements of the standard. The Secretary argues that the traverser
and teeming cars functioned together to move product from one process to another, and the two
parts were interconnected components for the functioning of the set up. The Secretary asserts
that this interpretation is reasonable in light of the language of the standard and is entitled to
substantial deference.4 In support of its position, the Secretary cites several examples of setups

4
See Martin v. OSHRC, 111 S. Ct. 1171, 1175 (1991).
involving more than one piece of equipment which had been found to be subject to the
requirements of the standard (Secretary’s Post-Hearing Brief, pp. 8-9).
The undersigned is not persuaded by the Secretary’s arguments. The undersigned agrees
that the standard addresses unanticipated movement of a component of a machine or equipment.5
However, the undersigned finds that the record does not support a finding that the traverser was
a component of the teeming car within the meaning of the standard. In the instant matter, the
record discloses that both the teeming car and the traverser are controlled by a computer within a
pulpit which was in a location elevated above the slots (Tr. 293). When the pulpit operator was
informed of when a particular process had to be done, the assignment was punched into the
computer and the movement of the cars automatically occurs. Thus, when a teeming car was to
be moved, the pulpit operator assigned the traverser to go and get the car, via computer. The
teeming car was then moved onto the traverser and moved to the agree upon location (Tr. 205-
06, 217). The traverser continued to move as maintenance work was performed in a slot.
Operations in the bottom pit such as the pouring of steel, the preparation of molds also continued
as maintenance work was performed in a slot. Ms Haney acknowledged that on the day of the
accident it was her expectation was that while performing the teeming maintenance work, the
traverser would continue to travel (Tr. 269).
The undersigned finds that the evidence of record does not reveal a relationship of
interconnected or appurtenant components of a machine or equipment. The function of the
traverser was independent of the teeming cars. The traverser only moved the teaming cars,
which held the ingot molds, from station to station for various processes. Once it had moved one
teeming car into a particular slot, it moved on to another assignment (Joint Ex. 1). On the day of
the accident, as the repairs were being performed upon the teeming car, which had been disabled
so as to prevent the release o energy, the traverser continued to operate in a completely
independent manner.
Additionally, each of the examples cited by the Secretary in support of her position
involved equipment distinguishable from the equipment in the instant matter The undersigned
5
See 54 Fed. Reg. at 36,647.
finds that the conditions cited in the Secretary’s examples involved service was being
performed upon adjacent or adjoining pieces equipment or machines. For example in the waste
hogger accident, referenced in the Preamble to the standard, the undersigned finds that the
conveyor was an operating component of the hogger upon which work was being performed, i.e.
the adjacent conveyor fed the hogger during its operation.6 The undersigned makes a similar
finding with respect to the examples referencing “interconnected and nearby machines and
equipment”, a group of machines involved in a single operation - a brush cleaner and associated
slump, a dryer, a conveyor and a stack up; or setups involving equipment so related as “to
constitute an appurtenance”- a hopper bin into which the car dumper deposited its load of coal
(Ex. C-7; Secretary’s Post-Hearing Brief, Attachment 1). In view of the above, the
undersigned finds that the cited standard is not applicable.
Section 5(a)(1)
The duty imposed by Section 5(a)(1) is to furnish employees with a workplace free from
recognized hazards likely to cause death or serious physical injury, that could be materially
reduced or eliminated by a feasible and useful means of abatement. To establish a violation of
Section 5(a)(1), the Secretary must prove that: (1) a condition or activity in the employer’s
workplace presented a hazard to employees; (2) the cited employer or the employer’s industry
recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical
harm; and (4) feasible means existed to eliminate or materially reduce the hazard. Waldon
Healthcare Center, 16 BNA OSHA 1052 (Nos. 89-2804 and 89-3097, 1993); Tampa Shipyards
Inc., 15 BNA OSHA 1533 (Nos. 86-360 and 86-469, 1992); Kastalon, Inc., 12 BNA OSHA
1928, 1931,(Nos. 79-3561 and 79-5543, 1986); Pelron Corp., 12 BNA OSHA 1833, 1835, (No.
82-388, 1986).

6
(2) An employee was removing paper from a wast hogger. The hogger had been shut down,
but the conveyor feeding the hogger had not been. The employee climbed onto the machine, fell
onto the conveyor, was pulled into the hogger opening and was fatally crushed. There was no
energy control procedure at this operation. (Failure to document and implement an effective
energy control procedure - 1910.147 (c)(4). 54 Fed. Reg. At 36,646.
 The Secretary alleges that the traverser created a hazard because it remained in operation
while maintenance work was performed (Tr. 298). This condition created the hazard of working
within close proximity to a pinch point such as the one created by the meshing of the rails in this
instance (Tr. 302). The record establishes that while preparing to perform work, Ms. Haney
positioned herself in such a way that her feet were at the meshing point between the rails of the
teeming car and the traverser as the traverser ran by (Tr. 302, 305, 322). Accordingly, a hazard
has been established. The serious nature of the injuries incurred by Ms. Haney establishes that
the hazard created serious physical harm.
Existence of the hazard and recognition of the hazard are two separate elements of a
general duty clause violation. “A hazard is deemed ‘recognized’ when the potential danger of a
condition or activity is either actually known to the particular employer or generally known in
the industry” Pepperidge Farm Inc, 17 BNA OSHC 1993, 2003 (No. 89-0265, 1997) (citations
omitted). A recognized hazard is defined in terms of conditions or practices over which the
employer can reasonably be expected to exercise control. Wiley Organics Inc. ,17 BNA OSHC
1586, 1591(No. 91-3275, 1996). Review Commission precedent establishes that precautions
taken by an employer and rules set forth in safety manuals addressing cited hazards can be used
to establish recognition in conjunction with other evidence. Walden Healthcare Center 16 BNA
OSHC 1052, 1061 (No. 89-2804, 1993)(employer’s manual referenced the cite hazard).7 The
issuance of a work rule specifically addressing a cited hazard has been upheld to establish
employer recognition of a hazard under Section 5(a)(1). Ted Wilkerson, Inc., 9 BNA OSHC
2012, 2016 (No. 13390, 1981)(employer provided and encouraged the use of a boom basket, and
had a work rule which required the use of personal protective equipment when the basket was
not used, indicates the employer recognized the existence of a hazard when an employee rides on
and works from a crane boom without the protection of a boom basket and a tied -off safety
7
See also General Dynamics Land Systems, Div., Inc.,15 BNA OSHC 1275, 1285 (No, 83-1293,
1991), aff’d without published opinion, No. 91-4052 [15 BNA OSHC 2218] (6th Cir. Jan. 26,
1993) ( safety bulletins issued by employer regarding the cited hazard underscored actual
recognition of the hazard).
belt). Thus, the initial inquiry in the instant matter is whether Respondent actually recognized
the hazards associated with performing maintenance work adjacent to the traverser with the
traverser in operation. The Secretary argues that the Respondent’s Job Safety Descriptions for
mechanical maintainers cites the hazards created by work on rail tracks (Tr. 295; Ex. C-5 at p. 3,
Item 17). Additionally, the Secretary argues that Respondent’s Job Safety Description
established that Respondent recognized that the hazards of the pinch points created by the
meshing of the rails, as well as the hazards presented without the proper clearance of personnel
before operating equipment. The document warned employees to watch where hands and feet
were placed while working on machinery and avoid pinch points. (Ex. C-5, p.7- Item 69). The
Secretary asserts that whenever the traverser came by a slot, a pinch point was created by the
meshing of the rails of the traverser and the slot (Tr. 296; Respondent’s Post-Hearing Brief, p.
4). Another provision of the Job Safety Description warned employees to make sure all
personnel were clear before operating equipment (Ex. G-5, p. 7-Item 70). The Secretary argues
that this provision clearly addressed the constant movement of the equipment in the Bottom
Pouring Area such as the traverser and the teeming cars. Furthermore, the Secretary argues that
the hazard here was an obvious danger.
The undersigned finds that the cited provisions within the Respondent’s Job Description
do not establish Respondent’s knowledge of the cited hazard. The Secretary has attempted to
create this recognition by selecting certain generalized safety provisions within the Job Safety
Description’s Safety Instructions for the Operations of the Jobs, and argue their applicability to
the instant situation. However, the undersigned finds that the Secretary’s assertions fall short of
proving that these safety measures were issued as a result of knowledge and recognition of the
cited hazard - the movement of the traverser while performing work upon the teeming car. The
undersigned notes that the Job Safety Description makes no reference to hazards associated with
work in proximity to the moving traverser while working on equipment. However, the document
does reference specific work activity such as work on the crane and hazardous materials in
recognition of the hazards associated with said equipment or materials. The Secretary has failed
to produce any evidence other than its own interpretation of Respondent’s work rules in support
of its position. The evidence in the instant matter falls short of establishing any knowledge on
the part of the employer which would support a finding of employer recognition of the hazard.
The Secretary has also argued that the hazard of working within five feet of a large
automatic piece of equipment is an obvious hazard. The Secretary has cited several cases where
the courts have found a hazard so obvious that a recognized hazard was established. However,
the undersigned notes that the case law in the Sixth Circuit where the instant matter arose has
held that the general duty clause enforceable for an obvious hazard only where “the particular
activity referred to in the evidence” violated “a recognized standard of the industry”. See
Kokosing Construction Co., Inc. 17 BNA OSHC 1869, 1873, n. 15, citing Southern Oil Bldg.
Sys. Inc. v. OSHRC, 649 F.2d 456, 460 [9 BNA OSHC 1848] (6th Cir. 1981)8. In applying the
law of the Sixth Circuit, the undersigned finds that the Secretary has failed to carry her burden of
proof. 9
The undersigned finds that the Secretary has not met her burden of proof with regard to
the recognized hazard element for the establishment of a general duty clause violation.
Findings of Fact and Conclusions of Law
8
See also Davis-McKee, Inc., 709 F.2d 1501; 1983 U.S. App. Lexis 13237 (6th Cir. 1983).
9
The undersigned also finds that the record contains no evidence that there had been any
complaints from employees about working on the teeming car in the cited area, nor had they ever
been warned about the cited hazards. The record also indicates that no one from management
directed the injured employee to position herself in any particular manner with respect to the
assigned task. CO Dill acknowledged that his investigation revealed that the traverser operator
and Ms. Haney had communicated about which slot the repair work was to be done. The
traverser operator was fully aware of where that she was going to perform the repair job and Ms
Haney was fully aware that the traverser would still be operating (Tr. 334-35). The undersigned
finds that the record does not contains adequate evidence that additional precautionary measures
should have been imposed by Respondent or that the cited hazard was foreseeable. The instant
record differs from the circumstances established in cases such as Litton Systems, Inc., 10 BNA
OSHC 1179 (No. 76-900, 1981) which involved a large vehicle moving with obstructed vision -
20 to 30 foot blind spot- in an area where employees were commonly present; or in Eddy’s
Bakery Company, 9 BNA OSHC 2147 (No. 77-1084, 1981) where testimony of fire chief and
OSHA area director established that employees engaged in refueling their own vehicles
generally recognize the fire hazard presented when gasoline vapors are located near sources of
ignition.
 The foregoing decision constitutes the findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a).
ORDER

1. Citation 1, Item 1a, alleging a Serious violation of 29 C.F.R.§1910.146(c)(4)(i), or in the
   alternative Section 5(a)(1) is Vacated.

                                                /s/
                                                Covette Rooney
                                                Judge, OSHRC
   

   Dated: September 21, 1998 Washington, D.C.