“Docket No. 90-0403 SECRETARY OF LABOR,Complainant,v.METRIC CONSTRUCTORS, INC.,Respondent.Docket No. 90-0403ORDERThis matter is before the Commission on a Direction forReview entered by Chairman Edwin G. Foulke, Jr. on October 21, 1991.\u00a0 The partieshave now filed a Stipulation and Settlement Agreement.Having reviewed the record, and based upon therepresentations appearing in the Stipulation and Settlement Agreement, we conclude thatthis case raises no matters warranting further review by the Commission.\u00a0 The termsof the Stipulation and Settlement Agreement do not appear to be contrary to theOccupational Safety and Health Act and are in compliance with the Commission’s Rules ofProcedure.Accordingly, we incorporate the terms of the Stipulationand Settlement Agreement into this order, and we set aside the Administrative Law Judge’sDecision and Order to the extent that it is inconsistent with the Stipulation andSettlement Agreement.\u00a0 This is the final order of the Commission in this case. \u00a0See 29 U.S.C. ?? 659(c), 660(a), and (b).Edwin G. Foulke, Jr. ChairmanDonald G. Wiseman CommissionerVelma Montoya CommissionerDated: July 7, 1992SECRETARY OF LABOR,Complainant,v.METRIC CONSTRUCTORS, INC.Respondent.OSHRC Docket No. 90-0403STIPULATION AND SETTLEMENT AGREEMENTIn full settlement and disposition of the issues in thisproceeding, it is hereby stipulated and agreed by and between the Complainant, Secretaryof Labor, and respondent, Metric Constructors, Inc., that:1.\u00a0 This case is before the Commission upon thegranting of Respondent’s Petition for Discretionary Review seeking review of theAdministrative Law Judge’s Decision and Order dated August 23, 1991.\u00a0 Review wasgranted of serious Citation 1, Items 1 and 4(a) and (b) (review was sought and none wasgranted for the affirmance of serious Citation 1, Item 2(a), and Item 3; Item 2(b) ofserious Citation 1 and other-than-serious Citation 2 were vacated).2.\u00a0 The Secretary hereby withdraws serious Citation1, Item 4(a) and 4(b) and the proposed thereto.3.\u00a0 The Secretary hereby amends the classification ofserious Citation 1, Item 1 to other-than-serious.4.\u00a0 Respondent hereby withdraws its notice of contestto serious Citation 1, Item 1 and to the notification of proposed penalty.5.\u00a0 Respondent agrees to a penalty of $720.00 forserious Citation 1, Item 1.6.\u00a0 Respondent agrees that the above-mentionedviolations have been abated consistent with the terms of this agreement.7.\u00a0 By entering into this agreement, the parties donot admit or deny the existence of any violations.\u00a0 The parties have entered intothis agreement strictly to avoid the expense and uncertainty of further litigation.8.\u00a0 Respondent agrees to submit to the OSHA Areaoffice $720.00 within 30 days of this agreement.9.\u00a0 Respondent certifies that a copy of thisStipulation and Settlement Agreement was posted at the workplace on the 22nd day of June1992, in accordance with Rules 7 and 100 of the Commission’s Rules of Procedure. \u00a0There are no authorized representatives of affected employees.10.\u00a0 Complainant and respondent will bear their ownlitigation costs and expenses.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. Department of Labor, Atlanta, Georgia, on behalf of complainantMr. Stephen J. Cloutier, Charlotte, North Carolina, onbehalf of respondent.DECISION AND ORDERBurroughs, Judge:\u00a0 Metric Constructors, Inc.(\”Metric\”), a general contractor with its principal place of business inCharlotte, North Carolina, contests alleged serious violations of 29 C.F.R. ?1926.552(a)(1), for operating a material hoist with the door open and material protrudingout; 29 C.F.R. ? 1926.552(b)(2), for failing to protect the full width of the landingentrance to the hoist; 29 C.F.R. ? 1926.552(b)(5)(ii), for failure to enclose the unusedsides of the hoist; and 29 C.F.R. ? 1926.701(b), for failure to guard protrudingreinforcing steel at the ground level and on the fifth floor.[[1]]\u00a0 The allegedviolations emanate from an inspection commenced on October 19, 1989, at a worksite inClearwater, Florida.\u00a0 The serious citation was issued on December 22, 1989.The inspection was conducted by Compliance Officer NancyHodenius.[[2]]\u00a0 The inspection was to cover \”plain view\” violations. \u00a0There were seven subcontractors at the site (Tr. 64-66).\u00a0 Hodenius was accompanied onthe walk-around of the site by Mickey Roberts, Metric’s job superintendent, and NealTheshour, the project manager (Tr. 65).\u00a0 A six-floor addition to a hospital was underconstruction 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).\u00a0 The hoist hadbeen erected by Sims Crane Rental & Equipment Co. pursuant to a purchase orderagreement (Tr. 20, 23, 44).\u00a0 Sims Rental inspected the crane and certified it foruse.\u00a0 In addition, they provided a service technician who gave instructions on itsoperation (Tr. 46-47).\u00a0 Employees of Metric and the subcontractors used the hoist(Tr. 95).Material hoists are common to the construction of amulti-story building.\u00a0 They are used to raise and lower materials during construction(Tr. 14).\u00a0 The car, consisting of a platform or floor, a top and an enclosure with afront and rear door gate to enter and exit the car, is the load carrying unit (Tr. 14-18,57).\u00a0 The hoist in this case was guided by a tower (Tr. 18).\u00a0 It was controlledby a lever operated by an employee at the base of the tower (Tr. 111-112).\u00a0 Theoperator was able to see the entire area where the hoist ascended and descended (Tr. 112).In order to establish a prima facie case that an employerhas violated a standard promulgated pursuant to section 5(a)(2) of the Act, the Secretarymust show by a preponderance of the evidence that:\u00a0 (1) the cited standard applies tothe facts, (2) its terms were not met, (3) employees had access to the violativecondition, and (4) the employer knew or could have known of the violation with theexercise of reasonable diligence.\u00a0 See, e.g., Walker Towing Corp., 14 BNA OSHC 2072,2074, 1991 CCH OSHD ? 29,239, p. 39,157 (No. 87-1359, 1991).\u00a0 There is no disputeconcerning knowledge.\u00a0 Metric was aware of the conditions at the site.\u00a0 There isa question as to the applicability of the standards and whether the terms of the standardswere 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 operating the material hoist with the door open and material stickingout the open doorway.\u00a0 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). \u00a0There was concern that material might fall from the open car door (Tr. 69). \u00a0 Thematter was brought to the attention of Roberts, who indicated he would have the conditioncorrected (Tr. 72-74).\u00a0 Hodenius admitted that she did not know if the material wassecured (Tr. 110).\u00a0 She saw no material fall out (Tr. 111).\u00a0 In addition toMetric employees, there were subcontractors’ employees in the area (Tr. 76-77).\u00a0 Atleast ten employees of Metric had access to the condition (Tr. 76-77).On September 17, 1989, Hodenius observed material wasbeing transported on top of the cage (Tr. 79).\u00a0 Roberts agreed that transportingmaterial on top is an unsafe practice (Tr. 25).\u00a0 The citation did not charge Metricwith transporting materials on top, and the complaint makes no reference to such anincident.\u00a0 Accordingly, whether materials were carried on top and whether this is aviolation of the standard are not considered issues in this case.Upon installation of the hoist, Sims furnished Metric withan operations manual.\u00a0 The manual does not mention anything about operating the hoistwith the door open or about protecting or erecting an enclosure around the landing area(Tr. 50).\u00a0 These matters were never mentioned by Sims (Tr. 50).Section 1926.552(a)(1) provides:(1) The employer shall comply with the manufacturer’sspecifications and limitations applicable to the operation of all hoists and elevators.\u00a0 Where manufacturer’s specifications are not available, the limitations assigned tothe equipment shall be based on the determinations of a professional engineer competent inthe field.The standard does not explicitly set out the requirementsnecessary for operation of a material hoist.\u00a0 Under the terms of the standard, Metricwas required to comply with the manufacturer’s specifications and limitations.Metric contends that the standard improperly delegates theSecretary’s \”regulatory power to manufacturers and that subsequent changes bymanufacturers violated the notice and comment requirements of the Administrative ProcedureAct.\”\u00a0 A similar argument has been rejected by the Commission in TowneConstruction Co., 86 OSAHRC 66\/A3, 12 BNA OSHC 2185, 1986 CCH OSHD ? 27,760 (No. 83-1262,1986), aff’d, 847 F.2d 1187 (6th Cir. 1988).\u00a0 While the Towne decision pertained to? 1926.550(a)(1), the language was similar.\u00a0 The argument is rejected.Metric next argues that the Secretary failed to prove theelements of the violation.\u00a0 Metric submits that the first element the Secretary mustestablish is that the manufacturer’s specifications prohibit such practice.\u00a0 Metricreceived an operator’s manual for the hoist (Ex. R-2) from Sims.\u00a0 The manual, aspresently written, does not specify that the material hoist door must be closed prior tooperation or that the material may not extend beyond the door (Tr. 132).\u00a0 Inaddition, Metric asserts 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 platform is raised, front door will close automatically\” (Tr. 32). \u00a0Any argument that this statement supports the violation is rejected.\u00a0 Such astatement is not a limitation on operations but a description of the function of the door.\u00a0 Furthermore, the statement relates to the function of a vertical door and not tohorizontal swing doors which were used at the jobsite (Tr. 32).The Secretary also makes reference to ?1926.552(b)(8),[[3]] which adopts \”ANSI A10.5-1969, Safety Requirements for MaterialHoists.\”\u00a0 With respect to long material hanging over the edge of the hoist car,ANSI A10.5 ? 13.5 provides:13.5\u00a0 When using a cage or platform for longmaterial, the several pieces of the material shall be securely fastened together and madefast to cage or platform, so that no part of the load can fall or project beyond the sidesof the cage or platform.\u00a0 The violation charges Metric with violating the\”manufacturer’s specifications and limitations.\”\u00a0 The citation makes noreference to ? 1926.552(b)(8) of the ANSI standard.Metric objects to the reliance by the Secretary on theANSI standard since it was not originally referenced under the allegation.\u00a0 It arguesthat an ANSI standard is not a manufacturer’s specification.\u00a0 It is pointed out thatthe OSHA standard cited by the Secretary requires it to comply with the manufacturer’sspecifications in the operation of the material hoist, not the ANSI standard.\u00a0 Itstates that it was not cited for such a violation and did not consent to try the caseunder ? 1926.552(b)(8) at the hearing.The Secretary seeks to make the provisions of ANSI A10.5applicable by amending the pleadings.\u00a0 An amendment is not necessary.\u00a0 The ANSIstandard is part of the \”manufacturer’s specifications and limitations.\” \u00a0The operator’s manual furnished by Sims to Metric contains the following statement incapitol letters at the commencement of section II (Ex. C-2):INSTALLATION, ERECTION, OPERATION AND INSPECTION TO BE INACCORDANCE WITH ANSI 10.5 — CURRENT REVISION.This statement adopts and incorporates ANSI 10.5 as partof the \”manufacturer’s specifications and limitations.\”\u00a0 The manufacturerspecifically referenced the ANSI standard as part of its \”specifications andlimitations.\”Due to the specific incorporation by reference of the ANSIstandard in the operator’s manual, and the fact it is undisputed that the material hoistwas operated with long material hanging over the edge of an open hoist car door, theviolation is affirmed.Metric introduced evidence from Roberts and StephenCloutier, Metric’s safety and loss control manager, that it was industry practice to movelarge materials with the hoist door open where it is necessary to the transporting of thematerial (Tr. 43-44, 137).\u00a0 Industry practice cannot obviate an established rule.\u00a0 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 bars atthe ground level entrance and (2) because the second floor landing gate did not have amidrail, and the wire covering on the gate was pulled loose from the lower corner. \u00a0The standard states:(2) All entrances of the hoistways shall be protected bysubstantial gates or bars which shall guard the full width of the landing entrance.The remainder of this subsection details thespecifications for such gates or bars:(i) Bars shall be not less than 2- by 4-inch wooden barsor the equivalent, located 2 feet from the hoistway line.\u00a0 Bars shall be located notless than 36 inches nor more than 42 inches above the floor.(ii) Gates or bars protecting the entrances to hoistwayshall be equipped with a latching device.\u00a0 The hoist tower at the ground level,referred to as the loading dock area, did not have gate or bars to prevent anyone fromwalking under the hoist (Ex. C-2, C-3; Tr. 81-83).\u00a0 Employees were walking in thearea (Tr. 83-84).\u00a0 There was nothing to prevent access to the space at the bottom ofthe hoistway (Tr. 19).\u00a0 Approximately ten employees of Metric had access to the area(Tr. 83).\u00a0 The hoist was used on a daily basis (Tr. 83).\u00a0 The violation has beenestablished.All the landings had premanufactured gates except thesecond level.\u00a0 Metric constructed a wooden gate (Ex. C-4) for the second levelbecause of a height variation at the second level.\u00a0 The premanufactured gate couldnot be used on the second level without extensive modification (Tr. 58-59).\u00a0 Thewooden gate had been covered with what Hodenius referred to as \”chicken wire.\”\u00a0 The wire was pulled away from one of the lower corners of the gate for a small areameasuring about eight to ten inches wide (Tr. 85, 87, 115).\u00a0 Hodenius testified thatthe wire had been pulled back about a foot.\u00a0 She then stated, \”I don’trecall\” (Tr. 91).\u00a0 Hodenius was concerned that if an employee fell against thewire, it might further loosen and cause a fall to the ground level (Tr. 88). \u00a0Hodenius rejected the gate in part because it was constructed of a wooden frame as opposedto the metal frame for the other loadings (Tr. 86).\u00a0 She admits a midrail is notrequired by the standard (Tr. 87).\u00a0 There were two employees on the second floor (Tr.88).The Secretary contends that the hoistway gate on thesecond level was not \”substantial.\”\u00a0 This conclusion is based on the factthat (1) the wire covering the gate was a lighter wire than the other gates, (2) the wirehad been damaged in the lower corner, and (3) it was constructed of wood, not metal (Tr.87).\u00a0 The Secretary recommended that a midrail be added to give the gate morestability; however, Hodenius admitted that a midrail is not required by the standard (Tr.87).The Secretary defines the issues in dispute as oneconcerning the chicken wire covering, which was loose in one corner, attached to a woodenframe and a 2- by 4-inch wooden bar 36 inches above the floor and a 2-by 4-inch woodencross brace, constitutes a substantial gate (Exs. C-2, C-4; Tr. 23-25, 58-59, 85-88, 91,114-117).\u00a0 She argues that the differences between the manufacturer’s metal gates andMetric’s wooden gate, plus the damage to the chicken wire, are sufficient to support adetermination that the gate was not substantial.\u00a0 In the opinion of the Secretary,the wooden gate fails to satisfy the demands of the standard.The standard requires that the entrance be protected by\”substantial gates or bars.\”\u00a0 Metric argues that the meaning of\”substantial\” under 29 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-by 4-inch woodenbars or the equivalent…..Bars shall be located not less than 36 inches nor more than 42inches above the floor.\”\u00a0 If a gate or bar is defined as substantial whenconstructed with 2-inch by 4-inch wood, the Secretary’s reference to the fact that thegate is not substantial because it was constructed of wood and not metal does not allowfor a wooden gate.\u00a0 This is obviously contrary to the standard.\u00a0 Thedetermination of what is \”substantial\” is measured against a 2-by 4-inch woodenbar.\u00a0 The standard does not specify any type of covering.\u00a0 Metric, by installingthe wire covering, went beyond the requirements of the standard.\u00a0 The argument raisedby the Secretary as to the wire covering is immaterial and is not related to ?1926.552(b)(2).The Secretary recommended a midrail be installed; however,the standard permits a single wooden bar located between 36 and 42 inches from the flooror a gate.\u00a0 The record is devoid of any evidence concerning the height of the top barof the gate clearly shows that a gate was in place at this location.\u00a0 The Secretaryfailed to establish that a midrail is required and further failed to show that the gatewas not in compliance with the standard.\u00a0 In concluding that the gate was notsubstantial, the Secretary has failed to support that conclusion.\u00a0 The fact that thegate was constructed of wood and had a \”chicken wire\” covering does not per sesupport such a violation.\u00a0 The standard does not say a gate constructed of wood isnot substantial.\u00a0 The alleged violation with respect to the second level gate isvacated.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 to enclose the unused sides of the Champ hoist at the groundlevel.\u00a0 Section 1926.552(b)(5)(ii) provides:(ii)\u00a0 When a hoist tower is not enclosed, the hoistplatform or car shall be totally enclosed (caged) on all sides for the full height betweenthe floor and the overhead protective covering with 1\/2-inch mesh of No. 14 U.S. gaugewire or equivalent.\u00a0 The hoist platform enclosure shall include the required gatesfor loading and unloading.\u00a0 A 6-foot high enclosure shall be provided on the unusedsides of the hoist tower at ground level.There was no enclosure of the unused sides of the hoisttower at ground level (Tr. 39, 64, 92).\u00a0 Approximately ten Metric employees hadaccess to the area (Tr. 92).\u00a0 Roberts agreed that the hoist tower was used without anenclosure on all open sides (Tr. 18).\u00a0 There was a chance that an employee wouldinadvertently walk under the hoist and be struck from its descent (Tr. 92, 95-96).It is uncontroverted that the hoist tower which was usedto guide the hoist car in its travel was used without an enclosure on all sides (Tr. 18).\u00a0 There was nothing to prevent access to the tower at ground level (Exs. C-2, C-3;Tr. 19, 39, 64, 92).\u00a0 Metric’s employees who were in the area clearing materialscould walk underneath the hoist.\u00a0 The violation is affirmed.Metric reasons that the alleged potential hazard is basedon an argument that the material hoist would descend upon an employee (Tr. 81). \u00a0While admitting the hoistway was not guarded, Metric asserts that the Secretary failed toestablish that the employees were exposed to the hazard of a descending platform.\u00a0 Itpoints out that the sole proof of exposure to the danger of a descending platform is foundin the very generalized testimony of Hodenius, who stated that she saw employees\”around the hoist\” (Tr. 84).\u00a0 When she was asked how close the employeeswere to the zone of danger she replied, \”Well, some of them were walking on theplatform; just walking through the area\” (Tr. 84).\u00a0 Metric argues that it isobvious that if employees were walking on the platform, they cannot be exposed to thehazard of a descending platform and that the fact that employees were just walking throughthe area fails to prove that the employees were in the zone of danger. \u00a0 Metricconcluded that the testimony leaves one to speculate as to the meaning of the word\”area.\”\u00a0 According to Metric, such an undefined answer does not establishfacts as to the location of the employees.\u00a0 Metric also points out that the Secretaryfailed to establish employees had access to this area when the platform was lifted.The hoist will not operate without an operator at thecontrols.\u00a0 If the operator lets go of the controls, the hoist will not move (Tr.47-48).\u00a0 Metric points out that the operators can watch all operations from thecontrols (Tr. 47) and can restrict access to the area under the platform whenever theplatform is in a raised position.The standard does not require the Secretary to prove ahazard.\u00a0 Exposure must be established.\u00a0 There is no question concerning the factthat employees were in the area.\u00a0 The fact the hoist was operated by an individualwho could see persons in the area does not negate the requirement of the standard.Metric further argues that the alleged violation should bevacated because Metric properly relied on the expertise of Sims.\u00a0 Metric contractedwith Sims to construct the material hoist, which is Sims’ area of expertise (Tr. 45).\u00a0 Sims installed the material hoist, inspected it, certified it, and provided aservice technician to instruct Metric personnel in the operation of the hoist (Tr. 46-47).\u00a0 The only function performed by Metric was done according to Sim’s specifications(Tr. 46).\u00a0 Metric had no reason to doubt Sims’ expertise in this area.\u00a0 Insupport of its argument, Metric cites the following form Sasser Electric &Manufacturing Co., 84 OSAHRC 37\/C6, 11 BNA OSHC 2133, 2136, 1984 CCH OSHD ? 26,982 (No.82-178, 1984):In many situations in the workplace, it is natural for anemployer to rely upon the specialist to perform work related to that specialty safely inaccordance with OSHA standards.\u00a0 Cf. Cities Service Oil Co., 76 OSAHRC 105\/A2, 4 BNAOSHC 1515, 1518, 1976-77 CCH OSHD ? 20,999 at pp. 25,237-38 (No. 4648, 1976), aff’d, 577F.2d 126 [6 OSHC 1631] (10th Cir. 1978)\u00a0 (\”Normally, when an employer hires anindependent contractor to perform certain work, it relies on the contractor’s expertise toperform the work correctly.\”)\u00a0 Further, in many instances it may not befeasible, because of an employer’s lack of expertise, or wasteful, without necessarilyresulting in the best achievement of safety for all employees, to require the contractingemployer to duplicate the safety efforts of the specialist.Accordingly, while an employer has a duty to his ownemployees even when it relies upon a specialist to perform part of the work, the duty isof a different nature than when the employer performs the work itself.\u00a0 In a singleemployer situation, the employer by necessity assumes the responsibility to preventviolations.\u00a0 However, when some of the work is performed by a specialist, an employeris justified in relying upon the specialist to protect against hazards related to thespecialist’s expertise 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 isrejected.\u00a0 There are significant differences in the two situations.\u00a0 Sasser wasin the business of servicing diesel generators.\u00a0 Its employees were mechanics andelectricians.\u00a0 It did not operate or profess to have any expertise in craneoperations.\u00a0 It rented a crane and, more importantly, an operator from MountainTrucking Company.\u00a0 Metric merely rented the hoist.\u00a0 Its employees operated thehoist.\u00a0 The hoist was installed, inspected and certified by Sims Rental. \u00a0Metric’s employees were instructed in its operation and did, in fact, operate thehoist.\u00a0 Material hoists are common at construction sites and are used by theconstruction employees to transport supplies to upper floors.\u00a0 Hazardous situationsare generally well known.\u00a0 Roberts was aware of the conditions and recognized thehazards.\u00a0 Metric was given an operator’s manual which referred to ANSI StandardA10.5-1969.\u00a0 The violation has been 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) for failure to guard reinforcing steel rods located on the ground level at theladder and on the south side of the fifth floor.\u00a0 The cited standard states:(b) Reinforcing steel.\u00a0 All protruding reinforcingsteel, onto and into which employees could fall, shall be guarded to eliminate the hazardof impalement.Mickey Roberts, Metric’s project superintendent, agreedthat reinforcing steel rebar at the ladder on the ground level protruded 11 inches[[4]]and was unguarded (Ex. C-5; Tr. 42, 52, 97).\u00a0 He also agreed that there was unguardedprotruding rebar seven inches in height on the south side of the fifth floor (Tr. 42).\u00a0 These allegations are fully supported by the photographs entered into evidence asC-5 and C-6 and the testimony of Hodenius.Roberts testified that the rebar had been bent over untila couple of days before the inspection in anticipation of pouring the concrete (Tr.53-54).\u00a0 The rebar has to be in a vertical position for pouring the concrete (Tr.52-54).\u00a0 Hodenius testified that Roberts did not say when the pour would be made, andshe did not get the impression that the pour would be within a day or two (Tr. 100).Metric argues that the rebar had been bent down toeliminate the hazard of impalement (Tr. 53, 77), a practice generally used in theconstruction industry (Tr. 138).\u00a0 It is standard practice of Metric to bend the rebarover until a couple of days prior to pouring the concrete (Tr. 53-54).\u00a0 In order topour the wall, it was necessary to bend the rebars back to their vertical position (Tr.53-54).\u00a0 According to Metric, the forming material was in place at the fifth leveland ground level ready to be used (Tr. 54).\u00a0 While Hodenius originally registereddoubt as to the stage of the work, she had to acknowledge that her own photographs (Exs.C-5, C-6) show some forms in place, a recently formed wall and additional forms stacked inthe area (Tr. 118, 199).\u00a0 She agreed that it was possible that the rebars were in avertical position in anticipation of pouring the wall (Tr. 119).\u00a0 She had no supportfor her speculations that the walls were not being ready to be poured.\u00a0 The projectsuperintendent testified that the rebar had been bent back up in preparation of formingthe walls and that the forming material was in place both on the ground level and thefifth level (Tr. 53-54).\u00a0 Metric did not offer any evidence to show when the pour hadbeen scheduled.Employees had access to the unguarded areas of thereinforcing steel.\u00a0 At the ground level, employees were walking through the area toget access to the ladder.\u00a0 At least ten Metric employees were in the area.\u00a0 Theladder was the only access to the upper levels (Ex. C-5; Tr. 98).\u00a0 At the fifthlevel, a wooden plank resting between a couple of pieces of reinforcing steel was used asa walkway and employees were seen walking across it (Ex. C-6; Tr. 102, 118).Metric’s defense to the citation is that the\”reinforcing steel was not guarded because it was being readied to be moved intoplace and then have concrete poured around it\” (Answer; Tr. 52-54, 117-119, 138).\u00a0 Hodenius testified that her observation of the ground level area, along withdiscussions with Metric’s employees and superintendent Roberts, disclosed that Metricwould be pouring concrete, but she did not \”get the impression that it would bewithin a day or two\” (Tr. 99).\u00a0 Consistent with this testimony was Roberts’admission that the rebar at ground level was unprotected since October 17, 1989, i.e., twodays prior to the inspection (Tr. 53-54).\u00a0 As to the fifth level, it was beingcleaned up and the area did not appear to be ready to erect a wall (Tr. 104-105). \u00a0The rebar was in a vertical position too long to conclude that Metric was in compliancewith the standard.\u00a0 The inspection day was the third day known for certain that therebar was in a vertical position without a pour being made.\u00a0 Three days is consideredto be excessive exposure.\u00a0 Metric never stated that a pour had been scheduled, andthere was no evidence to justify raising the rebar to a vertical position that far inadvance of a pour.\u00a0 Employees were constantly exposed to the condition during thethree days.\u00a0 The violation is affirmed.Classification of the ViolationsThe Secretary contends that the violations were seriouswithin the meaning of section 17(k) of the Act.\u00a0 A serious violation exists wherethere is substantial probability that death or serious physical harm could result from thecondition in question.\u00a0 The Secretary need not prove that an accident is probable; itis sufficient if an accident is possible, and its probable result could be serious injuryor death.\u00a0 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 the exercise of reasonable diligence, should have known of the existence of theviolation.\u00a0 The knowledge element is directed to the physical conditions whichconstitute a violation.\u00a0 Southwestern Acoustics & Specialty, Inc., 77 OSAHRC141\/D10, 5 BNA OSHC 1091, 1977-78 CCH OSHD ? 21,582 (No. 12174, 1977).\u00a0 It isdifficult for an employer to prevail on the defense that he had no knowledge of theviolation since he has an obligation to inspect the work area, to anticipate hazards towhich employees may be exposed, and to take measures to prevent their occurrence. \u00a0Frank 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 ofsevere injuries including death:\u00a0 (1) if the hoist descended upon an employee at theunprotected ground floor landing entrance and at the unenclosed, unused sides of the hoisttower; (2) if materials fell out of the open car of the hoist; and (3) if employees fellon the unguarded reinforcing steel (Tr. 78, 84, 93, 99, 103).\u00a0 The probability thatsuch injuries could result is unchallenged by Metric.\u00a0 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 allcontested cases.\u00a0 Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8thCir. 1973).\u00a0 In determining an appropriate penalty, the Commission is required tofind and give \”due consideration\” to the size of the employer’s business, thegravity of the violation, the good faith of the employer, and the history of previousviolations.[[5]]\u00a0 Primary emphasis is placed on the gravity of the violation. \u00a0Nacirema 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 hadapproximately 2,000 employees (Tr. 66).\u00a0 Compliance Officer Hodenius consideredMetric to be very cooperative (Tr. 119).\u00a0 Metric has previously been issued severalcitations prior to the citation in this case.\u00a0 The following penalties are consideredappropriate:Item\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0PenaltyNo.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a01\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0$7202\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a03153\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a06304\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0630FINDINGS OF FACT AND CONCLUSIONS OF LAWThe foregoing constitutes the findings of fact andconclusions of law in accordance with Federal Rule of Civil Procedure 52(a).ORDERBased upon the foregoing decision, it isORDERED:\u00a0 (1) That items one, three and four of theserious citation issued to Metric on December 22, 1989, are affirmed and the followingpenalties assessed for the violations:Item \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0AssessedNo.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Penalty1\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0$7203\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a06304\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0630(2)\u00a0 That item two of the serious citation isaffirmed as it pertains to the loading dock area and vacated with respect to the secondfloor landing;(3)\u00a0 That a penalty of $315 is assessed for item twoas modified; and(4)\u00a0 That the \”other\” citation issued toMetric on December 22, 1989, is vacated.JAMES D. BURROUGHSJudgeDate: September 12, 1991FOOTNOTES:[[1]] Metric also contested an \”other\” citationcontaining one item issued to it on December 22, 1989.\u00a0 The Government withdrew thecitation at the beginning of the hearing (Tr. 5).[[2]] Hodenius had apparently observed what she describedas \”plain view\” violations on October 17, 1989, and had reported herobservations to her supervisor.\u00a0 She was assigned to conduct an inspection.[[3]] Section 1926.552(b)(8) provides:(8) All material hoists shall conform to the requirementsof ANSI A10.5-1989, 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 allcivil penalties provided in this section, giving due consideration to the appropriatenessof the penalty with respect to the size of the business of the employer being charged, thegravity of the violation, the good faith of the employer, and the history of previousviolations.\u00a0\u00a0″