SECRETARY OF LABOR, Complainant, v. METRIC CONSTRUCTORS, INC., Respondent. Docket No. 90-0403 _ORDER_ This matter is before the Commission on a Direction for Review entered by Chairman Edwin G. Foulke, Jr. on October 21, 1991. 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, and we set aside the Administrative Law Judge's Decision and Order to the extent that it is inconsistent with the Stipulation and Settlement Agreement. This is the final order of the Commission in this case. See 29 U.S.C. §§ 659(c), 660(a), and (b). Edwin G. Foulke, Jr. Chairman Donald G. Wiseman Commissioner Velma Montoya Commissioner Dated: July 7, 1992 ------------------------------------------------------------------------ SECRETARY OF LABOR, Complainant, v. METRIC CONSTRUCTORS, INC. Respondent. OSHRC Docket No. 90-0403 _STIPULATION AND SETTLEMENT AGREEMENT_ In full settlement and disposition of the issues in this proceeding, it is hereby stipulated and agreed by and between the Complainant, Secretary of Labor, and respondent, Metric Constructors, Inc., that: 1. This case is before the Commission upon the granting of Respondent's Petition for Discretionary Review seeking review of the Administrative Law Judge's Decision and Order dated August 23, 1991. Review was granted of serious Citation 1, Items 1 and 4(a) and (b) (review was sought and none was granted for the affirmance of serious Citation 1, Item 2(a), and Item 3; Item 2(b) of serious Citation 1 and other-than-serious Citation 2 were vacated). 2. The Secretary hereby withdraws serious Citation 1, Item 4(a) and 4(b) and the proposed thereto. 3. The Secretary hereby amends the classification of serious Citation 1, Item 1 to other-than-serious. 4. Respondent hereby withdraws its notice of contest to serious Citation 1, Item 1 and to the notification of proposed penalty. 5. Respondent agrees to a penalty of $720.00 for serious Citation 1, Item 1. 6. Respondent agrees that the above-mentioned violations have been abated consistent with the terms of this agreement. 7. By entering into this agreement, the parties do not admit or deny the existence of any violations. The parties have entered into this agreement strictly to avoid the expense and uncertainty of further litigation. 8. Respondent agrees to submit to the OSHA Area office $720.00 within 30 days of this agreement. 9. Respondent certifies that a copy of this Stipulation and Settlement Agreement was posted at the workplace on the 22nd day of June 1992, in accordance with Rules 7 and 100 of the Commission's Rules of Procedure. There are no authorized representatives of affected employees. 10. Complainant and respondent will bear their own litigation costs and expenses. Antony F. Gil Counsel for the Secretary of Labor J. Larry Stine Attorney for Respondent SECRETARY OF LABOR, Complainant, v. METRIC CONSTRUCTORS, INC., Respondent. OSHRC Docket No. 90-0403 APPEARANCES: Leslie J. Rodriguez, Esquire, Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia, on behalf of complainant Mr. Stephen J. Cloutier, Charlotte, North Carolina, on behalf of respondent. DECISION AND ORDER Burroughs, Judge: Metric Constructors, Inc. ("Metric"), a general contractor with its principal place of business in Charlotte, North Carolina, contests alleged serious violations of 29 C.F.R. § 1926.552(a)(1), for operating a material hoist with the door open and material protruding out; 29 C.F.R. § 1926.552(b)(2), for failing to protect the full width of the landing entrance to the hoist; 29 C.F.R. § 1926.552(b)(5)(ii), for failure to enclose the unused sides of the hoist; and 29 C.F.R. § 1926.701(b), for failure to guard protruding reinforcing steel at the ground level and on the fifth floor.[[1]] The alleged violations emanate from an inspection commenced on October 19, 1989, at a worksite in Clearwater, Florida. The serious citation was issued on December 22, 1989. The inspection was conducted by Compliance Officer Nancy Hodenius.[[2]] The inspection was to cover "plain view" violations. There were seven subcontractors at the site (Tr. 64-66). Hodenius was accompanied on the walk-around of the site by Mickey Roberts, Metric's job superintendent, and Neal Theshour, the project manager (Tr. 65). A six-floor addition to a hospital was under construction at the time of the inspection (Tr. 23). A Champ Model MHT-50 single platform material hoist (Ex. C-1; Tr. 30) was located on the south side of the building (Tr. 69). The hoist had been erected by Sims Crane Rental & Equipment Co. pursuant to a purchase order agreement (Tr. 20, 23, 44). Sims Rental inspected the crane and certified it for use. In addition, they provided a service technician who gave instructions on its operation (Tr. 46-47). Employees of Metric and the subcontractors used the hoist (Tr. 95). Material hoists are common to the construction of a multi-story building. They are used to raise and lower materials during construction (Tr. 14). The car, consisting of a platform or floor, a top and an enclosure with a front and rear door gate to enter and exit the car, is the load carrying unit (Tr. 14-18, 57). The hoist in this case was guided by a tower (Tr. 18). It was controlled by a lever operated by an employee at the base of the tower (Tr. 111-112). The operator was able to see the entire area where the hoist ascended and descended (Tr. 112). In order to establish a prima facie case that an employer has violated a standard promulgated pursuant to section 5(a)(2) of the Act, the Secretary must show by a preponderance of the evidence that: (1) the cited standard applies to the facts, (2) its terms were not met, (3) employees had access to the violative condition, and (4) the employer knew or could have known of the violation with the exercise of reasonable diligence. See, e.g., Walker Towing Corp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD ¶ 29,239, p. 39,157 (No. 87-1359, 1991). There is no dispute concerning knowledge. Metric was aware of the conditions at the site. There is a question as to the applicability of the standards and whether the terms of the standards were fulfilled. Item 1-Alleged Violation of 29 C.F.R. § 1926.552(a)(1) The Secretary alleges that Metric violated § 1926.552(a)(1) by operating the material hoist with the door open and material sticking out the open doorway. During the inspection on October 19, 1989, the front door of the hoist was open and material was protruding out of the doorway (Tr. 69, 79). There was concern that material might fall from the open car door (Tr. 69). The matter was brought to the attention of Roberts, who indicated he would have the condition corrected (Tr. 72-74). Hodenius admitted that she did not know if the material was secured (Tr. 110). She saw no material fall out (Tr. 111). In addition to Metric employees, there were subcontractors' employees in the area (Tr. 76-77). At least ten employees of Metric had access to the condition (Tr. 76-77). On September 17, 1989, Hodenius observed material was being transported on top of the cage (Tr. 79). Roberts agreed that transporting material on top is an unsafe practice (Tr. 25). The citation did not charge Metric with transporting materials on top, and the complaint makes no reference to such an incident. Accordingly, whether materials were carried on top and whether this is a violation of the standard are not considered issues in this case. Upon installation of the hoist, Sims furnished Metric with an operations manual. The manual does not mention anything about operating the hoist with the door open or about protecting or erecting an enclosure around the landing area (Tr. 50). These matters were never mentioned by Sims (Tr. 50). Section 1926.552(a)(1) provides: (1) The employer shall comply with the manufacturer's specifications and limitations applicable to the operation of all hoists and elevators. Where manufacturer's specifications are not available, the limitations assigned to the equipment shall be based on the determinations of a professional engineer competent in the field. The standard does not explicitly set out the requirements necessary for operation of a material hoist. Under the terms of the standard, Metric was required to comply with the manufacturer's specifications and limitations. Metric contends that the standard improperly delegates the Secretary's "regulatory power to manufacturers and that subsequent changes by manufacturers violated the notice and comment requirements of the Administrative Procedure Act." A similar argument has been rejected by the Commission in Towne Construction Co., 86 OSAHRC 66/A3, 12 BNA OSHC 2185, 1986 CCH OSHD ¶ 27,760 (No. 83-1262, 1986), aff'd, 847 F.2d 1187 (6th Cir. 1988). While the Towne decision pertained to § 1926.550(a)(1), the language was similar. The argument is rejected. Metric next argues that the Secretary failed to prove the elements of the violation. Metric submits that the first element the Secretary must establish is that the manufacturer's specifications prohibit such practice. Metric received an operator's manual for the hoist (Ex. R-2) from Sims. The manual, as presently written, does not specify that the material hoist door must be closed prior to operation or that the material may not extend beyond the door (Tr. 132). In addition, Metric asserts that the service technician from Sims at no time instructed anyone not to operate the hoist with the door open (Tr. 47). With respect to the door, the operator's manual states, "When platform is raised, front door will close automatically" (Tr. 32). Any argument that this statement supports the violation is rejected. Such a statement is not a limitation on operations but a description of the function of the door. Furthermore, the statement relates to the function of a vertical door and not to horizontal swing doors which were used at the jobsite (Tr. 32). The Secretary also makes reference to § 1926.552(b)(8),[[3]] which adopts "ANSI A10.5-1969, Safety Requirements for Material Hoists." With respect to long material hanging over the edge of the hoist car, ANSI A10.5 § 13.5 provides: 13.5 When using a cage or platform for long material, the several pieces of the material shall be securely fastened together and made fast to cage or platform, so that no part of the load can fall or project beyond the sides of the cage or platform. The violation charges Metric with violating the "manufacturer's specifications and limitations." The citation makes no reference to § 1926.552(b)(8) of the ANSI standard. Metric objects to the reliance by the Secretary on the ANSI standard since it was not originally referenced under the allegation. It argues that an ANSI standard is not a manufacturer's specification. It is pointed out that the OSHA standard cited by the Secretary requires it to comply with the manufacturer's specifications in the operation of the material hoist, not the ANSI standard. It states that it was not cited for such a violation and did not consent to try the case under § 1926.552(b)(8) at the hearing. The Secretary seeks to make the provisions of ANSI A10.5 applicable by amending the pleadings. An amendment is not necessary. The ANSI standard is part of the "manufacturer's specifications and limitations." The operator's manual furnished by Sims to Metric contains the following statement in capitol letters at the commencement of section II (Ex. C-2): INSTALLATION, ERECTION, OPERATION AND INSPECTION TO BE IN ACCORDANCE WITH ANSI 10.5 -- CURRENT REVISION. This statement adopts and incorporates ANSI 10.5 as part of the "manufacturer's specifications and limitations." The manufacturer specifically referenced the ANSI standard as part of its "specifications and limitations." Due to the specific incorporation by reference of the ANSI standard in the operator's manual, and the fact it is undisputed that the material hoist was operated with long material hanging over the edge of an open hoist car door, the violation is affirmed. Metric introduced evidence from Roberts and Stephen Cloutier, Metric's safety and loss control manager, that it was industry practice to move large materials with the hoist door open where it is necessary to the transporting of the material (Tr. 43-44, 137). Industry practice cannot obviate an established rule. The defense is without merit. Item 2 - Alleged Violation of 29 C.F.R. § 1926.552(b)(2) Metric is charged with a violation of § 1926.552(b)(2) for failure to (1) protect the Champ hoist at the loading dock area with a gate or bars at the ground level entrance and (2) because the second floor landing gate did not have a midrail, and the wire covering on the gate was pulled loose from the lower corner. The standard states: (2) All entrances of the hoistways shall be protected by substantial gates or bars which shall guard the full width of the landing entrance. The remainder of this subsection details the specifications for such gates or bars: (i) Bars shall be not less than 2- by 4-inch wooden bars or the equivalent, located 2 feet from the hoistway line. Bars shall be located not less than 36 inches nor more than 42 inches above the floor. (ii) Gates or bars protecting the entrances to hoistway shall be equipped with a latching device. The hoist tower at the ground level, referred to as the loading dock area, did not have gate or bars to prevent anyone from walking under the hoist (Ex. C-2, C-3; Tr. 81-83). Employees were walking in the area (Tr. 83-84). There was nothing to prevent access to the space at the bottom of the hoistway (Tr. 19). Approximately ten employees of Metric had access to the area (Tr. 83). The hoist was used on a daily basis (Tr. 83). The violation has been established. All the landings had premanufactured gates except the second level. Metric constructed a wooden gate (Ex. C-4) for the second level because of a height variation at the second level. The premanufactured gate could not be used on the second level without extensive modification (Tr. 58-59). The wooden gate had been covered with what Hodenius referred to as "chicken wire." The wire was pulled away from one of the lower corners of the gate for a small area measuring about eight to ten inches wide (Tr. 85, 87, 115). Hodenius testified that the wire had been pulled back about a foot. She then stated, "I don't recall" (Tr. 91). Hodenius was concerned that if an employee fell against the wire, it might further loosen and cause a fall to the ground level (Tr. 88). Hodenius rejected the gate in part because it was constructed of a wooden frame as opposed to the metal frame for the other loadings (Tr. 86). She admits a midrail is not required by the standard (Tr. 87). There were two employees on the second floor (Tr. 88). The Secretary contends that the hoistway gate on the second level was not "substantial." This conclusion is based on the fact that (1) the wire covering the gate was a lighter wire than the other gates, (2) the wire had been damaged in the lower corner, and (3) it was constructed of wood, not metal (Tr. 87). The Secretary recommended that a midrail be added to give the gate more stability; however, Hodenius admitted that a midrail is not required by the standard (Tr. 87). The Secretary defines the issues in dispute as one concerning the chicken wire covering, which was loose in one corner, attached to a wooden frame and a 2- by 4-inch wooden bar 36 inches above the floor and a 2-by 4-inch wooden cross brace, constitutes a substantial gate (Exs. C-2, C-4; Tr. 23-25, 58-59, 85-88, 91, 114-117). She argues that the differences between the manufacturer's metal gates and Metric's wooden gate, plus the damage to the chicken wire, are sufficient to support a determination that the gate was not substantial. In the opinion of the Secretary, the wooden gate fails to satisfy the demands of the standard. The standard requires that the entrance be protected by "substantial gates or bars." Metric argues that the meaning of "substantial" under 29 C.F.R. § 1926.552(b)(2) must be interpreted in light of § 1926.552(b)(2)(i) which states, "[b]ars shall not be less than 2-by 4-inch wooden bars or the equivalent.....Bars shall be located not less than 36 inches nor more than 42 inches above the floor." If a gate or bar is defined as substantial when constructed with 2-inch by 4-inch wood, the Secretary's reference to the fact that the gate is not substantial because it was constructed of wood and not metal does not allow for a wooden gate. This is obviously contrary to the standard. The determination of what is "substantial" is measured against a 2-by 4-inch wooden bar. The standard does not specify any type of covering. Metric, by installing the wire covering, went beyond the requirements of the standard. The argument raised by the Secretary as to the wire covering is immaterial and is not related to § 1926.552(b)(2). The Secretary recommended a midrail be installed; however, the standard permits a single wooden bar located between 36 and 42 inches from the floor or a gate. The record is devoid of any evidence concerning the height of the top bar of the gate clearly shows that a gate was in place at this location. The Secretary failed to establish that a midrail is required and further failed to show that the gate was not in compliance with the standard. In concluding that the gate was not substantial, the Secretary has failed to support that conclusion. The fact that the gate was constructed of wood and had a "chicken wire" covering does not per se support such a violation. The standard does not say a gate constructed of wood is not substantial. The alleged violation with respect to the second level gate is vacated. Item 3- Alleged Violation of 29 C.F.R. § 1926.552(b)(5)(ii) The Secretary alleges Metric violated § 1926.552(b)(5)(ii) by failing to enclose the unused sides of the Champ hoist at the ground level. Section 1926.552(b)(5)(ii) provides: (ii) When a hoist tower is not enclosed, the hoist platform or car shall be totally enclosed (caged) on all sides for the full height between the floor and the overhead protective covering with 1/2-inch mesh of No. 14 U.S. gauge wire or equivalent. The hoist platform enclosure shall include the required gates for loading and unloading. A 6-foot high enclosure shall be provided on the unused sides of the hoist tower at ground level. There was no enclosure of the unused sides of the hoist tower at ground level (Tr. 39, 64, 92). Approximately ten Metric employees had access to the area (Tr. 92). Roberts agreed that the hoist tower was used without an enclosure on all open sides (Tr. 18). There was a chance that an employee would inadvertently walk under the hoist and be struck from its descent (Tr. 92, 95-96). It is uncontroverted that the hoist tower which was used to guide the hoist car in its travel was used without an enclosure on all sides (Tr. 18). There was nothing to prevent access to the tower at ground level (Exs. C-2, C-3; Tr. 19, 39, 64, 92). Metric's employees who were in the area clearing materials could walk underneath the hoist. The violation is affirmed. Metric reasons that the alleged potential hazard is based on an argument that the material hoist would descend upon an employee (Tr. 81). While admitting the hoistway was not guarded, Metric asserts that the Secretary failed to establish that the employees were exposed to the hazard of a descending platform. It points out that the sole proof of exposure to the danger of a descending platform is found in the very generalized testimony of Hodenius, who stated that she saw employees "around the hoist" (Tr. 84). When she was asked how close the employees were to the zone of danger she replied, "Well, some of them were walking on the platform; just walking through the area" (Tr. 84). Metric argues that it is obvious that if employees were walking on the platform, they cannot be exposed to the hazard of a descending platform and that the fact that employees were just walking through the area fails to prove that the employees were in the zone of danger. Metric concluded that the testimony leaves one to speculate as to the meaning of the word "area." According to Metric, such an undefined answer does not establish facts as to the location of the employees. Metric also points out that the Secretary failed to establish employees had access to this area when the platform was lifted. The hoist will not operate without an operator at the controls. If the operator lets go of the controls, the hoist will not move (Tr. 47-48). Metric points out that the operators can watch all operations from the controls (Tr. 47) and can restrict access to the area under the platform whenever the platform is in a raised position. The standard does not require the Secretary to prove a hazard. Exposure must be established. There is no question concerning the fact that employees were in the area. The fact the hoist was operated by an individual who could see persons in the area does not negate the requirement of the standard. Metric further argues that the alleged violation should be vacated because Metric properly relied on the expertise of Sims. Metric contracted with Sims to construct the material hoist, which is Sims' area of expertise (Tr. 45). Sims installed the material hoist, inspected it, certified it, and provided a service technician to instruct Metric personnel in the operation of the hoist (Tr. 46-47). The only function performed by Metric was done according to Sim's specifications (Tr. 46). Metric had no reason to doubt Sims' expertise in this area. In support of its argument, Metric cites the following form Sasser Electric & Manufacturing Co., 84 OSAHRC 37/C6, 11 BNA OSHC 2133, 2136, 1984 CCH OSHD ¶ 26,982 (No. 82-178, 1984): In many situations in the workplace, it is natural for an employer to rely upon the specialist to perform work related to that specialty safely in accordance with OSHA standards. Cf. Cities Service Oil Co., 76 OSAHRC 105/A2, 4 BNA OSHC 1515, 1518, 1976-77 CCH OSHD ¶ 20,999 at pp. 25,237-38 (No. 4648, 1976), aff'd, 577 F.2d 126 [6 OSHC 1631] (10th Cir. 1978) ("Normally, when an employer hires an independent contractor to perform certain work, it relies on the contractor's expertise to perform the work correctly.") Further, in many instances it may not be feasible, because of an employer's lack of expertise, or wasteful, without necessarily resulting in the best achievement of safety for all employees, to require the contracting employer to duplicate the safety efforts of the specialist. Accordingly, while an employer has a duty to his own employees even when it relies upon a specialist to perform part of the work, the duty is of a different nature than when the employer performs the work itself. In a single employer situation, the employer by necessity assumes the responsibility to prevent violations. However, when some of the work is performed by a specialist, an employer is justified in relying upon the specialist to protect against hazards related to the specialist's expertise so long as the reliance is reasonable and the employer has no reason to foresee that the work will be performed unsafely. Metric's argument the Sasser should be followed is rejected. There are significant differences in the two situations. Sasser was in the business of servicing diesel generators. Its employees were mechanics and electricians. It did not operate or profess to have any expertise in crane operations. It rented a crane and, more importantly, an operator from Mountain Trucking Company. Metric merely rented the hoist. Its employees operated the hoist. The hoist was installed, inspected and certified by Sims Rental. Metric's employees were instructed in its operation and did, in fact, operate the hoist. Material hoists are common at construction sites and are used by the construction employees to transport supplies to upper floors. Hazardous situations are generally well known. Roberts was aware of the conditions and recognized the hazards. Metric was given an operator's manual which referred to ANSI Standard A10.5-1969. The violation has been established. Item 4-Alleged Violation of 29 C.F.R. § 1926.701(b) The Secretary alleges that Metric was in violation of § 1926.701(b) for failure to guard reinforcing steel rods located on the ground level at the ladder and on the south side of the fifth floor. The cited standard states: (b) Reinforcing steel. All protruding reinforcing steel, onto and into which employees could fall, shall be guarded to eliminate the hazard of impalement. Mickey Roberts, Metric's project superintendent, agreed that reinforcing steel rebar at the ladder on the ground level protruded 11 inches[[4]] and was unguarded (Ex. C-5; Tr. 42, 52, 97). He also agreed that there was unguarded protruding rebar seven inches in height on the south side of the fifth floor (Tr. 42). These allegations are fully supported by the photographs entered into evidence as C-5 and C-6 and the testimony of Hodenius. Roberts testified that the rebar had been bent over until a couple of days before the inspection in anticipation of pouring the concrete (Tr. 53-54). The rebar has to be in a vertical position for pouring the concrete (Tr. 52-54). Hodenius testified that Roberts did not say when the pour would be made, and she did not get the impression that the pour would be within a day or two (Tr. 100). Metric argues that the rebar had been bent down to eliminate the hazard of impalement (Tr. 53, 77), a practice generally used in the construction industry (Tr. 138). It is standard practice of Metric to bend the rebar over until a couple of days prior to pouring the concrete (Tr. 53-54). In order to pour the wall, it was necessary to bend the rebars back to their vertical position (Tr. 53-54). According to Metric, the forming material was in place at the fifth level and ground level ready to be used (Tr. 54). While Hodenius originally registered doubt as to the stage of the work, she had to acknowledge that her own photographs (Exs. C-5, C-6) show some forms in place, a recently formed wall and additional forms stacked in the area (Tr. 118, 199). She agreed that it was possible that the rebars were in a vertical position in anticipation of pouring the wall (Tr. 119). She had no support for her speculations that the walls were not being ready to be poured. The project superintendent testified that the rebar had been bent back up in preparation of forming the walls and that the forming material was in place both on the ground level and the fifth level (Tr. 53-54). Metric did not offer any evidence to show when the pour had been scheduled. Employees had access to the unguarded areas of the reinforcing steel. At the ground level, employees were walking through the area to get access to the ladder. At least ten Metric employees were in the area. The ladder was the only access to the upper levels (Ex. C-5; Tr. 98). At the fifth level, a wooden plank resting between a couple of pieces of reinforcing steel was used as a walkway and employees were seen walking across it (Ex. C-6; Tr. 102, 118). Metric's defense to the citation is that the "reinforcing steel was not guarded because it was being readied to be moved into place and then have concrete poured around it" (Answer; Tr. 52-54, 117-119, 138). Hodenius testified that her observation of the ground level area, along with discussions with Metric's employees and superintendent Roberts, disclosed that Metric would be pouring concrete, but she did not "get the impression that it would be within a day or two" (Tr. 99). Consistent with this testimony was Roberts' admission that the rebar at ground level was unprotected since October 17, 1989, i.e., two days prior to the inspection (Tr. 53-54). As to the fifth level, it was being cleaned up and the area did not appear to be ready to erect a wall (Tr. 104-105). The rebar was in a vertical position too long to conclude that Metric was in compliance with the standard. The inspection day was the third day known for certain that the rebar was in a vertical position without a pour being made. Three days is considered to be excessive exposure. Metric never stated that a pour had been scheduled, and there was no evidence to justify raising the rebar to a vertical position that far in advance of a pour. Employees were constantly exposed to the condition during the three days. The violation is affirmed. Classification of the Violations The Secretary contends that the violations were serious within the meaning of section 17(k) of the Act. A serious violation exists where there is substantial probability that death or serious physical harm could result from the condition in question. The Secretary need not prove that an accident is probable; it is sufficient if an accident is possible, and its probable result could be serious injury or death. Brown & Root Inc., Power Plant Division, 80 OSAHRC 17/B8, 8 BNA OSHC 1055, 1980 CCH OSHD ¶ 24,275 (No. 76-3942, 1980). The Secretary must also prove that the employer knew or, with the exercise of reasonable diligence, should have known of the existence of the violation. The knowledge element is directed to the physical conditions which constitute a violation. Southwestern Acoustics & Specialty, Inc., 77 OSAHRC 141/D10, 5 BNA OSHC 1091, 1977-78 CCH OSHD ¶ 21,582 (No. 12174, 1977). It is difficult for an employer to prevail on the defense that he had no knowledge of the violation since he has an obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent their occurrence. Frank Swidzinski Co., 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1981 CCH OSHD ¶ 25,129 (No. 76-4627, 1981). The violations were serious because of the probability of severe injuries including death: (1) if the hoist descended upon an employee at the unprotected ground floor landing entrance and at the unenclosed, unused sides of the hoist tower; (2) if materials fell out of the open car of the hoist; and (3) if employees fell on the unguarded reinforcing steel (Tr. 78, 84, 93, 99, 103). The probability that such injuries could result is unchallenged by Metric. Because all of the violations were in plain view, Metric clearly knew of the hazards (Tr. 78-79, 85, 89, 94). Determination of Penalties The Commission is the final arbiter of penalties in all contested cases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973). In determining an appropriate penalty, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations.[[5]] Primary emphasis is placed on the gravity of the violation. Nacirema Operating Company, Inc., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ¶ 15,032 (No. 4, 1972). At the time of the inspection, Metric indicated it had approximately 2,000 employees (Tr. 66). Compliance Officer Hodenius considered Metric to be very cooperative (Tr. 119). Metric has previously been issued several citations prior to the citation in this case. The following penalties are considered appropriate: Item Penalty No. 1 $720 2 315 3 630 4 630 FINDINGS OF FACT AND CONCLUSIONS OF LAW The foregoing constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). ORDER Based upon the foregoing decision, it is ORDERED: (1) That items one, three and four of the serious citation issued to Metric on December 22, 1989, are affirmed and the following penalties assessed for the violations: Item Assessed No. Penalty 1 $720 3 630 4 630 (2) That item two of the serious citation is affirmed as it pertains to the loading dock area and vacated with respect to the second floor landing; (3) That a penalty of $315 is assessed for item two as modified; and (4) That the "other" citation issued to Metric on December 22, 1989, is vacated. JAMES D. BURROUGHS Judge Date: September 12, 1991 FOOTNOTES: [[1]] Metric also contested an "other" citation containing one item issued to it on December 22, 1989. The Government withdrew the citation at the beginning of the hearing (Tr. 5). [[2]] Hodenius had apparently observed what she described as "plain view" violations on October 17, 1989, and had reported her observations to her supervisor. She was assigned to conduct an inspection. [[3]] Section 1926.552(b)(8) provides: (8) All material hoists shall conform to the requirements of ANSI A10.5-1989, Safety Requirements for Material Hoists. [[4]] Compliance Officer Hodenius measured the rebar (Tr. 97-98). [[5]] Section 17(j) of the Act states: (j) The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to 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 previous violations.