“*SECRETARY OF LABOR, Complainant,v.FARRENS TREE SURGEONS, INC., Respondent.**OSHRC Docket No. 90-998**DECISION*Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:Farrens Tree Surgeons, Inc. (\”Farrens\”) was issued a citation alleging aserious violation of the general industry personal protective equipmentstandard at 29 C.F.R. ? 1910.132(a)[[1]] because its employees were notwearing brightly colored vests and hard hats while placing warning conesand signs on or near a highway. At issue is whether Review CommissionAdministrative Law Judge Edwin G. Salyers erred in concluding that theSecretary had met her burden of proving a violation.*Background*The parties agreed to submit this case for decision based anstipulations, instead of a hearing, in accordance with commission Rule61, 29 C.F.R. ? 2200.61.[[2]] The \”Factual Stipulations\” consist intheir entirety of the following:A. Respondent is covered by the provisions of the [Occupational Safetyand Health] Act [of 1970, 29 U.S.C ? 651-78 (\”the Act\”)].B. Respondent’s principal place of business is at Jacksonville, Florida,where it was engaged in tree trimming at all times pertinent to thealleged violations.C. On January 26, 1990, at about 7:55 a.m., respondent’s foreman and twoether employees were preparing to clear brush underneath power[]linesadjacent to Davis Academy Road in Rutledge, Georgia.D. Neither the foreman, who was placing warning cones along the roadsideof a public highway, nor the other employees were wearing brightlycolored vests nor hard hats.E. Said employees were immediately adjacent to a two lane public highwaywhich had a 55 mph speed limit and which was traveled by motor vehicles.F. One employee was struck by a moving automobile while placing orangecones and \”Caution Men Working\” signs[,] in the eastbound lane along thelength of the company truck which had been used to transport theemployees to the worksite and was parked along the road.G. The driver of the automobile was blinded by the rising sunlight anddid not see the employee placing the cones.H. Under the sunlight conditions which existed, wearing brightly coloredvests would not have increased visibility to eastbound drivers.*Judge’s Decision*In his decision, the judge stated:At the outset it is important to note that the submission of a case onstipulated facts under Commission Rule 61 is not without some peril to aparty having the burden of proof on particular issues.After noting that the record was \”somewhat scant on detail,\” the judgeconcluded that the stipulated facts quoted above, \”together withreasonable inferences to be drawn therefrom,\” are sufficient to provethat \”[a] reasonable person under these circumstances would take someprecautions to insure that this hazard [contact with vehicles travelingat high speed] was addressed by requiring the use of brightly coloredvests which might avert an accident and hard[]hats to minimize headinjuries in the event an accident did occur.\” He therefore found thatthe Secretary had proven a violation of section 1910.132(a). The judgeaffirmed the serious citation and assessed the proposed penalty of $490.*Discussion*The Secretary has the burden of proving her case by a preponderance ofthe evidence. E.g., Regina Constr. Co. 15 BNA OSHC 1044, 1046, 1991 CCHOSHD ? 29,354, p. 39,467 (No. 87-1309, 1991); Astra PharmaceuticalProds., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ? 25,578, pp. 31,899-900(No. 78-6247, 1981), aff’d in pertinent part, 681 F.2d 69 (1st Cir.1982). The judge concluded that burden here, relying on Commissiondecisions holding that, in the absence of evidence of actual knowledgeof the hazard the Secretary can prove a violation of section 1910.132(a)by showing that a reasonable person familiar with the circumstancessurrounding the hazardous condition, including any facts unique to theparticular industry, would recognize a hazard warranting the use ofpersonal protective equipment. E.g., Amour Food Co., 14 BNA OSHC 1817,1820, 1990 CCH OSHD ? 29,088, p. 38,881 (No. 86-247, 1990); GeneralMotor Corp., GM Parts Div., 11 BNA OSHC 2062, 2065, 1984-85 CCH OSHD ?26,961, p. 34,611 (No. 78-1443, 1984), aff’d, 764 F.2d 32 (1st Cir.1985). The majority of circuit courts have agreed with the Commissionthat the reasonable person test is appropriate for section 1910.132(a),as well as the general personal protective equipment standard for theconstruction industry at 29 C.F.R. ? 1926.28(a). E.g., SpancreteNortheast, Inc. v. OSHRC, 905 F.2d 589, 593 (2d Cir. 1990); Voegele Co.v. OSHRC, 625 F.2d 1075, 1078-79 (3d Cir. 1980); Ray Evers Welding Co.v. OSHRC, 625 F.2d 726, 731-32 (6th Cir. 1980); Bristol Steel & IronWorks, Inc. v. OSHRC, 601 F.2d 717, 722-23 (4th Cir. 1979). TheCommission and courts have found industry practice to be relevant to thereasonable person test but not dispositive, because to consider industrypractice as determinative would permit an entire industry to avoidliability by maintaining inadequate safety. E.g., Voegele Co., 7 BNAOSHC 1713, 1716, 1979 CCH OSHD ? 23,860, p. 28,940 (No. 76-2199, 1979),aff’d, 625 F.2d at 1078-79; Cape & Vineyard Div., New Bedford Gas &Edison Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975).However, this case can be appealed to the United States Court of Appealsfor the Eleventh Circuit because Farrens has its principal office inFlorida, and the site of the alleged violation was Georgia. See section11(a) and (b) of the Act, 29 U.S.C. ? 660(a) and (b). The EleventhCircuit has held that to prove a violation of such generally wordedpersonal protective equipment standards as section 1910.132(a), unlessshe has proven actual knowledge, the Secretary must show that theprotective equipment sought by the Secretary is what the employer’sindustry would deem appropriate under the circumstances. Florida Machine& Foundry, Inc. v. OSHRC, 693 F.2d 119, 120 (11th Cir. 1982). In thatcase, where the standard at issue was 29 C.F.R. ? 1910.133(a)(1); thegeneral standard for the eyes and face protective equipment noted thatthe Fifth Circuit precedent concerning sections 1910.132(a) and1926.28(a), e.g., S & H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d1273, 1275 (5th Cir. 1981); Cotter & Co. v. OSHRC, 598 F.2d 911, 913-14(5th Cir. 1979); B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1370-72(5th Cir. 1978), was the law of the Eleventh Circuit as well, underBonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (enbanc). Id.Where a case can be appealed to the Eleventh Circuit and an allegedviolation of a general personal protective equipment standard is atissue, the Commission has vacated a citation item, alleging a violationof section 1926.28(a), based on the Secretary’s failure to proveindustry practice or actual knowledge. Williams Enterp. of Georgia Inc.,12 BNA OSHC 2097, 2101, 1986-87 CCH OSHD ? 27,692, p. 36,151 (No.79-4618, 1986), rev’d on other grounds, 832 F.2d 567 (11th Cir.1987).(11h Cir. 1987).In light of the Secretary’s failure to introduce into the record in thiscase any evidence as to whether Farrens was following industry custom innot providing warning vests and hard hats, or whether Farrens had actualknowledge of the hazard, we must vacate the citation alleging aviolation of section 1910.132(a) on this basis, without furtheranalysis.[[3]] In doing so, we are compelled to reiterate the warningissued by the judge in his decision: when the Secretary, who has theburden of showing that Farrens committed a violation by a preponderanceof the evidence, submits her case on a stipulated record underCommission Rule 61, she does so \”not without some peril.\” As the lastsentence of Commission Rule 61 cautions, the burden of proof is notaltered where a case is stipulated.*Order*For the reasons stated above, we conclude that the Secretary has not mether burden of proving that Farrens violated section 1910.132(a), and wevacate the citation.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: July 28, 1992————————————————————————MONTOYA, Commissioner, concurring in part and dissenting in part:As a Commissioner charged with adjudicating cases under the OccupationalSafety and Health Act of 1970, I favor the \”reasonable person withknowledge of the industry\” test, as adopted by the Commission and themajority of the circuit courts for determining employer knowledge whenthe violation involves a generally-worded personal protective equipmentstandard such as section 1910.132(a), in contrast to the industrypractice test, where the record shows no actual knowledge. Inparticular, I find that, as noted by the majority, industry practice isrelevant to the reasonable person test but not dispositive, because toconsider industry practice as determinative would permit an entireindustry to avoid liability by maintaining inadequate safety protection.Hence, I would prefer to affirm the judge’s holding that, as Farrens’employees were required to work along a well-traveled 55 m.p.h. roadway,a reasonable person with knowledge of the industry would have recognizedthe hazard and provided brightly colored vests and hard hats. I wouldalso take administrative notice of ANSI D6.1-1971, Manual on UniformTraffic Control Devices for Streets and Highways, section 6E-3, which isincorporated by reference in ANSI Z133.1-1979, Safety Requirements forPruning, Trimming, Repairing, Maintaining, and Removing Trees, and forCutting Brush, section 3.4.2. These standards, which include trafficcontrol measures, provide that \”[t]he use of an orange vest, and\/or anorange cap shall be required for flagmen.\”However, I recognize that the case law of the Eleventh Circuit, to whichthis can be appealed, currently requires the Secretary to prove eitherthat the employer actually knew of the hazard or that the employer’sindustry recognized the particular equipment to be appropriate. Unlikethe majority, I would now remand this case with instructions that thejudge apply Eleventh Circuit precedent to these stipulated facts. Iwould instruct the judge to consider the ANSI standards cited above onthe issue of employer knowledge, specifically the provision requiring\”use of an orange vest, and\/or an orange cap.\” Cf. Ed Taylor Constr. Co.v. OSHRC, 938 F.2d 1265, 1272 (11th Cir. 1991) (employer was chargedwith knowledge of a hazard based upon the publication of an OSHAstandard which addressed the hazard).Velma Montoya CommissionerDated: July 28, 1992__________________________________________________________________________________________*SECRETARY OF LABOR, Complainant, V.FARRENS TREE SURGEONS, INC., Respondent.**Docket No. 90-998**DECISION AND ORDER*SALYERS, Judge: On January 26, 1990, respondent’s, employees werepreparing to clear brush underneath powerlines adjacent to Davis AcademyRoad in Rutledge, Georgia. While engaged in this operation one ofrespondent’s employees was struck and killed by an automobile. TheSecretary of Labor (Secretary) conducted a fatality inspection of thisincident under the provisions of the Occupational Safety and Health Actof 1970 (29 U.S.C. ? 651, et. seq.) and on March 1, 1990, issued thefollowing serious citation to respondent:29 C.F.R. ? 1910.132(a): Protective equipment was not used whennecessary whenever hazards capable of causing injury and impairment wereencountered:(a) Davis Academy Road – Employees were not wearing warning vests whileputting out warning signs and orange cones on and near the road. On orabout January 26, 1990.(b) Davis Academy Road – Employees were not wearing hard hats whileputting out warning signs and orange cones on and near the road. On orabout January 26, 1990.In lieu of a formal hearing in this matter, the parties have filed ajoint stipulation of facts for disposition under Review Commission Rule2200.61[[1]]. The stipulation of facts (J-15) provides:A. Respondent is covered by the provisions of the Act.B. Respondent’s principal place of business is at Jacksonville, Florida,where it was engaged in tree trimming at all times pertinent to thealleged violations.C. On January 26, 1990, at about 7:55 a.m., respondent’s foreman and twoother employees were preparing to clear brush underneath powerlinesadjacent to Davis Academy Road in Rutledge, Georgia.D. Neither the foreman, who was placing warning cones along the roadsideof a public highway, nor the other employees were wearing brightlycolored vests nor hard hats.E. Said employees were immediately adjacent to a two lane public highwaywhich had a 55 mph speed limit and which was traveled by motor vehicles.F. One employee was struck by a moving automobile while placing orangecones, and \”Caution Men Working\” signs in the eastbound lane along thelength of the company truck which had been used to transport theemployees to the worksite and was parked along the road.G. The driver of the automobile was blinded by the rising sunlight anddid not see the employee placing the cones.H. Under the sunlight conditions which existed, wearing brightly coloredvests would not have increased visibility to eastbound drivers.To prove a violation of the cited standard, the Secretary must establishby a preponderance of the evidence that \”(1) the cited standard applies,(2) there was a failure to comply with the cited standard, (3) employeeshad access to the violative condition; and (4) the cited employer eitherknew or could have known of the condition with the exercise ofreasonable diligence.\” _Astra Pharmaceutical Products, Inc._, 81 OSAHRC79\/D9, 9 BNA OSHC 2126, 2129, 1981 CCH OSHD ? 25,578 (No. 78-6247, 1981).In this case, the Secretary cites under 29 C.F.P. ? 1910 the so-calledGeneral Industry standards. This group of standards has application toall covered employers unless the specific working conditions in aparticular case are more appropriately cited under the construction,maritime and longshoring or agricultural standards. _Dravo Corp. v.OSHRC_, 613 F.2d 1227 (3rd Cir. 1980). The Secretary does not attempt toexplain in her brief why respondent was cited under ? 1910.132(a) asopposed to citation under construction standards contained in ?1926.28(a) or ? 1926.201(a). This Court surmises, however, that thiscourse was chosen as a result of the Review Commission’s decision in_Consumers Power Co._, 77 OSAHC 73\/E8 55 BNA OSHC 1423, 1977 CCH OSHD ?21,786 (No. 11107, 1977), in which it was held that employees who wereengaged in tree trimming operations were not engaged in \”construction.\”The Secretary is free to cite under a general industry standard eventhough other standards might also apply, provided the standard chosen bythe Secretary adequately addresses the hazard complained of by theSecretary and provides to the cited employer sufficient notice of whatis required for compliance.In this case the Secretary cites under 29 C.F.R. ? 1910.132(a), whichconcerns personal protective clothing and provides:(a) _Application_. Protective equipment, including personal protectiveequipment for eyes, face, head and extremities, protective clothing,respiratory devices, and protective shields and barriers, shall beprovided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact.Respondent argues in its brief that the cited standard is limited inscope \”to protecting against physical injury from absorption, inhalationor physical contact\” and, therefore, does not apply to the operationsconducted by respondent at the time of the accident (Respondent’s Brief,p. 3). Respondent’s interpretation ignores the basic thrust of thestandard, which requires that \”protective equipment…shall be provided,used and maintained … whenever it is necessary by reason of hazards ofprocesses.\” Respondent’s focus on the balance of the standard whichrecites \”or mechanical irritants encountered in a manner capable ofcausing injury or impairment in the function of any part of the bodythrough absorption, inhalation or physical contact\” (emphasis added) ismisdirected. The latter phrase in written in the disjunctive andsupplements but does not supersede the basic requirement to useprotective equipment and\/or clothing \”whenever it is necessary by reasonof hazards of processes.\” This court concludes that ? 132(a) can beapplied in this case provided, of course, the facts warrant its application.The basis upon which the cited standard can be applied was set forth bythe Review Commission in Lukens Steel Company 81 OSAHRC 96\/A2, 10 BNAOSHC 1115, 1981 CCH OSHD ? 25,742 (No. 76-1053, 1981):(1) The broad personal protective equipment standard at section1910.132(a) applies to the facts of a case if a reasonable personfamiliar with the the circumstances, including facts unique to anindustry, would recognize a hazardous condition requiring the use ofpersonal protective equipment. _See_,_e.g._, _Ryder Truck Lines, Inc. v.Brennan_, _supra_; _Tube-Lok Products_, 9 BNA OSHC 1369, 1981 CCH OSHD ?25,235 (No. 16200, 1981); _General Electric Co._, 80 OSAHRC 9\/B9, 7 BNAOSHC 2183, 1980 CCH OSHD ? 24,268 (No. 15037, 1980); _Owens CorningFiberglass Corp._, 79 OSAHRC 26\/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ?23,509 (No. 76-4990, 1979) _appeal filed_, No. 79-2516 (5th Cir. June26, 1979). This objective \”reasonable person\” test satisfies the dueprocess requirement that a law must be sufficiently clear to givepersons of ordinary intelligence a reasonable opportunity to know whatis prohibited or so that they may act accordingly. _See_ _S & H Riggers& Erectors, Inc._, 79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1263 n. 11, 1979CCH OSHD ? 23,480 at p. 28,436 n. 11 (No. 15855, 1979), _appealdocketed_, No. 79-2358 (5th Cir. June 7, 1979), _citing Grayned v. Cityof Rockford_, 408 U.S. 104, 108 (1972). To determine whether thestandard provides fair notice, the Commission considers the standard inlight of the specific facts of the case. It does not look exclusively atthe text of the standard. _See_ _Brennan v. OSHRC & Santa Fe TrailTransportation Co._, 505 F.2d 869 [2 OSHC 1274] (10th Cir. 1974);_Lombard Brothers, Inc._, 77 OSAHRC 155\/B2, 5 BNA OSHC 1716, 1977-78 CCHOSHD ? 22,051 (No. 13164, 1977). If the \”reasonable person\” test issatisfied on the facts, the standard is not impermissibly vague despiteits broad wording. _Id._ at 1123.At the outset it is important to note that the submission of a case onstipulated facts under Commission Rule 61 is not without some peril to aparty having the burden of proof on particular issues. The Rulespecifically provides that \”The submission of a case under this ruledoes not alter the burden of proof, the requirements otherwiseapplicable with respect to adducing proof, or the effect of failure ofproof.\” It is incumbent upon a party making such a submission to insurethat the stipulation contains sufficient factual allegations to sustainits position on each issue, including facts which relate to any possibledefenses which may apply. The Court can, of course, draw reasonableinferences from the stipulated facts.Although somewhat scant on detail, this Court concludes that thestipulated facts in this case, together with reasonable inferences to bedrawn therefrom, are sufficient to sustain the Secretary’s positionunder the \”reasonable person\” test. The facts establish that employeesof respondent were required to place cones and signs on and adjacent toa highway having a 55 m.p.h. speed limit which was regularly traveled bymotor vehicles. This situation exposed there employees to the hazard ofbeing struck by vehicles driving at high rates of speed with theresulting potential for serious injury or death. A reasonable personunder these circumstances would take some precautions to insure thatthis hazard was addressed by requiring the use of brightly colored vestswhich might avert an accident and hardhats to minimize head injuries inthe event an accident did occur.The Secretary has established that the cited standard has application tothe facts of this case; that the respondent’s employees did not wearvests and hardhats while working in a zone of danger and that theseemployees had access to the hazardous condition. The Secretary has alsoestablished that respondent corporation had the requisite knowledge ofthe hazardous condition. The stipulated facts reflect that the work ofplacing the cones and signs on the highway was done under the directionof respondent’s foreman. As a general rule, the actions and knowledge ofsupervisory employees are imputed to their corporate employer and theemployer is responsible for violations created or condoned by thesupervisor. _Structural Steel Erectors, d\/b\/a Pecosteel – Arizona._, 75OSAHRC 15\/141, 2 BNA OSHC 1506 1975 CCH OSHD ? 19,223 (No. 1930, 1975),_Dun-Par Engineered Form Co._, 86 OSAHRC 40\/A8, 12 BNA OSHC 1962, 1986CCH OSHD ? 27,651 (No. 82-928, 1986). A corporate employer may overcomethe knowledge presumption by proving (1) it had established work rulesthat effectively implemented the requirements of the standard; (2) theserules were effectively communicated to employees and enforced; and (3)the failure of its employees to comply with the rules was anunforeseeable act and contrary to the rules. _Floyd S. Pike ElectricalContractors, Inc._, 78 OSAHRC 50\/E1, 6 BNA OSHC 1675, 1978 CCH OSHD ?22,805 (No. 3069, 1978). The stipulated facts in this case do notaddress this particular issue. Accordingly, respondent has not overcomethe presumption and the Secretary prevails.In its brief respondent argues that the citation should be vacatedbecause the protective clothing would not have prevented the accidentunder the particular facts of this case. This proposition is based upon,the stipulated facts that the driver was \”blinded by the rising sunlightand did not see the employee\” and that under these conditions, thewearing of brightly colored vests would not have increased the driver’svisibility of respondent’s employees nor the accident. This theory wasaddressed and rejected by the Commission in _Concrete ConstructionCorporation_, 76 OSAHRC 47\/A2, 4 BNA OSHC 1133, 1976 CCH OSHD ? 18,838,20,610 (No. 2490, 1976):We must also disagree with that part of the Judge’s report wherein herequires the Secretary to \”show what caused a particular accident andthat the cause was a violation of the standard cited.\” The employer’sspecial duty to comply with section 5(a)(2) is not dependent on whethera failure to comply with a standard has or has not been the causativeagent of injuries, nor in a finding of noncompliance predicated on theaccuracy of a post-hoc accident analysis. The Act may be violated eventhough no injuries have occurred, and even though a particular instanceof noncompliance was not the cause of injuries. Instead, the inquiryhere should have been directed to the question of whether or not theemployer complied with the standard. In this way, we best enforce theemployer’s duty to abate and thereby prevent injuries, the keystone ofthe Act. _Brennan v. O.S.H.R.C. & Underhill Const. Corp._, 513 F.2d1032, 1039 [2 OSHC 1641 (2d Cir. 1975).The Court adopts the stipulation of the parties as its findings of fact._CONCLUSIONS OF LAW_(1) This Court has jurisdiction of the parties and subject matter inthis case.(2) 29 C.F.R. ? 1910.132(a) is applicable to the circumstances describedin the stipulation of facts filed by the parties.(3) Respondent violated the cited standard by its failure to requireemployees to wear appropriate equipment while working on or near apublic highway as described in the citation.(4) The Secretary’s proposed penalty of $490.00 in appropriate under thecircumstances._ORDER_It is hereby ORDERED:Serious Citation No. 1 is affirmed with a penalty of $490.00 assessed.EDWIN G. SALYERS JudgeDate: May 8, 1991FOOTNOTES:[[1]] The standard provides:? 1910.132 General requirements.(a) Application. Protective equipment, including personal protectiveequipment for eyes, face, head, and extremities, protective clothing, .. . and protective shields and barriers, shall be provided, used, andmaintained in a sanitary and reliable condition wherever it is necessaryby reason of hazards of processes or environment, . . . or mechanicalirritants encountered in a manner capable of causing injury orimpairment in the function of any part of the body through absorption,inhalation or physical contact.[[2]]Commission Rule 61 provides:? 2200.61 Submission without hearing.A case may be fully stipulated by the parties and submitted to theCommission or Judge for a decision at any time. The stipulation of factsshall be in writing and signed by the parties or their representatives.The submission of a case under this rule does not alter the burden ofproof, the requirements otherwise applicable with respect to adducingproof, or the effect of failure of proof. . . .(Emphasis added)[[3]] While acknowledging that the issue is not before the Commission onreview, Commission Wiseman would note that, in his view, employeesworking in circumstances such as these would receive more effectiveprotection if a traffic control plan were in place. For example, 29C.F.R. ? 1926.201(a)(1), contained in Subpart G of the constructionindustry standards and quoted by Farrens in its brief before the judge(incorporated by reference in its review brief), provides for suchtraffic controls. Commissioner Wiseman recognizes, as the judge did inhis decision, that the Secretary apparently cited Farrens under section1910.132(a) because of the Commission decision in Consumers Power Co., 5BNA OSHC 1423, 1425, 1971-78 CCH OSHD ? 21,786 p. 26,190 (No. 11107,1977). In that decision, the Commission concluded that the tree trimmingoperations there were not covered by the cited construction standard, 29C.F.R. ? 1926.95)(d), primarily because Subpart V, in which it waslocated, did not apply to maintenance work. Commissioner Wisemanintimates no view on the applicability of Consumers Power Co. to thefacts here.[[1]] ? 2200.61 _Submission without hearing_.A case may be fully stipulated by the parties and submitted to theCommission or Judge for a decision at any time. The stipulation of factsshall be in writing and signed by the parties or their representatives.The submission of a case under this rule does not alter the burden ofproof, the requirements otherwise applicable with respect to adducingproof, or the effect of failure of proof. Motions for summary judgmentare covered by Fed.R.Civ.P. 56.”