“SECRETARY OF LABOR,Complainant,v.METRIC CONSTRUCTORS, INC.,Respondent.Docket No. 90-0403_ORDER_This matter is before the Commission on a Direction for Review enteredby Chairman Edwin G. Foulke, Jr. on October 21, 1991. The parties havenow filed a Stipulation and Settlement Agreement.Having reviewed the record, and based upon the representations appearingin the Stipulation and Settlement Agreement, we conclude that this caseraises no matters warranting further review by the Commission. Theterms of the Stipulation and Settlement Agreement do not appear to becontrary to the Occupational Safety and Health Act and are in compliancewith the Commission’s Rules of Procedure.Accordingly, we incorporate the terms of the Stipulation and SettlementAgreement into this order, and we set aside the Administrative LawJudge’s Decision and Order to the extent that it is inconsistent withthe Stipulation and Settlement Agreement. This is the final order ofthe Commission in this case. See 29 U.S.C. ?? 659(c), 660(a), and (b).Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: July 7, 1992————————————————————————SECRETARY OF LABOR,Complainant,v.METRIC CONSTRUCTORS, INC.Respondent.OSHRC Docket No. 90-0403_STIPULATION AND SETTLEMENT AGREEMENT_In full settlement and disposition of the issues in this proceeding, itis hereby stipulated and agreed by and between the Complainant,Secretary of Labor, and respondent, Metric Constructors, Inc., that:1. This case is before the Commission upon the granting of Respondent’sPetition for Discretionary Review seeking review of the AdministrativeLaw Judge’s Decision and Order dated August 23, 1991. Review wasgranted of serious Citation 1, Items 1 and 4(a) and (b) (review wassought and none was granted for the affirmance of serious Citation 1,Item 2(a), and Item 3; Item 2(b) of serious Citation 1 andother-than-serious Citation 2 were vacated).2. The Secretary hereby withdraws serious Citation 1, Item 4(a) and4(b) and the proposed thereto.3. The Secretary hereby amends the classification of serious Citation1, Item 1 to other-than-serious.4. Respondent hereby withdraws its notice of contest to seriousCitation 1, Item 1 and to the notification of proposed penalty.5. Respondent agrees to a penalty of $720.00 for serious Citation 1,Item 1.6. Respondent agrees that the above-mentioned violations have beenabated consistent with the terms of this agreement.7. By entering into this agreement, the parties do not admit or denythe existence of any violations. The parties have entered into thisagreement strictly to avoid the expense and uncertainty of furtherlitigation.8. Respondent agrees to submit to the OSHA Area office $720.00 within30 days of this agreement.9. Respondent certifies that a copy of this Stipulation and SettlementAgreement was posted at the workplace on the 22nd day of June 1992, inaccordance with Rules 7 and 100 of the Commission’s Rules of Procedure. There are no authorized representatives of affected employees.10. Complainant and respondent will bear their own litigation costs andexpenses.Antony F. GilCounsel for theSecretary of LaborJ. Larry StineAttorney forRespondentSECRETARY OF LABOR, Complainant, v. METRIC CONSTRUCTORS, INC., Respondent.OSHRC Docket No. 90-0403APPEARANCES:Leslie J. Rodriguez, Esquire, Office of the Solicitor, U.S. Departmentof Labor, Atlanta, Georgia, on behalf of complainantMr. Stephen J. Cloutier, Charlotte, North Carolina, on behalf of respondent.DECISION AND ORDERBurroughs, Judge: Metric Constructors, Inc. (\”Metric\”), a generalcontractor with its principal place of business in Charlotte, NorthCarolina, contests alleged serious violations of 29 C.F.R. ?1926.552(a)(1), for operating a material hoist with the door open andmaterial protruding out; 29 C.F.R. ? 1926.552(b)(2), for failing toprotect the full width of the landing entrance to the hoist; 29 C.F.R. ?1926.552(b)(5)(ii), for failure to enclose the unused sides of thehoist; and 29 C.F.R. ? 1926.701(b), for failure to guard protrudingreinforcing steel at the ground level and on the fifth floor.[[1]] Thealleged violations emanate from an inspection commenced on October 19,1989, at a worksite in Clearwater, Florida. The serious citation wasissued on December 22, 1989.The inspection was conducted by Compliance Officer Nancy Hodenius.[[2]] The inspection was to cover \”plain view\” violations. There were sevensubcontractors at the site (Tr. 64-66). Hodenius was accompanied on thewalk-around of the site by Mickey Roberts, Metric’s job superintendent,and Neal Theshour, the project manager (Tr. 65). A six-floor additionto a hospital was under construction at the time of the inspection (Tr. 23).A Champ Model MHT-50 single platform material hoist (Ex. C-1; Tr. 30)was located on the south side of the building (Tr. 69). The hoist hadbeen erected by Sims Crane Rental & Equipment Co. pursuant to a purchaseorder agreement (Tr. 20, 23, 44). Sims Rental inspected the crane andcertified it for use. In addition, they provided a service technicianwho gave instructions on its operation (Tr. 46-47). Employees of Metricand the subcontractors used the hoist (Tr. 95).Material hoists are common to the construction of a multi-storybuilding. They are used to raise and lower materials duringconstruction (Tr. 14). The car, consisting of a platform or floor, atop and an enclosure with a front and rear door gate to enter and exitthe car, is the load carrying unit (Tr. 14-18, 57). The hoist in thiscase was guided by a tower (Tr. 18). It was controlled by a leveroperated by an employee at the base of the tower (Tr. 111-112). Theoperator was able to see the entire area where the hoist ascended anddescended (Tr. 112).In order to establish a prima facie case that an employer has violated astandard promulgated pursuant to section 5(a)(2) of the Act, theSecretary must show by a preponderance of the evidence that: (1) thecited standard applies to the facts, (2) its terms were not met, (3)employees had access to the violative condition, and (4) the employerknew or could have known of the violation with the exercise ofreasonable diligence. See, e.g., Walker Towing Corp., 14 BNA OSHC 2072,2074, 1991 CCH OSHD ? 29,239, p. 39,157 (No. 87-1359, 1991). There isno dispute concerning knowledge. Metric was aware of the conditions atthe site. There is a question as to the applicability of the standardsand whether the terms of the standards were fulfilled.Item 1-Alleged Violation of 29 C.F.R. ? 1926.552(a)(1)The Secretary alleges that Metric violated ? 1926.552(a)(1) by operatingthe material hoist with the door open and material sticking out the opendoorway. During the inspection on October 19, 1989, the front door ofthe hoist was open and material was protruding out of the doorway (Tr.69, 79). There was concern that material might fall from the open cardoor (Tr. 69). The matter was brought to the attention of Roberts, whoindicated he would have the condition corrected (Tr. 72-74). Hodeniusadmitted that she did not know if the material was secured (Tr. 110). She saw no material fall out (Tr. 111). In addition to Metricemployees, there were subcontractors’ employees in the area (Tr.76-77). At least ten employees of Metric had access to the condition(Tr. 76-77).On September 17, 1989, Hodenius observed material was being transportedon top of the cage (Tr. 79). Roberts agreed that transporting materialon top is an unsafe practice (Tr. 25). The citation did not chargeMetric with transporting materials on top, and the complaint makes noreference to such an incident. Accordingly, whether materials werecarried on top and whether this is a violation of the standard are notconsidered issues in this case.Upon installation of the hoist, Sims furnished Metric with an operationsmanual. The manual does not mention anything about operating the hoistwith the door open or about protecting or erecting an enclosure aroundthe landing area (Tr. 50). These matters were never mentioned by Sims(Tr. 50).Section 1926.552(a)(1) provides:(1) The employer shall comply with the manufacturer’s specifications andlimitations applicable to the operation of all hoists and elevators. Where manufacturer’s specifications are not available, the limitationsassigned to the equipment shall be based on the determinations of aprofessional engineer competent in the field.The standard does not explicitly set out the requirements necessary foroperation of a material hoist. Under the terms of the standard, Metricwas required to comply with the manufacturer’s specifications andlimitations.Metric contends that the standard improperly delegates the Secretary’s\”regulatory power to manufacturers and that subsequent changes bymanufacturers violated the notice and comment requirements of theAdministrative Procedure Act.\” A similar argument has been rejected bythe Commission in Towne Construction Co., 86 OSAHRC 66\/A3, 12 BNA OSHC2185, 1986 CCH OSHD ? 27,760 (No. 83-1262, 1986), aff’d, 847 F.2d 1187(6th Cir. 1988). While the Towne decision pertained to ?1926.550(a)(1), the language was similar. The argument is rejected.Metric next argues that the Secretary failed to prove the elements ofthe violation. Metric submits that the first element the Secretary mustestablish is that the manufacturer’s specifications prohibit suchpractice. Metric received an operator’s manual for the hoist (Ex. R-2)from Sims. The manual, as presently written, does not specify that thematerial hoist door must be closed prior to operation or that thematerial may not extend beyond the door (Tr. 132). In addition, Metricasserts that the service technician from Sims at no time instructedanyone not to operate the hoist with the door open (Tr. 47).With respect to the door, the operator’s manual states, \”When platformis raised, front door will close automatically\” (Tr. 32). Any argumentthat this statement supports the violation is rejected. Such astatement is not a limitation on operations but a description of thefunction of the door. Furthermore, the statement relates to thefunction of a vertical door and not to horizontal swing doors which wereused at the jobsite (Tr. 32).The Secretary also makes reference to ? 1926.552(b)(8),[[3]] whichadopts \”ANSI A10.5-1969, Safety Requirements for Material Hoists.\” Withrespect to long material hanging over the edge of the hoist car, ANSIA10.5 ? 13.5 provides:13.5 When using a cage or platform for long material, the severalpieces of the material shall be securely fastened together and made fastto cage or platform, so that no part of the load can fall or projectbeyond the sides of the cage or platform. The violation charges Metricwith violating the \”manufacturer’s specifications and limitations.\” Thecitation makes no reference to ? 1926.552(b)(8) of the ANSI standard.Metric objects to the reliance by the Secretary on the ANSI standardsince it was not originally referenced under the allegation. It arguesthat an ANSI standard is not a manufacturer’s specification. It ispointed out that the OSHA standard cited by the Secretary requires it tocomply with the manufacturer’s specifications in the operation of thematerial hoist, not the ANSI standard. It states that it was not citedfor such a violation and did not consent to try the case under ?1926.552(b)(8) at the hearing.The Secretary seeks to make the provisions of ANSI A10.5 applicable byamending the pleadings. An amendment is not necessary. The ANSIstandard is part of the \”manufacturer’s specifications and limitations.\” The operator’s manual furnished by Sims to Metric contains thefollowing statement in capitol letters at the commencement of section II(Ex. C-2):INSTALLATION, ERECTION, OPERATION AND INSPECTION TO BE IN ACCORDANCEWITH ANSI 10.5 — CURRENT REVISION.This statement adopts and incorporates ANSI 10.5 as part of the\”manufacturer’s specifications and limitations.\” The manufacturerspecifically referenced the ANSI standard as part of its \”specificationsand limitations.\”Due to the specific incorporation by reference of the ANSI standard inthe operator’s manual, and the fact it is undisputed that the materialhoist was operated with long material hanging over the edge of an openhoist car door, the violation is affirmed.Metric introduced evidence from Roberts and Stephen Cloutier, Metric’ssafety and loss control manager, that it was industry practice to movelarge materials with the hoist door open where it is necessary to thetransporting of the material (Tr. 43-44, 137). Industry practice cannotobviate an established rule. The defense is without merit.Item 2 – Alleged Violation of 29 C.F.R. ? 1926.552(b)(2)Metric is charged with a violation of ? 1926.552(b)(2) for failure to(1) protect the Champ hoist at the loading dock area with a gate or barsat the ground level entrance and (2) because the second floor landinggate did not have a midrail, and the wire covering on the gate waspulled loose from the lower corner. The standard states:(2) All entrances of the hoistways shall be protected by substantialgates or bars which shall guard the full width of the landing entrance.The remainder of this subsection details the specifications for suchgates or bars:(i) Bars shall be not less than 2- by 4-inch wooden bars or theequivalent, located 2 feet from the hoistway line. Bars shall belocated not less than 36 inches nor more than 42 inches above the floor.(ii) Gates or bars protecting the entrances to hoistway shall beequipped with a latching device. The hoist tower at the ground level,referred to as the loading dock area, did not have gate or bars toprevent anyone from walking under the hoist (Ex. C-2, C-3; Tr. 81-83). Employees were walking in the area (Tr. 83-84). There was nothing toprevent access to the space at the bottom of the hoistway (Tr. 19). Approximately ten employees of Metric had access to the area (Tr. 83). The hoist was used on a daily basis (Tr. 83). The violation has beenestablished.All the landings had premanufactured gates except the second level. Metric constructed a wooden gate (Ex. C-4) for the second level becauseof a height variation at the second level. The premanufactured gatecould not be used on the second level without extensive modification(Tr. 58-59). The wooden gate had been covered with what Hodeniusreferred to as \”chicken wire.\” The wire was pulled away from one ofthe lower corners of the gate for a small area measuring about eight toten inches wide (Tr. 85, 87, 115). Hodenius testified that the wire hadbeen pulled back about a foot. She then stated, \”I don’t recall\” (Tr.91). Hodenius was concerned that if an employee fell against the wire,it might further loosen and cause a fall to the ground level (Tr. 88). Hodenius rejected the gate in part because it was constructed of awooden frame as opposed to the metal frame for the other loadings (Tr.86). She admits a midrail is not required by the standard (Tr. 87). There were two employees on the second floor (Tr. 88).The Secretary contends that the hoistway gate on the second level wasnot \”substantial.\” This conclusion is based on the fact that (1) thewire covering the gate was a lighter wire than the other gates, (2) thewire had been damaged in the lower corner, and (3) it was constructed ofwood, not metal (Tr. 87). The Secretary recommended that a midrail beadded to give the gate more stability; however, Hodenius admitted that amidrail is not required by the standard (Tr. 87).The Secretary defines the issues in dispute as one concerning thechicken wire covering, which was loose in one corner, attached to awooden frame and a 2- by 4-inch wooden bar 36 inches above the floor anda 2-by 4-inch wooden cross brace, constitutes a substantial gate (Exs.C-2, C-4; Tr. 23-25, 58-59, 85-88, 91, 114-117). She argues that thedifferences between the manufacturer’s metal gates and Metric’s woodengate, plus the damage to the chicken wire, are sufficient to support adetermination that the gate was not substantial. In the opinion of theSecretary, the wooden gate fails to satisfy the demands of the standard.The standard requires that the entrance be protected by \”substantialgates or bars.\” Metric argues that the meaning of \”substantial\” under29 C.F.R. ? 1926.552(b)(2) must be interpreted in light of ?1926.552(b)(2)(i) which states, \”[b]ars shall not be less than 2-by4-inch wooden bars or the equivalent…..Bars shall be located not lessthan 36 inches nor more than 42 inches above the floor.\” If a gate orbar is defined as substantial when constructed with 2-inch by 4-inchwood, the Secretary’s reference to the fact that the gate is notsubstantial because it was constructed of wood and not metal does notallow for a wooden gate. This is obviously contrary to the standard. The determination of what is \”substantial\” is measured against a 2-by4-inch wooden bar. The standard does not specify any type of covering. Metric, by installing the wire covering, went beyond the requirements ofthe standard. The argument raised by the Secretary as to the wirecovering is immaterial and is not related to ? 1926.552(b)(2).The Secretary recommended a midrail be installed; however, the standardpermits a single wooden bar located between 36 and 42 inches from thefloor or a gate. The record is devoid of any evidence concerning theheight of the top bar of the gate clearly shows that a gate was in placeat this location. The Secretary failed to establish that a midrail isrequired and further failed to show that the gate was not in compliancewith the standard. In concluding that the gate was not substantial, theSecretary has failed to support that conclusion. The fact that the gatewas constructed of wood and had a \”chicken wire\” covering does not perse support such a violation. The standard does not say a gateconstructed of wood is not substantial. The alleged violation withrespect to the second level gate is vacated.Item 3- Alleged Violation of 29 C.F.R. ? 1926.552(b)(5)(ii)The Secretary alleges Metric violated ? 1926.552(b)(5)(ii) by failing toenclose the unused sides of the Champ hoist at the ground level. Section 1926.552(b)(5)(ii) provides:(ii) When a hoist tower is not enclosed, the hoist platform or carshall be totally enclosed (caged) on all sides for the full heightbetween the floor and the overhead protective covering with 1\/2-inchmesh of No. 14 U.S. gauge wire or equivalent. The hoist platformenclosure shall include the required gates for loading and unloading. A6-foot high enclosure shall be provided on the unused sides of the hoisttower at ground level.There was no enclosure of the unused sides of the hoist tower at groundlevel (Tr. 39, 64, 92). Approximately ten Metric employees had accessto the area (Tr. 92). Roberts agreed that the hoist tower was usedwithout an enclosure on all open sides (Tr. 18). There was a chancethat an employee would inadvertently walk under the hoist and be struckfrom its descent (Tr. 92, 95-96).It is uncontroverted that the hoist tower which was used to guide thehoist car in its travel was used without an enclosure on all sides (Tr.18). There was nothing to prevent access to the tower at ground level(Exs. C-2, C-3; Tr. 19, 39, 64, 92). Metric’s employees who were in thearea clearing materials could walk underneath the hoist. The violationis affirmed.Metric reasons that the alleged potential hazard is based on an argumentthat the material hoist would descend upon an employee (Tr. 81). Whileadmitting the hoistway was not guarded, Metric asserts that theSecretary failed to establish that the employees were exposed to thehazard of a descending platform. It points out that the sole proof ofexposure to the danger of a descending platform is found in the verygeneralized testimony of Hodenius, who stated that she saw employees\”around the hoist\” (Tr. 84). When she was asked how close the employeeswere to the zone of danger she replied, \”Well, some of them were walkingon the platform; just walking through the area\” (Tr. 84). Metric arguesthat it is obvious that if employees were walking on the platform, theycannot be exposed to the hazard of a descending platform and that thefact that employees were just walking through the area fails to provethat the employees were in the zone of danger. Metric concluded thatthe testimony leaves one to speculate as to the meaning of the word\”area.\” According to Metric, such an undefined answer does notestablish facts as to the location of the employees. Metric also pointsout that the Secretary failed to establish employees had access to thisarea when the platform was lifted.The hoist will not operate without an operator at the controls. If theoperator lets go of the controls, the hoist will not move (Tr. 47-48). Metric points out that the operators can watch all operations from thecontrols (Tr. 47) and can restrict access to the area under the platformwhenever the platform is in a raised position.The standard does not require the Secretary to prove a hazard. Exposuremust be established. There is no question concerning the fact thatemployees were in the area. The fact the hoist was operated by anindividual who could see persons in the area does not negate therequirement of the standard.Metric further argues that the alleged violation should be vacatedbecause Metric properly relied on the expertise of Sims. Metriccontracted with Sims to construct the material hoist, which is Sims’area of expertise (Tr. 45). Sims installed the material hoist,inspected it, certified it, and provided a service technician toinstruct Metric personnel in the operation of the hoist (Tr. 46-47). The only function performed by Metric was done according to Sim’sspecifications (Tr. 46). Metric had no reason to doubt Sims’ expertisein this area. In support of its argument, Metric cites the followingform Sasser Electric & Manufacturing Co., 84 OSAHRC 37\/C6, 11 BNA OSHC2133, 2136, 1984 CCH OSHD ? 26,982 (No. 82-178, 1984):In many situations in the workplace, it is natural for an employer torely upon the specialist to perform work related to that specialtysafely in accordance with OSHA standards. Cf. Cities Service Oil Co.,76 OSAHRC 105\/A2, 4 BNA OSHC 1515, 1518, 1976-77 CCH OSHD ? 20,999 atpp. 25,237-38 (No. 4648, 1976), aff’d, 577 F.2d 126 [6 OSHC 1631] (10thCir. 1978) (\”Normally, when an employer hires an independent contractorto perform certain work, it relies on the contractor’s expertise toperform the work correctly.\”) Further, in many instances it may not befeasible, because of an employer’s lack of expertise, or wasteful,without necessarily resulting in the best achievement of safety for allemployees, to require the contracting employer to duplicate the safetyefforts of the specialist.Accordingly, while an employer has a duty to his own employees even whenit relies upon a specialist to perform part of the work, the duty is ofa different nature than when the employer performs the work itself. Ina single employer situation, the employer by necessity assumes theresponsibility to prevent violations. However, when some of the work isperformed by a specialist, an employer is justified in relying upon thespecialist to protect against hazards related to the specialist’sexpertise so long as the reliance is reasonable and the employer has noreason to foresee that the work will be performed unsafely.Metric’s argument the Sasser should be followed is rejected. There aresignificant differences in the two situations. Sasser was in thebusiness of servicing diesel generators. Its employees were mechanicsand electricians. It did not operate or profess to have any expertisein crane operations. It rented a crane and, more importantly, anoperator from Mountain Trucking Company. Metric merely rented thehoist. Its employees operated the hoist. The hoist was installed,inspected and certified by Sims Rental. Metric’s employees wereinstructed in its operation and did, in fact, operate the hoist. Material hoists are common at construction sites and are used by theconstruction employees to transport supplies to upper floors. Hazardoussituations are generally well known. Roberts was aware of theconditions and recognized the hazards. Metric was given an operator’smanual which referred to ANSI Standard A10.5-1969. The violation hasbeen established.Item 4-Alleged Violation of 29 C.F.R. ? 1926.701(b)The Secretary alleges that Metric was in violation of ? 1926.701(b) forfailure to guard reinforcing steel rods located on the ground level atthe ladder and on the south side of the fifth floor. The cited standardstates:(b) Reinforcing steel. All protruding reinforcing steel, onto and intowhich employees could fall, shall be guarded to eliminate the hazard ofimpalement.Mickey Roberts, Metric’s project superintendent, agreed that reinforcingsteel rebar at the ladder on the ground level protruded 11 inches[[4]]and was unguarded (Ex. C-5; Tr. 42, 52, 97). He also agreed that therewas unguarded protruding rebar seven inches in height on the south sideof the fifth floor (Tr. 42). These allegations are fully supported bythe photographs entered into evidence as C-5 and C-6 and the testimonyof Hodenius.Roberts testified that the rebar had been bent over until a couple ofdays before the inspection in anticipation of pouring the concrete (Tr.53-54). The rebar has to be in a vertical position for pouring theconcrete (Tr. 52-54). Hodenius testified that Roberts did not say whenthe pour would be made, and she did not get the impression that the pourwould be within a day or two (Tr. 100).Metric argues that the rebar had been bent down to eliminate the hazardof impalement (Tr. 53, 77), a practice generally used in theconstruction industry (Tr. 138). It is standard practice of Metric tobend the rebar over until a couple of days prior to pouring the concrete(Tr. 53-54). In order to pour the wall, it was necessary to bend therebars back to their vertical position (Tr. 53-54). According toMetric, the forming material was in place at the fifth level and groundlevel ready to be used (Tr. 54). While Hodenius originally registereddoubt as to the stage of the work, she had to acknowledge that her ownphotographs (Exs. C-5, C-6) show some forms in place, a recently formedwall and additional forms stacked in the area (Tr. 118, 199). Sheagreed that it was possible that the rebars were in a vertical positionin anticipation of pouring the wall (Tr. 119). She had no support forher speculations that the walls were not being ready to be poured. Theproject superintendent testified that the rebar had been bent back up inpreparation of forming the walls and that the forming material was inplace both on the ground level and the fifth level (Tr. 53-54). Metricdid not offer any evidence to show when the pour had been scheduled.Employees had access to the unguarded areas of the reinforcing steel. At the ground level, employees were walking through the area to getaccess to the ladder. At least ten Metric employees were in the area. The ladder was the only access to the upper levels (Ex. C-5; Tr. 98). At the fifth level, a wooden plank resting between a couple of pieces ofreinforcing steel was used as a walkway and employees were seen walkingacross it (Ex. C-6; Tr. 102, 118).Metric’s defense to the citation is that the \”reinforcing steel was notguarded because it was being readied to be moved into place and thenhave concrete poured around it\” (Answer; Tr. 52-54, 117-119, 138). Hodenius testified that her observation of the ground level area, alongwith discussions with Metric’s employees and superintendent Roberts,disclosed that Metric would be pouring concrete, but she did not \”getthe impression that it would be within a day or two\” (Tr. 99). Consistent with this testimony was Roberts’ admission that the rebar atground level was unprotected since October 17, 1989, i.e., two daysprior to the inspection (Tr. 53-54). As to the fifth level, it wasbeing cleaned up and the area did not appear to be ready to erect a wall(Tr. 104-105). The rebar was in a vertical position too long toconclude that Metric was in compliance with the standard. Theinspection day was the third day known for certain that the rebar was ina vertical position without a pour being made. Three days is consideredto be excessive exposure. Metric never stated that a pour had beenscheduled, and there was no evidence to justify raising the rebar to avertical position that far in advance of a pour. Employees wereconstantly exposed to the condition during the three days. Theviolation is affirmed.Classification of the ViolationsThe Secretary contends that the violations were serious within themeaning of section 17(k) of the Act. A serious violation exists wherethere is substantial probability that death or serious physical harmcould result from the condition in question. The Secretary need notprove that an accident is probable; it is sufficient if an accident ispossible, and its probable result could be serious injury or death. Brown & Root Inc., Power Plant Division, 80 OSAHRC 17\/B8, 8 BNA OSHC1055, 1980 CCH OSHD ? 24,275 (No. 76-3942, 1980).The Secretary must also prove that the employer knew or, with theexercise of reasonable diligence, should have known of the existence ofthe violation. The knowledge element is directed to the physicalconditions which constitute a violation. Southwestern Acoustics &Specialty, Inc., 77 OSAHRC 141\/D10, 5 BNA OSHC 1091, 1977-78 CCH OSHD ?21,582 (No. 12174, 1977). It is difficult for an employer to prevail onthe defense that he had no knowledge of the violation since he has anobligation to inspect the work area, to anticipate hazards to whichemployees may be exposed, and to take measures to prevent theiroccurrence. Frank Swidzinski Co., 81 OSAHRC 4\/E14, 9 BNA OSHC 1230,1981 CCH OSHD ? 25,129 (No. 76-4627, 1981).The violations were serious because of the probability of severeinjuries including death: (1) if the hoist descended upon an employeeat the unprotected ground floor landing entrance and at the unenclosed,unused sides of the hoist tower; (2) if materials fell out of the opencar of the hoist; and (3) if employees fell on the unguarded reinforcingsteel (Tr. 78, 84, 93, 99, 103). The probability that such injuriescould result is unchallenged by Metric. Because all of the violationswere in plain view, Metric clearly knew of the hazards (Tr. 78-79, 85,89, 94).Determination of PenaltiesThe Commission is the final arbiter of penalties in all contestedcases. Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8thCir. 1973). In determining an appropriate penalty, the Commission isrequired to find and give \”due consideration\” to the size of theemployer’s business, the gravity of the violation, the good faith of theemployer, and the history of previous violations.[[5]] Primary emphasisis placed on the gravity of the violation. Nacirema Operating Company,Inc., 72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No.4, 1972).At the time of the inspection, Metric indicated it had approximately2,000 employees (Tr. 66). Compliance Officer Hodenius considered Metricto be very cooperative (Tr. 119). Metric has previously been issuedseveral citations prior to the citation in this case. The followingpenalties are considered appropriate:Item PenaltyNo. 1 $7202 3153 6304 630FINDINGS OF FACT AND CONCLUSIONS OF LAWThe foregoing constitutes the findings of fact and conclusions of law inaccordance with Federal Rule of Civil Procedure 52(a).ORDERBased upon the foregoing decision, it isORDERED: (1) That items one, three and four of the serious citationissued to Metric on December 22, 1989, are affirmed and the followingpenalties assessed for the violations:Item AssessedNo. Penalty1 $7203 6304 630(2) That item two of the serious citation is affirmed as it pertains tothe loading dock area and vacated with respect to the second floor landing;(3) That a penalty of $315 is assessed for item two as modified; and(4) That the \”other\” citation issued to Metric on December 22, 1989, isvacated.JAMES D. BURROUGHSJudgeDate: September 12, 1991FOOTNOTES:[[1]] Metric also contested an \”other\” citation containing one itemissued to it on December 22, 1989. The Government withdrew the citationat the beginning of the hearing (Tr. 5).[[2]] Hodenius had apparently observed what she described as \”plainview\” violations on October 17, 1989, and had reported her observationsto her supervisor. She was assigned to conduct an inspection.[[3]] Section 1926.552(b)(8) provides:(8) All material hoists shall conform to the requirements of ANSIA10.5-1989, Safety Requirements for Material Hoists.[[4]] Compliance Officer Hodenius measured the rebar (Tr. 97-98).[[5]] Section 17(j) of the Act states:(j) The Commission shall have authority to assess all civil penaltiesprovided in this section, giving due consideration to theappropriateness of the penalty with respect to the size of the businessof the employer being charged, the gravity of the violation, the goodfaith of the employer, and the history of previous violations. “