“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4675 CANDLER-RUSCHE, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0\u00a0May 19, 1976DECISIONBEFOREBARNAKO, Chairman; MORAN and CLEARY, Commissioners.BARNAKO,Chairman:Pursuant to 29 U.S.C. Sec. 661(i), we review whether JudgeLouis J. Rubin properly modified a serious citation to find a nonseriousviolation of the safety standard prescribed at 29 C.F.R. Sec. 1926.550(b)(2),as it incorporates ANSI provision B 30.5?1968, Sec. 5?3.2.3(e)[1]He assessed a penalty of $100. For the reasons that follow we affirm theserious citation and assess a penalty of $550.The facts are essentially those found by Judge Rubin. OnAugust 7, 1973, Respondent was engaged in construction work at a Ford MotorCompany Steel Division site in Dearborn, Michigan. Respondent?s employees hadbeen unloading pile driving tubing from a railroad car located on a sidingadjacent to the site. The tubing was lifted from the siding by Respondent?scrane over a ten-foot high fence and piled at a location on the constructionsite.When the unloading was completed Respondent?s crane operator,Henry, maneuvered the crane so that employee Horetski, while standing on therailroad car, could have access to the crane?s rigging. Horetski fashioned asling out of the rigging, signaled the crane operator and was lifted out of thecar. Another employee, Wickman, who had been working on the ground by therailroad car, grabbed onto the crane?s spreader Hooks as the rigging went byhim. The rigging was attached to a 400 pound weight (headache ball) which inturn was attached to a block. As the crane operator started to lift the menover the fence, the block ?two-blocked? by running into the crane boom, and ittipped. The headache ball and suspended rigging were released and fell on therailway side of the fence. Wickmen fell and was crushed by the ball. Horetskiwas thrown clear but suffered spinal and leg injuries.Horetski and Wickmen had been transported by the crane onthree earlier occasions during the day. And, although it is disputed, JudgeRubin determined that neither of Respondent?s two supervisors on the job sitehad actual knowledge of any of these riding incidents. The record supports thisdetermination, and we accept the finding.Respondent asserted in its defense that it had an enforcedwork rule which prohibited employees from riding the hook or load with only twoexceptions. Supervised employees could ride the load while pile-driving to?stick sheeting? and ride test loads. Respondent therefore requested thecitation be vacated on the basis that the incidents giving rise to this casewere unforseeable.Judge Rubin found there was no reason to dispute theexistence of the company policy. He did note, however, that there was aquestion about whether the policy was properly communicated and enforced. Therecord clearly established that Respondent never instructed its crane operatoras to when it was appropriate to ride the rigging. As the Judge observed,Respondent did not challenge the veracity of the crane operator who did testifythat he had never been told personally by anyone with responsibility as to whenit was appropriate for an employee to ride the rigging.Accordingly, Judge Rubin refused to vacate the citation inits entirety. He found Respondent?s safety program was inadequate becauseRespondent failed to instruct its crane operator of the prohibition againstriding the load. The Judge concluded that a non-serious violation of the citedstandard had been established. On the question of whether the violation wasserious, the Judge rejected the Secretary?s contention that the two supervisorscould have known of the violation through the exercise of reasonable diligenceas ?pure conjecture.?We agree with the Judge?s finding that Respondent?s programwas inadequate. It was inadequate because Respondent failed to inform the craneoperator that employees were not to ride the crane?s rigging. It failed toinform the one person who had control of the situation and who could haveprevented not only the incident which resulted in a fatality but all the otherriding incidents as well.Although our decision is not predicated on it, we also wouldfind the program inadequate in view of Respondent?s pile driving exceptions tostick sheeting and test loads. At the very least, the exceptions can be said toundermine Respondent?s safety program because they can lead to confusion as towhen employees are or are not permitted to ride the rigging. In this regard wenote that Wickman had been reprimanded on two prior occasions for riding therigging and Horetsky understood that he could ride the rigging whencircumstances were such that there was no other way.Under the circumstances, Respondent?s defense that the ridingincidents were unforeseeable and unpreventable must fail. Compare, HornePlumbing and Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976) and Brennanv. OSHRC (Alsea Lumber Company), 511 F.2d 1139 (9th Cir. 1975).Since we decide that Respondent?s program was inadequate, itfollows that the Judge properly determined not to dismiss the citation. Heerred, however, by determining that the violation was other than serious. Thequestion is, and was, whether the serious violation was foreseeable with theexercise of reasonable diligence. The Judge apparently decided this question inthe context of whether Respondent?s supervisors could have known of thespecific incident which resulted in death and injury. But, as several Courts ofAppeals have noted:A particular instance of hazardous employee conduct may beconsidered preventable even if no employer could have detected the conduct, orits hazardous nature, at the moment of its occurrence. . . . [where] suchconduct might have been precluded through precautions concerning the hiring,training, and sanction of employees. Brennan v. Butler, Lime and Cement Co.,520 F.2d 1011, 1017 (7th Cir. 1975) citing and quoting National Realty &Construction Co., Inc. v. OSHRC, 489 F.2d 1257, 1266?67 n. 37 (D. C. Cir.1973).?Alsosee Horne and Alses, supra, and Ames Crane & Rental Service, Inc.v. OSHRC, No. 75?1591 (8th Cir., April 1, 1976). Since Respondent?s programwas inadequate, the riding incidents were preventable, and Respondent couldhave known of the violation. There can be no question on the facts of this caseas to the potential for death. The violation was serious.A penalty of $550 is appropriate. The gravity of theviolation is high, as indicated by the death and serious injury. Also, theprobability of the accident was increased by the fact that there was no safetylatch on the block from which the weight ball was suspended. Respondentdeserves credit for a measure of good faith in that it has shut down unsafeoperations. And, Respondent is reasonably small, since it regularly employsonly thirty to forty-five persons. The record is silent as to whether theRespondent has any history of previous violations.Accordingly,the citation for serious violation is affirmed and a penalty of $550 isassessed. It is so ORDERED.?FOR THE COMMISSION:William S. McLaughlinExecutive SecretaryBy: Gloria W. WhiteActing ExecutiveSecretaryDated: May 19, 1976\u00a0MORAN,Commissioner, Dissenting:This is another case where my colleagues apply their ratherbizarre review rule which, I gather, can be stated as follows:If the trial Judge?s findings are favorable to theSecretary of Labor they will not reweigh the evidence on review. If they areadverse to the Secretary of Labor they will reweigh the evidence and substitutefindings favorable to the Secretary of Labor.?In this case, Judge Rubin was the trier of fact. Afterobserving the demeanor of the witnesses, evaluating their credibility andweighing all the evidence, he correctly concluded that the Secretary failed toprove that respondent possessed either actual or constructive knowledge of thehazardous conduct alleged against it. He concluded that the elements of aserious violation had not been established. 29 U.S.C. ? 666(j). In order topermit a full examination of his findings, I attach hereto as Appendix A thefull text of his decision and incorporate it by reference herein.In case after case where Review Commission Judges have, onthe same basis, reached conclusions favorable to the Secretary, my colleagueshave asserted that they would not reweigh the evidence on which the Judges?conclusions were based. For example, in Secretary v. Okland ConstructionCompany, OSAHRC Docket No. 3395, February 20, 1976, they stated:?[I]t is the judge who as trier of fact had the opportunityto observe the demeanor of the witnesses, evaluate their credibility, and weighthe evidence accordingly. Since his finding is supported by the evidence, itcannot be said that he erred. Under such circumstances, we do not believe itappropriate to reweigh the evidence on review and substitute our view of theevidence simply because a contrary factual finding is also possible.Accordingly, we will adopt the judge?s decision on the merits concerning theexistence of the violation.? (Footnote omitted.)?As this case and others[2]illustrate, however, they do not practice what they preach when a Judge?sconclusion is detrimental to complainant?s case.There is ample support in this record for the Judge?sfindings regarding inadequate proof of respondent?s knowledge of the allegedhazard. Accordingly, those findings should be adopted by the Commission.The record is also replete with evidence that respondent?semployees were well-acquainted with the company?s proscription against ridingthe crane except under exceptional circumstances. Although the crane operatortestified that he was not specifically told by supervisory personnel that suchriding was prohibited, it is clear that he knew that such riding was contraryto company rules. In this respect, his testimony was as follows:?Q. Was there any question in your mind at that time thatit was a company policy that absolutely prohibited riding on the ball except inthose exceptional circumstances that we have referred to before????A. That is right.??Obviously, the important thing is that he knew the policy andnot how he knew it. My colleagues seem to forget what the charges are in thiscase. Respondent was not charged with failing to have an adequate safetyprogram.[3]Nevertheless, Messrs. Barnako and Cleary have no trouble affirming the citationon that basis contrary to the rule that:?[A]n employer cannot be penalized for failing to correct acondition which the citation did not fairly characterize.??NationalRealty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257, 1265 n. 31(D.C. Cir. 1973).It is also rather ironic that Mr. Barnako?s lead opinionmakes reference to one of the employer?s faults as a lack of employee training.Despite the universal recognition (by Chief Justice Burger, the American BarAssociation and others) that a regular program of continuing legal educationfor judges is essential, it was Mr. Barnako who cancelled such trainingsessions which had been scheduled for all Review Commission Judges in December1975 and May 1976. Although two such sessions annually were conducted sincethis Commission began, none have been scheduled since Mr. Barnako became theCommission?s Chairman in August 1975. Consequently, for him to base anemployer?s liability?even in part?upon the lack of an employee training program,brings to mind the immortal words of John Selden: ?Do as I say, not as I do.?[4]Additionally, my colleagues forget that employees have someresponsibilities under the Act. The evidence shows that all of respondent?semployees who participated in the crane riding were cognizant of the rulesprohibiting it and did so despite warnings and reprimands to the contrary.Inasmuch as the Act requires that ?[e]ach employee shall comply with . . .orders issued pursuant? thereto,[5]29 U.S.C. ? 654(b), the Congress did not contemplate that a diligent employerwould be held accountable for willful employee misconduct as the result ofdirect disobedience of standing rules regarding job safety.There are two additional matters in this case which requirecomment in the context of the erroneousness of the majority?s holding. Thefirst matter is the incorporation by reference of American National StandardsInstitute standard B30.5?1968 in 29 C.F.R ? 1926.550(b)(2). As I stated in Secretaryv. Northern Metal Company, 20 OSAHRC 869 (1975), any standard that requiresemployers to ascertain its substantive requirements from sources other than theFederal Register is not, in my opinion, reasonably available within the contextof the Act.Secondly, I believe that the Commission?s time can better bespent at things other than deciding whether a violation is ?serious? of?nonserious.? As I have indicated in Secretary v. California Stevedore andBallast Company, 4 OSAHRC 642, 647 (1973), Secretary v. PortlandStevedoring Company, 3 OSAHRC 1077, 1079 (1973), and Secretary v.Environmental Utilities, Inc., OSAHRC Docket No. 3141, February 6, 1976,there is no practical difference between ?serious? and ?nonserious? violations.[6]Both may incur a maximum penalty of $1000.00, and neither has a specifiedminimum. The majority are therefore adjudicating a question[7]where no practical difference exists simply to supply some type of foundationupon which they can base an increase in the assessed penalty. Why they gothrough these motions is beyond me. Many times in the past they have sustainedpenalty-increases against employers?both where there were nonserious violationsaffirmed and even in cases where the Secretary of Labor himself proposed nopenalty whatsoever. Perhaps the time might have been better spent pondering thenature of employee misconduct rather than the mechanics of adding $450 to thepenalty assessed by the Judge.It is my conclusion that Judge Rubin correctly found that theevidence in the instant case failed to establish that respondent had actual orconstructive knowledge of the alleged hazardous conduct. Having so found,however, I submit that the case law required that the citation be vacatedrather than merely reducing the characterization of the alleged violation fromserious to nonserious. Since knowledge of the existence of a violation, eitheractual or constructive, is also an essential element of a nonserious violationof the Act,[8] the only correctdisposition on the record before this Commission is the entry of a finding of?no violation.??APPENDIXA\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4675 CANDLER-RUSCHE, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINALORDER DATE: June 14, 1974DECISION AND ORDERAppearances:John C. Nangle, Esquire, and Karl Overman, Esquire, for theSecretary of Labor\u00a0Douglas H. West, Esquire, and John D. Mabley, Esquire, forRespondent\u00a0STATEMENT OF THE CASELouisJ. Rubin, Judge:This is a proceeding pursuant to Section 10(c) of theOccupational Safety and Health Act of 1970, 29 USC 651 et seq. (hereaftercalled the Act). Respondent contests the Citation and Notification of ProposedPenalty issued by the Secretary of Labor on September 17, 1973, pursuant toSection 9(a) of the Act.The Citation alleged that an inspection of Respondent?sworkplace located approximately 30 feet west of Gate No. 12, Ford River RougePlant near Schaeffer Road, Dearborn, Michigan disclosed that Respondentviolated Section 5(a)(2) of the Act by failing to comply with an occupationalsafety and health standard promulgated by the Secretary pursuant to Section 6thereof.The alleged violation, abatement date and proposed penaltyare as follows: Serious Violation Abatement Date Proposed Penalty Crawler crane operator in Respondent?s employ moved a load while two other employees were on the load. 29 CFR 1926.550(b)(2) and ANSI B30.5?1968, Section 5?3.2.3(e) September 19, 1973 $550 \u00a0The case came on for hearing in Detroit, Michigan on February7, 1974. No affected employee nor authorized employee representative hasasserted party status.ISSUESThe issues to be decided are whether Respondent violated ANSIstandard B30.5?1968, Section 5?3.2.3(e) as incorporated in 29 CFR1926.550(b)(2); and if so, whether this was a serious violation within themeaning of Section 17(k) of the Act and what penalty is appropriate.[9]SUMMARY AND DISCUSSION OF THE EVIDENCEANSI standard B30.5?1968, Section 5?3.2.3.(e) provides:?The operator (of a crawler crane) shall not hoist, lower,swing, or travel while anyone is on the load or hook.?\u00a0The parties have stipulated to the truth of the followingfacts for the purpose of this proceeding:Respondent, Candler-Rusche, Inc., is a Michigan corporationwhose main office is located at 30303 Beck Road, Wixom, Michigan. Respondent isgenerally engaged in the construction business.By reason of Respondent?s use of materials which originateboth within and without the State of Michigan, Respondent is engaged in abusiness affecting commerce within the meaning of Section 3(5) of theOccupational Safety and Health Act of 1970 (hereinafter the Act).On August 7, 1973, the date of the alleged violation of theAct, Respondent was engaged in construction operations in the near vicinity ofGate 12 of the Ford Motor Company Steel Division, near Schaefer Road, in theCity of Dearborn, Michigan.The incident which serves as a basis for the allegedviolation of the Act took place at approximately 11:00 a.m. on theabovementioned date at the Respondent?s job site at the Ford Motor CompanySteel Division.At the time of incident in question, certain employees of theRespondent had just completed unloading pile driving pipe to be used byRespondent in its construction operations at the Ford job site. The unloadingoperation itself had consisted of attaching hooks and rigging to the variouslengths of pipe being unloaded. The pipe was then hoisted by a crawler cranefrom a gondola railroad car, which was parked on a railroad siding atRespondent?s job site, over a 10-foot barbed wire fence, separating theRespondent?s job site from the railroad siding, and was then lowered to theground and piled at a point within Respondent?s job site.Immediately prior to the incident in question, one ofRespondent?s employees, Edward J. Horetski, was standing in the empty gondolarailroad car. Another of Respondent?s employees, Jeffrey Wickman, was engagedin collecting metal banding and scrap on the ground next to the gondolarailroad car. Mr. Harold Henry, also an employee of Respondent, who had beenthe crane operator during the unloading operation, maneuvered the crane into aposition which enabled Edward Horetski, who was still standing in the railroadcar, to have access to the crane rigging which had been used in the completedunloading operation (See Exhibit A). After fashioning a sling out of part ofthe crane rigging, Mr. Horetski signalled the crane operator and was lifted outof the railroad car. As the rigging passed by Jeffrey Wichman, he grabbed ontothe spreader hooks which had been used in the unloading operation. The craneoperator then began to hoist the men over the fence, with Edward Horetskistanding on the wire rope spreader (sling) and Jeffrey Wickman hanging by hishands from the spreader hooks.While the crane was attempting to hoist the two men over thefence, the block attached to the weight ball (or headache ball) ?two-blocked?by running onto the end of the crane boom. This action caused the blockattached to the weight ball to tip in such a manner as to release the weightball, and the rigging attached thereto upon which the two men were riding,causing the men, the rigging and the weight ball to fall to the ground on thesame side of the fence as the siding upon which the unloaded railroad car waslocated. Edward Horetski was thrown clear of the falling rigging and sustaineda fracture of the leg and injury to his spine. Jeffrey Wickman fell directlybeneath the weight ball and was killed by the force thereof as it landed uponhim.? (Exhibit S?2)??????????? In addition to the abovestipulation, there is no real dispute about the following pertinent facts.Respondent had eight employees on the work site at the time of the accident.Ronald LaJoyce, Jeffrey Wickman?s brother-in-law, company superintendent;Robert Davis, foreman; Stillman Eye and John Burger, welders; Harold Henry,crane operator; William Langenburg, Edward Horetsky and Jeffrey Wickman,unloading crew. Jeffrey Wickman and Edward Horetsky had been lifted by thecrane across the fence on three occasions earlier that morning. They firstcrossed over in this fashion when they commenced their day?s work shortly after8 a.m., and then going to and from their coffee break.Respondent asserts in its defense that it has a work ruleforbidding employees from riding the hook or load, that it enforced this workrule, that the employees knew the work rule, and that in direct contraventionof company policy they endangered their own safety in a manner that was notknown to Respondent and unforeseeable. Respondent?s witnesses testified that itis contrary to company policy to ride the hook or load with two well-definedexceptions relating to pile driving, ?sticking sheeting? and ?testing a load.?The exceptions were always performed under close supervision and adequatesafety precautions. There is no reason to dispute the existence of the companypolicy. The question to be resolved is whether the policy was properlycommunicated and enforced.LaJoyce testified that he gave explicit instructions toWickman, Langenburg and Horetsky concerning the company policy. Davis testifiedthat he gave similar instructions to the company employees every Mondaymorning. The record shows that Wickman had been reprimanded on two prioroccasions for the same offense which resulted in his death?first in 1970 andagain in the latter part of 1972. There is no question that Wickman knew andunderstood the company policy. However, Horetsky?s understanding was that itwas permissible to ride the crane when circumstances are such that there is noother way. Horetsky decided that he was compelled to ride the crane since thealternative was to walk through an opening in the fence, a distance of 365feet. He had not been told that this was contrary to company policy. Langenburgtestified he had never heard LaJoyce or Davis give instructions concerningriding the hook or load. Henry was employed by Respondent approximately sixweeks at the time of the accident. Henry testified that he was never toldpersonally be anyone in responsibility as to when it was appropriate for anemployee to ride the rigging. However, as a crane operator, he knew ?You arenot supposed to ride a ball at any time unless absolutely necessary.?In resolving this conflict, it is noted that LaJoyce does notallege that he gave specific instructions to the crane operator and Davis doesnot identify the employees to whom he talked concerning company policy.Assuming that Langenburg and Horetsky were told specifically and clearly aboutthe company rule, which they deny, the weak link in Respondent?s case is Henry,a key figure and participant. The interest and veracity of Henry has not beenchallenged by Respondent.Brennan v. Occupational Safety and Health ReviewCommission (Gerosa, Incorporated) 491 F2d 1340 (2d Cir. 1974), sets forththe obligation of an employer under the Act. The Court there observed that theAct:?has been called ?the most revolutionary piece of ?labor?legislation since the National Labor Relations Act? . . . The dramaticlegislative history of the Act demonstrates that Congress regarded it as animportant piece of remedial legislation, designed to reduce ?work relatedinjuries and illnesses,? which cause ?ever increasing human misery and economicloss.? S.Rep. No. 91?1282, 91st Cong., 2d Sess. (1970), quoted at 1970 U.S.Code Cong. and Admin. News, p. 5177. . . . Congress hoped to achieve itsobjective of preventing accidents by encouraging employers ?to institute newand to perfect existing programs for providing safe and healthful workingconditions.? 29 U.S.C. ? 651(b)(1).??In the case cited above, the court held that the term?designate? requires ?specific and positive action? by an employer to inform anemployee of the existence and nature of his inspection duties. A fortiori,where the standard specifically prohibits the operation of a crane while anyoneis on the hook or load, a tacit understanding of a work rule is not enough.Only if the employee is explicitly informed that he is charged with complyingwith the standard and with company policy is there any assurance that theemployee will know his responsibility and take it seriously.The evidence of record may be questionable as to theinstructions given to Horetsky. However, it is not necessary to decide whetherHoretsky and Wickman were culpable. In view of the purpose of the statute toset new standards of industrial safety, common law defenses such as assumptionof risk or contributory negligence will not exculpate an employer. It is clearthat Henry had no more than a tacit understanding of his responsibilities. Itis Respondent?s failure to specifically inform Henry of the prohibition againstriding the load or hook which provides the basis for finding a violation.SERIOUS VIOLATIONSection 17(k) of the Act provides thata serious violation shall be deemed to exist at a place ofemployment if there is a substantial probability that death or serious physicalharm could result from a condition which exists, or from one or more practices,means, methods, operations, or processes which have been adopted or are in use,in such place of employment unless the employer did not, and could not with theexercise of reasonable diligence, know of the presence of the violation.?The probability that death or serious physical harm couldresult from the employees? activities in riding the crane on the day of theaccident is self-evident. Respondent readily admits to this probability.However, a serious violation is not established if the employer did not, andcould not with the exercise of reasonable diligence, know of the presence ofthe violation.LaJoyce and Davis were the two supervisors on the jobsite. Theevidence is conflicting and inconclusive as to whether they observed Wickmanand Horetsky riding the crane at the time of the accident. If they did, thereis no indication that they could have stopped the movement of the crane. Thus,it is not the circumstance of the accident that is controlling but whether thesupervisory personnel had prior knowledge and condoned the practice.The uncontradicted testimony of LaJoyce is that he wasworking in the office trailer at the time the men first rode the crane in themorning. He was not on the site during the coffee break. Therefore, it cannotbe held that LaJoyce knew or with the exercise of reasonable diligence couldhave known of the violation. Davis was on the site and worked with the men allthat morning. None of the witnesses could testify that Davis saw the men ridingthe crane either when they first reported for work or during the coffee break.Davis denies such knowledge. Although the Secretary contends that with theexercise of reasonable diligence Davis could have know of the violation, thisassertion is pure conjecture and not supported by evidence of lack ofdiligence.One further matter warrants discussion. The Secretarycontends that the company policy of allowing its employees to ride the cranefor the purpose of ?sticking sheeting? and ?testing a load? is contrary to thestandard and blurred any work rule with respect to riding the hook or load. Nodecision is here made as to whether these two activities are in violation ofthe standard. Respondent?s testimony?that they are well-defined exceptions tocompany policy and performed under close supervision and adequate safetyprecautions clearly distinguish the exceptions from the violation in this case.Culpability in the instant case cannot be imputed thereby.PENALTYIn assessing the proposed penalty, the Secretary consideredthe criteria set forth in Section 17(j). Computation started with $1,000 for aserious violation, adjusted the maximum of 20 percent for good faith, themaximum of 20 percent for history of previous violations, and 5 percent forsize, reducing the proposed penalty to $550. Since the evidence does notestablish a serious violation, the proposed amount is not appropriate. It isheld that the gravity of the violation is high since death or serious injurycould probably result from an accident. However, the incidence is considered tobe low since there is no record of previous accident from this type of activityinvolving Respondent?s employees. The evidence further shows that Respondenthas shut down unsafe operations, has taken preventative safety measures in thepast, and the company has an excellent reputation for safety. With thisbackground of good faith, a penalty of $100 is deemed to be appropriate.FINDINGS OF FACT1. Respondent, Candler-Rusche, Inc., is a Michigancorporation, engaged in the construction business.2. Materials used by Respondent originate outside the Stateof Michigan3. On August 7, 1973, Respondent was engaged in constructionoperations approximately 30 feet west of Gate No. 12, Ford River Rouge Plantnear Schaeffer Road, Dearborn, Michigan.4. On August 7, 1973 at the above worksite, a crawler craneoperated by one of Respondent?s employees lifted two of Respondent?s employeeswhile they were suspended from the rigging or hook.5. The crane operator had not been given specificinstructions by Respondent prohibiting the operation of the crane while anyoneis on the load or hook.6. The activity described in (4) is one wherein there is asubstantial probability that death or serious physical harm could, and in factdid, result.7. Respondent did not know nor, with the exercise ofreasonable diligence, could have known of the presence of the violation.CONCLUSIONS OF LAW1. Respondent is and, at all times relevant herein, was anemployer engaged in a business affecting commerce within the meaning of Section3 (5) of the Act.2. The Occupational Safety and Health Review Commission hasjurisdiction of the parties and subject matter herein pursuant to Section 10(c)of the Act.3. On August 7, 1973, Respondent violated Section 5(a)(2) ofthe Act by its non-compliance with 29 CFR 1926.550(b)(2) which incorporatesANSI B30.5?1968, Section 5?3.2.3(e).4. Since the requisite knowledge set forth in Section 17(k)of the Act is not shown to be present, a serious violation is not established.ORDER1. The Citation is affirmed except that the charge of aserious violation is modified to that of a non-serious violation.2. The proposed penalty in the amount of $550 is reduced to $100.?Louis J. RubinJudge, OSHRCDated: May 15, 1974[1]The standard reads:All crawler, truck, or locomotive cranes in use shall meetthe applicable requirements for design, inspection, construction, testing,maintenance and operation as prescribed in the ANSI B30.5?1968, Safety Code forCrawler, Locomotive and Truck Cranes.The incorporatedprovision reads: The operator shall not hoist, lower, swing, or travel whileanyone is on the load or hook.[2]See, e.g., Secretary v. Slyter Chair, Inc., 9 OSAHRC Docket No. 1263,April 8, 1976; Secretary v. Allis-Chalmers Corp., 20 OSAHRC 546 (1975).\u00a0[3]My colleagues in their dicta also conveniently disregard the fact that theexceptions to the respondent?s crane riding policy is not an issue in this case.Moreover, they point to nothing in the record which contradicts the Judge?sdetermination that ?the well-defined exceptions to company policy [were]performed under close supervision and adequate safety precautions.?\u00a0[4] Table Talk (1689).\u00a0[5]Senator Williams commented on this provisions as follows:?. . . I might point out, too, that inorder to make clear that achieving the goals of a safe workplace is not aone-sided matter, we added in committee a provision placing upon employees, aswell as employers, the obligation to comply with all applicable requirementsunder the Act.?116 Cong. Rec. (Senate)18250 (1970).[6]The 9th Circuit Court of Appeals reached the same conclusion:Considering, as we must, the statute as a whole and 29U.S.C. ? 666 in its entirety, we are convinced that Congress intended the samemeaning for the word ?violation? wherever it appears. Section (c), containingthe only reference to nonserious violations, must be read in conjunction withSection (b). Both relate to employers who have merely ?received a citation. Neitherdefines a violation. The sole difference between sections (b) and (c) lies inthe mandatory assessment of penalty for serious violations and the permissiveassessment for nonserious violations. Brennan v. OSAHRC and Raymond Hendrixd\/b\/a Alsea Lumber Company, 511 F.2d 1139, 1144 (9th Cir. 1975).\u00a0[7]It was directed for review by Commissioner Cleary.[8]Horne Plumbing and Heating Company v. OSAHRC, 528 F.2d 564 (5th Cir.1975); Brennan v. OSAHRC and Raymond Hendrix, d\/b\/a Alsea Lumber Company,supra.[9]Respondent?s Answer affirmatively alleged that the standard cited was invalidbeing vague, ambiguous, arbitrary, unreasonable and impossible of performance.Respondent reasserted this defense in a Statement of Position dated February 5,1974, indicating that argument will be fully set forth in its brief. The briefis silent as to this matter. It is noted that the Citation and the Complaintnotified Respondent of the place of employment, the hazard and the nature ofthe violation. The charge provided fair notice and complied with the dictatesof due process. Since no evidence or argument has been of offered, the defenseof vagueness, etc. is not considered to be an issue.”