“SECRETARY OF LABOR,Complainant,v.DOVER ELEVATOR COMPANY,Respondent.OSHRC Docket No. 88-2642DECISIONBEFORE: FOULKE, Chairman; WISEMAN, Commissioner.BY THE COMMISSION:The primary issue in this case is whether an oxygen cylinder belongingto Dover Elevator Company (\”Dover\”) was \”being hoisted or carried\”within the meaning of 29 C.F.R. ? 1926.350(a)(9), which provides thatsuch cylinders must be secured \”except, if necessary, for short periodsof time while cylinders are \/actually being hoisted or carried\”\/(emphasis added).[[1]] For the reasons that follow, we conclude thatDover failed to establish that it satisfied the exception clause of thestandard in the circumstances presented here. We further conclude thatDover knew, or with the exercise of reasonable diligence could haveknown, that the cylinder was not secured as required by the standard.Accordingly, we affirm the decision of Administrative Law Judge Edwin G.Salyers finding that Dover violated the Occupational Safety and HealthAct of 1970, 29 U.S.C. ?? 651-78 (\”the Act\”) by failing to comply withthe standard, as alleged in item 2 of the citation issued by theSecretary.[[2]] We further conclude that the violation is not \/deminimis\/ in nature._FACTS_Dover was the elevator subcontractor at a large residential housingconstruction site in Jersey City, New Jersey. On July 7, 1988, the daythe Secretary inspected the worksite, Dover’s employees Thomas Macchiaand a helper intended to install elevator equipment in one of theelevator shafts using a hoist motor which had been positioned at theedge of the shaft opening at the first floor level, about 15 feet abovethe next lower level. When they discovered that the hoist did notoperate due to an electrical problem, they summoned George Clarke,Dover’s supervisory mechanic at the worksite. Clark was accompanied byMike Poshkus, Dover’s elevator adjuster. Poshkus, who was familiar withelectrical circuits, attempted without success to get the hoist motor towork. Dover then closed down its work at that shaft and assigned Macchiato work at another building.In the meantime, an oxygen cylinder was delivered to the worksite. Thiscylinder was a replacement for another cylinder which had been stolen,theft being a constant problem at the site. James, or \”Jay,\” Brannon,another elevator mechanic and a foreman, was returning to the site froma meeting with the general contractor when he met the delivery truck. Hetook the oxygen cylinder, carried it to the area of the shaft opening,and laid it onto the edge of the floor through a window opening atapproximately the same time that Clarke arrived on the floor to checkthe hoist. Macchia took the cylinder from Brannon, and Brannon then wentback to park his car. Macchia set the cylinder upright on the floor butdid not secure it in any way. It was Dover’s intention to lower thecylinder by the hoist down to a shanty used for storage in the basementarea below. After it was determined that the hoist could not be made towork, either Clarke or Macchia carried the cylinder down into thestorage area. The evidence presented at the hearing demonstrated thatDover’s safety rules require that gas cylinders be tied in an uprightposition when in storage: \”Welding gases should be stored in upright,secured position with caps on. Oxygen and fuel gases should be storedseparately.\”Compliance officers David Katsock and George Boyd arrived at theworksite shortly after Brannon brought the gas cylinder onto the floor.Although Katsock testified that the cylinder was left standing uprightand unsecured for at least half an hour, Clarke stated that it wascarried down after about 15 minutes. Katsock stated that the hazardpresented was that if the oxygen cylinder were displaced, it could bepunctured or its cap could break off, causing oxygen to escape. Theescaping oxygen could come into contact with oily rags that were in thearea or could become ignited through friction, causing an explosion andfire. If the valve broke off, the cylinder could either fall on anemployee or become a projectile, propelled through the worksite byescaping gas. _ARGUMENTS OF THE PARTIES_Dover did not dispute before Judge Salvers that it left the oxygencylinder unsecured. Dover contended that it came within the exception tothe securing requirement of the standard because the cylinder wassituated on the floor where it was viewed by the compliance officersonly for the \”brief\” period of time during which Dover’s employees weredetermining whether they would he able to lower the cylinder to thestorage area by using the hoist, as they had intended, or whether theywould have to carry it down by hand. Thus, Dover argued that in thecircumstances, there was only a transitory and temporary hiatus in themovement of the cylinder, and that the cylinder, for all practicalpurposes, remained in a transit status.Dover also asserted that the Secretary failed to prove that it knew orshould have known of the alleged violative conditions. While Doverconceded that normally the knowledge of supervisory employees is imputedto the employer, e.g., Dull-Par Engd. Form Co., 12 BNA OSHC 1962,1965-66, 1986-87 CCH OSHD ? 27,651, p. 36,033 (No. 82-928, 1986), itcontended that it should not be held responsible for the actions ofBrannon and Clarke because of the temporary and \”unforeseeable\” natureof the conditions and because Brannon and Clarke were highly trained andexperienced employees who could reasonably be expected to adhere toDover’s safety rules. In Dover’s view, it had taken appropriate measuresto prevent the occurrence of the violation, and the citation item shouldbe vacated even if it had failed to comply with the terms of the standard.Judge Salyers rejected Dover’s contentions. Essentially, he accepted theSecretary’s argument that the exception clause of the standard literallyrequires that the cylinder be secured unless it is in actual physicalmotion. As did the Secretary, the judge relied on two Commissiondecisions finding employers in violation of ? 1926.350(a)(9) for havingunsecured cylinders, Austin Building Co., 8 BNA OSHC 2150, 1980 CCH OSHD? 24,839 (No. 77-3878, 1980) and Constructora Maza, Inc., 6 BNA OSHC1208, 1977-78 CCH OSHD ? 22,421 (No. 12434, 1977). While stating that hewas \”sympathetic\” to Dover’s position. Judge Salyers concluded that thefacts did not come within the language of the exception clause:A literal reading of the standard reveals that \”cylinders shall besecured at all times … except … for short periods of time whilecylinders are actually being hoisted or carried.\” 29 C.F.R. ?1926.350(a)(9). (Emphasis supplied.) This language does not include anexception for the circumstances disclosed in the evidence. It isconcluded that the Secretary’s position is in accord with the terms ofthe standard and is supported by Commission precedent.Although the judge observed that the conditions at the worksite werewithin the plain view of supervisor Clarke, he did not address Dover’scontention that it could not have reasonably anticipated that thecylinder would be left unsecured for a period of time.The parties’ arguments on review before us largely parallel theirarguments before the judge. Dover asserts that to read the exceptionclause literally to apply only where a cylinder is actually in physicalmotion would render the clause meaningless because a cylinder obviouslycannot be secured while it is moving. Therefore, Dover contends that theclause cannot be read totally literally. It also asserts that the clausemay reasonably be construed to apply in the circumstances presented herebecause Brannon brought the cylinder into the work area expecting thatit would be placed in the basement storage area, and the cylinder wascarried to the basement as soon as Dover determined that the hoist wasinoperable. Thus, Dover contends that the unforeseen circumstance of thehoist motor breaking down prevented it from moving the cylinder withoutinterruption and that therefore it has satisfied the requirement of theexception clause permitting a cylinder to be unsecured for a shortperiod of time \”where necessary.\” Essentially, Dover contends that theexception clause of the standard excuses an employer from having tosecure a cylinder in an upright position where the employer intends tomove the cylinder but its actual movement is briefly interrupted bycircumstances beyond the employer’s control.For the same reason, Dover reiterates its position that it had taken allreasonable measures to comply with the requirement of the standard.Dover does not dispute that both Clarke and Brannon knew that thecylinder had been left unsecured but contends that it had acted with duediligence in the circumstances here. In Dover’s view, to find it inviolation would be tantamount to imposing strict liability. See NationalRealty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266 & n.35 (D.C. Cir.1973) (Act requires the elimination only of hazards which are preventable).Finally, Dover contends that even if a violation exists, it is deminimis in nature because there is no tangible likelihood of a hazardoccurring in the circumstances here. Pointing out that the standard byits terms does not necessarily require a cylinder to be secured at alltimes, Dover contends that the standard itself reflects a realization bythe Secretary that there may be circumstances in which securing acylinder is not essential for employee safety. Dover asserts that theneed to repair the hoist and the brevity of the interruption in thecylinder’s movement Justify a finding of de minimis.The Secretary disputes Dover’s contention that a cylinder can never besecured in an upright position while it is in motion. The Secretaryobserves that there are mechanical devices, such as a cradle, that wouldallow an employer normally to transport a cylinder while keeping itsecured in an upright position. In the Secretary’s view, the exceptionclause allows a limited exemption from the standard’s requirement if forsome reason it becomes necessary to have the cylinder unsecured for ashort period of time while such a device is in use. For this reason, theSecretary argues that her interpretation limiting the exceptionprovision only to situations where cylinders are in actual physicalmotion is reasonable.The Secretary also contends that her interpretation is reasonablebecause 1) the Commission has accepted that interpretation in itsdecisions in Austin Building and Constructora Maza, 2) the plain wordingof the standard supports the Secretary’s view, and 3) a narrow readingof the exception better effectuates the protective purposes of thestandard and the Act. The Secretary asserts that we must accept herinterpretation under Martin v. OSHRC (CF&I Steel Corp.), 111 S.Ct. 1171(1991) (the Secretary’s interpretations of regulations are entitled todeference when reasonable). In any event, the Secretary further argues,in interruption of 30 minutes does not constitute a brief or momentarylapse in the movement of a cylinder even under Dover’s view of themeaning of the exception clause, nor did Dover establish that it was\”necessary\” to leave the cylinder standing unsecured for this length oftime.Regarding the question of whether Dover should be held responsible forthe actions of its supervisory employees, the Secretary disputes Dover’sclaim that it had a safety rule with which its employees failed tocomply. In the Secretary’s view, that claim is contradicted by Dover’sposition that it was not required to secure the cylinder under the termsof the standard. Finally, the Secretary contends that a de minimisclassification is inappropriate because the violation has a direct andtangible relationship to employee safety and health, and the hazardpresented by an unsecured cylinder is substantial. _DISCUSSION AND ANALYSIS_We reject the Secretary’s narrow and literal view that the exceptionclause requires a cylinder to be secured in an upright position whenevera cylinder ceases to be in actual motion regardless how brief theinterruption in the movement of the cylinder or the reason for theinterruption. The Secretary’s interpretation sets forth a rigid andinflexible rule that fails to reflect the variety of circumstances thatmay exist on a construction worksite or the realities of the workenvironment. While we do not dispute the Secretary’s contention that itcylinder being transported by a mechanical device can readily be securedas it is moved from one location to another, the exception clauseapplies to cylinders that are being \”hoisted or carried\” (emphasisadded). This language plainly is broad enough to include a cylinder thatis being hand-carried by an employee, as in this case. An employeecarrying a cylinder by hand may naturally be expected to pause brieflyto rest or change his grip, for example. In our view, the standardcannot reasonably be read to require the employee to secure the cylinderin an upright position when its movement is momentarily interrupted forreasons of this nature. Indeed, under certain facts the Secretary’sliteral interpretation would be unreasonable even where a cylinder isbeing moved by a mechanical device. The Secretary’s construction of theexception clause would require the cylinder to be secured upright whenemployees, for instance, momentarily set the cylinder down simply toattach or remove the lifting apparatus. While we recognize the broadremedial purposes of the Act, we agree with the observation of the Courtof Appeals for the Eighth Circuit in H.S. Holtze Construction Co. v.Marshall, 627 F.2d 149, 151 (8th Cir. 1980) that the Act also implies\”some modicum of reasonableness and common sense.\” In our view, theSecretary’s strictly literal interpretation of the exception clause isunreasonable to the extent that it can result in the imposition ofabatement requirements that may not be realistic or practical in certaincircumstances. As the court stated in Holtze, \”[t]here is a point atwhich the impracticality of the requirement voids its effectiveness.\”Id.[[3]]Such circumstances, however, are not present in this case. The burden ison the party claiming the benefit of an exception to prove that it comeswithin the exception, StanBest, Inc., 11 BNA OSHC 121-2, 1226. 1983-84CCH OSHD ? 26,455, p. 33,619 (No. 76-4355, 1983). We conclude that theevidence fails to establish that Dover has satisfied the exceptionclause. Brannon carried the oxygen cylinder to the work area so that itcould be lowered into the storage facility by means of the hoist, andthe cylinder was then taken to the storage area, again by hand, afterthe hoist motor was determined to be inoperative. Since Dover intendedto place the cylinder in storage by using the hoist, the interruption inthe movement of the cylinder clearly resulted from the need to repairthe hoist motor. Accordingly, Dover has shown that the reason for theinterruption had a connection with the process of moving the cylinder;that is, Dover did not simply leave the cylinder in an unsecuredcondition in order to engage in a totally unrelated work activity. Onthe other hand, completion of any repair to the hoist, while related tothe overall operation of placing the cylinder into the storage area, wasnot essential for the movement of the cylinder. Furthermore, Brannon andClarke allowed the cylinder to remain unsecured for 15 to 30 minuteswhile the hoist motor was being worked on, whereas the cylinderunquestionably could have been moved into the storage area at any time.In our view, these circumstances fail to show a brief or momentary lapsein the movement of the cylinder or a necessity to leave the cylinderunsecured so as to bring Dover within the scope of the exception clause.We also conclude that Dover knew or with the exercise of reasonablediligence could have known of the existence of the violation. Aspreviously indicated, Dover concedes that Brannon and Clarke weresupervisory employees whose knowledge and actions normally are imputedto their employer. The Secretary having made a prima facie showing ofemployer knowledge through Dover’s supervisory employees, the burdenshifts to Dover to rebut the Secretary’s case by establishing that itcould not have prevented the violation. Specifically, Dover mustestablish that it had relevant work rules that it adequatelycommunicated and effectively enforced. Consolidated Freightways Corp.,15 BNA OSHC 1317, 1991 CCH OSHD ? 29,500 (No. 86-531, 1991): H. E.Wiese, Inc., 10 BNA OSHC 1499, 1505, 1982 CCH OSHD ? 25,985, p. 32,614(No. 78-204, 1982), aff’d without published opinion, 705 F.2d 449 (5thCir. 1983). Although there is some evidence that Dover will terminateemployees who violate safety rules and that Dover’s union conductsperiodic safety inspections of its worksites, Dover resented no evidenceto show that it took any measures to monitor adherence to safety rulesby supervisory employees. See Regina Constr. Co., 15 BNA OSHC 1044,1051, 1991 CCH OSHD ? 29,354, p. 39,470 (No. 87-1309, 1991) (employer’sburden to adduce evidence that it took action to discover violations ofwork rules). Furthermore, while Dover provides safety instruction to newemployees and conducts periodic seminars at which safety matters arediscussed, Dover has not shown that it gives its employees any specifictraining on securing gas cylinders. In fact, there is no showing thatDover even has a safety rule that is equivalent to the cited standard.Its rule deals only with securing gas cylinders in storage and does notaddress the matter of securing cylinders during transportation or movingoperations. See Ormet Corp., 14 BNA OSHC 2134, 2138-39, 1991 CCH OSHD ?29,254, p. 39,203 (No. 85-531, 1991) (work rule on which employer reliesmust parallel the requirements of the cited standard). Accordingly,Dover has failed to show that it took sufficient steps to prevent theoccurrence of the violation.Lastly, we find that the violation may not properly be classified as deminimis in nature. A de minimis violation is one having no \”direct orimmediate\” relationship to employee safety; normally, thatclassification is limited to situations in which the hazard is sotrifling that an abatement order would not significantly promote theobjectives of the Act. Super Excavators, Inc., 15 BNA OSHC 1313, 1991CCH OSHD ? 29,498 (No. 89-2253,1991); Pratt & Whitney Aircraft, 9 BNAOSHC 1653, 1981 CCH OSHD ? 25,359 (No. 13401, 1981). Compliance officerKatsock testified without rebuttal that the unsecured cylinder presenteda hazard of fire or explosion or the possibility that the cylinder couldbecome a projectile. Katsock’s testimony is consistent withlong-standing Commission precedent in which the Commission hasrecognized that the hazards ? 1926.350(a)(9) is intended to protectagainst are not insignificant. Beall Constr. Co., 1 BNA OSHC 1559, 1562,1973-74 CCH OSHD ? 17,339, p. 21,879 (No. 557, 1974). aff’d, 507 F.2d1041 (8th Cir. 1974); Bechtel Power Corp., 4 BNA OSHC 1005, 1009,1975-76 CCH OSHD ? 20,503, p. 24,501 (No. 5064, 1976), aff’d. 548 F.2d249 (8th Cir. 1977). Furthermore, Dover’s motive for leaving thecylinder unsecured–the need to work on the hoist–does not have anybearing on the hazard. The relatively short duration of the violationalso does not justify finding the violation de minimis. The cylinder wasin an admittedly cluttered area, about 12 feet from the shaft openingwhere the employees were working. Clearly, the movement of the employeesin the cluttered area could have caused the cylinder to tip over, thuscreating a hazard. The facts fail to show either a remote possibility ofan accident or a remote or non-existent likelihood of injury should anaccident occur.[[4]]However, although Dover left the Cylinder unsecured for more than abrief or momentary period, the length of time it kept the cylinder inthe work area before taking it to the storage area was relatively short.Therefore, the likelihood of an accident occurring is reduced.Accordingly, we find) the gravity of the violation, while notinsignificant, to be low. Furthermore, Dover has taken some measures toimplement a safety program, and the circumstances of the violationitself demonstrate that Dover acted in good faith. Considering thecriteria for assessing penalties set forth in section 17(j) of the Act,29 U.S.C. ? 666(j), we conclude that a penalty of $100, rather than $300as proposed by the Secretary, is appropriate.Accordingly, item 2 of the citation alleging a violation of 29 C.F.R. ?1926.350(a)(9) is affirmed and a penalty of $100 is assessed therefor.Edwin G. Foulke, Jr. ChairmanDonald G. WisemanCommissionerDated: November 19, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.DOVER ELEVATOR COMPANY,Respondent.OSHRC Docket No. 88-2642APPEARANCES:Alan Kammerman, Esquire, Office of the Solicitor, U. S. Department ofLabor, New York, New York, on behalf of complainant.W. Scott Railton, Esquire, and Lawrence G. Brett, Esquire, Reed, Smith,Shaw and McClay, Washington, D.C., on behalf of respondent._DECISION AND ORDER_SALYERS, Judge: On July 7, 1988, respondent was the elevatorsubcontractor on a multi-employer work site located at the Foot ofChapel Avenue in Jersey City, New Jersey. This complex consisted oftownhouses and multi-story condominiums under construction in an areathe size of \”ten football fields\” (Tr. 57). Compliance officers DavidKatsock and George Boyd of the Occupational Safety and HealthAdministration conducted an inspection of these premises on that dateunder the provisions of the Occupational Safety and Health Act of 1970(29 U.S.C. 651, et seq.). At approximately 1:00 p.m., they observed awork site on the first floor of a multi-story complex where respondent’semployees were moving in materials and supplies in preparation for theinstallation of an elevator. They noticed two employees of respondentworking near an elevator shaft which was not fully covered or protectedby guardrails and one free-standing oxygen cylinder on the first floorwhich had not been secured from displacement (Tr. 11-15). As a result ofthis inspection, on October 20, 1988, respondent was charged with thefollowing violations:[[1]]229 CFR 1926.350(a)(9): Compressed gas cylinders were not secured in anupright position:(a) Ring Condo 1-2 – Elevator shaft area – South end – One (1) oxygencylinder was not secured while in storage so as to prevent displacement.Violation observed on or about 7\/7\/88.329 CFR 1926.500(b)(1): Floor opening(s) were not guarded by standardrailings and toeboards or covers as specified in paragraph (f) of thissection:(a) Ring condo 1-2 – Elevator shaft area – South end – Floor openingmeasuring 22 inches x 9 ft with a fall of 15 ft was not guarded bystandard railings or toeboards to prevent falls.Violation observed on or about 7\/7\/88.For the most part, the facts in this matter are not in serious dispute.On the day of the inspection, respondent was beginning its workactivities at the inspection site. On the morning of that day, JamesBrannon, an elevator mechanic employed by respondent, had noted theshaft on the first floor was covered by planks and protected by portableguardrails which had been placed by the general contractor (Tr. 132).After lunch a Dover crew arrived at the scene to deliver materials(including the oxygen cylinder) and store these materials inrespondent’s shanty located in the basement of the building (Tr. 77-78).This procedure was to be accomplished by using a hoist to lower thematerial from the first floor down the shaft to the basement floor 15feet below. Respondent’s crew removed some planking covering the shaftand moved the portable guardrails back from the edge in anticipation ofusing the hoist. George Clarke, respondent’s mechanic in charge,testified the hatch or shaft must be open to use the hoist and that itsnormal procedure to clear the area of covers and guardrails duringhoisting operations (Tr. 86). This was especially true in this instancesince the pit work, as large as the elevator structure, was to be movedinto the shaft (Tr. 83). Before the hoisting began, it was discoveredthat the hoist was not working properly and Clarke and Mike Poshkas, anelevator adjuster, were called to the site from an adjacent building toeffectuate repairs (Tr. 78). At this point, respondent’s operations inregard to moving materials were suspended until the hoist could befixed. Shortly before it was discovered the hoist was inoperable,Brannon had received delivery of an oxygen cylinder, carried it to thesite and placed it on the first floor near the shaft for hoisting intostorage in the basement (Tr. 75). After placing the cylinder, Brannonwas parking his car when the OSHA inspectors arrived on the scene (Tr. 111).At the time of their arrival, the inspectors noted and photographed theunsecured oxygen cylinder (Ex. C-1). They also photographed theunguarded floor opening (Ex. C-2) and observed respondent’s employeesworking in close proximity to this opening while attempting to repairthe hoist (Tr. 31). Respondent does not dispute the fact that thecylinder was not secured while on the first floor awaiting storage inthe basement. Also, respondent does not dispute that its employees wereworking around the floor opening which was not fully covered orprotected by guardrails._THE 29 C.F.R. ? 1926.350(a)(9) CHARGE_The cited standard deals with \”_[t]ransporting, moving and storingcompressed gas cylinders\”_ and provides \”[c]ompressed gas cylindersshall be secured in an upright position at all times except, ifnecessary, for short periods of time while cylinders are actually beinghoisted or carried.\”The evidence reflects that the cylinder had just been brought into thebuilding as the inspectors arrived. Had the hoist been operative, thecylinder would have been immediately lowered into the basement forstorage. However, because the hoist was inoperative, the cylinder wasallowed to stay where it had been placed for a short period of timeuntil it was determined that the hoist could not be repaired at whichtime the cylinder was carried down the stairs to the storage area (Tr.98-99). There is some conflict in the testimony concerning the period oftime the cylinder sat on the first floor before being carried into thebasement. Compliance officer Katsock testified the cylinder remained onthe first floor for about 30 minutes (Tr. 19). George Clarke testifiedthe cylinder was on the first floor for about 15 minutes until it wasdetermined that the hoist could not be repaired, at which point it wasimmediately carried into the basement (Tr. 98-99).Respondent contends the cylinder was in transit to storage which wasinterrupted by a fortuitous event (the breakdown of the hoist) and thatrespondent’s action in not securing the cylinder for this brief periodwas reasonable under the unforeseeable circumstances encountered byrespondent. It cites two ALJ decisions [[2]] in support of this position.In _Secretary of Labor v. M. J. Lee Construction Co.,_ 77 OSAHRC 157\/A2,5 BNA OSHC 1993, CCH OSHD ? (No. 76-1478, 1977), Judge Morris noted thatan oxygen cylinder that was lying on the ground after being carried tothe vicinity of a pickup truck \”was in effect in the process of being’carried’ from the car to the pickup trick, although for a short time itwas laying on the ground and not secured.\” He concluded the cylinder wasin transit and, therefore, fell within the exception provided in thestandard for short time periods when the cylinder is being carried intostorage.Respondent also cites _Secretary v. Baystone Construction, Inc_., 74OSAHRC 67\/C12, 2 BNA OSHC 3166, 1974-75 CCH OSHD ? 18,505 (No. 3772,1974), in which Judge Brady reached a similar conclusion that cylindersbriefly unsecured while in transit did not contravene the standard.The Secretary disagrees with respondent’s theory that the cylinder inquestion was \”in transit\” while it remained on the first floor since itwas neither being \”hoisted or carried\” at the time. The Secretary cites_Constructora, Maza, Inc.,_ 77 OSAHRC 213\/B3, 6 BNA OSHC 1209, 1977-78CCH OSHD ? 22,421 (No. 12434, 1977); and _Austin Building Co._, 80OSAHRC 98\/E1, 8 BNA OSHC 2151, 1980 CCH OSHC ? 24,839 (No. 77-3878,1980), in which the Review Commission takes a strict view that cylindersmust be secured _at all times_ unless they are actually in the processof being hoisted or carried. She contends, under the circumstances ofthis case, the standard required the cylinder be secured during theperiod it remained on the first floor and urges that this unsecuredcylinder presented a potential for being knocked over and releasing thepressure resulting in a fire hazard or conversion of the cylinder into aflying object. Since employees were in the area near the cylinder, theywere exposed to this potential hazard. The area in the vicinity of thecylinder was cluttered with other materials thereby intensifying thepossibility that it might be tipped over by employees traversing thearea (Ex. C-1; Tr. 144). The Secretary maintains that the interruptionof the cylinder’s delivery into storage resulting from the inoperativehoist did not relieve respondent from securing the cylinder while itremained on the first floor and constituted a violation of the citedstandard.The respective positions of the parties have been considered in light ofthe evidence and existing precedent. While this court is sympathetic torespondent’s position, it is concluded that respondent’s failure tosecure the cylinder for a period of 15 to 30 minutes contravened thestandard. A literal reading of the standard reveals that \”cylinders_shall_ be secured _at all times_ . . . except . . . for _short periods_of time while cylinders are _actually being hoisted or carried _\” 29C.F.R. ? 1926.350(a)(9). (Emphasis supplied.) This language does notinclude an exception for the circumstances disclosed in the evidence. Itis concluded the Secretary’s position is in accord with the terms of thestandard and is supported by Commission precedent. _The 29 C.F.R. ? 1926.500 (b) (1) CHARGE_There is little dispute concerning the sequence of events that occurredwith respect to the floor opening in the hoistway (shaft). Sometimeprior to the Secretary’s inspection, this opening had been covered withplanking and barricaded with portable guardrails by the generalcontractor (Tr. 132). In anticipation of using the hoist, respondent’semployees had removed most of the planking and moved the guardrails backfrom the shaft. At the time of the inspection, the shaft appeared asdepicted in Exhibit C-2. Boards had been removed between the hoist andcenter of the shaft, creating an opening measuring 9 feet by 22 incheswith a 15-foot fall potential to the concrete floor below (Tr. 28). Twoof respondent’s employees were working on the hoist near this opening(Tr. 31, 86-90). The testimony differs with respect to the distancethese employees were working from the opening. Compliance officerKatsock believed they were within \”a foot from the opening\” (Tr. 31).Compliance officer Boyd believed the distance was \”approximately threefeet\” (Tr. 143). George Clarke testified that neither he nor Poshkas,while working on the hoist, got any \”closer than five feet\” to the edge(Tr. 91).Respondent argues that the Secretary has failed to prove thatrespondent’s employees were exposed to a fall hazard, because \”noemployee was closer than about five or six feet from the shaft and eventhen was shielded from the opening by the hoist\” (Respondent’s brief p.11). Respondent’s factual assertions do not coincide with the credibleevidence. Both compliance officers testified at least one ofrespondent’s employees was working near the edge of the shaft (from oneto three feet) and this testimony is accepted as an accurate descriptionof the circumstances they observed. The evidence also fails to supportthat the hoist served as a barrier to employees working near the shaft.Exhibit C-2 clearly reveals substantial openings on either side of thehoist through which employees could fall while working in the area. Thestructure of the hoist provides no protection from falls through theseopenings.In any event, the Secretary is not required to prove actual exposure toa hazard to sustain her charges. The Review Commission in _Gilles &Cotting, Inc., _76 OSAHRC 30\/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD ?20,448 (No. 504, 1976), addressed this question and concluded \”that arule of access based on reasonable predictability is more likely tofurther the purposes of the Act than is a rule requiring proof of actualexposure.\” _Id._ at 2003. See also Otis Elevator Co., 78 OSAHRC 88\/E5, 6BNA OSHC 2048, 1978 CCH OSHD ? 23,135 (No. 16057, 1978); _DanielConstruction Co.,_ 82 OSAHRC 23\/A2, 10 BNA OSHC 1549, 1982 CCH OSHD ?26,027 (No. 16265, 1982); Zwicker Electric Co., 77 OSAHRC 214\/F1, 6 BNAOSHC 1268, 1977-78 CCH OSHD ? 21,817 (No. 12271, 1977). In the case atbar, the Secretary has satisfied the \”reasonable predictability test\”based upon the weight of the evidence.Respondent’s argument that it had no knowledge of the hazardousconditions at the jobsite is also rejected. These conditions were inplain view of respondent’s mechanic in charge, George Clarke, who hadthe authority to abate by either replacing the boards in the shaft,replacing the portable guardrails or requiring employees working nearthe edge to wear safety belts attached to a lifeline before attemptingto fix the hoist. Clarke’s failure to take measures to protect employeesfrom this fall hazard is imputed to respondent and constitutes aviolation of the cited standard. _Iowa Southern Utilities Co.,_ 77OSAHRC 32\/C10, 5 BNA OSHC 1138, 1977-78 CCH OSHD ? 21,612 (No. 9295,1977); _Georgia Electric Co._, 77 OSAHRC 30\/A2, 5 BNA OSHC 1112, 1977-78CCH OSHD ? 21,613 (No. 9339, 1977).The Secretary’s proposed penalties were not addressed in respondent’sposthearing brief and are considered reasonable and appropriate.The foregoing constitute findings of fact and conclusions of law inaccordance with Rule 52 of the Federal Rules of Civil Procedure._ORDER_It is hereby ORDERED:1. Serious Citation 1, Item 2, is affirmed with a penalty of $300.00assessed.2. Serious Citation 1, Item 3, is affirmed with a penalty of $600.00assessed.Dated this 7th day of May, 1990.EDWIN G. SALYERSJudge————————————————————————FOOTNOTES:[[*]]Commissioner Montoya did not participate in the deliberations onthis case or in the issuance of this decision.[[1]] The full text of the standard is as follows:? 1926.350 Gas welding and cutting.(a) \/Transporting, moving, and storing compressed gas cylinders.\/….(9) Compressed gas cylinders shall be secured in an upright position atall times except, if necessary, for short periods of time while thecylinders are actually being hoisted or carried.[[2]] In addition to the citation item at issue here, the Secretary alsoalleged, in item 3 of the citation, that Dover failed to comply withanother standard, 29 C.F.R. ? 1926.500(b)(1), by exposing its employeesto the hazard of a fall through an unguarded floor opening. Doverpetitioned for review of the judge’s decision affirming this item, butreview was not directed on his item, nor did the Commission’s subsequentbriefing order request briefs on the issues Dover sought to raise withrespect to item 3. Nevertheless, in its brief on review, Dover arguesthat the judge erred in finding that its employees were exposed to ahazard and that it knew or reasonably could have known of the existenceof the violative conditions at issue in item 3. The Secretary contendsthat the Commission should not entertain any issues relating to item 3.The Commission has authority to consider any issues raised in a casedirected for review. Hamilton Die Cast, Inc., 12 BNA OSHC 1797,1986-87CCH OSHD ? 27,576 (No. 83-308, 1986). At the same time, however, theCommission has discretion to limit the scope of its review. PennsylvaniaSteel Foundry & Machine Co., 12 BNA OSHC 2017, 2019 n.3, 1986-87 CCHOSHD ? 27,671, p. 36,063 n.3 (No. 78-638, 1986),\/aff’d, \/831 F.2d 1211(3d Cir. 1987). Dover’s arguments with respect to item 3 raiseessentially factual questions which Judge Salyers addressed in hisdecision. Accordingly, we decline to exercise our discretion to considerthose issues on review.[[3]] We reject the Secretary’s contention that our prior decisions in\/Austin Building Co.,\/ 8 BNA OSHC 2150, 1980) CCH OSHD ? 24,839 (No.77-3878, 1980) and \/Constructora Maza, Inc\/. 6 BNA OSHC 1208, 1977-78CCH OSHD ? 22,421 (No. 12434, 1977) require that we accept herinterpretation here. The issue in Austin Building was whether ?1926.350(a)(9) requires cylinders to be secured while they are in use.\/Constructora Maza\/ involved unsecured cylinders at various locations inthe worksite, some lying on the ground. Neither case dealt withcylinders being transported or in the process of being transported, andin neither case did the Commission’s decision address the exceptionclause at issue here.[[4]] We note that the Secretary alleged that the violation was seriousin nature under section 17 (k) of the Act, 29 U.S.C. ? 666(k), whichdefines a serious violation as one presenting \”a substantial probabilityof death or serious physical harm.\” A serious violation does not dependon the likelihood of an accident but only on the likely result should anaccident occur. \/Spancrete Northeast, Inc., \/15 BNA OSHC 1020, 1024,1991 CCH ? 29,313, p. 39,358 (No. 86-521, 1991) Dover does not contendthat the violation should be characterized as other than serious in theevent the Commission rejects its argument that a \/de minimis\/characterization is appropriate. In any event, the hazards described bythe compliance officer could easily result in serious injury of death.[[1]] Respondent was also charged with a violation of 29 C.F.R. ?1926.21(b)(2) (failure to instruct employees in recognition andavoidance of unsafe conditions), but this charge was withdrawn by theSecretary prior to trial (Tr. 6).[[2]] Unreviewed ALJ decisions have no precedential value. _LeoneConstruction Co., _76 OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD ?20,387 (No. 4090, 1976).”