“Docket No. 88-2642 SECRETARY OF LABOR,Complainant,v.DOVER ELEVATOR COMPANY,Respondent.OSHRC Docket No. 88-2642DECISIONBEFORE:\u00a0\u00a0\u00a0 FOULKE, Chairman; WISEMAN,Commissioner.BY THE COMMISSION:The primary issue in this case is whether an oxygen cylinderbelonging to Dover Elevator Company (\”Dover\”) was \”being hoisted orcarried\” within the meaning of 29 C.F.R. ? 1926.350(a)(9), which provides that suchcylinders must be secured \”except, if necessary, for short periods of time whilecylinders are actually being hoisted or carried\” (emphasis added).[[1]] Forthe reasons that follow, we conclude that Dover failed to establish that it satisfied theexception clause of the standard in the circumstances presented here. We further concludethat Dover knew, or with the exercise of reasonable diligence could have known, that thecylinder was not secured as required by the standard. Accordingly, we affirm the decisionof Administrative Law Judge Edwin G. Salyers finding that Dover violated the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-78 (\”the Act\”) by failing tocomply with the standard, as alleged in item 2 of the citation issued by theSecretary.[[2]] We further conclude that the violation is not de minimis innature.FACTSDover was the elevator subcontractor at alarge residential housing construction site in Jersey City, New Jersey. On July 7, 1988,the day the Secretary inspected the worksite, Dover’s employees Thomas Macchia and ahelper intended to install elevator equipment in one of the elevator shafts using a hoistmotor which had been positioned at the edge of the shaft opening at the first floor level,about 15 feet above the next lower level. When they discovered that the hoist did notoperate due to an electrical problem, they summoned George Clarke, Dover’s supervisorymechanic at the worksite. Clark was accompanied by Mike Poshkus, Dover’s elevatoradjuster. Poshkus, who was familiar with electrical circuits, attempted without success toget the hoist motor to work. Dover then closed down its work at that shaft and assignedMacchia to work at another building.In the meantime, an oxygen cylinder wasdelivered to the worksite. This cylinder was a replacement for another cylinder which hadbeen stolen, theft being a constant problem at the site. James, or \”Jay,\”Brannon, another elevator mechanic and a foreman, was returning to the site from a meetingwith the general contractor when he met the delivery truck. He took the oxygen cylinder,carried it to the area of the shaft opening, and laid it onto the edge of the floorthrough a window opening at approximately the same time that Clarke arrived on the floorto check the hoist. Macchia took the cylinder from Brannon, and Brannon then went back topark his car. Macchia set the cylinder upright on the floor but did not secure it in anyway. It was Dover’s intention to lower the cylinder by the hoist down to a shanty used forstorage in the basement area below. After it was determined that the hoist could not bemade to work, either Clarke or Macchia carried the cylinder down into the storage area.The evidence presented at the hearing demonstrated that Dover’s safety rules require thatgas cylinders be tied in an upright position when in storage: \”Welding gases shouldbe stored in upright, secured position with caps on. Oxygen and fuel gases should bestored separately.\”Compliance officers David Katsock and George Boyd arrived atthe worksite shortly after Brannon brought the gas cylinder onto the floor. AlthoughKatsock testified that the cylinder was left standing upright and unsecured for at leasthalf an hour, Clarke stated that it was carried down after about 15 minutes. Katsockstated that the hazard presented was that if the oxygen cylinder were displaced, it couldbe punctured or its cap could break off, causing oxygen to escape. The escaping oxygencould come into contact with oily rags that were in the area or could become ignitedthrough friction, causing an explosion and fire. If the valve broke off, the cylindercould either fall on an employee or become a projectile, propelled through the worksite byescaping gas.\u00a0ARGUMENTS OF THE PARTIESDover did not dispute before Judge Salvers that it left theoxygen cylinder unsecured. Dover contended that it came within the exception to thesecuring requirement of the standard because the cylinder was situated on the floor whereit was viewed by the compliance officers only for the \”brief\” period of timeduring which Dover’s employees were determining whether they would he able to lower thecylinder to the storage area by using the hoist, as they had intended, or whether theywould have to carry it down by hand. Thus, Dover argued that in the circumstances, therewas only a transitory and temporary hiatus in the movement of the cylinder, and that thecylinder, for all practical purposes, remained in a transit status.Dover also asserted that the Secretary failed to prove that itknew or should have known of the alleged violative conditions. While Dover conceded thatnormally the knowledge of supervisory employees is imputed to the employer, e.g., Dull-ParEngd. Form Co., 12 BNA OSHC 1962, 1965-66, 1986-87 CCH OSHD ? 27,651, p. 36,033 (No.82-928, 1986), it contended that it should not be held responsible for the actions ofBrannon and Clarke because of the temporary and \”unforeseeable\” nature of theconditions and because Brannon and Clarke were highly trained and experienced employeeswho could reasonably be expected to adhere to Dover’s safety rules. In Dover’s view, ithad taken appropriate measures to prevent the occurrence of the violation, and thecitation item should be vacated even if it had failed to comply with the terms of thestandard.Judge Salyers rejected Dover’s contentions. Essentially, heaccepted the Secretary’s argument that the exception clause of the standard literallyrequires that the cylinder be secured unless it is in actual physical motion. As did theSecretary, the judge relied on two Commission decisions finding employers in violation of? 1926.350(a)(9) for having unsecured cylinders, Austin Building Co., 8 BNA OSHC 2150,1980 CCH OSHD ? 24,839 (No. 77-3878, 1980) and Constructora Maza, Inc., 6 BNA OSHC 1208,1977-78 CCH OSHD ? 22,421 (No. 12434, 1977). While stating that he was\”sympathetic\” to Dover’s position. Judge Salyers concluded that the facts didnot come within the language of the exception clause:A literal reading of the standard reveals that \”cylinders shall be secured at alltimes … except … for short periods of time while cylinders are actually being hoistedor carried.\” 29 C.F.R. ? 1926.350(a)(9). (Emphasis supplied.) This language does notinclude an exception for the circumstances disclosed in the evidence. It is concluded thatthe Secretary’s position is in accord with the terms of the standard and is supported byCommission precedent.Although the judge observed that the conditions at the worksitewere within the plain view of supervisor Clarke, he did not address Dover’s contentionthat it could not have reasonably anticipated that the cylinder would be left unsecuredfor a period of time.The parties’ arguments on review before us largely parallel their arguments before thejudge. Dover asserts that to read the exception clause literally to apply only where acylinder is actually in physical motion would render the clause meaningless because acylinder obviously cannot be secured while it is moving. Therefore, Dover contends thatthe clause cannot be read totally literally. It also asserts that the clause mayreasonably be construed to apply in the circumstances presented here because Brannonbrought the cylinder into the work area expecting that it would be placed in the basementstorage area, and the cylinder was carried to the basement as soon as Dover determinedthat the hoist was inoperable. Thus, Dover contends that the unforeseen circumstance ofthe hoist motor breaking down prevented it from moving the cylinder without interruptionand that therefore it has satisfied the requirement of the exception clause permitting acylinder to be unsecured for a short period of time \”where necessary.\”Essentially, Dover contends that the exception clause of the standard excuses an employerfrom having to secure a cylinder in an upright position where the employer intends to movethe cylinder but its actual movement is briefly interrupted by circumstances beyond theemployer’s control.For the same reason, Dover reiterates its position that it hadtaken all reasonable measures to comply with the requirement of the standard. Dover doesnot dispute that both Clarke and Brannon knew that the cylinder had been left unsecuredbut contends that it had acted with due diligence in the circumstances here. In Dover’sview, to find it in violation would be tantamount to imposing strict liability. SeeNational Realty & 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 isde minimis in nature because there is no tangible likelihood of a hazard occurring in thecircumstances here. Pointing out that the standard by its terms does not necessarilyrequire a cylinder to be secured at all times, Dover contends that the standard itselfreflects a realization by the Secretary that there may be circumstances in which securinga cylinder is not essential for employee safety. Dover asserts that the need to repair thehoist and the brevity of the interruption in the cylinder’s movement Justify a finding ofde minimis.The Secretary disputes Dover’s contention that a cylinder can never be secured in anupright position while it is in motion. The Secretary observes that there are mechanicaldevices, such as a cradle, that would allow an employer normally to transport a cylinderwhile keeping it secured in an upright position. In the Secretary’s view, the exceptionclause allows a limited exemption from the standard’s requirement if for some reason itbecomes necessary to have the cylinder unsecured for a short period of time while such adevice is in use. For this reason, the Secretary argues that her interpretation limitingthe exception provision only to situations where cylinders are in actual physical motionis reasonable.The Secretary also contends that her interpretation isreasonable because 1) the Commission has accepted that interpretation in its decisions inAustin Building and Constructora Maza, 2) the plain wording of the standard supports theSecretary’s view, and 3) a narrow reading of the exception better effectuates theprotective purposes of the standard and the Act. The Secretary asserts that we must accepther interpretation under Martin v. OSHRC (CF&I Steel Corp.), 111 S.Ct. 1171 (1991)(the Secretary’s interpretations of regulations are entitled to deference whenreasonable). In any event, the Secretary further argues, in interruption of 30 minutesdoes not constitute a brief or momentary lapse in the movement of a cylinder even underDover’s view of the meaning of the exception clause, nor did Dover establish that it was\”necessary\” to leave the cylinder standing unsecured for this length of time.Regarding the question of whether Dover should be heldresponsible for the actions of its supervisory employees, the Secretary disputes Dover’sclaim that it had a safety rule with which its employees failed to comply. In theSecretary’s view, that claim is contradicted by Dover’s position that it was not requiredto secure the cylinder under the terms of the standard. Finally, the Secretary contendsthat a de minimis classification is inappropriate because the violation has a direct andtangible relationship to employee safety and health, and the hazard presented by anunsecured cylinder is substantial.\u00a0DISCUSSION AND ANALYSISWe reject the Secretary’s narrow and literal view that theexception clause requires a cylinder to be secured in an upright position whenever acylinder ceases to be in actual motion regardless how brief the interruption in themovement of the cylinder or the reason for the interruption. The Secretary’sinterpretation sets forth a rigid and inflexible rule that fails to reflect the variety ofcircumstances that may exist on a construction worksite or the realities of the workenvironment. While we do not dispute the Secretary’s contention that it cylinder beingtransported by a mechanical device can readily be secured as it is moved from one locationto another, the exception clause applies to cylinders that are being \”hoisted orcarried\” (emphasis added). This language plainly is broad enough to include acylinder that is being hand-carried by an employee, as in this case. An employee carryinga cylinder by hand may naturally be expected to pause briefly to rest or change his grip,for example. In our view, the standard cannot reasonably be read to require the employeeto secure the cylinder in an upright position when its movement is momentarily interruptedfor reasons of this nature. Indeed, under certain facts the Secretary’s literalinterpretation would be unreasonable even where a cylinder is being moved by a mechanicaldevice. The Secretary’s construction of the exception clause would require the cylinder tobe secured upright when employees, for instance, momentarily set the cylinder down simplyto attach or remove the lifting apparatus. While we recognize the broad remedial purposesof the Act, we agree with the observation of the Court of Appeals for the Eighth Circuitin H.S. Holtze Construction Co. v. Marshall, 627 F.2d 149, 151 (8th Cir. 1980) that theAct also implies \”some modicum of reasonableness and common sense.\” In our view,the Secretary’s strictly literal interpretation of the exception clause is unreasonable tothe extent that it can result in the imposition of abatement requirements that may not berealistic or practical in certain circumstances. As the court stated in Holtze,\”[t]here is a point at which the impracticality of the requirement voids itseffectiveness.\” Id.[[3]]Such circumstances, however, are not present in this case. Theburden is on the party claiming the benefit of an exception to prove that it comes withinthe exception, StanBest, Inc., 11 BNA OSHC 121-2, 1226. 1983-84 CCH OSHD ? 26,455, p.33,619 (No. 76-4355, 1983). We conclude that the evidence fails to establish that Doverhas satisfied the exception clause. Brannon carried the oxygen cylinder to the work areaso that it could be lowered into the storage facility by means of the hoist, and thecylinder was then taken to the storage area, again by hand, after the hoist motor wasdetermined to be inoperative. Since Dover intended to place the cylinder in storage byusing the hoist, the interruption in the movement of the cylinder clearly resulted fromthe need to repair the hoist motor. Accordingly, Dover has shown that the reason for theinterruption had a connection with the process of moving the cylinder; that is, Dover didnot simply leave the cylinder in an unsecured condition in order to engage in a totallyunrelated work activity. On the other hand, completion of any repair to the hoist, whilerelated to the overall operation of placing the cylinder into the storage area, was notessential for the movement of the cylinder. Furthermore, Brannon and Clarke allowed thecylinder to remain unsecured for 15 to 30 minutes while the hoist motor was being workedon, whereas the cylinder unquestionably could have been moved into the storage area at anytime. In our view, these circumstances fail to show a brief or momentary lapse in themovement of the cylinder or a necessity to leave the cylinder unsecured so as to bringDover within the scope of the exception clause.We also conclude that Dover knew or with the exercise ofreasonable diligence could have known of the existence of the violation. As previouslyindicated, Dover concedes that Brannon and Clarke were supervisory employees whoseknowledge and actions normally are imputed to their employer. The Secretary having made aprima facie showing of employer knowledge through Dover’s supervisory employees, theburden shifts to Dover to rebut the Secretary’s case by establishing that it could nothave prevented the violation. Specifically, Dover must establish that it had relevant workrules that it adequately communicated and effectively enforced. Consolidated FreightwaysCorp., 15 BNA OSHC 1317, 1991 CCH OSHD ? 29,500 (No. 86-531, 1991): H. E. Wiese, Inc., 10BNA OSHC 1499, 1505, 1982 CCH OSHD ? 25,985, p. 32,614 (No. 78-204, 1982), aff’d withoutpublished opinion, 705 F.2d 449 (5th Cir. 1983). Although there is some evidence thatDover will terminate employees who violate safety rules and that Dover’s union conductsperiodic safety inspections of its worksites, Dover resented no evidence to show that ittook any measures to monitor adherence to safety rules by supervisory employees. SeeRegina Constr. Co., 15 BNA OSHC 1044, 1051, 1991 CCH OSHD ? 29,354, p. 39,470 (No.87-1309, 1991) (employer’s burden to adduce evidence that it took action to discoverviolations of work rules). Furthermore, while Dover provides safety instruction to newemployees and conducts periodic seminars at which safety matters are discussed, Dover hasnot shown that it gives its employees any specific training on securing gas cylinders. Infact, there is no showing that Dover even has a safety rule that is equivalent to thecited standard. Its rule deals only with securing gas cylinders in storage and does notaddress the matter of securing cylinders during transportation or moving operations. SeeOrmet Corp., 14 BNA OSHC 2134, 2138-39, 1991 CCH OSHD ? 29,254, p. 39,203 (No. 85-531,1991) (work rule on which employer relies must parallel the requirements of the citedstandard). Accordingly, Dover has failed to show that it took sufficient steps to preventthe occurrence of the violation.Lastly, we find that the violation may not properly beclassified as de minimis in nature. A de minimis violation is one having no \”director immediate\” relationship to employee safety; normally, that classification islimited to situations in which the hazard is so trifling that an abatement order would notsignificantly promote the objectives of the Act. Super Excavators, Inc., 15 BNA OSHC 1313,1991 CCH OSHD ? 29,498 (No. 89-2253,1991); Pratt & Whitney Aircraft, 9 BNA OSHC 1653,1981 CCH OSHD ? 25,359 (No. 13401, 1981). Compliance officer Katsock testified withoutrebuttal that the unsecured cylinder presented a hazard of fire or explosion or thepossibility that the cylinder could become a projectile. Katsock’s testimony is consistentwith long-standing Commission precedent in which the Commission has recognized that thehazards ? 1926.350(a)(9) is intended to protect against are not insignificant. BeallConstr. Co., 1 BNA OSHC 1559, 1562, 1973-74 CCH OSHD ? 17,339, p. 21,879 (No. 557, 1974).aff’d, 507 F.2d 1041 (8th Cir. 1974); Bechtel Power Corp., 4 BNA OSHC 1005, 1009, 1975-76CCH OSHD ? 20,503, p. 24,501 (No. 5064, 1976), aff’d. 548 F.2d 249 (8th Cir. 1977).Furthermore, Dover’s motive for leaving the cylinder unsecured–the need to work on thehoist–does not have any bearing on the hazard. The relatively short duration of theviolation also does not justify finding the violation de minimis. The cylinder was in anadmittedly cluttered area, about 12 feet from the shaft opening where the employees wereworking. Clearly, the movement of the employees in the cluttered area could have causedthe cylinder to tip over, thus creating a hazard. The facts fail to show either a remotepossibility of an accident or a remote or non-existent likelihood of injury should anaccident occur.[[4]]However, although Dover left the Cylinder unsecured for morethan a brief or momentary period, the length of time it kept the cylinder in the work areabefore taking it to the storage area was relatively short. Therefore, the likelihood of anaccident occurring is reduced. Accordingly, we find) the gravity of the violation, whilenot insignificant, to be low. Furthermore, Dover has taken some measures to implement asafety program, and the circumstances of the violation itself demonstrate that Dover actedin good faith. Considering the criteria 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 $300 asproposed by the Secretary, is appropriate.Accordingly, item 2 of the citation alleging a violation of 29C.F.R. ? 1926.350(a)(9) is affirmed and a penalty of $100 is assessed therefor.Edwin G. Foulke, Jr.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0ChairmanDonald G. WisemanCommissionerDated: November 19, 1991SECRETARY OF LABOR,Complainant,v.DOVER ELEVATOR COMPANY,Respondent.OSHRC Docket No. 88-2642APPEARANCES: Alan Kammerman, Esquire, Office of the Solicitor, U. S.Department of Labor, 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 ORDERSALYERS, Judge: On July 7, 1988, respondent was the elevatorsubcontractor on a multi-employer work site located at the Foot of Chapel Avenue in JerseyCity, New Jersey. This complex consisted of townhouses and multi-story condominiums underconstruction in an area the size of \”ten football fields\” (Tr. 57). Complianceofficers David Katsock and George Boyd of the Occupational Safety and HealthAdministration conducted an inspection of these premises on that date under the provisionsof the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.). Atapproximately 1:00 p.m., they observed a work site on the first floor of a multi-storycomplex where respondent’s employees were moving in materials and supplies in preparationfor the installation of an elevator. They noticed two employees of respondent working nearan elevator shaft which was not fully covered or protected by guardrails and onefree-standing oxygen cylinder on the first floor which had not been secured fromdisplacement (Tr. 11-15). As a result of this inspection, on October 20, 1988, respondentwas charged with the following violations:[[1]]2 29 CFR 1926.350(a)(9): Compressed gas cylinders were not secured in an upright position:(a) Ring Condo 1-2 – Elevator shaft area – South end – One (1)oxygen cylinder 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 standard railings andtoeboards or covers as specified in paragraph (f) of this section:(a) Ring condo 1-2 – Elevator shaft area – South end – Flooropening measuring 22 inches x 9 ft with a fall of 15 ft was not guarded by standardrailings 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 seriousdispute. On the day of the inspection, respondent was beginning its work activities at theinspection site. On the morning of that day, James Brannon, an elevator mechanic employedby respondent, had noted the shaft on the first floor was covered by planks and protectedby portable guardrails which had been placed by the general contractor (Tr. 132). Afterlunch a Dover crew arrived at the scene to deliver materials (including the oxygencylinder) and store these materials in respondent’s shanty located in the basement of thebuilding (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 15 feet below.Respondent’s crew removed some planking covering the shaft and moved the portableguardrails back from the edge in anticipation of using the hoist. George Clarke,respondent’s mechanic in charge, testified the hatch or shaft must be open to use thehoist and that its normal procedure to clear the area of covers and guardrails duringhoisting operations (Tr. 86). This was especially true in this instance since the pitwork, as large as the elevator structure, was to be moved into the shaft (Tr. 83). Beforethe hoisting began, it was discovered that the hoist was not working properly and Clarkeand Mike Poshkas, an elevator adjuster, were called to the site from an adjacent buildingto effectuate repairs (Tr. 78). At this point, respondent’s operations in regard to movingmaterials were suspended until the hoist could be fixed. Shortly before it was discoveredthe hoist was inoperable, Brannon had received delivery of an oxygen cylinder, carried itto the site and placed it on the first floor near the shaft for hoisting into storage inthe basement (Tr. 75). After placing the cylinder, Brannon was parking his car when theOSHA inspectors arrived on the scene (Tr. 111).At the time of their arrival, the inspectors noted andphotographed the unsecured oxygen cylinder (Ex. C-1). They also photographed the unguardedfloor opening (Ex. C-2) and observed respondent’s employees working in close proximity tothis opening while attempting to repair the hoist (Tr. 31). Respondent does not disputethe fact that the cylinder was not secured while on the first floor awaiting storage inthe basement. Also, respondent does not dispute that its employees were working around thefloor opening which was not fully covered or protected by guardrails.THE 29 C.F.R. ? 1926.350(a)(9) CHARGEThe cited standard deals with \”[t]ransporting, movingand storing compressed gas cylinders\” and provides \”[c]ompressed gascylinders shall be secured in an upright position at all times except, if necessary, forshort periods of time while cylinders are actually being hoisted or carried.\”The evidence reflects that the cylinder had just been broughtinto the building as the inspectors arrived. Had the hoist been operative, the cylinderwould have been immediately lowered into the basement for storage. However, because thehoist was inoperative, the cylinder was allowed to stay where it had been placed for ashort period of time until 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 issome conflict in the testimony concerning the period of time the cylinder sat on the firstfloor before being carried into the basement. Compliance officer Katsock testified thecylinder remained on the first floor for about 30 minutes (Tr. 19). George Clarketestified the cylinder was on the first floor for about 15 minutes until it was determinedthat the hoist could not be repaired, at which point it was immediately carried into thebasement (Tr. 98-99).Respondent contends the cylinder was in transit to storagewhich was interrupted by a fortuitous event (the breakdown of the hoist) and thatrespondent’s action in not securing the cylinder for this brief period was reasonableunder the unforeseeable circumstances encountered by respondent. It cites two ALJdecisions [[2]] in support of this position.In Secretary of Labor v. M. J. Lee Construction Co., 77OSAHRC 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 to the vicinity of apickup truck \”was in effect in the process of being ‘carried’ from the car to thepickup trick, although for a short time it was laying on the ground and not secured.\”He concluded the cylinder was in transit and, therefore, fell within the exceptionprovided in the standard for short time periods when the cylinder is being carried intostorage.Respondent also cites Secretary v. Baystone Construction,Inc., 74 OSAHRC 67\/C12, 2 BNA OSHC 3166, 1974-75 CCH OSHD ? 18,505 (No. 3772, 1974),in which Judge Brady reached a similar conclusion that cylinders briefly unsecured whilein transit did not contravene the standard.The Secretary disagrees with respondent’s theory that thecylinder in question was \”in transit\” while it remained on the first floor sinceit was neither being \”hoisted or carried\” at the time. The Secretary cites Constructora,Maza, Inc., 77 OSAHRC 213\/B3, 6 BNA OSHC 1209, 1977-78 CCH OSHD ? 22,421 (No. 12434,1977); and Austin Building Co., 80 OSAHRC 98\/E1, 8 BNA OSHC 2151, 1980 CCH OSHC ?24,839 (No. 77-3878, 1980), in which the Review Commission takes a strict view thatcylinders must be secured at all times unless they are actually in the process ofbeing hoisted or carried. She contends, under the circumstances of this case, the standardrequired the cylinder be secured during the period it remained on the first floor andurges that this unsecured cylinder presented a potential for being knocked over andreleasing the pressure resulting in a fire hazard or conversion of the cylinder into aflying object. Since employees were in the area near the cylinder, they were exposed tothis potential hazard. The area in the vicinity of the cylinder was cluttered with othermaterials thereby intensifying the possibility that it might be tipped over by employeestraversing the area (Ex. C-1; Tr. 144). The Secretary maintains that the interruption ofthe cylinder’s delivery into storage resulting from the inoperative hoist did not relieverespondent from securing the cylinder while it remained on the first floor and constituteda violation of the cited standard.The respective positions of the parties have been considered inlight of the evidence and existing precedent. While this court is sympathetic torespondent’s position, it is concluded that respondent’s failure to secure the cylinderfor a period of 15 to 30 minutes contravened the standard. A literal reading of thestandard reveals that \”cylinders shall be secured at all times . . .except . . . for short periods of time while cylinders are actually beinghoisted or carried \” 29 C.F.R. ? 1926.350(a)(9). (Emphasis supplied.) Thislanguage does not include an exception for the circumstances disclosed in the evidence. Itis concluded the Secretary’s position is in accord with the terms of the standard and issupported by Commission precedent.\u00a0The 29 C.F.R. ? 1926.500 (b) (1) CHARGEThere is little dispute concerning the sequence of events thatoccurred with respect to the floor opening in the hoistway (shaft). Sometime prior to theSecretary’s inspection, this opening had been covered with planking and barricaded withportable guardrails by the general contractor (Tr. 132). In anticipation of using thehoist, respondent’s employees had removed most of the planking and moved the guardrailsback from the shaft. At the time of the inspection, the shaft appeared as depicted inExhibit C-2. Boards had been removed between the hoist and center of the shaft, creatingan opening measuring 9 feet by 22 inches with a 15-foot fall potential to the concretefloor below (Tr. 28). Two of respondent’s employees were working on the hoist near thisopening (Tr. 31, 86-90). The testimony differs with respect to the distance theseemployees were working from the opening. Compliance officer Katsock believed they werewithin \”a foot from the opening\” (Tr. 31). Compliance officer Boyd believed thedistance was \”approximately three feet\” (Tr. 143). George Clarke testified thatneither he nor Poshkas, while working on the hoist, got any \”closer than fivefeet\” to the edge (Tr. 91).Respondent argues that the Secretary has failed to prove thatrespondent’s employees were exposed to a fall hazard, because \”no employee was closerthan about five or six feet from the shaft and even then was shielded from the opening bythe hoist\” (Respondent’s brief p. 11). Respondent’s factual assertions do notcoincide with the credible evidence. Both compliance officers testified at least one ofrespondent’s employees was working near the edge of the shaft (from one to three feet) andthis testimony is accepted as an accurate description of the circumstances they observed.The evidence also fails to support that the hoist served as a barrier to employees workingnear the shaft. Exhibit C-2 clearly reveals substantial openings on either side of thehoist through which employees could fall while working in the area. The structure of thehoist provides no protection from falls through these openings.In any event, the Secretary is not required to prove actualexposure to a 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 a rule of access based onreasonable predictability is more likely to further the purposes of the Act than is a rulerequiring proof of actual exposure.\” Id. at 2003. See also Otis Elevator Co.,78 OSAHRC 88\/E5, 6 BNA 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 BNA OSHC 1268, 1977-78 CCH OSHD ?21,817 (No. 12271, 1977). In the case at bar, 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 in plain view ofrespondent’s mechanic in charge, George Clarke, who had the authority to abate by eitherreplacing the boards in the shaft, replacing the portable guardrails or requiringemployees working near the edge to wear safety belts attached to a lifeline beforeattempting to fix the hoist. Clarke’s failure to take measures to protect employees fromthis fall hazard is imputed to respondent and constitutes a violation of the citedstandard. Iowa Southern Utilities Co., 77 OSAHRC 32\/C10, 5 BNA OSHC 1138, 1977-78CCH OSHD ? 21,612 (No. 9295, 1977); Georgia Electric Co., 77 OSAHRC 30\/A2, 5 BNAOSHC 1112, 1977-78 CCH OSHD ? 21,613 (No. 9339, 1977).The Secretary’s proposed penalties were not addressed inrespondent’s posthearing brief and are considered reasonable and appropriate.The foregoing constitute findings of fact and conclusions of law in accordance with Rule52 of the Federal Rules of Civil Procedure.ORDERIt is hereby ORDERED:1. Serious Citation 1, Item 2, is affirmed with a penalty of$300.00 assessed.2. Serious Citation 1, Item 3, is affirmed with a penalty of$600.00 assessed.Dated this 7th day of May, 1990.EDWIN G. SALYERSJudgeFOOTNOTES:[[*]]Commissioner Montoya did not participate in the deliberations on this case or in theissuance 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 at all times except,if necessary, for short periods of time while the cylinders are actually being hoisted orcarried.[[2]] In addition to the citation item at issue here, the Secretary also alleged, in item3 of the citation, that Dover failed to comply with another standard, 29 C.F.R. ?1926.500(b)(1), by exposing its employees to the hazard of a fall through an unguardedfloor opening. Dover petitioned for review of the judge’s decision affirming this item,but review was not directed on his item, nor did the Commission’s subsequent briefingorder request briefs on the issues Dover sought to raise with respect to item 3.Nevertheless, in its brief on review, Dover argues that the judge erred in finding thatits employees were exposed to a hazard and that it knew or reasonably could have known ofthe existence of the violative conditions at issue in item 3. The Secretary contends thatthe Commission should not entertain any issues relating to item 3.The Commission has authority to consider any issues raised in acase directed for review. Hamilton Die Cast, Inc., 12 BNA OSHC 1797,1986-87 CCH OSHD ?27,576 (No. 83-308, 1986). At the same time, however, the Commission has discretion tolimit the scope of its review. Pennsylvania Steel Foundry & Machine Co., 12 BNA OSHC2017, 2019 n.3, 1986-87 CCH OSHD ? 27,671, p. 36,063 n.3 (No. 78-638, 1986), aff’d, 831F.2d 1211 (3d Cir. 1987). Dover’s arguments with respect to item 3 raise essentiallyfactual questions which Judge Salyers addressed in his decision. Accordingly, we declineto exercise our discretion to consider those issues on review.[[3]] We reject the Secretary’s contention that our priordecisions 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, 1977-78 CCH OSHD ?22,421 (No. 12434, 1977) require that we accept her interpretation here. The issue inAustin Building was whether ? 1926.350(a)(9) requires cylinders to be secured while theyare in use. Constructora Maza involved unsecured cylinders at various locationsin the worksite, some lying on the ground. Neither case dealt with cylinders beingtransported or in the process of being transported, and in neither case did theCommission’s decision address the exception clause at issue here.[[4]] We note that the Secretary alleged that the violation wasserious in nature under section 17 (k) of the Act, 29 U.S.C. ? 666(k), which defines aserious violation as one presenting \”a substantial probability of death or seriousphysical harm.\” A serious violation does not depend on the likelihood of an accidentbut only on the likely result should an accident occur. Spancrete Northeast, Inc., 15BNA OSHC 1020, 1024, 1991 CCH ? 29,313, p. 39,358 (No. 86-521, 1991) Dover does notcontend that the violation should be characterized as other than serious in the event theCommission rejects its argument that a de minimis characterization isappropriate. In any event, the hazards described by the compliance officer could easilyresult 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 and avoidance of unsafeconditions), but this charge was withdrawn by the Secretary 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).”