“Docket No. 86-1087 SECRETARY OF LABOR,Complaint,v.GARY CONCRETE PRODUCTS, INC.Respondent.OSHRC Docket No. 86-1087DECISIONBefore: FOULKE, Chairman; WISEMAN, Commissioner.BY THE COMMISSION:At issue in this case is whether Administrative Law Judge Paul L. Brady erred in affirminga citation issued to Gary Concrete Products, Inc. (\”Gary Concrete\”) for theviolation of a materials handling standard.Gary Concrete is a manufacturer of concrete products. On June17, 1986, Gary Concrete foreman Johnny James White directed crane operator Danny Taggartand rigger Jimmy Gleaton to remove six concrete pilings from the bottom of a stack ofpilings and position them to be transported from the Savannah, Georgia, jobsite. Whitetold the employees where to stack the pilings and then he returned to his office. Taggartcould not see the pilings to be moved by his crane because other stacks of pilingsobstructed his line of vision. Gleaton had to come out from between the stacks and giveTaggart hand signals to communicate operating instructions. The pilings weighed about6,000 pounds each, were between 45 and 60 feet long, and were 14\” x 14\” square.After pilings were removed from the existing stack to provide access to the six pilings tobe transported off site, Taggart heard a loud noise that sounded like falling pilings. Heleft his crane to investigate and saw that Gleaton had been crushed to death by pilingsthat they had just moved.The next day, OSHA compliance officer David Hubert commenced an investigation at the siteof the fatal accident. Subsequently, the Secretary issued a serious citation to GaryConcrete alleging a violation of 29 C.F.R. ? 1910.176(b) and proposing a penalty of $560.The citation alleged that Gary Concrete violated section 1910.176(b) in that concretepilings stored in tiers were not stacked, blocked, interlocked or limited in height sothat the pilings were stable and secure against sliding and collapse. Section 1910.176(b)provides:? 1910.176 Handling materials–general.(b) Secure storage. Storage of material shall not createa hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked,interlocked and limited in height so that they are stable and secure against sliding orcollapse.After a hearing conducted in Atlanta, Georgia, Judge Bradyaffirmed the citation and assessed a $200 penalty. For the reasons that follow, we affirmthe serious citation found by the judge and assess the penalty which he found to beappropriate.AnalysisTo prove a violation of the cited standard, the Secretary mustestablish that: (1) the standard applies to the cited conditions; (2) the employerviolated the terms of the standard; (3) its employees were exposed or had access to theviolative conditions; and (4) the employer had actual or constructive knowledge of theviolation. See, e.g., Trimmed Construction Co., 14 BNA OSHC 1784, 1788, 1990 CCHOSHD ? 29,079, p. 38,859 (No. 86-1139, 1990) .The Secretary has set forth competent evidence to establish theapplicability of the standard and the exposure of Gleaton to the violative conditions.Gary Concrete has disputed neither the applicability of the standard nor employeeexposure. Thus, the Secretary has established these two elements of the violation.As to whether Gary Concrete violated the terms of the standard,Taggart, the crane operator who moved the pilings, testified that a faulty method ofstacking the pilings caused the stack to be unstable and resulted in its collapse. Inaddition, the fact that the stacked pilings fell and killed Gleaton provides furtherevidence to establish that they were not stacked so as to be secure from collapse. In itsdefense, Gary Concrete has identified no other cause for the collapse of the pilings.Accordingly, we conclude that the Secretary established that the terms of the standardwere violated. Remaining for decision is whether Gary Concrete had knowledge of theviolation and whether it proved the affirmative defense of unpreventable employeemisconduct.I. Did Gary Concrete Have Actual or Constructive Knowledgeof the Unstable Pilings?To satisfy her burden of establishing knowledge, the Secretarymust prove that a cited employer knew or, with the exercise of reasonable diligence, couldhave known of the presence of the violative conditions. United States Steel Corp., 12BNA OSHC 1692, 1699, 1986-87 CCH OSHD ? 27,517, p.36, 671 (No. 79-1998, 1986). The ReviewCommission has consistently held that actual or constructive knowledge of an employer’sforeman can be imputed to the employer. 1A. P. O’Horo Co.,4 BNA OSHC 2004, 2007,1991 CCH OSHD ? 29,223, p. 39,128 (No. 85-369, 1991); Dun-Par Engineered Form Co.,12 BNA OSHC 1962, 1965-1966 1986-87 CCH OSHD ? 27,651 p. 36,033 (No. 82-928, 1986); DanielConstruction Co.,10 BNA OSHC 1549, 1552, 1982 CCH OSHD ? 26,027, p. 32,672 (No.16265, 1982).Gary Concrete lacked actual knowledge that the pilings werestacked in an unstable manner. As noted above, Foreman White returned to his office afterinstructing Taggart and Gleaton to move the pilings. Only Taggart and Gleaton wereinvolved in stacking the pilings that subsequently collapsed. Accordingly, the Secretarywas required to establish constructive knowledge on the part of Gary Concrete in order toestablish the final element of the violation.Gary Concrete argues that even with the exercise of reasonablediligence, it could not have known that the pilings were stacked in an unstable manner. Itcontends that neither reasonable diligence nor express regulation requires a supervisoryemployee to be present at all times to observe the actions of a subordinate employee.Furthermore, it contends that it had no reason to believe that an employee \”with thetraining and experience of the deceased\” would disobey safety regulations.The Secretary argues that the deceased was a relativelyinexperienced employee known by Gary Concrete to have failed to work safely on a number ofpast occasions. The Secretary further contends that Foreman White instructed Taggart andGleaton to stack two different sizes of pilings, which he knew creates a substantiallikelihood of an unstable stack, and that he also was aware of Gelatin’s safety-deficientjob performance. Furthermore, the Secretary contends that, despite knowledge of thesefacts, White failed to observe the performance of the stacking job to ensure that it wasproperly done. Relying on Baroid Div., NL Industries, Inc., 7 BNA OSHC 1466, 1469,1979 CCH OSHD ? 23,661, p. 28,689 (No. 16096, 1979), vacated and remanded on othergrounds., 660 F.2d 439 (10th Cir. 1981), the Secretary argues that an employer withnotice that a hazard may exist must make reasonable efforts to ascertain if in fact thehazard does exist.In resolving the issue of whether, with the exercise ofreasonable diligence, Gary Concrete could have known of the unstable stack of pilings, weset forth the following relevant evidence regarding: (1) the circumstances of theaccident, (2) the employer’s safety program, and (3) Gelatin’s work history with thecompany.The AccidentForeman White directed Taggart and Gleaton to remove six 14\” square pilings from thebottom of an existing stack so that they could be transported from the worksite. Toaccomplish this, it was first necessary to move eight 14\” pilings which were stackedon top of the six that were to be removed. White instructed Taggart and Gleaton to stackfour of the eight 14\” pilings atop two 18\” square pilings, and to stack theremaining four of the eight upon one another on the ground next to the newly-createdstack. White further told Taggart and Gleaton to make sure that the \”dunnage\”was correct. He gave no additional instructions before leaving Taggart and Gleaton andreturning to his office.The record establishes that in stacking different-sizedpilings, the correct use of \”dunnage\” is essential. Ordinarily, dunnage used bythis employer consists of 4\” x 4\” square pieces of wood, generally about two andone-half feet long, which is placed between each tier of stacked pilings to ensure a levelstack. Paul Dentall, Gary Concrete’s vice president for production, testified that toachieve a stable stack of different-sized pilings, it is necessary to use dunnage as\”that keeps the stack plumb.\” Taggart testified that employees \”wereinstructed generally to avoid stacking two different[-]sized products,\” but that ifit were necessary to do so, dunnage was to be used to ensure proper stacking.After White returned to his office, Taggart and Gleaton beganmoving the pilings. At the point in the job when they were to start moving the six pilingsfrom the bottom of the first stack, the upper pilings, which they had just stacked, fellon Gleaton, fatally injuring him. Gary Concrete investigated the accident and determinedits cause to be the improper placement of dunnage. The record does not specificallyestablish how the dunnage placement was improper.Safety Training at Gary ConcreteThe record shows that Gary Concrete furnished new employees,including Gleaton, with a copy of its safety manual. The manual was the only writtendocument containing Gary Concrete’s safety requirements at the time of the accident. Themost pertinent section of the manual, entitled Material Storage, provided:1. Put dunnage under material for easier rehandling and formore stable stacking. If dunnage has a rectangular cross section, put long dimension down.Remove dunnage when material is removed. Store dunnage for reuse. 2. Store material in an orderly fashion with adequate access for rehandling.3. Chock round items so they cannot roll. Stack loose items no higher than 7 feet. Crosstie loose items such as bags or blocks. 4. Keep banding straps in place during storage. Remove bands from pallets and from workarea when they are cut loose. If banding straps are fastened to underside of pallet, cutband flush with pallets, or fold ends into pallet.In addition to being given the company’s safety manual,employees of Gary Concrete received on-the-job training. Also, weekly tool box safetymeetings were held by supervisors for their employees. White testified In general termsthat, at safety meetings attended by Gleaton, he discussed the stacking of different-sizedmaterials and the proper use of dunnage. He further testified that a crane operator isresponsible for overseeing a stacking operation and assuring that the rigger working withhim selects the proper dunnage. Production foreman trainee John Clinton and Taggart alsogenerally testified that they had discussed with Gleaton the use of dunnage and the way tostark pilings. Taggart, however, stated that Gary Concrete had not provided him with\”any specifics\” on how to stack materials of different sizes. He testified thatthe way to stack materials of different sizes was a \”judgment call\” for thecrane operator and rigger that depended upon the situation. Furthermore, Taggart statedthat he and Gleaton had been instructed at safety meetings \”generally to avoidstacking two different sized products ….\” Finally, Dentall, Gary Concrete’s vicepresident for production, testified that, with respect to making a good stack, \”youdon’t really have to get very specific in your training. The concepts of building a goodstack are … easy to comprehend by almost all the employees.\”Gelatin’s Work RecordThe record shows that Gleaton was hired by Gary Concrete onJanuary 27, 1986, approximately five months prior to the accident. His personnel recordincludes a written reprimand issued to him by Taggart on May 5, 1986, for \”stackingand piling in a very careless and unsafe manner.\” Taggart testified as follows aboutGelatin’s actions which led to issuance of the reprimand:I observed Jimmy [Gleaton] and that particular crane placingtwo pilings on an existing stack. The stack, the way it was before they tried to put thepilings on, there was only room for one more piling, and they attempted to put two more onthere, and the way they set it on there left one of the pilings hanging half way off thepilings below it. The only thing supporting that outside piling was the dunnage itself.The whole time Jimmy never got down, looked on the side of it, and checked it out at all.He just told the [crane] Operator to let the thing down, and I felt that he was verycareless and unsafe.In addition to that written reprimand, the record reveals that employee Gleaton had beenwritten-up for safety lapses on at least two other occasions. Gary Concrete employees wereevaluated on the quality of their work at the end of each week. Gelatin’s evaluations wereprepared by White, who provided the following explanation of his evaluations:[I]f I go out there and I see … [one of the employees that I supervise] doing somethingwrong during this week or period of time…[I]t might not happen but just one time overthe whole week . . . or a couple of times, and if I see it, especially when it comes tosafety, then I’ll take and mark … [the evaluation form] either \”fair\” or\”good\” …. [the highest rating on the form is \”exceptional\”]For the week of May 26-31, 1986 — three weeks after he had received the above-mentionedwritten reprimand and two-and-one-half weeks before the accident — Gelatin’s evaluationcharacterized his safety attitude as \”fair\”. Under \”Suggestions forimprovement,\” the evaluation noted that Gleaton \”needs to pay more attention tohis work.\”For the week of June 2-7, 1986 — ending just 10 days beforethe accident —- Gelatin’s safety attitude was evaluated as \”good,\” indicatingsome safety deficiency during that week. Finally, Gary Concrete plant safety officerMichael Anderson testified that Gleaton had been given verbal disciplinary warnings by hisimmediate supervisors for violations of company safety rules. DispositionWe conclude that with the exercise of reasonable diligence, Gary Concrete could havediscovered the violation. The company failed to exercise reasonable diligence in two ways.First, it failed to adequately supervise Gleaton while he performed the job of stackingdifferent-sized pilings. Gelatin’s foreman, White, knew that Gleaton had a history ofsafety-deficient job performance in his short tenure with the company. Nevertheless, onthe day of the fatal accident, White assigned Gleaton the job of stacking different-sizedpilings, a task which involved exercising an appreciable amount of discretion. Because ofthe danger inherent in the potential for these pilings to slide or collapse when stacked,company instructions were that such stacking was generally to be avoided. White also knewthat while Gleaton was performing that job, he would be outside the field of vision ofTaggart, the crane operator, whose role it normally was to ensure that a rigger, such asGleaton, properly stacked pilings and selected proper dunnage. Notwithstanding thesefactors, White failed to provide Gleaton with specific instructions on how to safelyperform the task. Indeed, after providing Gleaton and Taggart with only generalinstructions on what was to be accomplished, White left them and returned to his office.Foreman White thus failed to ensure the adequate supervision of Gleaton, and therebyfailed to exercise the reasonable diligence which would have led to discovery of theviolation. Knowledge of the violation is imputed to Gary Concrete through its foreman,White. See Dun Par Engineered Form, supra.Secondly, Gary Concrete failed to formulate and implementadequate training and work rules necessary to ensure that its employees could safelyperform the job of stacking different – sized pilings. The training which Gleaton receivedwas too general in nature to have,effectively taught him to be aware of how to prevent theviolation of the standard which resulted in his death. Although the record shows thatGleaton was told to use dunnage to stack different – sized materials, the record does notshow that he was given the specifics of how to use dunnage to safely perform thatstacking job. Because the stacking of pilings was a common work duty of Gary Concreteemployees, the company was obliged to frame specific work rules on how to stack pilings,especially different – sized pilings, so that they would be stable and secure againstsliding or collapse. Gary Concrete failed to meet this obligation; thus, it failed toexercise reasonable diligence. See Towne Construction Co., 12 BNA OSHC 2185, 2190,1986-87 CCH OSHD ? 27,760, p. 36,312 (No. 83-1262, 1986),aff’d, 847 F.2d 1187 (6thCir. 1988)(lack of reasonable diligence from failure to supervise and to provide clearinformation on load capacity of crane). It bears noting that even Taggart testified thathe had not been given \”any specifics\” on how to stack materials of differentsizes. As stated above, a crane operator, such as Taggart, was responsible for ensuringthat the rigger properly stacked pilings and selected proper dunnage.The failure of GaryConcrete to provide him with specific training or instructions on proper stackingtechniques clearly illustrates the inadequacy of the company’s safety instructions andfurther supports our finding that the company failed to exercise reasonable diligence. SeeCandler-Rusche, Inc., 4 BNA OSHC 1232, 1233-34, 1976-77 CCH OSHD ? 20,723 p. 24,845(No. 4675, 1976) aff’d mem., 559 F.2d 187 (D.C. Cir. 1977) (safety instructions tocrane operator inadequate, so accident preventable and Respondent could have known ofviolation). We conclude that with the exercise of reasonable diligence, Gary Concretecould have discovered the violation at issue here. The Secretary has therefore establisheda violation of section 1910.176(b).II. Did Gary Concrete Establish the Defense of UnpreventableEmployee Misconduct?To prove the affirmative defense of unpreventable employeemisconduct, an employer must prove that:1) it had established work rules designed to prevent theviolation; (2) the work rules had been adequately communicated to its employees; and (3)it had taken steps to discover violations, and had effectively enforced the rules whenviolations had been discovered.Jensen-Construction Co., 7 BNA OSHC 1477, 1479, 1979 CCHOSHD ? 23,664, p. 28,695 (No. 76-1538, 1979). In his decision, Judge Brady found that Gary Concrete failed to prove the affirmativedefense, essentially because it had not formulated a work rule that specified howemployees were to perform the job of stacking different-sized pilings. The judge foundthat it was \”entirely possible that … Gleaton could perform his tasks in totalcompliance with [Respondent’s general] … work rules and his conduct would [still] beviolative of the (cited) regulation.\” We Agree.Gary Concrete argues that its safety training procedures wereconsistent with industry practice and included specific training in the proper storage ofmaterials of different sizes, the use of dunnage, and the techniques for building a safestack. In addition, it argues that safety rules more detailed than what it provided wouldbe impractical and contends that \”it was necessary to rely on employee judgment inthe circumstances shown.\” The company further submits \”that it was justified inexpecting that the deceased employee would be guided by his safety training and workexperience. Gary Concrete claims that the actions which caused Gelatin’s death wereunforeseeable and contrary to company safety policy. Finally, Gary Concrete contends thatits work rules and safety regulations were uniformly enforced, and that employees whoviolated them were disciplined. Citing the Commission decision in Alabama Power Co.,13 BNA OSHC 1240, 1245, 1986-87 CCH OSHD ? 27,392, p. 36,580 (No. 84-357, 1987), thecompany asserts that \”[i]n evaluating the adequacy of an employer’s efforts toimplement a safety program, the Commission must consider all of the circumstances of theemployer’s work environment, including the degree of compliance with its safetyrules.\”In response to the company’s arguments, the Secretary contendsthat the deceased employee could not have violated the company’s safety rules becausethere was nothing in the company’s safety manual that \”even approache[d] being aspecific work rule regarding the activities being performed.\” She argues that for thedefense to be applicable, the work rules must be specific, citing J. K. ButlerBuilders, Inc., 5 BNA OSHC 1075, 1076, 1977-73 CCH OSHD ? 21,585, p. 25,902(No.12354, 1977) (warning to avoid unsafe areas too general) and Brown and Root, Inc.,8 BNA OSHC 2140, 2144-45, 1980 CCH OSHD ? 24,853, p. 30,656 (No. 76-1296, 1980) (rulethat work should not be done under overhead operations too general in Section 5(a)(1)case). The Secretary further contends that only \”very general\” testimony wasgiven about the deceased employee’s training, and that there was no specific testimony onthe nature of any training given with respect to the stacking of different-sized material.She argues that this lack of specific training left to Gelatin’s judgment the manner inwhich the job was to be performed. DispositionWe find that Gary Concrete failed to prove each of the elementsof the affirmative defense of unpreventable employee misconduct. First, Gary Concrete hasnot established work rules designed to prevent the cited violation. As set forth morefully above, the \”safety training\” the company provided to Gleaton was toogeneral in nature to inform him of how to prevent the violation of the standard whichresulted in his death.Secondly, Gary Concrete did not adequately communicate workrules. This is illustrated by the company’s failure to provide Taggart with any specificinformation on how to stack pilings of different sizes, even though he was alsoresponsible for the stacking of materials.Finally, Gary Concrete failed to prove that it had taken stepsto discover safety violations, or that it had effectively enforced its work rules whenviolations were discovered. As mentioned above, Foreman White was aware of thesafety-deficient nature of Gelatin’s job performance, yet, directed him to perform a jobwhich turned out to be fatally dangerous, and also did not supervise Gleaton while he wasperforming that job.ORDER For the foregoing reasons, we affirm the judge’s conclusionthat Gary Concrete violated section 1910.176(b). After consideration of the penaltyfactors enumerated in section 17(j) of the Act, 29 U.S.C. ? 666(j), we assess a penaltyof $200.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: May 16, 1991SECRETARY OF LABOR,Complainant,v.GARY CONCRETE PRODUCTS, INC.,Respondent.OSHRC Docket No. 86-1087APPEARANCES:Larry A. Auerbach, Esquire, Office of the Solicitor, U. S.Department of Labor, AtIanta ,Georgia, on behalf of complainant.Malberry Smith, Jr., Esquire, Lee and Clark, Savannah, Georgia, on behalf of respondent.DECISION AND ORDERBRADY, Judge:This proceeding is brought pursuant to section 10 of the Occupational Safety andHealth Act of 1970 (Act) to contest a citation and proposed penalty issued by theSecretary of Labor (Secretary) pursuant to section 9(a) of the Act.The facts which gave rise to issuance of the citation are notin dispute. Respondent, a manufacturer of concrete products, was necessarily involved inthe movement and storage of concrete pilings. On June 17, 1986, while some pilings werebeing moved; a rigger, Jimmy Gleaton, was killed. Each piling weighing approximately 6,000pounds was either 14 or 18 inches square and varied in length between 40 and 60 feet.These pilings were moved with the use of a crane as depicted in exhibit C-1.At the time of the fatal accident, Mr. Danny Taggart, the craneoperator, and Mr. Gleaton were moving certain pilings in accordance with the instructionsof Mr. Johnny White, their foreman. In order to reach four pilings for shipment, it wasfirst necessary to remove six pilings which were placed on an existing stack designated bythe foreman. It was the recently stacked pilings which toppled, or fell over on theemployee . The facts further disclose that the crane operator, who was in charge of theoperation, could not observe removal and stacking of the pilings but relied on the riggerfor hand signals to lift and lower the pilings. The parties agree that it was the faultymanner in which the pilings were stacked that caused them to collapse.Mr. David Hubert, the compliance officer who conducted theinvestigation, found that the on-the-job fatality was caused by the instability of thestacked pilings in violation of 29 C.F.R ? 1910.176(b) (Tr. 17-18). The regulation, whichpertains to materials handling and storage, requires that:Storage of material shall not create a hazard. Bags containers,bundles, etc, stored in tiers shall be stacked, blocked, interlocked and limited in heightso that they are stable and secure against sliding or collapse.While respondent acknowledges that the method of stackingcaused the collapse, it maintains any such violative condition was created solely by theemployee contrary to rules, procedures and training.Respondent, therefore, asserts the affirmative defense of unpreventable employermisconduct. The basis of this substantive defense is that it would be unfair and notpromote employee safety and health to penalize an employer for conditions which areunpreventable. The Commission recognizes such defense but only if an employer can show (1)that it has established work rules designed to prevent the violation; (2) has adequatelycommunicated these rules to its employees; (3) has taken steps to discover violations; and(4) has effectively enforced the rules when violations have been discovered. See JensenConstruction Co., 79 OSAHRC 49\/D3, 7 BNA OSHC 1477, 1979 CCH OSHD ? 23,664 (No.76-1538, 1979).The question in this case is whether respondent has anestablished work rule designed to prevent the violation. The record discloses thatrespondent maintained a safety program and provided general training consistent with thepractice in the prestress concrete manufacturing industry (Exs. R-1, R-3, R-4; Tr. 36, 40,104). The applicable work rules contained in respondent’s written safety manual (Ex. R-1)state:MATERIAL STORAGE1. Put dunnage down under material for easier rehandling andfor more stable stacking. If dunnage has a rectangular cross section, put long dimensiondown. Remove dunnage when material is removed. Store dunnage for reuse.2. Store material in an orderly fashion with adequate accessfor rehandling.3.Chock round items so they cannot roll. Stack loose items no higher than 7 feet. Crosstie loose items such as bags or blocks.4. Keep banding straps in place during storage. Remove bands from pillets and from workarea when they are cut loose. If banding straps are fastened to underside of pallet, cutband flush with pallets, or fold ends into pallet.Although the precise cause of the collapse could not bedetermined, Mr. Tony Hatcher, Operations Manager and Safety Director, concluded thatimproper dunnage had been used (Tr. 43, 49).[[*\/]] The focus of respondent’s evidence was,therefore, to show that its conduct was consistent with the written rule requiring theproper use of dunnage through safety meetings and instruction. The evidence shows Mr.Gleaton was aware of the rule and that the rule was enforced (Tr. 61, 65-66). However, theevidence of record is not persuasive that there was a work rule which was adequate toprevent violation of 29 C.F.R. ? 1910.176(b).Since the Secretary has shown a violation existed in this case,it is incumbent on respondent to establish that its overall conduct was such that aviolation could not have been prevented. The regulation which has been violatedspecifically requires that the storage of material shall not create a hazard. It thenstates that further measures shall be taken to insure that the stored material is stableand secure against collapse. Obviously, there was a hazard created and pilings were notstacked so they were stable and secure.Although the work rules providing for the use of dunnage, suchuse according to the regulation, is deemed only one means of preventing the violation. Therecord does not reveal whether respondent required stacking to be limited to a particularheight or whether the pilings could be tied, banded or otherwise supported to insurestability. In this regard the testimony of Mr. Paul Dentall, Vice President of Productionwho was closely involved with development of the safety program, is noted (Tr. 107). Hestated:[T]here’s only a few things that the employee really needs tounderstand. He builds on good ground, with substantial dunnage at the bottom, as he buildsa stack, he chooses good dunnage; he ties stacks or columns together, and that achievesthe wider base because it acts as a unit versus a height; and you keep it plumb as you goup by keeping things at the same elevation.Even if it were assumed Mr. Dentall’s statement applied tostacking of material in general and not pilings in particular, respondent obviously knewof other means to insure stability besides use of dunnage. In light of this knowledge, thetestimony of Mr. Taggart, the crane operator when the accident occurred and foreman at thetime of the hearing, questions the existence of any such work rules or whether they werecommunicated to the employees. Aside from the use of dunnage he was not sure any specificmethods for safe stacking of material were discussed at safety meetings. He also statedthat employees were instructed to generally avoid stacking two different sizes of pilings,but no specific instructions were given for such stacking when it was necessary. In sum,he agreed that the stacking of the 14-inch pilings on top of the 18-inch pilings in thiscase was accomplished according to the personal judgment of the rigger (Tr. 92, 98-99).Clearly, the procedure followed by respondent for stacking thepilings and its work rules were not adequate to prevent the violation. Recognizing thatemployers are not required to have written procedures for all jobs, and that theoccurrence of an accident is of itself no basis for issuing a citation, the safety rulesfail to meet the requirements to establish the affirmative defense. As aptly pointed outby the Secretary in brief, there is no rule which tells an employee how to do the job thatthe rigger was performing. Accordingly, \”[a] work rule is an employer directive thatrequires or proscribes certain conduct, and that is communicated to employees in such amanner that its mandatory nature is made explicit and its scope clearly understood.\” J.K. Butler Builders, Inc., 77 OSAHRC 26\/A2, 5 BNA OSHC 1075, 1977-78 CCH OSHD ? 21,535(No. 12354, 1977).Under the facts of this case, it is entirely possible that arigger such as Mr. Gleaton could perform his tasks in total compliance with the work rulesand his conduct would be violative of the regulation. After instructing employees to avoidstacking material of different sizes, the employer had the responsibility to providespecific instructions for this type of stacking when necessary. The Commission has heldthat basically \”[a]n employer has a duty under the Act to anticipate the hazards towhich its employees may be exposed and to take the steps necessary to prevent suchexposure.\” Automatic Sprinkler Corp. of America, 79 OSAHRC 102\/B2, BNA OSHC1979 CCH OSHD ? 24,007 (No. 76-5271, 1979); SouthWestern Bell Telephone Co., 79OSAHRC 4\/G4, 7 BNA OSHC 1058, 1979 CCH OSHD ? 23,178 (No. 15841, 1979).The affirmative defense of unpreventable employee misconducthas not been proved and the violation was preventable by the employer.The violation is alleged to have been serious. The death of theemployee sufficiently establishes the serious violation under section 17(k) of the Act,which requires a determination that death or serious physical harm could result therefrom.A determination of an appropriate penalty must now be made. TheCommission, in all contested cases, has the authority to access civil penalties forviolations of the Act. Section 17(j) of the Act provides: The Commission shall have authority to access all civil penalties provided in thissection, giving due consideration to the size of the business of the employer beingcharged, the gravity of the violation, the good faith of the employer, and the history ofprevious violations.The determination of what constitutes an appropriate penalty iswithin the discretion of the Review Commission. Long Manufacturing Co. v. OSHRC,554 F.d 902 (8th Cir. 1977); Western Waterproofing Co. v. Marshall, 576 F.2d 139(8th Cir. 1978). The gravity of the offense is the principal factor to be considered. NaciremaOperating Co., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4,1972). The Commission stated in Secretary v. National Realty and Construction Co.,72 OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ? 15,188 (No. 85, 1971), that theelements to be considered in determining the gravity are: (1) the number of employeesexposed to the risk of injury; (2) the duration of exposure; (3) the precautions takenagainst injury, if any; and (4) the degree of probability of occurrence of injury.Considering all the foregoing factors, a penalty in the amountof $200.00 is deemed appropriate for the violation set forth in the citation.FINDINGS OF FACT1. Gary Concrete Products, Inc., at all times hereinaftermentioned, maintained a work site at Wahlstrom Road, Savannah, Georgia, where itmanufactured concrete products.2. Following the death of an employee on June 17, 1986, authorized representatives of theSecretary conducted an inspection of the work site. As a result of the inspection,respondent was issued a citation with notice of proposed penalty.3. The fatality occurred while two employees, with the use of acrane, were moving and stacking concrete pilings weighing approximately 6,000 pounds and40 to 60 feet long each.4. The employees, a crane operator and a rigger, were movingsome pilings arid placing them on existing stacks as instructed by their foreman. Some14-inch pilings which were placed on 18-inch pilings fell striking the rigger.5. Although employees were instructed to generally avoidstacking two different sizes, no specific instructions were given as to how this stackingwas to he performed when necessary.6. Respondent’s work rules provided for the use of dunnage, butthere were no specific rules requiring the stable and secure stacking of the pilings.CONCLUSIONS OF LAW1. Gary Concrete Products, Inc., at all times pertinent tothese proceedings, was an employer engaged in a business affecting commerce within themeaning of section 3(5) of the Occupational Safety and Health Act of 1970, and theCommission has jurisdiction of the parties and subject matter herein pursuant to section10(c) of the Act2. Respondent is, and at all times pertinent to theseproceedings, required to comply with safety and health regulations promulgated by theSecretary pursuant to section 6(a) of the Act.3. On June 17, 1986, respondent was in serious violation of 29C.F.R ? 1910.176(b).ORDER Upon the basis of the foregoing findings of fact, conclusionsof law, and the entire record, it is ORDERED:The citation is affirmed and a penalty in the amount of $200.00 is hereby assessed.Dated this 8th day of April, 1987.\/s\/ Paul L. Brady PAUL L BRADYJudgeFOOTNOTES:[[*\/]] The use of dunnage is discussed at pages 75 and 76 ofthe transcript.”