“Docket No. 85-0531 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. 85-0531DECISION Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners. BY THE COMMISSION:Ormet Corporation operated an aluminum smelter in Hannibal,Ohio, where it made cast aluminum cylinders called billets. Each billet weighed 1594pounds and was approximately 17 feet long and 10 inches in diameter. Following an accidentin which one of these billets fell on an Ormet employee and killed him, the OccupationalSafety and Health Administration (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 Ormet had committed aserious violation of one of the cited standards. That decision was directed for review andis now before the Commission pursuant to 29 U.S.C. ? 661(j) , section 12(j) of theOccupational Safety and Health Act of 1970 (\”the Act\”). For the reasons thatfollow, we affirm the judge’s decision.I. BACKGROUNDThe billets were made in the cast house of Ormet’s smelter, ina direct chill casting pit. After the molten aluminum solidified, two or three of thebillets were encircled by a choker sling attached to an overhead crane. The crane thenlifted the billets and moved them approximately 90 to 100 feet to the inspection area,where they were lowered onto an \”inspection table,\” which consisted of twoparallel rails about 30 inches 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 thecrane operator lowered a load of billets so that the end of one of the billets hit one ofthe rails comprising the inspection table. The tension on the choker sling was released,and the billets fell. One of them struck and killed an employee, a molten metal operator,who was standing between five and eight feet away from a corner of the inspection table.The citation item before us alleges that Ormet violated thestandard at 29 C.F.R. ? 1910.179(n)(3)(xi), which provides: \”When starting thebridge [of an overhead or gantry crane) and when the load or hook approaches near or overpersonnel, the warning signal shall be sounded.\”The judge found, and the evidence shows, that, prior to thefatality described above, the warning signal was not sounded when the crane bridgestarted. It is clear, therefore, that there was a violation at that time. However, thatwas not the basis of the violation charged by the Secretary. The citation alleged that thecrane operator did not sound the alarm as he approached Ormet’s employees with thesuspended load. This is the only allegation before the Commission for adjudication.In order to prove that an employer violated a standard, theSecretary must show that: (1) the standard applies to the cited condition; (2) the termsof the standard were violated; (3) one or more of the employer’s employees had access tothe cited conditions; and (4) the employer knew, or with the exercise of reasonablediligence, could have known of the violative conditions. North Berry Concrete Corp.,13 BNA OSHC 2055, 2056, 1989 CCH OSHD ? 28,444, p. 37,643 (No. 86-163, 1989). We findthat each of these elements has been proved. Once the Secretary has presented enoughevidence on each element to establish a prima facie case, the employer hasthe burden of either rebutting the Secretary’s evidence or proving one of the affirmativedefenses 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 the judge erred infinding that Ormet had violated the standard:(1) Because the standard fails to define or explain the meaningof the term \”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 notapproach over or near employees.(3) Ormet had no knowledge of the violation.(4) The purpose of the standard had been accomplished, becauseemployees heard the crane approach and moved away.Having considered these arguments, we conclude that theSecretary has proved the four elements of a violation and that Ormet has failed toestablish an affirmative defense.A.THE VAGUENESS OF THE STANDARDOrmet argues that the word \”near\” in the standard isso vague that the standard deprives it of fair notice, in violation of the due processclause of the Fifth Amendment of the U.S. Constitution. In determining whether a standardis unconstitutionally vague, the Commission must apply established principles. One ofthese principles is that the words of a standard are to be viewed in context, not inisolation. Cleveland Consolidated. Inc., 13 BNA OSHC 1114, 1116, 1986-87 CCH OSHD? 27,829, p. 36,428 (No. 84-696, 1987). Another principle is that the purported vaguenessof a standard is not judged from the face of the standard; it is determined in light ofthe application of the standard to the facts of the case. Faultless Div., Bliss &Laughlin Indus. v. Secretary, 674 F.2d 1177, 1185 (7th Cir. 1982); PBR, Inc. v,Secretary, 643 F.2d 890, 897 (1st Cir. 1981;) Brennan v, OSHRC (Santa Fe TrailTransp. 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 not unconstitutionallyvague.We first note that the due process clause does not imposedrafting requirements of mathematical precision or impossible specificity. Diebold,lnc. v. Marshall, 585 F.2d 1327, 1336 (6th Cir. 1978). Furthermore, it is clear thatthe use of the word \”near\” in a statute or standard does not, in and of itself,render the statute or standard unconstitutionally vague. For example, in Cox v.Louisiana, 379 U.S. 559, 85 S.Ct. 476 (1965), the Supreme Court upheld a state statutethat prohibited picketing or parading \”in or near\” a courthouse. The Court in Coxindicated that \”near,\” as it was used in that statute, could cover activitywithin the sight and hearing of those in the courthouse. 379 U.S. at 568, 85 S.Ct. at 483.That definition, however, is too broad to be appropriate inthis context. We must therefore ascertain whether the meaning of the word\”near,\” as it is used in the cited standard, can reasonably be determined basedon the language and purpose of the standard and the physical conditions to which itapplies. Given the purpose of the standard, that is, to warn employees on whom a loadmight fall, we conclude that, as used in the cited standard, the word \”near\”means close enough to the path of travel that it is reasonably foreseeable that they couldbe hit by the load if the load should fall.We recognize that this is not a precise definition and that, inapplying it, the results will vary depending on numerous factors, including the height ofthe load above the employees, the size of the load, the shape of the load, the speed atwhich the load is traveling, the method by which the load is fastened to the crane, thecustomary patterns of and physical restrictions on employee movement, and otherconsiderations. That imprecision, however, does not make the standard unenforceably vague.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 OSHC1028, 1036 n.19, 1983-84 CCH OSHD ? 26,353, p. 33,425 n.19 (No. 16118, 1982), and casescited therein. It merely means that the distance will depend on the circumstances existingin each case and that the crane operator must exercise judgment. We therefore concludethat the standard gave Ormet fair notice of the conduct required under the circumstancesexisting at Ormet’s plant.B. DID THE LOAD APPROACH OVER OR NEAR ORMET’S EMPLOYEES?The next question is whether the evidence establishes thatOrmet’s employees were close enough to the billets’ path of travel that it was reasonablyforeseeable that they could be hit if the billets fell. Hindsight suggests that theemployee was \”near\” the billets’ path of travel, since he was struck. Thatapproach is too simplistic, however. The crane operator did not have the benefit ofhindsight when he failed to sound the alarm. We therefore examine the facts of this caseto determine whether the crane operator should have known that the load was approachingnear Ormet’s employee.The standard speaks in terms of a load \”approachingnear\” employees. That means that the crane operator must take action before the loadis in a position where it actually endangers employees. He must sound the alarm when theload is approaching — that is, before it actually reaches — that point. Once the load isclose enough that an employee could be hit, the crane operator has waited too long.The evidence establishes that, at the time of the allegedviolation, the crane was carrying five billets, two in one sling and three in the other.The billets were choked near the end, not towards the middle, so that they hung downnearly vertically, with their ends about a foot off the floor. The crane operator intendedto take his load to the east side of the inspection table and to lay it against the eastrail. Then he would lower the billet onto the west rail.Two employees, Hunt, a molten metal operator, and Pefferman, acast house laborer, were working at the inspection table when the crane approached.Pefferman testified that he heard the crane approach and moved northwest of the inspectiontable, 17 to 20 feet from the load. Hunt also walked away. He stopped approximately 5 to 8feet to the northeast of the table, and about 16 – 17 feet from the load. As the craneoperator lowered the two slings, the end of one of the billets in the sling holding twobillets hit the east rail of the inspection table, which released the pressure on thechoker sling, allowing both billets to fall. One of them struck and killed Hunt, who waswalking away from the 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 loadfell, either employee could have been hit by the falling load, as happened, or could havebeen struck and injured by a rolling or bouncing billet. Under these facts, we find thatthe load did approach near employees, so that the warning alarm should have beensounded as the load approached.C. DID ORMET HAVE KNOWLEDGE OF THE CONDITIONS?Ormet claims that the Secretary has failed to prove the fourthelement of the Secretary’s burden of proof, that is, that Ormet had either actual orconstructive knowledge that the crane operator did not sound the alarm when the loadapproached near the employees. We disagree. The record shows that the crane operator’sconduct in this regard on the night in question was consistent with the standard practicein Ormet’s plant. Ormet’s employees, including supervisors and management personnel, oftenstood at the inspection table when loads were being lowered onto the table, and the craneoperators usually did not sound the alarm. The former chairman of the union’s safetycommittee, who operated the same crane on a different shift, testified that, while he wasoperating the crane, employees had touched the load, turning it so that it would landproperly on the inspection table, and that Ormet’s supervisors did not seem to notice orcare unless someone complained. This witness had complained to Ormet’s supervisors onnumerous occasions about the situation. The testimony indicates that, although thesupervisor might respond to such complaints by telling the employees to get away from theload, any remedial effect was only temporary. Within a few days, the same employees andsupervisors would be standing in the fall radius of the load, and the crane operatorswould fail to sound the warning alarm.These facts establish that Ormet’s supervisory personnel hadnotice of the conditions in its workplace. The knowledge, actual or constructive, of anemployer’s supervisory personnel will be imputed to the employer, unless the employerestablishes substantial grounds for not imputing that knowledge. Donovan v. CapitalCity Excavating Co, 712 F.2d 1008, 1010 (6th Cir. 1983). We therefore find thatOrmet’s supervisors had knowledge of the situation existing in its cast house and did notcorrect it. The fact that Ormet may not have known of the specific instance of violativeconduct at the time it occurred does not mean that that conduct was unpreventable. Ormetmight have prevented the violative conduct by taking feasible precautions in hiring,training, and disciplining 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) (quotingNational Realty and Construction Co. v. OSHRC, 489 F. 2d 1257, 1266-67 n.37 (D.C. Cir.1973)).Ormet makes other arguments in support of its claim that it did not have knowledge of thecited conditions. Ormet asserts that: the Secretary must prove that the employer knew orshould have known that the conditions created a hazard; the accident was unforeseeablebecause there had been no previous similar accidents at Ormet; and the accident resultedfrom an isolated employee mistake.In arguing that the Secretary must prove that the company hadactual or constructive knowledge of the presence of a hazard, Ormet relies on KellySpringfield Tire Co. v. Donovan, 729 F.2d 317 (5th Cir. 1984), Cape & VineyardDiv. of New Bedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975),and a number of decisions by Commission administrative law judges[[1\/]]. The cases citedby Ormet are inapplicable here, because they deal with citations alleging violations ofthe general duty clause of the Act, 29 U.S.C. ? 654(a)(1)[[2\/]], or with standards thatset forth conditional requirements for the use of personal protective equipment,applicable only when an employee is exposed to a hazard.In order to prove a violation of the general duty clause, theSecretary must, as the case cited by Ormet states, prove that there is a hazard recognizedby the employer or its industry present in the employer’s workplace. Because Ormet was notcited for violating the general duty clause, no such showing is required here. Alsoinapplicable here is the case 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 a violation of section1910.132(a), the Secretary must demonstrate either that the employer had actual knowledgeof a hazard requiring the use of personal protective equipment or that a reasonable personfamiliar with the situation, including any facts unique to the particular industry, wouldrecognize a hazard warranting the use of protective equipment.\u00a0 Armour Food Co., 14BNA 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 beforea hazardous situation occurs. Because the standard anticipates the possibility that theload will fall, the focus is on the likely results of a fall, not on whether it is likelyto fall. The Secretary does not have to prove that there is a hazard of the load’sfalling. The alarm is to be sounded before the load comes near enough to employees that,if it fell, 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 had knowledge of thehazardous condition. Ormet misinterprets that provision. Section 17(k) does not say thatthe employer must have knowledge, actual or constructive, of a hazardous condition.Rather, the section requires that the employer must have knowledge of the physicalconditions constituting a violation. Shaw Construction, Inc., 6 BNA OSHC 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 the facts set out above, we conclude that Ormet had eitheractual or constructive knowledge of those conditions.Moreover, we find that, contrary to Ormet’s assertion, the factthat no accident similar to the one in this case had ever occurred does not establish thatthe possibility of an accident was not reasonably foreseeable. Section 1910.179(n)(3)(xi)is written in such a way that it contemplates that the load will fall. In order to complywith its requirements, the crane operator must anticipate that the load will fall anddetermine whether any employees are near enough to the path of travel that there is areasonable possibility that the load could fall, bounce, or roll onto or into them.Because it was the accident that caused the Secretary toinspect Ormet’s facility, Ormet focuses on the facts of the accident. This emphasis ismisdirected. The specific facts of this accident are not determinative of whether therewas a violation. A violation still would have been committed when the crane operatorfailed to warn the employees of the approaching load even if there had been no accident.The frequent presence of employees near the path of travel of the load, where they couldbe injured, and the failure of its crane operators to give warning to those employees gaveOrmet knowledge of conditions in its facility that should have been corrected.Ormet further argues that it has established the affirmativedefense of unpreventable employee misconduct. To prove that defense, an employer mustestablish that it had work rules that were intended to prevent the violation, that thoserules were adequately communicated to its employees, and that the rules were effectivelyenforced. 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 (5thCir. 1983); see Brock v. L.E. Myers Co., 818 F. 2d at 1277.Ormet introduced into evidence copies of its safety rules andits crane operator’s handbook in an effort to show that it did try to prevent the citedconditions. Although these exhibits indicate that Ormet had a work rule instructing craneoperators to warn anyone in the path of an approaching load, we find that Ormet did notenforce this rule. The unrefuted testimony of some of the employees who worked in the casthouse indicates that they were not familiar with Ormet’s written safety rules. Otheremployees testified that the warning alarm was rarely sounded and that Ormet’s supervisorsdid not discipline crane operators for failing to warn employees of the approaching load.This failure by Ormet to enforce its rules precludes us from relieving the company ofresponsibility for the conditions it allowed to exist. See Towne Construction 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 citesis the crane operator’s act of hitting the railing with the end of the billet, and thework rule Ormet relies on deals with proper procedures for lowering the billets. Ormet’sargument is misdirected, because Ormet was cited for failing to warn employees of theapproaching load, not for improperly lowering the load or letting the load fall. Becausethe work rule Ormet relies on does not require warnings when employees are in the vicinityof an approaching load, adherence to the rule would not have prevented the violation. Bythe time the load fell, the violation had already been committed. Consequently, we findthat Ormet has not carried its burden of proving this affirmative defense. Id.D. WAS IT UNNECESSARY TO SOUND THE ALARM?Ormet argues that, because the employees heard the crane andmoved away from the inspection table, the objective of the standard had been accomplished,and that it was therefore unnecessary to sound the alarm. Because we find that neitheremployee had yet left the immediate vicinity, we do not accept Ormet’s assertion that thepurpose of the standard had been accomplished.Ormet complains that the administrative law judge indulged inspeculation that, if the horn had been sounded, the employees might have been more awareof the danger and moved further away. While we agree that it is improper to predicate aviolation on speculation, we cannot dismiss the judge’s observations so lightly.Both employees were facing away from the load, apparently stillin the process of leaving the area, when the load fell. Pefferman testified that he heardthe load start to fall, turned around, saw what was happening, and called out a warning toHunt. If the warning alarm had been sounded, the employees might have become aware of theapproaching load 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 warning alarm had beensounded, both employees might have taken the situation more seriously and moved morequickly, allowing them to get further away. An alarm might have directed Hunt’s attentionto the approaching load, so that he would have been looking toward the load. Had he seenit begin to fall in his direction, he might have had enough warning to dodge the fallingbillet or jump back a few feet.[[5\/]]The employees almost certainly would have had more time to getout of the zone of danger and might well have been impressed with a greater sense ofurgency if the alarm had been given as the crane approached. Consequently, we find that,contrary to Ormet’s assertion, the purpose of the standard had not been accomplished atthe time the violation occurred.Even if we did agree with Ormet that the two employees had beenafforded adequate warning of the approach of the load, we would still not vacate thecitation. The standard unequivocally requires a certain course of conduct. It does notpermit alternative methods of compliance. By failing to sound the alarm as the loadapproached the inspection table where the two employees were working, the crane operatorviolated the standard. The fact that the employees may have sensed the load’s approach –too late to get clear, as it turned out — does not offset the violation.II. THE DEGREE OF THE VIOLATION AND THE PENALTYSection 17(k) of the Act, 29 U.S.C. ? 666(k), provides that aviolation is serious if there is \”a substantial probability that death or seriousphysical harm could result\” from the violation. The billets weighed almost 1600pounds each. They were 17 feet long and were round. Even if an employee were not struckdirectly, as happened here, a billet that fell and rolled into an employee could crush hisfeet or legs. It is apparent 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, theCommission must give due consideration to the size of Ormet’s business, the gravity of theviolation, Ormet’s good faith, and its history of previous violations. Section 17(j) ofthe Act, 29 U.S.C. ? 666(j) .We have considered the evidence relating to those factors asit is set out in the record, and we consider the penalty of $900 proposed by the Secretaryto be appropriate.We therefore affirm the finding of the administrative law judgethat Ormet committed a serious violation of 29 C.F.R. ? 1910.179(n)(3)(xi). We assess apenalty 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 of Labor, 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 of authorized employeerepresentative.DECISION AND ORDERSPARKS, Judge: Respondent, Ormet Corporation, produces aluminumat its facility located on State Route 7 North, Hannibal, Ohio.On April 16, 1985, the overhead crane lifted five or six\”billets\” of aluminum, each approximately 17 feet long and weighing 1,594pounds, to transport them from the pit area to the inspection tables. The employeesworking at the inspection tables heard the crane and moved several feet away from thetable. Billets in one of the slings struck the table causing the sling to release. Thebillets momentarily stood on end, then fell, striking Roy Hunt (Tr. 49). Following theinvestigation of the fatal accident, respondent was issued a citation for a seriousviolation containing four items. Items one and three were vacated at the hearing.I THE WARNING SIGNALItem 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 whenever the bridge wasstarted or when the load or hook approached near or over personnel:a) Cast House, the north east overhead crane was used to movetwo slings, each containing three 10′ diameter aluminum billets weighing approximately1,594 pounds each. As the crane operator approached personnel with the suspended load, hedid not sound a warning on or about 2:10 a.m., April 16, 1985.It is not disputed that the crane operator failed to sound thewarning horn when the crane lifted the load from the pit area and when it approached theemployees working at the inspection table (Tr. 30, 41-42). Operator Gordon was asked thespecific question as follows:Q. Let me ask you this:At any time from the time you pulled the billets from the pitto the time you brought them over and started to lay them down on the inspection 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 orgeneral practice for the crane operator to sound the alarm when making lifts (Tr. 50, 64,88-89, 108-110, 194). One operator testified he sounded the horn most of the time (Tr.151-153). Others blew the horn if someone was perceived to be in danger, especially if anemployee was in the path or seemed unaware of the approaching crane (Tr. 118, 133, 180,194). Respondent’s safety and health analyst and supervisors testified that they would nothave expected the crane operator to have used the warning device because there was nodanger to personnel as a result of the load being moved (Tr. 234, 306, 313-314, 330).The foregoing indicates that respondent did not expectcompliance with the OSHA regulation but substituted an expectation that the warning hornwas to be used when employees were perceived to be in danger. A prima facie violation hasbeen established as alleged in item two.Respondent contends that a violation was not establishedbecause the accident was not foreseeable. In support of its position, respondent pointsout that there had never been a prior similar accident and the accident was the result ofemployee mistake. In support it cites Cape & Vinyard\u00a0 Division of the NewBedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975); ChryslerCorp. 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 BNAOSHC 1663, 1979 CCH OSHD ? 23,673 (No. 78-4698, 1979); and other cases.Although an accident precipitated the investigation andprovided the factual circumstances for the alleged violation, the proceeding before theReview Commission does not attempt to establish the cause of the accident. The occurrenceof an accident does not prove a violation nor the lack of an accident establish theabsence of a violation.In Astra Pharmaceutical Products, Inc., 81 OSAHRC 79\/D9,9 BNA OSHC 2126, 1981 CCH OSHD ? 25,578 (No. 78-6247, 1979), the Review Commission statedthat the following elements are necessary to establish a violation of OSHA standards:In order to prove a violation of section 5(a)(2) of the Act, 29U.S.C. ?654(a)(2), the Secretary must show by a preponderance of the evidence that (1)the cited standard applies, (2) there was a failure to comply with the cited standard, (3)employees had access to the violative condition, and (4) the cited employer either knew orcould have known of the 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 ofsection 5(a)(1), citations for alleged violations of OSHA standards under section 5(a)(2)do not require proof of a recognized hazard. It is enough that the Secretary establishconditions which do not comply with the standards. That is clearly proved in the record.The record also shows that the condition was known or should have been known by theemployer as the general practice and custom was not to sound the alarm under theconditions prescribed by the standard. Management did not expect it to be sounded unlessemployees were perceived to be in danger (Tr. 234, 306, 313-314, 330). Employees workingthe the area and especially 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 to noncomplying conditions of whichthe employer is aware as the scheme of the Act is to prevent the first. accident. Asrespondent did not comply with the specific requirement of the standard, it is not adefense to it that Ormet could not foresee that the result of such noncompliance would bea fatal accident.Respondent also states that the term \”near or overpersonnel\” does not provide adequate warning of what is required. Webster’s ThirdNew International Dictionary, defines near as \”a short distance\” or\”close to.\” 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 the warning alarm besounded under such circumstances. It is not sufficient to contend that the employees werenot exposed to a hazard because they heard the noise of the crane and began moving away(Tr. 77). If the horn had been sounded, perhaps their awareness of the danger would havebeen heightened so that they would have moved farther from the hazard. There areindications that Hunt was not paying attention to the movement of the suspended load (Tr.49, 79-80). A warning sound would likely have gotten his attention and may have given himtime to flee the falling billets.Respondent further contends the accident was the result ofunforeseeable employee mistake. The evidence establishes that the accident was due tobillets striking the top or side of the inspection table. Crane Operator Gordonacknowledged that the event was the result of his misjudgment (Tr. 134, 339). Thecitation, however, does not charge respondent with a violation of the OSHA regulations bypermitting the billets to strike the table or the result of such occurrence. Rather thealleged violation is the failure to sound a warning alarm. By not sounding the alarm,Gordon was merely following general practice. Although respondent held safety meetings,not all employees attended. Safety training was especially deficient for crane operators(Tr. 91-93, 122-124, 145-150, 178, 189, 250). The evidence does not establishunpreventable employee misconduct or any other affirmative defense. H. B. Zachry Co.,80 OSAHRC 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) as alleged in item two of the citation. As death or serious injurywould be the 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). Theevidence shows the gravity of the conditions is high. Six employees who were around theinspection tables were exposed. The proposed penalty of $900 is reasonable andappropriate.IIItem four of the citation alleges that respondent violated 29C.F.R. ? 1910.184(c)(9) [[3\/]] under the following conditions:29 CFR 1910.184(c)(9). Employee(s) were not kept clear ofload(s) suspended, or about to be lifted by sling(s):a) Cast House, an employee working near the inspection tablewas struck by an aluminum billet which fell from a suspended load, causing his death on orabout 2:10 a.m., April 16, 1985.The Secretary does not alleged that the crane transported loadsover the heads of employees. He contends, however, that the term in the standard \” .. . shall be kept clear of… suspended loads\” means that employees shall not bepermitted within the \”falling radius\” of a suspended load (Comp. brief p. 5; Tr.55). Unquestionably the deceased was within the \”falling radius\” of thesuspended load at the time of the accident. His co-worker, James R. Pefferman, testifiedHunt had moved approximately five to eight feet away from the inspection table at the timehe was struck (Ex. C-6, R-1, R-2, R-9, R-11; Tr. 83-84). Pefferman was about 17 to 20 feetnorth of the inspection table (Tr. 78, 105). The general practice was the employees would move away from the suspended load to an areawhere they felt secure (Tr. 89, 130). Some were within five feet of the inspection tablewhen the load was brought in while others moved 42 to 50 feet away (Tr. 90, 121, 197-198). At times some were close to the table (Tr. 91, 154 154 158) . Some employees evengrabbed the billets while they were in the process of being placed on the table (Tr. 159).Employees and management were often within 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 andmanagement personnel (Tr. 153-160). Although employees were sporadically instructed tostay out of the way of loads and a few \”stop\” cards were issued, the rule wasnot effectively enforced and was disregarded by supervisors (Tr. 159-160).Respondent contends the language of the standard is vague andfails to provide adequate guidance to the employer. The Secretary asserts that the term\”kept clear of loads\” means to keep out of the falling radius. That is areasonable interpretation designed to promote safety and may well be what the Secretaryintended to require. The term, however, is not defined in the standards and is notsusceptible of precise definition. Webster’s Third New International Dictionarydemonstrates that the word \”clear\” has many meanings. As used in the standard itdoes not adequately advise the employer of what is expected. It is well settled that theemployer does not become an absolute insurer of safety under the Act.The citation asserts the violation occurred during the accident which killed Roy Hunt. Thefacts of record show that Hunt had moved five to eight feet away from the inspection tableas the crane approached with its load of suspended billets. His co-worker, Pefferman,moved about 17 to 20 feet away in another direction. Hunt did not pay attention to theincoming load of billets which probably indicated his belief that he had moved to an areaof safety (Tr. 49, 78-80, 104-106, 235). The crane operator did not think Hunt orPefferman was in danger (Tr. 130). It is noteworthy that there had been no previousaccidents of this type whereby respondent could learn of the hazard posed by fallingbillets. An inference can be drawn from the evidence that, because Hunt had moved severalfeet away from the point where the billets were to be deposited, he felt he had \”keptclear\” of the load. The language of the standard does not provide further guidance ofthe conduct to be expected. There was no evidence of industry custom or practice. In theabsence of more specific requirements, a reasonable interpretation of the standard, basedon prior experience, would indicate that Hunt, by moving away from the table, had\”kept clear\” of the load. Since the tragic accident, respondent now requiresemployees to remain beyond the \”falling radius\” of the load. Although hindsightaffords a harsh lesson of the precautions needed, the evidence of record does notestablish that the employer knew or should have known that Hunt’s actions were hazardousor in violation of the standard. To define \”kept clear of the load\” to requirethat employees move whatever distance is necessary so that under no condition could one bestruck by a falling load would in effect make the employer an insurer of their safety.Applying a reasonable man test to the evidence of record, it cannot be said that Hunt’sactions were unreasonable under the circumstances.The Secretary has, therefore, failed to prove that theconditions violated the standard at 29 C.F.R. ? 1910.184(c)(9) as alleged in item four. PennsylvaniaPower & Light Co. v. OSHRC, 737 F.2d 350 (3d Cir. 1984); Cape & VinyardDivision of New Bedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir.1975).FINDINGS OF FACT1. Respondent, Ormet Corporation, is an employer engaged in abusiness affecting commerce and has employees as defined by the Act.2. In its facility in Hannibal, Ohio, respondent moved aluminumbillets from the pit area to the inspection tables by means of an overhead crane.3. On April 16, 1985, the crane operator lifted and moved twoslings each containing three billets without sounding a warning at anytime.4. It was general practice for crane operators not to sound analarm unless the operator perceived employees to be in danger. Management would not haveexpected the crane operator to have sounded the alarm while making the lift on April 16,1985.5. The failure to sound the alarm creates a hazardous conditionwhich would likely result in death or serious injury should an accident occur.6. As the crane approached the inspection table, two employees Pefferman and Hunt, heardthe crane and moved away from the table. Hunt moved five to eight feet in one direction,Pefferman moved about 17 to 20 feet in another direction.7. Three billets struck the top or side of the table and cameloose from the sling. One of the billets struck Hunt, fatally injuring him.8. At the time of the accident, respondent had not experiencedany prior similar accident.9. Employees often remained close to the table when billetswere being deposited.10. Respondent sporadically cautioned employees not to get tooclose to suspended loads, but enforcement of the rule was not consistent and was sometimesviolated by management personnel.11. The general practice was for each employee to move awayfrom a suspended load such distance as he felt safe. Based upon his prior experience andknowledge, Hunt’s actions were reasonable under the circumstances.12. Respondent had various work rules relating to the safeoperation of cranes, but the rules were not effectively communicated or consistentlyenforced.13. A penalty of $900 is warranted and appropriate for theviolation of item one.CONCLUSIONS OF LAW1. Respondent is an employer subject to the Act and thisproceeding.2. Respondent violated 29 C.F.R. ?1910.179(n)(3)(xi) under conditions constituting aserious violation.3. Respondent did not violate 29 C.F.R. ?1910.184(c)(9). 4. A penalty of $900 is reasonable and appropriate.ORDER1. 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. SPARKS JudgeFOOTNOTES: [[1\/]] Unreviewed decisions of the Commission’s administrativelaw judges have no precedential value binding on the Commission. Leone ConstructionCo., 3 BNA OSHC 1979, 1975-76 CCH OSHD ? 20,387 (No. 4090, 1976); RMI Cov.Secretary, 594 F.2d 566, 571 n. 13 (6th Cir. 1979).[[2\/]] The general duty clause requires an employer to\”furnish to each of his employees employment and a place of employment which are freefrom recognized hazards that are causing or are likely to cause death or serious physicalharm to his employees.\”[[3\/]] The basis of this holding is the language and,especially, the broad scope of this particular standard. Section 1910.132(a) provides:Protective equipment, including personal protective equipmentfor eyes, face, head, and extremities, protective clothing, respiratory devices, andprotective shields and barriers, shall be provided, used, and maintained in a sanitary andreliable condition wherever it is necessary by reason of hazards of processes orenvironment, chemical hazards, radiological hazards, or mechanical irritants encounteredin a manner capable of causing injury or impairment in the function of any part of thebody through absorption, inhalation or physical contact.We conclude that the standard cited in this case is notanalogous to ? 1910.132(a), either in its language or its scope.[[4\/]] That section provides:For purposes of this section, a serious violation shall bedeemed to exist in a place of employment if there is a substantial probability that deathor serious physical harm could result from a condition which exists, or from one or morepractices, means, methods, operations, or processes which have been adopted or are in use,in such place of employment 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 thatstruck Hunt 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 hookapproaches near or over personnel, the warning signal shall be sounded.[[2\/]] There was conflicting evidence of prior accidents. Onthe shift immediately prior to the one during which the fatality occurred, a sling becameunhooked while making a lift in the pit area permitting the billets to fall a shortdistance (Tr. 27-28, 51, 53, 128, 168-169). No one was injured. There were suggestions ofother accidents in the pit area and rumors of an accident a long time ago in which billetsfell from a sling at an inspection table (Tr. 56, 317). The record was devoid ofsubstantial evidence of any previous accidents similar to the one which occurred on April16, 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 belifted and of suspended loads.”