“Docket No. 90-998 SECRETARY OF LABOR,\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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Complainant,v.FARRENS TREE SURGEONS, INC.,\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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Respondent.OSHRC Docket No. 90-998DECISION Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners. BY THE COMMISSION:Farrens Tree Surgeons, Inc. (\”Farrens\”) was issued acitation alleging a serious violation of the general industry personal protectiveequipment standard at 29 C.F.R. ? 1910.132(a)[[1]] because its employees were not wearingbrightly colored vests and hard hats while placing warning cones and signs on or near ahighway. At issue is whether Review Commission Administrative Law Judge Edwin G. Salyerserred in concluding that the Secretary had met her burden of proving a violation.BackgroundThe parties agreed to submit this case for decision based an stipulations, instead of ahearing, in accordance with commission Rule 61, 29 C.F.R. ? 2200.61.[[2]] The\”Factual Stipulations\” consist in their entirety of the following:A. Respondent is covered by the provisions of the [OccupationalSafety and 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 the allegedviolations. C. On January 26, 1990, at about 7:55 a.m., respondent’sforeman and two ether 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 theroadside of a public highway, nor the other employees were wearing brightly colored vestsnor hard hats.E. Said employees were immediately adjacent to a two lanepublic highway which had a 55 mph speed limit and which was traveled by motor vehicles.F. One employee was struck by a moving automobile while placingorange cones and \”Caution Men Working\” signs[,] in the eastbound lane along thelength of the company truck which had been used to transport the employees to the worksiteand was parked along the road.G. The driver of the automobile was blinded by the risingsunlight and did not see the employee placing the cones.H. Under the sunlight conditions which existed, wearingbrightly colored vests would not have increased visibility to eastbound drivers.Judge’s DecisionIn his decision, the judge stated: At the outset it is important to note that the submission of a case on stipulated factsunder Commission Rule 61 is not without some peril to a party having the burden of proofon particular issues.After noting that the record was \”somewhat scant on detail,\” the judge concludedthat the stipulated facts quoted above, \”together with reasonable inferences to bedrawn therefrom,\” are sufficient to prove that \”[a] reasonable person underthese circumstances would take some precautions to insure that this hazard [contact withvehicles traveling at high speed] was addressed by requiring the use of brightly coloredvests which might avert an accident and hard[]hats to minimize head injuries in the eventan accident did occur.\” He therefore found that the Secretary had proven a violationof section 1910.132(a). The judge affirmed the serious citation and assessed the proposedpenalty of $490.DiscussionThe Secretary has the burden of proving her case by a preponderance of the evidence. E.g.,Regina Constr. Co. 15 BNA OSHC 1044, 1046, 1991 CCH OSHD ? 29,354, p. 39,467 (No.87-1309, 1991); Astra Pharmaceutical Prods., 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 Commission decisions holding that,in the absence of evidence of actual knowledge of the hazard the Secretary can prove aviolation of section 1910.132(a) by showing that a reasonable person familiar with thecircumstances surrounding the hazardous condition, including any facts unique to theparticular industry, would recognize a hazard warranting the use of personal protectiveequipment. E.g., Amour Food Co., 14 BNA OSHC 1817, 1820, 1990 CCH OSHD ? 29,088, p.38,881 (No. 86-247, 1990); General Motor 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 Commission that the reasonableperson test is appropriate for section 1910.132(a), as well as the general personalprotective equipment standard for the construction industry at 29 C.F.R. ? 1926.28(a).E.g., Spancrete Northeast, 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.2d726, 731-32 (6th Cir. 1980); Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717,722-23 (4th Cir. 1979). The Commission and courts have found industry practice to berelevant to the reasonable person test but not dispositive, because to consider industrypractice as determinative would permit an entire industry to avoid liability bymaintaining inadequate safety. E.g., Voegele Co., 7 BNA OSHC 1713, 1716, 1979 CCH OSHD ?23,860, p. 28,940 (No. 76-2199, 1979), aff’d, 625 F.2d at 1078-79; Cape & VineyardDiv., 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 Courtof Appeals for the Eleventh Circuit because Farrens has its principal office in Florida,and the site of the alleged violation was Georgia. See section 11(a) and (b) of the Act,29 U.S.C. ? 660(a) and (b). The Eleventh Circuit has held that to prove a violation ofsuch generally worded personal protective equipment standards as section 1910.132(a),unless she has proven actual knowledge, the Secretary must show that the protectiveequipment sought by the Secretary is what the employer’s industry would deem appropriateunder the circumstances. Florida Machine & Foundry, Inc. v. OSHRC, 693 F.2d 119, 120(11th Cir. 1982). In that case, where the standard at issue was 29 C.F.R. ?1910.133(a)(1); the general standard for the eyes and face protective equipment noted thatthe Fifth Circuit precedent concerning sections 1910.132(a) and 1926.28(a), e.g., S &H Riggers & Erectors, Inc. v. OSHRC, 659 F.2d 1273, 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) (en banc). Id.Where a case can be appealed to the Eleventh Circuit and analleged violation of a general personal protective equipment standard is at issue, theCommission has vacated a citation item, alleging a violation of section 1926.28(a), basedon the Secretary’s failure to prove industry practice or actual knowledge. WilliamsEnterp. 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 therecord in this case any evidence as to whether Farrens was following industry custom innot providing warning vests and hard hats, or whether Farrens had actual knowledge of thehazard, we must vacate the citation alleging a violation of section 1910.132(a) on thisbasis, without further analysis.[[3]] In doing so, we are compelled to reiterate thewarning issued by the judge in his decision: when the Secretary, who has the burden ofshowing that Farrens committed a violation by a preponderance of the evidence, submits hercase on a stipulated record under Commission Rule 61, she does so \”not without someperil.\” As the last sentence of Commission Rule 61 cautions, the burden of proof isnot altered where a case is stipulated.OrderFor the reasons stated above, we conclude that the Secretary has not met her burden ofproving that Farrens violated section 1910.132(a), and we vacate the citation.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: July 28, 1992MONTOYA, Commissioner, concurring in part and dissenting in part:As a Commissioner charged with adjudicating cases under theOccupational Safety and Health Act of 1970, I favor the \”reasonable person withknowledge of the industry\” test, as adopted by the Commission and the majority of thecircuit courts for determining employer knowledge when the violation involves agenerally-worded personal protective equipment standard such as section 1910.132(a), incontrast to the industry practice test, where the record shows no actual knowledge. Inparticular, I find that, as noted by the majority, industry practice is relevant to thereasonable person test but not dispositive, because to consider industry practice asdeterminative would permit an entire industry to avoid liability by maintaining inadequatesafety 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 reasonableperson with knowledge of the industry would have recognized the hazard and providedbrightly colored vests and hard hats. I would also take administrative notice of ANSID6.1-1971, Manual on Uniform Traffic Control Devices for Streets and Highways, section6E-3, which is incorporated by reference in ANSI Z133.1-1979, Safety Requirements forPruning, Trimming, Repairing, Maintaining, and Removing Trees, and for Cutting Brush,section 3.4.2. These standards, which include traffic control measures, provide that\”[t]he use of an orange vest, and\/or an orange cap shall be required forflagmen.\”However, I recognize that the case law of the Eleventh Circuit,to which this can be appealed, currently requires the Secretary to prove either that theemployer actually knew of the hazard or that the employer’s industry recognized theparticular equipment to be appropriate. Unlike the majority, I would now remand this casewith instructions that the judge apply Eleventh Circuit precedent to these stipulatedfacts. I would instruct the judge to consider the ANSI standards cited above on the issueof 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 (11thCir. 1991) (employer was charged with knowledge of a hazard based upon the publication ofan OSHA standard which addressed the hazard).Velma Montoya\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\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 CommissionerDated: July 28, 1992__________________________________________________________________________________________SECRETARY OF LABOR,\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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Complainant,V.FARRENS TREE SURGEONS, INC.,\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\u00a0\u00a0\u00a0\u00a0\u00a0 Respondent.Docket No. 90-998DECISION AND ORDERSALYERS, Judge: On January 26, 1990, respondent’s, employeeswere preparing to clear brush underneath powerlines adjacent to Davis Academy Road inRutledge, Georgia. While engaged in this operation one of respondent’s employees wasstruck and killed by an automobile. The Secretary of Labor (Secretary) conducted afatality inspection of this incident under the provisions of the Occupational Safety andHealth Act of 1970 (29 U.S.C. ? 651, et. seq.) and on March 1, 1990, issued the followingserious citation to respondent:29 C.F.R. ? 1910.132(a): Protective equipment was not usedwhen necessary whenever hazards capable of causing injury and impairment were encountered:(a) Davis Academy Road – Employees were not wearing warningvests while putting out warning signs and orange cones on and near the road. On or aboutJanuary 26, 1990.(b) Davis Academy Road – Employees were not wearing hard hatswhile putting out warning signs and orange cones on and near the road. On or about January26, 1990.In lieu of a formal hearing in this matter, the parties havefiled a joint 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 the allegedviolations.C. On January 26, 1990, at about 7:55 a.m., respondent’sforeman and two other 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 theroadside of a public highway, nor the other employees were wearing brightly colored vestsnor hard hats.E. Said employees were immediately adjacent to a two lanepublic highway which had a 55 mph speed limit and which was traveled by motor vehicles.F. One employee was struck by a moving automobile while placingorange cones, and \”Caution Men Working\” signs in the eastbound lane along thelength of the company truck which had been used to transport the employees to the worksiteand was parked along the road.G. The driver of the automobile was blinded by the risingsunlight and did not see the employee placing the cones.H. Under the sunlight conditions which existed, wearingbrightly colored vests would not have increased visibility to eastbound drivers.To prove a violation of the cited standard, the Secretary mustestablish by a preponderance of the evidence that \”(1) the cited standard applies,(2) there was a failure to comply with the cited standard, (3) employees had access to theviolative condition; and (4) the cited employer either knew or could have known of thecondition with the exercise of reasonable diligence.\” Astra PharmaceuticalProducts, Inc., 81 OSAHRC 79\/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 theso-called General Industry standards. This group of standards has application to allcovered employers unless the specific working conditions in a particular case are moreappropriately cited under the construction, maritime and longshoring or agriculturalstandards. Dravo Corp. v. OSHRC, 613 F.2d 1227 (3rd Cir. 1980). The Secretary doesnot attempt to explain 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 this course was chosen as a result of theReview Commission’s decision in Consumers Power Co., 77 OSAHC 73\/E8 55 BNA OSHC1423, 1977 CCH OSHD ? 21,786 (No. 11107, 1977), in which it was held that employees whowere engaged in tree trimming operations were not engaged in \”construction.\” TheSecretary is free to cite under a general industry standard even though other standardsmight also apply, provided the standard chosen by the Secretary adequately addresses thehazard complained of by the Secretary and provides to the cited employer sufficient noticeof what is required for compliance.In this case the Secretary cites under 29 C.F.R. ?1910.132(a), which concerns personal protective clothing and provides:(a) Application. Protective equipment, includingpersonal protective equipment for eyes, face, head and extremities, protective clothing,respiratory devices, and protective shields and barriers, shall be provided, used, andmaintained in a sanitary and reliable condition wherever it is necessary by reason ofhazards of processes or environment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury or impairment in the functionof any part of the body through absorption, inhalation or physical contact.Respondent argues in its brief that the cited standard islimited in scope \”to protecting against physical injury from absorption, inhalationor physical contact\” and, therefore, does not apply to the operations conducted byrespondent at the time of the accident (Respondent’s Brief, p. 3). Respondent’sinterpretation ignores the basic thrust of the standard, which requires that\”protective equipment…shall be provided, used and maintained … whenever it isnecessary by reason of hazards of processes.\” Respondent’s focus on the balance ofthe standard which recites \”or mechanical irritants encountered in a manner capableof causing injury or impairment in the function of any part of the body throughabsorption, inhalation or physical contact\” (emphasis added) is misdirected. Thelatter phrase in written in the disjunctive and supplements but does not supersede thebasic requirement to use protective equipment and\/or clothing \”whenever it isnecessary by reason of hazards of processes.\” This court concludes that ? 132(a) canbe applied in this case provided, of course, the facts warrant its application.The basis upon which the cited standard can be applied was setforth by the Review Commission in Lukens Steel Company 81 OSAHRC 96\/A2, 10 BNA OSHC 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 person familiar with the thecircumstances, including facts unique to an industry, would recognize a hazardouscondition requiring the use of personal protective equipment. See,e.g., RyderTruck 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, 7BNA OSHC 2183, 1980 CCH OSHD ? 24,268 (No. 15037, 1980); Owens Corning FiberglassCorp., 79 OSAHRC 26\/D6, 7 BNA OSHC 1291, 1979 CCH OSHD ? 23,509 (No. 76-4990, 1979) appealfiled, No. 79-2516 (5th Cir. June 26, 1979). This objective \”reasonableperson\” test satisfies the due process requirement that a law must be sufficientlyclear to give persons of ordinary intelligence a reasonable opportunity to know what isprohibited or so that they may act accordingly. See S & H Riggers &Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1263 n. 11, 1979 CCH OSHD ? 23,480at p. 28,436 n. 11 (No. 15855, 1979), appeal docketed, No. 79-2358 (5th Cir. June7, 1979), citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Todetermine whether the standard provides fair notice, the Commission considers the standardin light of the specific facts of the case. It does not look exclusively at the text ofthe standard. See Brennan v. OSHRC & Santa Fe Trail Transportation Co.,505 F.2d 869 [2 OSHC 1274] (10th Cir. 1974); Lombard Brothers, Inc., 77 OSAHRC155\/B2, 5 BNA OSHC 1716, 1977-78 CCH OSHD ? 22,051 (No. 13164, 1977). If the\”reasonable person\” test is satisfied on the facts, the standard is notimpermissibly vague despite its broad wording. Id. at 1123.At the outset it is important to note that the submission of acase on stipulated facts under Commission Rule 61 is not without some peril to a partyhaving the burden of proof on particular issues. The Rule specifically provides that\”The submission of a case under this rule does not alter the burden of proof, therequirements otherwise applicable with respect to adducing proof, or the effect of failureof proof.\” It is incumbent upon a party making such a submission to insure that thestipulation contains sufficient factual allegations to sustain its position on each issue,including facts which relate to any possible defenses which may apply. The Court can, ofcourse, draw reasonable inferences from the stipulated facts.Although somewhat scant on detail, this Court concludes thatthe stipulated facts in this case, together with reasonable inferences to be drawntherefrom, are sufficient to sustain the Secretary’s position under the \”reasonableperson\” test. The facts establish that employees of respondent were required to placecones and signs on and adjacent to a highway having a 55 m.p.h. speed limit which wasregularly traveled by motor vehicles. This situation exposed there employees to the hazardof being struck by vehicles driving at high rates of speed with the resulting potentialfor serious injury or death. A reasonable person under these circumstances would take someprecautions to insure that this hazard was addressed by requiring the use of brightlycolored vests which might avert an accident and hardhats to minimize head injuries in theevent an accident did occur.The Secretary has established that the cited standard hasapplication to the facts of this case; that the respondent’s employees did not wear vestsand hardhats while working in a zone of danger and that these employees had access to thehazardous condition. The Secretary has also established that respondent corporation hadthe requisite knowledge of the hazardous condition. The stipulated facts reflect that thework of placing the cones and signs on the highway was done under the direction ofrespondent’s foreman. As a general rule, the actions and knowledge of supervisoryemployees are imputed to their corporate employer and the employer is responsible forviolations created or condoned by the supervisor. Structural Steel Erectors, d\/b\/aPecosteel – Arizona., 75 OSAHRC 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 overcome the knowledgepresumption by proving (1) it had established work rules that effectively implemented therequirements of the standard; (2) these rules were effectively communicated to employeesand enforced; and (3) the failure of its employees to comply with the rules was anunforeseeable act and contrary to the rules. Floyd S. Pike Electrical Contractors, Inc.,78 OSAHRC 50\/E1, 6 BNA OSHC 1675, 1978 CCH OSHD ? 22,805 (No. 3069, 1978). The stipulatedfacts in this case do not address this particular issue. Accordingly, respondent has notovercome the presumption and the Secretary prevails.In its brief respondent argues that the citation should bevacated because the protective clothing would not have prevented the accident under theparticular facts of this case. This proposition is based upon, the stipulated facts thatthe driver was \”blinded by the rising sunlight and did not see the employee\” andthat under these conditions, the wearing of brightly colored vests would not haveincreased the driver’s visibility of respondent’s employees nor the accident. This theorywas addressed and rejected by the Commission in Concrete Construction Corporation,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 reportwherein he requires the Secretary to \”show what caused a particular accident and thatthe cause was a violation of the standard cited.\” The employer’s special duty tocomply with section 5(a)(2) is not dependent on whether a failure to comply with astandard has or has not been the causative agent of injuries, nor in a finding ofnoncompliance predicated on the accuracy of a post-hoc accident analysis. The Act may beviolated even though no injuries have occurred, and even though a particular instance ofnoncompliance was not the cause of injuries. Instead, the inquiry here should have beendirected to the question of whether or not the employer complied with the standard. Inthis way, we best enforce the employer’s duty to abate and thereby prevent injuries, thekeystone of the 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 findingsof fact.CONCLUSIONS OF LAW(1) This Court has jurisdiction of the parties and subjectmatter in this case.(2) 29 C.F.R. ? 1910.132(a) is applicable to the circumstancesdescribed in the stipulation of facts filed by the parties.(3) Respondent violated the cited standard by its failure torequire employees to wear appropriate equipment while working on or near a public highwayas described in the citation.(4) The Secretary’s proposed penalty of $490.00 in appropriateunder the circumstances.ORDERIt is hereby ORDERED:Serious Citation No. 1 is affirmed with a penalty of $490.00assessed.EDWIN G. SALYERS\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\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 JudgeDate: May 8, 1991 FOOTNOTES: [[1]] The standard provides:? 1910.132 General requirements.(a) Application. Protective equipment, including personal protective equipment for eyes,face, head, and extremities, protective clothing, . . . and protective shields andbarriers, shall be provided, used, and maintained in a sanitary and reliable conditionwherever it is necessary by reason of hazards of processes or environment, . . . ormechanical irritants encountered in a manner capable of causing injury or impairment inthe 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 the Commission or Judge fora decision at any time. The stipulation of facts shall be in writing and signed by theparties or their representatives. The submission of a case under this rule does not alterthe burden of proof, the requirements otherwise applicable with respect to adducing proof,or the effect of failure of proof. . . .(Emphasis added) [[3]] While acknowledging that the issue is not before theCommission on review, Commission Wiseman would note that, in his view, employees workingin circumstances such as these would receive more effective protection if a trafficcontrol plan were in place. For example, 29 C.F.R. ? 1926.201(a)(1), contained in SubpartG of the construction industry standards and quoted by Farrens in its brief before thejudge (incorporated by reference in its review brief), provides for such traffic controls.Commissioner Wiseman recognizes, as the judge did in his decision, that the Secretaryapparently cited Farrens under section 1910.132(a) because of the Commission decision inConsumers Power Co., 5 BNA OSHC 1423, 1425, 1971-78 CCH OSHD ? 21,786 p. 26,190 (No.11107, 1977). In that decision, the Commission concluded that the tree trimming operationsthere were not covered by the cited construction standard, 29 C.F.R. ? 1926.95)(d),primarily because Subpart V, in which it was located, did not apply to maintenance work.Commissioner Wiseman intimates 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 the Commission or Judge fora decision at any time. The stipulation of facts shall be in writing and signed by theparties or their representatives. The submission of a case under this rule does not alterthe burden of proof, the requirements otherwise applicable with respect to adducing proof,or the effect of failure of proof. Motions for summary judgment are covered byFed.R.Civ.P. 56.”