“SECRETARY OF LABOR,Complainant,v.STONE CONTAINER CORPORATION,Respondent.UNITED PAPERWORKERS INTERNATIONALUNION, HELLGATE LOCAL NO. 885,Authorized EmployeeRepresentative.OSHRC Docket No. 88-0310_DECISION_BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:At issue in this case is whether Stone Container Corporation (\”StoneContainer\”) violated 29 C.F.R. ? 1910.180(h)(3)(v) by not complying withthe terms of a settlement agreement it had previously entered into withthe Secretary and whether that violation was repeated under section17(a), 29 U.S.C. ? 666(a), of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The settlement agreementimplicitly required Stone Container to conduct test lifts before liftingemployees in manbaskets [\”personnel baskets\”] that were suspended fromcranes. Former Review Commission Administrative Law Judge William R.Mullins held that Stone Container violated the settlement agreement andcommitted a repeated violation of the standard. He assessed a $1,200penalty. Stone Container argues that the violation was not repeated,claiming that (1) a repeated violation cannot be based on the violationof a settlement agreement, (2) 29 C.F.R. ? 1910.180(h)(3)(v), thestandard Stone Container allegedly violated, does not require testlifts, and (3) the unbiased evidence does not establish that test liftswere not made.[[1\/]] We affirm the Judge’s decision.I. _BACKGROUND_A. _The Prior Citation and Settlement Agreement_On January 30, 1987, the Secretary issued a citation to Stone Containeralleging that it had failed to comply with section 1910.180(h)(3)(v)[[2\/]] at its Frenchtown, Montana facility. The citation alleged thatStone Container had used a truck crane to hoist employees on a workplatform above the floor level so that the employees could performcertain work duties. Stone Container’s contest of that citation wasresolved in a Stipulation and Settlement Agreement that became a finalorder of the Commission on November 16, 1987. In the settlementagreement, Stone Container withdrew its notice of contest to the amendedcitation and proposed penalty, represented that abatement had beenaccomplished, and agreed that the final abatement date was to be thedate of the final order.The method of abatement was not described in the settlement agreement,but the parties understood that Stone Container would not be cited forcontinuing to use a crane to hoist employees in the manner alleged inthe citation as long as it complied with OSHA Instruction STD 1-11.2B(\”the Instruction\”). The Instruction states that it clarifies section29 CFR 1926.550(b)(2) [the construction industry equivalent of citedsection 1910.180(h)(3)(v)] and the ANSI referenced requirement [ANSIB30.5-1968] that the operator shall not hoist, lower, swing or travelthe crane while anyone is on the load, or hook, as related to the use ofworking platforms suspended from cranes.\”[[3\/]]The Instruction provides that employers will not be cited for violatingsection 1926.550(b) (2) by using cranes \”to hoist and suspend employeeson a work platform … when such action results in the least hazardousexposure to employees\”–if a number of criteria are met. The criteriamost important to this case require that:A full-cycle operational test lift shall be made prior to lifting ofemployees. The platform shall carry twice the intended load during thetest lift.Conversely, the Instruction further provides that, if the employer failsto meet any of the criteria set forth in the Instruction, the employerwill be cited for a violation of the governing standard, section1926.550(b)(2).Stone Container expressed its intention on several occasions ofcomplying with the Instruction, and it does not dispute that it wasobligated to conduct weight testing under the terms of the settlementagreement.B. _The Citation on Review_On December 8 and 9, 1987, the Secretary conducted another inspection ofStone Container’s Frenchtown facility and later issued a citationalleging that Stone Container committed a repeated violation of section1910.180(h)(3)(v) in that:Employees were lifted in a manbasket suspended from a crane hook. Testlifts with twice the intended load were not conducted prior to hoistingthe men.The violations were alleged to have occurred on four separate datesbetween November 16 and December 10, 1987.C. _Test Lifting at the Facility_Stone Container began developing a procedure that would be consistentwith the Instruction before it even entered into the settlementagreement with the Secretary. Roy Johnson, the Stone Container employeein charge of formulating the program, testified that it included (1) themanufacture of new personnel baskets with test weights, (2) arequirement that test lifts be conducted before employers were lifted,and (3) the development of a certification form to be used inconjunction with weight test lifts. The form was entitled \”USE OFMANBASKET – Decision, Pre-lift test, Documentation-FORM\” and wasrequired to be completed and signed by those conducting test lifts.Johnson testified that in April of 1987, Stone Container’s craneoperators were provided with a training course on the new program andprocedures he had developed. Although he had been told by the personneldepartment and others in the company that Stone Container would not haveto comply with the test lifting requirements of the Instruction untilits contest of the January 1987 citation was resolved, Johnson testifiedthat he believed it was his responsibility to \”get into compliance\” withthe Instruction without regard to when the contest of the citation mightfinally be resolved. He testified that the test lift procedures hedeveloped therefore were in place as of the November-December 1987 datesthat are alleged in the repeat citation.However, three different crane operators testified that, throughout thetime period in question, they failed to conduct test lifts with twicethe intended load prior to hoisting employees. They also testified thatthey had not been instructed to conduct weight test lifts prior tolifting employees in personnel baskets until after the OSHA inspectionsof December 8 and 9, 1987. The crane operators stated that they eitherperformed test lifts without the required weights and filled out theforms as if they had.Furthermore, crane operator Felstet noted on the form he completed onDecember 10, 1987, that he could not test lift because there were noweights to use for the test. He also testified, however, that he hadconducted some test lifts using improvised weights before theSecretary’s December 1987 inspections. Mr. Felstet maintains heconducted the test lifts even though it was not required, because heknew it was going to be required at some point in the future, andbecause he believed that it was safer to test lift than not to do so. Mr. Felstet was not always able to test lift before the December 1987inspections because the improvised weights he was using for testlifts–chains in a barrel–were not always available for use.The crane operators were supervised by Stone Container’s buildingmaintenance foreman, Thomas O’Connor, who was also responsible forreviewing their test lift forms. Mr. O’Connor–like the crane operatorshe supervised–testified that he did not know that test lifting wasmandatory on the dates alleged in the repeat citation. Although he knewthat the crane operators would not be required to conduct test liftsuntil after the initial, January 1987 citation was resolved bysettlement agreement, he did not learn that that case had been settleduntil after the repeat citation was issued. Mr. O’Connor testified thathe did not discipline crane operators who failed to test lift before theJanuary 1987 case was settled because \”circumstances … made it verydifficult to perform\” the test lifts. He did not explain what thecircumstances were.At the hearing, Mr. O’Connor reviewed the forms that the Secretaryalleges document the crane operators’ failures to test lift. Although hetestified that he had not reviewed the forms when they were firstcompleted, he still testified to a belief that the lifts described onthe forms had indeed been conducted. He attributed the omission ofcertain entries in the forms to a lack of familiarity with the forms onthe part of the crane operators. He denied crane operator Felstet’sassertions that test weights were not always available but was unable tostate when the weights did become available.Roy Johnson, the employee in charge of implementing the test liftprocedure, testified that employee allegations of any failures to testlift were part of a \”game\” being played by the employees, who wereinvolved in a labor-management dispute with Stone Container. Mr.Johnson stated that he believed that the crane operators actually didconduct the test lifts they claimed they had not conducted, because theemployees were too safety-conscious not to conduct them. Mr. Johnsonadmitted, however, that he was not present during the allegedlydeficient test lifts cited by the Secretary and did not review the testlift forms completed by the employees.II. _RESOLUTION OF THE ISSUES_A. _Whether Stone Container Violated the Standard by Failing to Complywith the Settlement Agreement_Stone Container argues that section 1910.180(h)(3)(v) does not requireweight test lifts. Of course, Stone Container is literally correct. Stone Container’s initial obligation is to comply with the standard’srequirements. However, an employer who does not comply with the termsof a standard has violated that standard–except when the employer islegally excused from compliance. A legal excuse may take several forms:a variance granted by the Secretary under section 6(b)(6)(A) of theOccupational Safety and Health Act, 29 U.S.C. ? 655(b)(6)(A); ajudicially-created defense, such as that of infeasibility, _see Dun-ParEngineered Form Co_., 12 BNA OSHC 1949, 1958-59, 1986 CCH OSHD ? 27,650,pp. 36,026-7 (No. 79-2553, 1986), _rev’d on other grounds_, 843 F.2d1135 (8th Cir. 1988); or, as is the case here, a settlement agreementthat excuses strict legal compliance with the terms of a standard, butimposes a requirement for alternative protective measures. Thus, whenan employer is excused from compliance with the terms of a standard,that employer is still required to provide alternative means ofprotection for its employees. _See Dun-Par_ _Engineered Form Co_.; _ITTGrinnell Corp. v. Donovan_, 744 F.2d 344, 349-350 (3d Cir. 1984). Ifthe employer fails to provide these alternative protections, then OSHAis justified in citing it for failure to comply with the governingstandard, as it did in this case.The record contains abundant evidence that Stone Container did notcomply with the terms of the cited standard. Stone Container does notdispute that it knew its crane operators used crane hooks to hoistemployees in personnel baskets up to where they could perform their workduties. Normally, this would be sufficient to establish a violation ofsection 1910.180 (h)(3)(v). However, under the terms of the settlementagreement, the parties understood that Stone Container would not becited for violating section 1910.180(h)(3)(v) if it conducted thepre-lift weight tests required by the Instruction before it used cranesto move employees in a personnel basket.[[4\/]]Therefore, to establish that Stone Container did not comply with section1910.180(h)(3)(v), the Secretary must show that (1) Stone Containerfailed to comply with the terms of the standard, (2) the weight testlifts agreed to by the parties were not made, and (3) Stone Containerknew, or with the exercise of reasonable diligence could have known,that the test lifts were not made. _See Astra_ _PharmaceuticalProducts, Inc_., 9 BNA OSHC 2126, 1981 CCH OSHD ? 25,578 (No. 78-6247,1981).Stone Container contends that the only evidence of its alleged failureto conduct test lifts comes from \”disputed employee testimony [arisingout of] … a hostile [labor] environment\”. Although the AdministrativeLaw Judge considered the testimony regarding Stone Container’s test liftpractices to be \”somewhat contradictory\”, he nevertheless found that\”the weight of the evidence establishes that ? 1910.180 (h)(3)(v) wasviolated….\”The Judge’s finding that Stone Container failed to test lift issupported by the evidence. Stone Container’s crane operators testifiedthat they were not instructed to perform pre-lift testing before theSecretary’s December 1987 inspections were conducted. They testifiedthat they were told to fill out the employer-developed \”Use ofManbasket\” forms requiring them to certify successful performance ofprelift testing on a \”practice\” basis until the day the equipmentapproved for such testing arrived. Their partially filled out formscorroborate their testimony that test lifts were made without therequired weights. Further, Stone Container foreman O’Connor, whosupervised the aforementioned crane operators and was responsible forreviewing their test lift forms, testified that he did not know thattest lifting had become mandatory prior to the issuance of the citationresulting from the Secretary’s December 1987 inspections. Mr. O’Connoralso testified that he did not think that weight test lifting had to beimplemented on a mandatory basis until after the earlier, January 1987citation had been settled, and that he did not learn that that citationhad been settled until after the current, January 1988 citation had beenissued. Stone Container’s contention that the testimony of itsemployees is tainted because of a labor-management dispute is thereforenot persuasive. The testimony of its crane operators that they werenot told that weight test lifting was mandatory until after theSecretary’s inspections was supported by the testimony of foremanO’Connor, who also was not told until after the December 1987 inspections.Stone Container also contends that it did not know that weight testlifting was not being conducted, and that it did everything in its powerto assure that it was being conducted. The Judge disagreed and foundthat Stone Container supervisory personnel were aware or should havebeen aware of the violation. He placed particular reliance on evidencethat Stone Container’s foreman O’Connor was made aware of two instancesof failures to test lift and still took no action.The evidence, however, does not establish that Stone Container hadactual knowledge of the failures to test lift. Mr. O’Connor did nottestify that he failed to act after learning that test lifts had notbeen conducted on two occasions. Instead, he testified as to what hewould have done had he learned two test lifts had not been conducted. Mr. O’Connor testified that if he had seen forms that suggested testlifts had not been made, he would have concluded that the test lifts hadbeen made, but that some of the necessary numbers had not been enteredon the forms. Mr. O’Connor also testified that if he had seen theDecember 10, 1987 form completed by crane operator Felstet noting thatit was not possible to perform test lifts because test weights were notavailable, he would have dismissed the notation because a certifiedpersonnel basket was in fact then present at the worksite.The Commission finds, however, that the evidence demonstrates that StoneContainer, with the exercise of reasonable diligence, could have knownof the failures to weight test lift. Stone Container made substantialefforts to set up the test lifting procedures required by theInstruction. These included the fabrication of new personnel baskets,the development of the \”Use of Manbasket\” certification forms to befilled out for each lift, and the introduction of a new training coursefor its crane operators. However, these efforts went for naught becauseStone Container failed to communicate to the three crane operators andto Mr. O’Connor, their foreman, that test lifts were mandatory when theStipulation and Settlement Agreement became a final order of theCommission on November 16, 1987. _See Combustion Engineering, Inc_., 5BNA OSHC 1943, 1977-78 CCH OSHD ? 22,241 (No. 76-2210, 1977). The citedinstances of noncompliance all occurred on or after the date on whichtest lifting became mandatory under the settlement agreement. If StoneContainer had been reasonably diligent, the crane operators and theirsupervisor would have known when the test lifting procedures becamemandatory. Although the settlement agreement had been posted at theworksite, it did not state either what abatement was required or when itwas required.B. _Whether the Violation was Repeated_We next examine whether the violation was repeated within the meaning ofsection 17(a) of the Act. Under Commission precedent:A violation is repeated… if, at the time of the alleged repeatedviolation, there was a Commission final order against the same employerfor a substantially similar violation._Potlatch_, 7 BNA OSHC at 1063, 1979 CCH OSHD at p. 28,171. Under_Potlatch_, the Secretary establishes a prima facie case of similarityby showing that both violations are of the same standard. The employerthen has the burden of rebutting the evidence of similarity.The Judge found that the Secretary established a prima facie showing ofsimilarity and that Stone Container failed to \”introduce any evidenceregarding the nature of the original alleged violation\” in rebuttal. He affirmed the citation as repeated. Stone Container argues that itdid not attempt to show that the violations were dissimilar and notrepeated because there was no prior violation of the same standard. Itclaims that the Secretary’s only evidence that the violations weresimilar concerned the methods of abatement agreed to in the settlement.Although the abatement required by the two citations differs, theprincipal factor to be considered in determining whether a violation isrepeated is whether the prior and instant violations resulted insubstantially similar hazards. _See Austin Road Co_., 8 BNA OSHC 1916,1918, 1980 CCH OSHD ? 24,688, p. 30,301 (No. 77-2752, 1980). Here, boththe prior and the present violations resulted in employee exposure tovery similar or identical fall hazards. The hazards occurred in thesame workplace and involved the same types of cranes. That the possiblefall distances may have varied somewhat is not significant. _SeeAutomatic_ _Sprinkler Corp. of America_, 7 BNA OSHC 1957, 1979 CCH OSHD? 24,077 (No. 76-5371, 1979). Since the evidence establishes that thecitations involved the same standard and applied to similar conditions,the Secretary has proven a repeated violation of section1910.180(h)(3)(v) under _Potlatch_.Stone Container contends that its failure to conduct test lifting wasnot a repeated violation of the same standard, but rather a failure toabate according to the terms of the settlement agreement. It alsocontends that the settlement agreement indicates that it had devised away to make personnel hoisting safe without following the standard, notthat it had violated the standard. We reject Stone Container’s contentions.Although the settlement agreement does not explicitly state that section1910.180(h)(3)(v), the standard involved in the earlier citation, hadbeen violated, this does not prevent the Secretary from relying on theearlier violation as the basis for a repeated violation under_Potlatch_. The fact that the earlier citation became a final order asa result of the withdrawal of the notice of contest does not affect thefinality of the order. The withdrawal of a notice of contest is an\”agreement to the affirmance\” of a citation. _Weldship Corporation_, 8BNA OSHC 2044, 2045 n.5, 1980 CCH OSHD ? 24,750, p. 30,480 n.5 (No.77-3769, 1980). A Judge’s order approving a settlement agreement inwhich an employer withdrew its notice of contest to a citationestablishes the existence of a violation of the cited standard. _SeeDic-Underhill, A Joint Venture_, 8 BNA OSHC 2223, 2227, 1980 CCH OSHD ?24,959, pp. 30,799-30,800 (No. 10798, 1980). Stone Container claimsthat neither of the parties believed that the settled citation wouldever form the basis for a repeated citation, but it points to nothing inthe settlement agreement or elsewhere to suggest this. The Secretarydoes not share this view, since she has attempted to use the earliercitation for just that purpose. Stone Container may not have realizedthat withdrawing its notice of contest left it open to a repeatedcitation in the future, but that cannot constitute a defense to arepeated allegation. Stone Container is presumed to have knowledge ofthe Act, which has provided for repeated citations since its effective date.Stone Container also contends that it did not violate the standard for asecond time but merely failed to abate according to the settlementagreement. Stone Container is estopped from making such an argument,however, because in the settlement agreement reached with the Secretaryresolving the original section 1910.180(h)(3)(v) citation, StoneContainer represented \”[t]hat the abatement of both items of seriouscitation 3 [including the section 1910.180(h)(3)(v) allegation uponwhich the instant repeated violation is based] has been accomplished…\”_See MWS Wire Industries, Inc. v. California Fine Wire Co._, 797 F.2d799, 803 (9th Cir. 1986), citing _Beer Nuts, Inc. v. King Nut Co_., 477F.2d 326, 329 (6th Cir. 1973) (person should be held to own undertakingsand is estopped from taking position contrary to that taken in earliersettlement agreement). _Also see Farmers Export Co_., 8 BNA OSHC 1655,1662, 1980 CCH OSHD ? 24,569, p. 30,086 (No. 78-1708, 1980) (Barnako,concurring: Secretary would be estopped from using prior settlementagreement in manner contrary to its terms). On the basis of thatstatement, and others appearing in the settlement agreement, theSecretary agreed to settle the case. That case is now a final order. Therefore, Stone container may not successfully contradict therepresentation in the settlement agreement and contend here that itfailed to abate its prior violation of the cited standard.We would also note that from one standpoint at least, Stone Container isbenefited by the fact that it is here defending against a repeatedallegation and not a failure to abate. Had this been a failure to abatecase, Stone Container could have been subjected to a higher penaltyassessment than the penalty we assess here. An employer may only beassessed a civil penalty of not more than $10,000 for a repeatedviolation, but a penalty as high as $1,000 _per day_ is possible for afailure to abate. _See_ Sections 17(a) and (d) of the Act, 29 U.S.C. ?666(a) and (d). As of the Secretary’s initial inspection date here,Stone Container could have been subjected to a possible penalty of$18,000 for a failure to abate, not just the possible $10,000 penaltyinvolved in this case. We therefore reject Stone Container’s argument.III. _ORDER_The Judge assessed a $1,200 penalty for the repeated violation. Afterconsideration of the penalty factors enumerated in section 17(j) of theAct, 29 U.S.C. ? 666(j), we conclude that the assessed penalty isappropriate.Accordingly, the Judge’s decision is affirmed. Item 1 of repeatcitation 8 is affirmed as a repeated violation, and a penalty of $1,200is assessed.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDATED: August 29, 1990————————————————————————SECRETARY OF LABOR,Complainant,v.STONE CONTAINER CORPORATION,Respondent,UNITED PAPERWORKS INTERNATIONALUNION HELLGATE LOCAL NO. 885,Authorized EmployeeRepresentative.OSHRC DOCUMENT NO. 88-0310APPEARANCES:For the Complainant:Tobias B. Fritz, Esq., Office of the SolicitorU.S. Department of Labor, Kansas City, MOFor the Respondent:Kenneth Sovereign, Esq., Lake Elmo, MNFor the Employees:Robert L. Culp, UPIU, Hellgate Local 885, Missoula, MT_DECISION AND ORDER_Mullins, Judge:This proceeding arises under the Occupational Safety and Health Act of1970 (29 U.S.C. Section 651 _et seq_.; hereafter called the \”Act\”).As the result of an employee complaint, the Occupational Health andSafety Administration (OSHA) inspected the workplace of respondent,Stone Container Corporation, a manufacturer of paper goods, on December8-9, 1987. Of the citations that were issued as a result of theinspection, respondent timely contested Serious citation 7, Repeatcitation 8 and Other than serious citation 9.A hearing was held in Missoula, Montana on October 18, 1988 and theparties have both filed briefs in the matter. Based on the following,Serious citation 7 is vacated. Repeat citation 8 is affirmed and apenalty of $1200.00 is assessed. Other than serious citation 9 isaffirmed without penalty.IssuesJurisdiction is not at issue as, in its answer, respondent stipulated tocoverage by the Act and to the Commission’s jurisdiction.1) Whether the Secretary’s inspection was reasonable under ? 8(f) and(g) of the Act.2) Whether the Secretary demonstrated, by a preponderance of theevidence, a violation of ? 1920.24(b).3) Whether the Secretary demonstrated, by a preponderance of theevidence, a violation of ?1910.180(h)(3)(v).a) Whether the alleged violation of ? 1910.180(h)(3)(v) was shown to bea \”repeat\” violation.4) Whether the Secretary demonstrated, by a preponderance of theevidence a violation of 1910.132(a).Reasonableness of InspectionSection 8(f) and (g) requires the Secretary to make a special inspectionif, upon receipt of an employee complaint, she determines that there arereasonable grounds to believe a violation or a dangerous condition exists.Respondent initially relies on legislative history of the Act whichindicates that legislators opposed requiring compulsory inspectionswhenever an employee lodged a complaint. Respondent argues that toeffectuate that intent the Commission should require discussion of theemployee complaint with the employer before a determination ofreasonableness is made.Upon review of the legislative history, the undersigned is satisfiedthat the portions referred to were intended solely to preserve theSecretary’s limited resources and not to provide any substantive rightsto employers or to in any way limit the Secretary’s prosecutorialdiscretion. _See e.g_., LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETYAND HEALTH ACT OF 1970 (S. 2193, P.L. 91-596), p. 300).. . .it is contemplated that the Secretary would, of course, give fullconsideration to employee complaints of safety and health violations,and he would conduct necessary inspections. . . However, under existingsafety laws the Secretary is not _required_ to respond to everycomplaint. And rightly so, because of the limited resources at hisdisposal._Id_.If respondent felt that there was no reasonable basis for an inspection,its remedy was to require a warrant at the time inspection wasrequested. The Secretary would then have been required to make ashowing of reasonable suspicion. No relief is available at this stageof the proceedings.Finally, Respondent errs in relying on a provision in its collectivebargaining agreement requiring employees to notify management ofhazardous conditions. The Commission has no jurisdiction to eitherconsider or enforce the terms of respondent’s labor agreement with itsemployees. The Secretary, moreover, is not bound by that labor agreement.In this proceeding, the employee\/management hostility at respondent’sworkplace bears solely on credibility of the witnesses to be determinedby the trier of fact.Serious citation 7Section 1920.24(b) states:_Where fixed stairs are required._ . . Fixed stairs shall also beprovided where access to elevations is daily or at each shift for suchpurposes as gauging, inspection, regular maintenance, etc. where suchwork may expose employees to acids, caustics, gases, or other harmfulsubstances, or for which purposes the carrying of tools or equipment byhand is normally required. . ._Facts_:Mr. Ronald Ritter, a millwright with respondent for the last 6-1\/2years, testified that he frequently observed employees being raised inthe bucket of the bobcat loader for the purpose of \”reroping thechives,\” or replacing ropes which had jumped the wheels of the papermachine pulley system (Tr. 86-87; Ex. C-1a to 1e, C-1g). Mr. Ritterstated that reroping was normally done by hand but that a pole with ahook was sometimes used. He testified that some of the wheels are 10feet off the ground and that reroping could be required several times aweek (Tr. 87).Mr. Craig Hoylo, a back tender on the #1 paper machine testified thatwhen he began to work for respondent he was responsible for cleaning outpaper out from underneath the dryers with broom or shovel handles andreroping the chives with rope hooks, as well as opening valves, andcleaning out trim shoots (Tr. 106). Mr. Hoylo stated that he was liftedon a payloader or fork truck, up to 12-15 feet above the ground in orderto perform these tasks, sometimes daily, although at times a week wouldgo by where no maintenance was required (Tr. 106-107, 113).Mr. Frank Jensen, utility man on the #2 paper machine, testified that a\”spare hand\” is elevated in the bobcat every day to take paper off thepipes, to put \”felts\” on the press section and to rerope the chives,sometimes using sticks and hooks (Tr. 122-124).All of the Secretary’s witnesses felt that the practice of liftingemployees in the bucket of the bobcat was dangerous and all had atsometime in the past complained to management about it (Tr. 91, 114,125). Mr. Hoylo testified that the bucket was subject to tipping andwas slippery, often filled with debris such as oil, starch, and oldpaper stock (Tr. 110, 116). Mr. Hoylo had actually fallen from thebucket in the past but was unhurt (Tr. 110-111)._Discussion_:In order to prove a violation of section 5(a)(2) of the Act, theSecretary must prove by a preponderance of the evidence that:\”(1) the cited standard applies, (2) there was a failure to comply withthe cited standard, (3) employees had access to the violative conditionand (4) that the cited employer either knew or could have known of thecondition with the exercise of reasonable diligence.\”_Astra Pharmaceutical Products, Inc_., 9 BNA OSHC 2126, 2127 (No.78-6247, 1981).Although it is clear from the evidence that the respondent’s practice ofusing the bobcat bucket for lifting employees is unsafe, the Secretaryfailed to demonstrate the first element of her prima facie case.The Secretary apparently contends that since \”elevation\” wasapproximately daily, the requirements of the standard are fulfilled.Under the Secretary’s reading of the standard an employer would berequired to install fixed stairways to _each_ elevated work station ifaccess to _all_ elevated locations, no matter how widely spread, is fiveor more times a week.The undersigned is satisfied that ? 1910.24(b) does not impose such anonerous requirement and that fixed stairways must be provided only whereemployees’ duties require daily access to the _same_ elevated workstation.It is clear that there were a wide variation of elevated tasks requiringrespondent’s employees’ attention, involving completely separatemachinery: presses, dryers, pulleys, etc.Evidence was adduced regarding the possible placement of stairs at thebottom of the column pictured in Exhibit C-1d (Tr. 94-95); however, therecord discloses neither whether different columns (and pulleysrequiring service) are pictured in Exhibits C-1a, 1b and 1g nor wherethe tasks not associated with reroping the pulleys were performed. Inthe absence of any evidence as to job frequency in a single proximity,respondent cannot be found in violation of ? 1910.24(b).Serious citation 7 is therefore vacated.Repeat citation 8Section 1910.180(h)(3)(v) requires that ”[n]o hoisting, lowering,swinging or traveling shall be done while anyone is on the load orhook.\” However, OSHA Instruction STD 1-11.2B (Ex. C-3) allows the useof crane mounted manbaskets if they are used in compliance withguidelines contained therein and in ANSI standard B30.5-1968. GuidelineF(2)(b)(2), included in STD 1- 11.2B, requires:\”A full-cycle operational test lift shall be made prior to lifting ofemployees. The platform shall carry twice the intended load during thetest lift.\”_Facts_:The parties agree that as a result of a previous inspection, respondentwas cited for a violation of ? 180(h)(3)(v). An agreement was reachedwith the Secretary, and Respondent withdrew its contest to the citation. The settlement agreement was entered into the record on October 6,1987 and became a final order on November 16, 1987 (Tr. 21; Response toSecretary’s First Request for Admissions 8a and 8b). As part of itssettlement agreement, respondent represented that the alleged violationhad been abated in accordance with STD 1- 11.2B as of September 21, 1987(Secretary’s First Request for Admissions, Appendix B and C).Following the initial citation, respondent developed a form which was toassure compliance with OSHA regulations (Tr. 141, 164). One of thesections of the form required operators to sign off certifyingsuccessful performance of prelift tests required by Guideline F(2)(b)(2)(Ex. C-2, R-1).Dick Grimes, and Duane Felstet, crane operators with respondent,testified that until December, 1987, however, they were not aware thatrespondent owned a \”certified float with weight\” with which to performpre-lift tests (Tr. 134, 140, 159).All three of respondent’s crane operators testifying, Mr. Grimes; HerbMeagher; and Duane Felstet, stated that they were not instructed toperform pre-lift tests but were told that they were supposed to fill outthe forms as \”practice\” for that day when approved equipment arrived(Tr. 134-35, 146-148, 157-161).Mr. Meagher and Mr. Felstet testified that they occasionally performedpractice pre-lifts with an empty basket or with a barrel of chains. They stated that the barrel did not fit in the 2 man basket, manbasket#2, and was not always available (Tr. 147-149, 167-171).Mr. Grimes testified that on November 23, 1987, he did not perform apre-lift test on manbasket #1 prior to hoisting employees in themanbasket, though he signed off on the form (Tr. 134; Ex; C-2a). Mr.Meagher testified that on November 23 and 24, 1987 he failed to performa pre- lift test on the same basket prior to hoisting employees in themanbasket (Tr. 146, 150; Ex. C-2b, C- 2c). Mr. Felstet specificallynoted on the manbasket forms for manbasket #1 on November 16, 1987, andfor manbasket #2 on December 10, 1987, that no prelift tests wereperformed (Tr. 158, C-2d, C- 2e).Mr. Roy Johnson, who was employed in February, 1987 to train the craneoperators, testified that he personally instructed the operators in thepre-lift requirement (Tr. 240, 270-271; Ex. R-3, R- 4). He also statedthat the new \”certified\” four man manbasket, equipped with its ownweights, arrived early to mid November (Tr. 255, 263; _See also_ Mr.O’Connor’s testimony, Tr. 299-300). Mr. Johnson stated that the four manmanbasket was designated #1 and the old #1 basket was scrapped (Tr. 256,266). Mr. Johnson recalled that the basket was given to someone whowanted to take it home (Tr. 279). Mr. Johnson felt that there was noproblem test-lifting the old baskets with barrel of chains; however, hehad never seen the test barrel himself (280).Mr. Tom O’Connor, respondent’s foreman, was in charge of compliance withthe form’s requirements (Tr. 154, 176, 253). Mr. O’Connor stated thathe would assume that pre-lift testing had been performed if a signedform were submitted to him and stated that since the #1 basket came withweights he discounted Mr. Felstet’s comments on the forms (Tr.299-300). However, Mr. O’Connor admitted that though he had been toldthat testing was required pursuant to the new form, he was not under theimpression the tests were \”mandatory\” until after the second citationwas issued (Tr. 301-303). Mr. O’Connor stated that he knew thatpre-lift test were not being performed prior to that time. He statedthat no discipline was in order because of the \”circumstances\” (Tr.309-313).Mr. Johnson stated that he would have become suspicious at forms comingback incomplete and would have questioned the undocumented lift (Tr.276). Manbasket forms, however, did not go any higher in the chain ofcommand (Tr. 279).Neither Mr. Johnson nor Mr. O’Connor witnessed any of the operationshere at issue (Tr. 281-282, 305)._Discussion_:Respondent argues initially that ? 180(h)(3)(v) is not applicable asemployees were not \”riding on the load\”, but were themselves the load.Respondents’ argument has been addressed by the Commission in _Alfred S.Austin Construction Company_, 4 BNA OSHC 1166 (No. 4809, 1976). TheCommission there considered an alleged violation of ? 1926.550(b)(2),which incorporates an ANSI section directed towards crawler, locomotiveand truck cranes which is virtually identical to ? 1910.180(h)(3)(v). In _Alfred S. Austin_, the Commission found that employees riding withina material box suspended from the hook did so in violation of thestandard because:\”Viewing the regulation in [the] light [suggested by respondent] wouldrequire that the employees being transported always be included as _partof_ the load. If employees are always part of the load, then it followsthat they could never be _on_ the load. Therefore, this interpretationwould render the standard meaningless.The undersigned finds _Alfred S. Austin_ to be controlling here and ?1910.180(h)(3)(v) to be applicable.Respondent’s other arguments are also without merit. While thetestimony was somewhat contradictory, the weight of the evidenceestablishes that ? 1910.180(h)(3)(v) was violated and that respondent’ssupervisory personnel was or should have been aware of the violation.It is clear that respondent failed to adequately instruct its craneoperators and their foreman that pre-lift testing was mandatory or toassure that adequate testing equipment was provided for all manbasketsfrom October, 6 1987 on. As a result, crane operators did not performtest-lifts, apparently despite the availability of certified equipmentin some cases. Even though in at least two cases, respondent’s foremanwas specifically informed of this failure, he failed to follow up. Boththe actual and constructive knowledge of a foreman regarding violativeconduct is imputable to a corporate employer for the purpose ofestablishing employer knowledge. _MCC of Florida, Inc._, 9 BNA OSHC1895, 1988 (No. 15757, 1981)._Classification as Repeated_The Commission has held that:\”A violation is repeated under section 17(a) of the Act if, at the timeof the alleged repeated violation, there was a final order against thesame employer for a substantially similar violation._Potlatch Corporation_, 7 BNA OSHC 1061, 1063 (16183, 1979). In thatcase the Commission went on to state that:The entry into the record of a prior citation issued to respondentalleging a violation of the same standard, combined with respondent’sfurther concessions that the prior citation was not contested and hadbecome a final order prior to the date of the inspection giving rise tothe present citation was sufficient to complete the Secretary’s primafacie case.\”_Id_. at 1065. Once the Secretary makes out a _prima facie_ case, theburden of demonstrating the dissimilarity of the violation is shifted tothe Respondent. Respondent here failed to introduce any evidenceregarding the nature of the original alleged violation. The citationwill therefore be affirmed as a Repeat violation.Respondent is a very large corporation with 40,000 employees (Answer,#2). The gravity of the violation is high; a fall from the workingheights of 30 to 110 feet identified on the manbasket forms wouldcertainly result in serious injury or death. The violation is a repeatone and therefore the Secretary’s proposed penalty of $1,200.00 is affirmed.Other than serious citation #9Section 1910.132(a) states that:Protective equipment, including personal protective equipment for eyes,face, head and extremities, protective clothing, respiratory devices andprotective shields and barriers, shall be provided, used, and maintainedin a sanitary and reliable condition wherever it is necessary by reasonof hazards of processes or environment, chemical hazards, radiologicalhazards, or mechanical irritants encountered in a manner capable ofcausing injury or impairment in the function of any part of the bodythrough absorption, inhalation or physical contact._Discussion_:Respondent admits that safety belts were not worn by its employees(Respondent’s Brief, p. 27), but argues that belts are not required bythe standard.The Commission has held that the language of ? 1910.132(a) is broadenough to encompass falling hazards requiring protective equipment,specifically, safety belts and lanyards. _Bethlehem Steel Corp_., 10BNA OSHC 1470 (No. 79-310, 1982).The remaining issue is whether the factual circumstances surrounding theallegedly hazardous condition would provide a reasonable person withactual or constructive notice of a hazard warranting the use of personalprotective equipment. _Lukins Steel Company,_ 10 BNA OSHC 1115, 1123(No. 76-1053, 1981). _Owens Corning Fiberglass Corp_., 7 BNA OSHC 1291(No. 76-4990, 1979).Mr. Will Wooden, loss prevention manager for respondent, testified thathe researched the OSHA and ANSI standards to ascertain respondent’scompliance with OSHA requirements for manbasket use. Mr. Wooden foundthat the ANSI Standard B30.5 1968 referred to in OSHA instruction STD1-11.2B made no reference to safety belts (Ex. C-3, p. 2). Mr. Woodennoted that the 1982 ANSI standard B30.5-3.2.2(a)(11) required that\”Employees on the platform shall wear safety belts with lanyardsattached, preferably above the hook or shackle\” (Tr. 322, 335; Ex.C-4). Mr. Wooden’s research should have alerted him, and respondent, toindustry recognition of the existence of a hazard related to thehoisting of employees in a manbasket without a safety belt. Under ?1910.132(a) respondent must protect against such a recognized hazardregardless of the fact that the particular standard which alerted it wasnot directly applicable under OSHA instructions because of a laterpublication date.Other than serious citation 9 is affirmed without penalty._Findings of Fact and Conclusions of Law_All findings of fact and conclusions of law relevant and necessary tothe termination of the contested issues have been found specially andappear in the decision above. See Rule 52(a) of the Federal Rules ofCivil Procedure. Proposed findings of fact and conclusions of law thatare inconsistent with this decision are denied._ORDER _Based on the findings of fact, conclusions of law and the entire record,it is ORDERED:1. Serious Citation 7 is VACATED.2. Repeat Citation 8 is AFFIRMED and a penalty of $1200.00 is ASSESSED.3. Other-than-serious Citation 9 is AFFIRMED without penalty.William R. MullinsJudge, OSHRCDated: February 24, 1989FOOTNOTES:[[1\/]] These issues were not mentioned in the direction for review. Theonly issue specified in the direction for review was whether theCommission should reexamine its test for a repeated violation firstenunciated in _Potlatch Corp_., 7 BNA OSHC 1061, 1979 CCH OSHD ? 23,294(No. 16183, 1979). We see no compelling reason to reexamine thatprecedent. Neither party has expressed an interest in overturning_Potlatch_, and the courts of appeals that have considered _Potlatch_have generally approved of the Commission’s determination thatclassifying a violation as repeated may be appropriate after finding asingle prior violation. _See_ _J.L. Foti Construction Co. v. OSHRC_,687 F. 2d 853 (6th Cir. 1982); _Willamette Iron & Steel Co. v. Secretaryof Labor_, 10 BNA OSHC 1477 (9th Cir. 1982) (unpublished); _Dun-ParEngineered Form Co. v. Marshall_, 676 F.2d 1333 (10th Cir. 1982);_Communications, Inc. v. Marshall_, 672 F.2d 893 (D.C. Cir. 1981).However, because the entire judge’s decision is before the Commission incases directed for review, _see_ Commission Rule 92(a), 29 C.F.R. ?2200.92 (a), and _Hamilton Die Cast, Inc_, 12 BNA OSHC 1797, 1986-87 CCHOSHD ? 27,576 (No. 83-308, 1986), the Commission will rule on the issuesraised by Stone Container and briefed by both Stone Container and theSecretary, even though those issues were not directed for review.[[2\/]] Section 1910.180(h)(3)(v) provides:? 1910.180 _Crawler locomotive and truck cranes_.(h) _Handling the load_(3) _Moving the load_.(v) No hoisting, lowering, swinging, or traveling shall be done whileanyone is on the load or hook.[[3\/]] Section 1926.550(b)(2) requires all crawler, locomotive, andtruck cranes to comply with ANSI B30.5-1968, Safety Code for Crawler,Locomotive and Truck Cranes. Section 1910.180 derives from this sameANSI standard. _See_ 29 C.F.R. ? 1910.189. On August 2, 1988, section1926.550 was modified by the addition of a paragraph (g), which codifiesOSHA Instruction STD 1-11.2B. 53 Fed. Reg. 29116 (1988). Section1910.180 (h)(3)(v) has not been modified in this fashion.[[4\/]] We note that by agreeing to treat any Stone Container violationsof section 1910.180(h)(3)(v) as de minimis–if Stone Container compliedwith the terms of the Instruction–the Secretary was permitting StoneContainer to follow an easier course at its fixed, industrial worksitethan an employer working at a temporary construction site is nowrequired to follow. The counterpart construction standard governingcranes at section 1926.550, subsection (g), encompasses the terms of theInstruction within its requirements, but also goes much further andincludes many other detailed requirements intended to increase safetyfor construction site employees traveling on personnel platformsattached to crane hooks.”