“SECRETARY OF LABOR,Complainant,v.ORMET CORPORATION,Respondent.UNITED STEELWORKERS OF AMERICA,AFL-CIO-CLC, LOCAL UNION 5724,DISTRICT 23,Authorized EmployeeRepresentative.OSHRC Docket No. 85-0531_DECISION _Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:Ormet Corporation operated an aluminum smelter in Hannibal, Ohio, whereit made cast aluminum cylinders called billets. Each billet weighed 1594pounds and was approximately 17 feet long and 10 inches in diameter.Following an accident in which one of these billets fell on an Ormetemployee and killed him, the Occupational Safety and HealthAdministration (OSHA) investigated the fatality and issued a citationalleging that Ormet had violated four OSHA safety standards.Ormet contested the citation, and a hearing was held before anadministrative law judge of this Commission. The judge found that Ormethad committed a serious violation of one of the cited standards. Thatdecision was directed for review and is now before the Commissionpursuant to 29 U.S.C. ? 661(j) , section 12(j) of the OccupationalSafety and Health Act of 1970 (\”the Act\”). For the reasons that follow,we affirm the judge’s decision.I. _BACKGROUND_The billets were made in the cast house of Ormet’s smelter, in a directchill casting pit. After the molten aluminum solidified, two or three ofthe billets were encircled by a choker sling attached to an overheadcrane. The crane then lifted the billets and moved them approximately 90to 100 feet to the inspection area, where they were lowered onto an\”inspection table,\” which consisted of two parallel rails about 30inches high and 10 feet apart. There the billets were stacked andinspected for defects, both visually and with an oscilloscope.The accident that triggered OSHA’s inspection occurred when the craneoperator lowered a load of billets so that the end of one of the billetshit one of the rails comprising the inspection table. The tension on thechoker sling was released, and the billets fell. One of them struck andkilled an employee, a molten metal operator, who was standing betweenfive and eight feet away from a corner of the inspection table.The citation item before us alleges that Ormet violated the standard at29 C.F.R. ? 1910.179(n)(3)(xi), which provides: \”When starting thebridge [of an overhead or gantry crane) and when the load or hookapproaches near or over personnel, the warning signal shall be sounded.\”The judge found, and the evidence shows, that, prior to the fatalitydescribed above, the warning signal was not sounded when the cranebridge started. It is clear, therefore, that there was a violation atthat time. However, that was not the basis of the violation charged bythe Secretary. The citation alleged that the crane operator did notsound the alarm as he approached Ormet’s employees with the suspendedload. This is the only allegation before the Commission for adjudication.In order to prove that an employer violated a standard, the Secretarymust show that: (1) the standard applies to the cited condition; (2) theterms of the standard were violated; (3) one or more of the employer’semployees had access to the cited conditions; and (4) the employer knew,or with the exercise of reasonable diligence, could have known of theviolative conditions. _North Berry Concrete Corp.,_ 13 BNA OSHC 2055,2056, 1989 CCH OSHD ? 28,444, p. 37,643 (No. 86-163, 1989). We find thateach of these elements has been proved. Once the Secretary has presentedenough evidence on each element to establish a _prima_ _facie_ case, theemployer has the burden of either rebutting the Secretary’s evidence orproving one of the affirmative defenses recognized by the Commission._York Heel of Maine, Inc., _9 BNA OSHC 1803, 1807, 1981 CCH OSHD ?25,351A, p. 31,474 (No.78-5920, 1981).Ormet makes essentially four arguments in support of its claim that thejudge erred in finding that Ormet had violated the standard:(1) Because the standard fails to define or explain the meaning of theterm \”near,\” it does not give adequate notice of what it requires, andtherefore denies employers due process of law.(2) The standard was not violated, because the load did not approachover or near employees.(3) Ormet had no knowledge of the violation.(4) The purpose of the standard had been accomplished, because employeesheard the crane approach and moved away.Having considered these arguments, we conclude that the Secretary hasproved the four elements of a violation and that Ormet has failed toestablish an affirmative defense.A._THE VAGUENESS OF THE STANDARD_Ormet argues that the word \”near\” in the standard is so vague that thestandard deprives it of fair notice, in violation of the due processclause of the Fifth Amendment of the U.S. Constitution. In determiningwhether a standard is unconstitutionally vague, the Commission mustapply established principles. One of these principles is that the wordsof a standard are to be viewed in context, not in isolation. _ClevelandConsolidated. Inc.,_ 13 BNA OSHC 1114, 1116, 1986-87 CCH OSHD ? 27,829,p. 36,428 (No. 84-696, 1987). Another principle is that the purportedvagueness of a standard is not judged from the face of the standard; itis determined in light of the application of the standard to the factsof the case. _Faultless Div., Bliss & Laughlin Indus. v. Secretary,_ 674F.2d 1177, 1185 (7th Cir. 1982); _PBR, Inc. v, Secretary,_ 643 F.2d 890,897 (1st Cir. 1981;) _Brennan v, OSHRC (Santa Fe Trail Transp. Co._),505 F.2d 869, 872 (10th Cir. 1974). Applying those principles to thecase before us, we conclude that section 1910.179(n)(3)(xi) is notunconstitutionally vague.We first note that the due process clause does not impose draftingrequirements of mathematical precision or impossible specificity._Diebold, lnc. v. Marshall,_ 585 F.2d 1327, 1336 (6th Cir. 1978).Furthermore, it is clear that the use of the word \”near\” in a statute orstandard does not, in and of itself, render the statute or standardunconstitutionally vague. For example, in _Cox v. Louisiana,_ 379 U.S.559, 85 S.Ct. 476 (1965), the Supreme Court upheld a state statute thatprohibited picketing or parading \”in or near\” a courthouse. The Court in_Cox_ indicated that \”near,\” as it was used in that statute, could coveractivity within the sight and hearing of those in the courthouse. 379U.S. at 568, 85 S.Ct. at 483.That definition, however, is too broad to be appropriate in thiscontext. We must therefore ascertain whether the meaning of the word\”near,\” as it is used in the cited standard, can reasonably bedetermined based on the language and purpose of the standard and thephysical conditions to which it applies. Given the purpose of thestandard, that is, to warn employees on whom a load might fall, weconclude that, as used in the cited standard, the word \”near\” meansclose enough to the path of travel that it is reasonably foreseeablethat they could be hit by the load if the load should fall.We recognize that this is not a precise definition and that, in applyingit, the results will vary depending on numerous factors, including theheight of the load above the employees, the size of the load, the shapeof the load, the speed at which the load is traveling, the method bywhich the load is fastened to the crane, the customary patterns of andphysical restrictions on employee movement, and other considerations.That imprecision, however, does not make the standard unenforceablyvague. Dravo Corp., 7 BNA OSHC 2095, 2098, 1980 CCH OSHD ? 24,158, p.29,367 (No. 16317, 1980), _pet._ _den._, 639 F.2d 772 (3d Cir. 1980);_See also, Sun Ship, Inc._ 11 BNA OSHC 1028, 1036 n.19, 1983-84 CCH OSHD? 26,353, p. 33,425 n.19 (No. 16118, 1982), and cases cited therein. Itmerely means that the distance will depend on the circumstances existingin each case and that the crane operator must exercise judgment. Wetherefore conclude that the standard gave Ormet fair notice of theconduct required under the circumstances existing at Ormet’s plant.B. _DID THE LOAD APPROACH OVER OR NEAR ORMET’S EMPLOYEES?_The next question is whether the evidence establishes that Ormet’semployees were close enough to the billets’ path of travel that it wasreasonably foreseeable that they could be hit if the billets fell.Hindsight suggests that the employee was \”near\” the billets’ path oftravel, since he was struck. That approach is too simplistic, however.The crane operator did not have the benefit of hindsight when he failedto sound the alarm. We therefore examine the facts of this case todetermine whether the crane operator should have known that the load wasapproaching near Ormet’s employee.The standard speaks in terms of a load \”approaching near\” employees.That means that the crane operator must take action before the load isin a position where it actually endangers employees. He must sound thealarm when the load is approaching — that is, before it actuallyreaches — that point. Once the load is close enough that an employeecould be hit, the crane operator has waited too long.The evidence establishes that, at the time of the alleged violation, thecrane was carrying five billets, two in one sling and three in theother. The billets were choked near the end, not towards the middle, sothat they hung down nearly vertically, with their ends about a foot offthe floor. The crane operator intended to take his load to the east sideof the inspection table and to lay it against the east rail. Then hewould lower the billet onto the west rail.Two employees, Hunt, a molten metal operator, and Pefferman, a casthouse laborer, were working at the inspection table when the craneapproached. Pefferman testified that he heard the crane approach andmoved northwest of the inspection table, 17 to 20 feet from the load.Hunt also walked away. He stopped approximately 5 to 8 feet to thenortheast of the table, and about 16 – 17 feet from the load. As thecrane operator lowered the two slings, the end of one of the billets inthe sling holding two billets hit the east rail of the inspection table,which released the pressure on the choker sling, allowing both billetsto fall. One of them struck and killed Hunt, who was walking away fromthe load.It is apparent that both employees were in an area where it wasreasonably foreseeable that they could be injured by a billet.Specifically, if the load fell, either employee could have been hit bythe falling load, as happened, or could have been struck and injured bya rolling or bouncing billet. Under these facts, we find that the loaddid _approach near_ employees, so that the warning alarm should havebeen sounded as the load approached.C. _DID ORMET HAVE KNOWLEDGE OF THE CONDITIONS?_Ormet claims that the Secretary has failed to prove the fourth elementof the Secretary’s burden of proof, that is, that Ormet had eitheractual or constructive knowledge that the crane operator did not soundthe alarm when the load approached near the employees. We disagree. Therecord shows that the crane operator’s conduct in this regard on thenight in question was consistent with the standard practice in Ormet’splant. Ormet’s employees, including supervisors and managementpersonnel, often stood at the inspection table when loads were beinglowered onto the table, and the crane operators usually did not soundthe alarm. The former chairman of the union’s safety committee, whooperated the same crane on a different shift, testified that, while hewas operating the crane, employees had touched the load, turning it sothat it would land properly on the inspection table, and that Ormet’ssupervisors did not seem to notice or care unless someone complained.This witness had complained to Ormet’s supervisors on numerous occasionsabout the situation. The testimony indicates that, although thesupervisor might respond to such complaints by telling the employees toget away from the load, any remedial effect was only temporary. Within afew days, the same employees and supervisors would be standing in thefall radius of the load, and the crane operators would fail to sound thewarning alarm.These facts establish that Ormet’s supervisory personnel had notice ofthe conditions in its workplace. The knowledge, actual or constructive,of an employer’s supervisory personnel will be imputed to the employer,unless the employer establishes substantial grounds for not imputingthat knowledge. _Donovan v. Capital City Excavating Co,_ 712 F.2d 1008,1010 (6th Cir. 1983). We therefore find that Ormet’s supervisors hadknowledge of the situation existing in its cast house and did notcorrect it. The fact that Ormet may not have known of the specificinstance of violative conduct at the time it occurred does not mean thatthat conduct was unpreventable. Ormet might have prevented the violativeconduct by taking feasible precautions in hiring, training, anddisciplining employees. _Brock v. L.E. Myers Co.,_ 818 F.2d 1270, 1277(6th Cir. 1987), _cert.denied,_ 484 U.S. 989, 108 S.Ct. 479 (1987)(_quoting National Realty and Construction Co. v. OSHRC,_ 489 F. 2d1257, 1266-67 n.37 (D.C. Cir. 1973)).Ormet makes other arguments in support of its claim that it did not haveknowledge of the cited conditions. Ormet asserts that: the Secretarymust prove that the employer knew or should have known that theconditions created a hazard; the accident was unforeseeable becausethere had been no previous similar accidents at Ormet; and the accidentresulted from an isolated employee mistake.In arguing that the Secretary must prove that the company had actual orconstructive knowledge of the presence of a hazard, Ormet relies on_Kelly Springfield Tire Co. v. Donovan, _729 F.2d 317 (5th Cir. 1984),_Cape & Vineyard Div. of New Bedford Gas and Edison Light Co. v. OSHRC,_512 F.2d 1148 (1st Cir. 1975), and a number of decisions by Commissionadministrative law judges[[1\/]]. The cases cited by Ormet areinapplicable here, because they deal with citations alleging violationsof the general duty clause of the Act, 29 U.S.C. ? 654(a)(1)[[2\/]], orwith standards that set forth conditional requirements for the use ofpersonal protective equipment, applicable only when an employee isexposed to a hazard.In order to prove a violation of the general duty clause, the Secretarymust, as the case cited by Ormet states, prove that there is a hazardrecognized by the employer or its industry present in the employer’sworkplace. Because Ormet was not cited for violating the general dutyclause, no such showing is required here. Also inapplicable here is thecase law defining the Secretary’s burden of proof when a generalstandard like 29 C.F.R. ?1910.132(a) is cited. In order to prove aviolation of section 1910.132(a), the Secretary must demonstrate eitherthat the employer had actual knowledge of a hazard requiring the use ofpersonal protective equipment or that a reasonable person familiar withthe situation, including any facts unique to the particular industry,would recognize a hazard warranting the use of protective equipment. _Armour Food Co., _14 BNA OSHC 1817, 1820, 1990 CCH OSHD ? 29,088, p.38,881 (No. 86-247, 1990).[[3\/]]The duty to comply with section 1910.179(n)(3)(xi) arises _before_ ahazardous situation occurs. Because the standard anticipates thepossibility that the load will fall, the focus is on the likely resultsof a fall, not on whether it is likely to fall. The Secretary does nothave to prove that there is a hazard of the load’s falling. The alarm isto be sounded before the load comes near enough to employees that,_if itfell,_ it is reasonably foreseeable that they could be hit and injured.Ormet also argues that section 17(k) of the Act, 29 U.S.C. ?666(k)[[4\/]], requires the Secretary to prove that the employer hadknowledge of the hazardous condition. Ormet misinterprets thatprovision. Section 17(k) does not say that the employer must haveknowledge, actual or constructive, of a hazardous condition. Rather, thesection requires that the employer must have knowledge of the physicalconditions constituting a violation._Shaw Construction, Inc.,_ 6 BNAOSHC 1341, 1342-43, 1978 CCH OSHD ? 22,524, p. 27,177 (No. 3324, 1978);_Southwestern Acoustics & Specialty, Inc.,_ 5 BNA OSHC 1091, 1092,1977-78 CCH OSHD ? 21,582, p. 25,896 (No. 12,174, 1977). Based on thefacts set out above, we conclude that Ormet had either actual orconstructive knowledge of those conditions.Moreover, we find that, contrary to Ormet’s assertion, the fact that noaccident similar to the one in this case had ever occurred does notestablish that the possibility of an accident was not reasonablyforeseeable. Section 1910.179(n)(3)(xi) is written in such a way that itcontemplates that the load will fall. In order to comply with itsrequirements, the crane operator must anticipate that the load will falland determine whether any employees are near enough to the path oftravel that there is a reasonable possibility that the load could fall,bounce, or roll onto or into them.Because it was the accident that caused the Secretary to inspect Ormet’sfacility, Ormet focuses on the facts of the accident. This emphasis ismisdirected. The specific facts of this accident are not determinativeof whether there was a violation. A violation still would have beencommitted when the crane operator failed to warn the employees of theapproaching load even if there had been no accident. The frequentpresence of employees near the path of travel of the load, where theycould be injured, and the failure of its crane operators to give warningto those employees gave Ormet knowledge of conditions in its facilitythat should have been corrected.Ormet further argues that it has established the affirmative defense ofunpreventable employee misconduct. To prove that defense, an employermust establish that it had work rules that were intended to prevent theviolation, that those rules were adequately communicated to itsemployees, and that the rules were effectively enforced. _E.g., H.E.Wiese. Inc., _10 BNA OSHC 1499, 1505, 1982 CCH OSHD ? 25,985, p. 32,614(Nos. 78-204 & 78-205, 1982), _aff’d per curiam_, 705 F.2d 449 (5th Cir.1983); _see Brock v. L.E. Myers Co.,_ 818 F. 2d at 1277.Ormet introduced into evidence copies of its safety rules and its craneoperator’s handbook in an effort to show that it did try to prevent thecited conditions. Although these exhibits indicate that Ormet had a workrule instructing crane operators to warn anyone in the path of anapproaching load, we find that Ormet did not enforce this rule. Theunrefuted testimony of some of the employees who worked in the casthouse indicates that they were not familiar with Ormet’s written safetyrules. Other employees testified that the warning alarm was rarelysounded and that Ormet’s supervisors did not discipline crane operatorsfor failing to warn employees of the approaching load. This failure byOrmet to enforce its rules precludes us from relieving the company ofresponsibility for the conditions it allowed to exist._See TowneConstruction Co. v. OSHRC,_ 847 F. 2d 1187, 1190-91 (6th Cir. 1988)_Brock. v. L.E. Myers Co.,_ _supra._Furthermore, the act of \”misconduct\” that Ormet cites is the craneoperator’s act of hitting the railing with the end of the billet, andthe work rule Ormet relies on deals with proper procedures for loweringthe billets. Ormet’s argument is misdirected, because Ormet was citedfor failing to warn employees of the approaching load, not forimproperly lowering the load or letting the load fall. Because the workrule Ormet relies on does not require warnings when employees are in thevicinity of an approaching load, adherence to the rule would not haveprevented the violation. By the time the load fell, the violation hadalready been committed. Consequently, we find that Ormet has not carriedits burden of proving this affirmative defense._Id._D. _WAS IT UNNECESSARY TO SOUND THE ALARM?_Ormet argues that, because the employees heard the crane and moved awayfrom the inspection table, the objective of the standard had beenaccomplished, and that it was therefore unnecessary to sound the alarm.Because we find that neither employee had yet left the immediatevicinity, we do not accept Ormet’s assertion that the purpose of thestandard had been accomplished.Ormet complains that the administrative law judge indulged inspeculation that, if the horn had been sounded, the employees might havebeen more aware of the danger and moved further away. While we agreethat it is improper to predicate a violation on speculation, we cannotdismiss the judge’s observations so lightly.Both employees were facing away from the load, apparently still in theprocess of leaving the area, when the load fell. Pefferman testifiedthat he heard the load start to fall, turned around, saw what washappening, and called out a warning to Hunt. If the warning alarm hadbeen sounded, the employees might have become aware of the approachingload sooner than they did and had more time to get out of the immediatevicinity of the approaching load. It is also possible that, if a warningalarm had been sounded, both employees might have taken the situationmore seriously and moved more quickly, allowing them to get furtheraway. An alarm might have directed Hunt’s attention to the approachingload, so that he would have been looking toward the load. Had he seen itbegin to fall in his direction, he might have had enough warning tododge the falling billet or jump back a few feet.[[5\/]]The employees almost certainly would have had more time to get out ofthe zone of danger and might well have been impressed with a greatersense of urgency if the alarm had been given as the crane approached.Consequently, we find that, contrary to Ormet’s assertion, the purposeof the standard had not been accomplished at the time the violationoccurred.Even if we did agree with Ormet that the two employees had been affordedadequate warning of the approach of the load, we would still not vacatethe citation. The standard unequivocally requires a certain course ofconduct. It does not permit alternative methods of compliance. Byfailing to sound the alarm as the load approached the inspection tablewhere the two employees were working, the crane operator violated thestandard. The fact that the employees may have sensed the load’sapproach — too late to get clear, as it turned out — does not offsetthe violation.II. _THE DEGREE OF THE VIOLATION AND THE PENALTY_Section 17(k) of the Act, 29 U.S.C. ? 666(k), provides that a violationis serious if there is \”a substantial probability that death or seriousphysical harm could result\” from the violation. The billets weighedalmost 1600 pounds each. They were 17 feet long and were round. Even ifan employee were not struck directly, as happened here, a billet thatfell and rolled into an employee could crush his feet or legs. It isapparent that death or serious physical harm could result from aviolation. We therefore find that this violation was serious.In assessing a penalty for a violation of the Act, the Commission mustgive due consideration to the size of Ormet’s business, the gravity ofthe violation, Ormet’s good faith, and its history of previousviolations. Section 17(j) of the Act, 29 U.S.C. ? 666(j) .We haveconsidered the evidence relating to those factors as it is set out inthe record, and we consider the penalty of $900 proposed by theSecretary to be appropriate.We therefore affirm the finding of the administrative law judge thatOrmet committed a serious violation of 29 C.F.R. ? 1910.179(n)(3)(xi).We assess a penalty of $900.00.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: March 6, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.ORMET CORPORATION,Respondent,andUNITED STEELWORKERS OF AMERICA,DISTRICT 23, LOCAL UNION NO. 5724,Authorized EmployeeRepresentative.OSHRC Docket No. 85-0531APPEARANCES:Bruce C. Heslop, Esquire, Office of the Solicitor, U. S. Department ofLabor, Cleveland, Ohio, on behalf of complainant.John C. Artz, Esquire, and Deborah M. Brodsky, Esquire, Eckert, Seamans,Cherin and Mellott, Pittsburgh, Pennsylvania, on behalf of respondent.Frank L. Price, Chairman, Safety and Health Committee, UnitedSteelworkers of America, Local 5724, Clarington, Ohio, on behalf ofauthorized employee representative._DECISION AND ORDER_SPARKS, Judge: Respondent, Ormet Corporation, produces aluminum at itsfacility located on State Route 7 North, Hannibal, Ohio.On April 16, 1985, the overhead crane lifted five or six \”billets\” ofaluminum, each approximately 17 feet long and weighing 1,594 pounds, totransport them from the pit area to the inspection tables. The employeesworking at the inspection tables heard the crane and moved several feetaway from the table. Billets in one of the slings struck the tablecausing the sling to release. The billets momentarily stood on end, thenfell, striking Roy Hunt (Tr. 49). Following the investigation of thefatal accident, respondent was issued a citation for a serious violationcontaining four items. Items one and three were vacated at the hearing.I_THE WARNING SIGNAL_Item two charges respondent with a violation of 29 C.F.R. ?1910.179(n)(3)(xi)[[1\/]] under the following circumstances:29 CFR 1910.179(n)(3)(xi): The warning signal was not sounded wheneverthe bridge was started or when the load or hook approached near or overpersonnel:a) Cast House, the north east overhead crane was used to move twoslings, each containing three 10′ diameter aluminum billets weighingapproximately 1,594 pounds each. As the crane operator approachedpersonnel with the suspended load, he did not sound a warning on orabout 2:10 a.m., April 16, 1985.It is not disputed that the crane operator failed to sound the warninghorn when the crane lifted the load from the pit area and when itapproached the employees working at the inspection table (Tr. 30,41-42). Operator Gordon was asked the specific question as follows:Q. Let me ask you this:At any time from the time you pulled the billets from the pit to thetime you brought them over and started to lay them down on theinspection table, did you sound the warning signal?A. No, I didn’t.Q. Was the crane equipped with a warning signal?A. Yes, it was.The evidence further established that it was not customary or generalpractice for the crane operator to sound the alarm when making lifts(Tr. 50, 64, 88-89, 108-110, 194). One operator testified he sounded thehorn most of the time (Tr. 151-153). Others blew the horn if someone wasperceived to be in danger, especially if an employee was in the path orseemed unaware of the approaching crane (Tr. 118, 133, 180, 194).Respondent’s safety and health analyst and supervisors testified thatthey would not have expected the crane operator to have used the warningdevice because there was no danger to personnel as a result of the loadbeing moved (Tr. 234, 306, 313-314, 330).The foregoing indicates that respondent did not expect compliance withthe OSHA regulation but substituted an expectation that the warning hornwas to be used when employees were perceived to be in danger. A primafacie violation has been established as alleged in item two.Respondent contends that a violation was not established because theaccident was not foreseeable. In support of its position, respondentpoints out that there had never been a prior similar accident and theaccident was the result of employee mistake. In support it cites _Cape &Vinyard Division of the New Bedford Gas and Edison Light Co. v. OSHRC,_512 F.2d 1148 (1st Cir. 1975); _Chrysler Corp. v. Kokomo Casting Plant,_80 OSAHRC 90\/E4, 8 BNA OSHC 2243, 1980 CCH OSHD ? 24,830 (No. 79-5324,1980); and _Louis C. Allegrone, Inc., _79 OSAHRC 48\/D11, 7 BNA OSHC1663, 1979 CCH OSHD ? 23,673 (No. 78-4698, 1979); and other cases.Although an accident precipitated the investigation and provided thefactual circumstances for the alleged violation, the proceeding beforethe Review Commission does not attempt to establish the cause of theaccident. The occurrence of an accident does not prove a violation northe lack of an accident establish the absence of a violation.In _Astra Pharmaceutical Products, Inc.,_ 81 OSAHRC 79\/D9, 9 BNA OSHC2126, 1981 CCH OSHD ? 25,578 (No. 78-6247, 1979), the Review Commissionstated that the following elements are necessary to establish aviolation of OSHA standards:In order to prove a violation of section 5(a)(2) of the Act, 29 U.S.C.?654(a)(2), the Secretary must show by a preponderance of the evidencethat (1) the cited standard applies, (2) there was a failure to complywith the cited standard, (3) employees had access to the violativecondition, and (4) the cited employer either knew or could have known ofthe condition with the exercise of reasonable diligence. _DanielInternational Corp., Wansley Project,_ OSHRC Docket No. 76-181 (June 30,1981).Unlike cases which arise under the general duty clause of section5(a)(1), citations for alleged violations of OSHA standards undersection 5(a)(2) do not require proof of a recognized hazard. It isenough that the Secretary establish conditions which do not comply withthe standards. That is clearly proved in the record. The record alsoshows that the condition was known or should have been known by theemployer as the general practice and custom was not to sound the alarmunder the conditions prescribed by the standard. Management did notexpect it to be sounded unless employees were perceived to be in danger(Tr. 234, 306, 313-314, 330). Employees working the the area andespecially those working near the inspection tables were exposed to thehazard of being hit by the load (Tr. 31, 65, 83, 90-91, 122-213, 154,158-159, 198-200) The lack of prior accidents [[2\/]] is not a defense tononcomplying conditions of which the employer is aware as the scheme ofthe Act is to prevent the first. accident. As respondent did not complywith the specific requirement of the standard, it is not a defense to itthat Ormet could not foresee that the result of such noncompliance wouldbe a fatal accident.Respondent also states that the term \”near or over personnel\” does notprovide adequate warning of what is required. _Webster’s Third NewInternational Dictionary,_ defines near as \”a short distance\” or \”closeto.\” As commonly understood, the suspended load of billets came \”near\”Hunt who was standing five to eight feet from the inspection table wherethe billets were to be placed (Tr. 83). The standard requires that thewarning alarm be sounded under such circumstances. It is not sufficientto contend that the employees were not exposed to a hazard because theyheard the noise of the crane and began moving away (Tr. 77). If the hornhad been sounded, perhaps their awareness of the danger would have beenheightened so that they would have moved farther from the hazard. Thereare indications that Hunt was not paying attention to the movement ofthe suspended load (Tr. 49, 79-80). A warning sound would likely havegotten his attention and may have given him time to flee the fallingbillets.Respondent further contends the accident was the result of unforeseeableemployee mistake. The evidence establishes that the accident was due tobillets striking the top or side of the inspection table. Crane OperatorGordon acknowledged that the event was the result of his misjudgment(Tr. 134, 339). The citation, however, does not charge respondent with aviolation of the OSHA regulations by permitting the billets to strikethe table or the result of such occurrence. Rather the alleged violationis the failure to sound a warning alarm. By not sounding the alarm,Gordon was merely following general practice. Although respondent heldsafety meetings, not all employees attended. Safety training wasespecially deficient for crane operators (Tr. 91-93, 122-124, 145-150,178, 189, 250). The evidence does not establish unpreventable employeemisconduct or any other affirmative defense. _H. B. Zachry Co._, 80OSAHRC 9\/D8, 7 BNA OSHC 2202, 1980 CCH OSHD ? 24,196 (No. 76-1393, 1980).The evidence proves a violation of 29 C.F.R. ? 1910.179(n)(3)(xi) asalleged in item two of the citation. As death or serious injury would bethe likely result in case of an accident, the violation is serious.The Secretary proposed a penalty of $900 for violation of item two (Tr.32-35). The evidence shows the gravity of the conditions is high. Sixemployees who were around the inspection tables were exposed. Theproposed penalty of $900 is reasonable and appropriate.IIItem four of the citation alleges that respondent violated 29 C.F.R. ?1910.184(c)(9) [[3\/]] under the following conditions:29 CFR 1910.184(c)(9). Employee(s) were not kept clear of load(s)suspended, or about to be lifted by sling(s):a) Cast House, an employee working near the inspection table was struckby an aluminum billet which fell from a suspended load, causing hisdeath on or about 2:10 a.m., April 16, 1985.The Secretary does not alleged that the crane transported loads over theheads of employees. He contends, however, that the term in the standard\” . . . shall be kept clear of… suspended loads\” means that employeesshall not be permitted within the \”falling radius\” of a suspended load(Comp. brief p. 5; Tr. 55). Unquestionably the deceased was within the\”falling radius\” of the suspended load at the time of the accident. Hisco-worker, James R. Pefferman, testified Hunt had moved approximatelyfive to eight feet away from the inspection table at the time he wasstruck (Ex. C-6, R-1, R-2, R-9, R-11; Tr. 83-84). Pefferman was about 17to 20 feet north of the inspection table (Tr. 78, 105).The general practice was the employees would move away from thesuspended load to an area where they felt secure (Tr. 89, 130). Somewere within five feet of the inspection table when the load was broughtin while others moved 42 to 50 feet away (Tr. 90, 121, 197-198) . Attimes some were close to the table (Tr. 91, 154 154 158) . Someemployees even grabbed the billets while they were in the process ofbeing placed on the table (Tr. 159). Employees and management were oftenwithin the fall radius of the loads (Tr. 154-155, 159).There was a work rule that employees were to remain \”clear\” of the load(Tr. 91). The rule was regularly violated by employees and managementpersonnel (Tr. 153-160). Although employees were sporadically instructedto stay out of the way of loads and a few \”stop\” cards were issued, therule was not effectively enforced and was disregarded by supervisors(Tr. 159-160).Respondent contends the language of the standard is vague and fails toprovide adequate guidance to the employer. The Secretary asserts thatthe term \”kept clear of loads\” means to keep out of the falling radius.That is a reasonable interpretation designed to promote safety and maywell be what the Secretary intended to require. The term, however, isnot defined in the standards and is not susceptible of precisedefinition. _Webster’s Third New International Dictionary_ demonstratesthat the word \”clear\” has many meanings. As used in the standard it doesnot adequately advise the employer of what is expected. It is wellsettled that the employer does not become an absolute insurer of safetyunder the Act.The citation asserts the violation occurred during the accident whichkilled Roy Hunt. The facts of record show that Hunt had moved five toeight feet away from the inspection table as the crane approached withits load of suspended billets. His co-worker, Pefferman, moved about 17to 20 feet away in another direction. Hunt did not pay attention to theincoming load of billets which probably indicated his belief that he hadmoved to an area of safety (Tr. 49, 78-80, 104-106, 235). The craneoperator did not think Hunt or Pefferman was in danger (Tr. 130). It isnoteworthy that there had been no previous accidents of this typewhereby respondent could learn of the hazard posed by falling billets.An inference can be drawn from the evidence that, because Hunt had movedseveral feet away from the point where the billets were to be deposited,he felt he had \”kept clear\” of the load. The language of the standarddoes not provide further guidance of the conduct to be expected. Therewas no evidence of industry custom or practice. In the absence of morespecific requirements, a reasonable interpretation of the standard,based on prior experience, would indicate that Hunt, by moving away fromthe table, had \”kept clear\” of the load. Since the tragic accident,respondent now requires employees to remain beyond the \”falling radius\”of the load. Although hindsight affords a harsh lesson of theprecautions needed, the evidence of record does not establish that theemployer knew or should have known that Hunt’s actions were hazardous orin violation of the standard. To define \”kept clear of the load\” torequire that employees move whatever distance is necessary so that underno condition could one be struck by a falling load would in effect makethe employer an insurer of their safety. Applying a reasonable man testto the evidence of record, it cannot be said that Hunt’s actions wereunreasonable under the circumstances.The Secretary has, therefore, failed to prove that the conditionsviolated the standard at 29 C.F.R. ? 1910.184(c)(9) as alleged in itemfour. _Pennsylvania Power & Light Co. v. OSHRC,_ 737 F.2d 350 (3d Cir.1984); _Cape & Vinyard Division of New Bedford Gas and Edison Light Co.v. OSHRC,_ 512 F.2d 1148 (1st Cir. 1975)._FINDINGS OF FACT_1. Respondent, Ormet Corporation, is an employer engaged in a businessaffecting commerce and has employees as defined by the Act.2. In its facility in Hannibal, Ohio, respondent moved aluminum billetsfrom the pit area to the inspection tables by means of an overhead crane.3. On April 16, 1985, the crane operator lifted and moved two slingseach containing three billets without sounding a warning at anytime.4. It was general practice for crane operators not to sound an alarmunless the operator perceived employees to be in danger. Managementwould not have expected the crane operator to have sounded the alarmwhile making the lift on April 16, 1985.5. The failure to sound the alarm creates a hazardous condition whichwould likely result in death or serious injury should an accident occur.6. As the crane approached the inspection table, two employees Peffermanand Hunt, heard the crane and moved away from the table. Hunt moved fiveto eight feet in one direction, Pefferman moved about 17 to 20 feet inanother direction.7. Three billets struck the top or side of the table and came loose fromthe sling. One of the billets struck Hunt, fatally injuring him.8. At the time of the accident, respondent had not experienced any priorsimilar accident.9. Employees often remained close to the table when billets were beingdeposited.10. Respondent sporadically cautioned employees not to get too close tosuspended loads, but enforcement of the rule was not consistent and wassometimes violated by management personnel.11. The general practice was for each employee to move away from asuspended load such distance as he felt safe. Based upon his priorexperience and knowledge, Hunt’s actions were reasonable under thecircumstances.12. Respondent had various work rules relating to the safe operation ofcranes, but the rules were not effectively communicated or consistentlyenforced.13. A penalty of $900 is warranted and appropriate for the violation ofitem one._CONCLUSIONS OF LAW_1. Respondent is an employer subject to the Act and this proceeding.2. Respondent violated 29 C.F.R. ?1910.179(n)(3)(xi) under conditionsconstituting a serious violation.3. Respondent did not violate 29 C.F.R. ?1910.184(c)(9).4. A penalty of $900 is reasonable and appropriate._ORDER_1. Item two of the citation for serious violation is affirmed.2. Items one, three and four are vacated.3. A penalty of $900 is assessed. Dated this 27th day of March, 1986.JOE D. SPARKSJudgeFOOTNOTES:[[1\/]] Unreviewed decisions of the Commission’s administrative lawjudges have no precedential value binding on the Commission. _LeoneConstruction Co.,_ 3 BNA OSHC 1979, 1975-76 CCH OSHD ? 20,387 (No. 4090,1976); _RMI Co v.Secretary, _594 F.2d 566, 571 n. 13 (6th Cir. 1979).[[2\/]] The general duty clause requires an employer to \”furnish to eachof his employees employment and a place of employment which are freefrom recognized hazards that are causing or are likely to cause death orserious physical harm to his employees.\”[[3\/]] The basis of this holding is the language and, especially, thebroad scope of this particular standard. Section 1910.132(a) provides:Protective equipment, including personal protective equipment for eyes,face, head, and extremities, protective clothing, respiratory devices,and protective shields and barriers, shall be provided, used, andmaintained in a sanitary and reliable condition wherever it is necessaryby reason of hazards of processes or environment, chemical hazards,radiological hazards, or mechanical irritants encountered in a mannercapable of causing injury or impairment in the function of any part ofthe body through absorption, inhalation or physical contact.We conclude that the standard cited in this case is not analogous to ?1910.132(a), either in its language or its scope.[[4\/]] That section provides:For purposes of this section, a serious violation shall be deemed toexist in a place of employment if there is a substantial probabilitythat death or serious physical harm could result from a condition whichexists, or from one or more practices, means, methods, operations, orprocesses which have been adopted or are in use, in such place ofemployment unless the employer did not, and could not with the exerciseof reasonable diligence, know of the presence of the violation.[[5\/]] Pefferman testified that the section of the billet that struckHunt was about a foot and a half from the end of the billet.[[1\/]] Section 1910.179(n)(3)(xi) of 29 C.F.R. states as follows:(xi) When starting the bridge and when the load or hook approaches nearor over personnel, the warning signal shall be sounded.[[2\/]] There was conflicting evidence of prior accidents. On the shiftimmediately prior to the one during which the fatality occurred, a slingbecame unhooked while making a lift in the pit area permitting thebillets to fall a short distance (Tr. 27-28, 51, 53, 128, 168-169). Noone was injured. There were suggestions of other accidents in the pitarea and rumors of an accident a long time ago in which billets fellfrom a sling at an inspection table (Tr. 56, 317). The record was devoidof substantial evidence of any previous accidents similar to the onewhich occurred on April 16, 1985 (Tr. 301-302, 330).[[3\/]] Section 1910.184(c)(9) of 29 C.F.R. provides as follows:(9) All employees shall be kept clear of loads about to be lifted and ofsuspended loads.”