“Docket No. 88-0310 SECRETARY OF LABOR, Complainant, v. STONE CONTAINER CORPORATION, Respondent. UNITED PAPERWORKERS INTERNATIONAL UNION, HELLGATE LOCAL NO. 885, Authorized Employee Representative.OSHRC Docket No. 88-0310DECISIONBEFORE: FOULKE, Chairman; MONTOYA and WISEMAN,Commissioners. BY THE COMMISSION:At issue in this case is whether Stone ContainerCorporation (\”Stone Container\”) violated 29 C.F.R. ? 1910.180(h)(3)(v) by notcomplying with the terms of a settlement agreement it had previously entered into with theSecretary and whether that violation was repeated under section 17(a), 29 U.S.C. ?666(a), of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678(\”the Act\”).\u00a0 The settlement agreement implicitly required Stone Containerto conduct test lifts before lifting employees in manbaskets [\”personnelbaskets\”] that were suspended from cranes.\u00a0 Former Review CommissionAdministrative Law Judge William R. Mullins held that Stone Container violated thesettlement agreement and committed a repeated violation of the standard.\u00a0 He assesseda $1,200 penalty.\u00a0 Stone Container argues that the violation was not repeated,claiming that (1) a repeated violation cannot be based on the violation of a settlementagreement, (2) 29 C.F.R. ? 1910.180(h)(3)(v), the standard Stone Container allegedlyviolated, does not require test lifts, and (3) the unbiased evidence does not establishthat test lifts were not made.[[1\/]]\u00a0 We affirm the Judge’s decision.I. BACKGROUNDA. The Prior Citation and SettlementAgreementOn January 30, 1987, the Secretary issued acitation to Stone Container alleging that it had failed to comply with section1910.180(h)(3)(v) [[2\/]] at its Frenchtown, Montana facility.\u00a0 The citation allegedthat Stone Container had used a truck crane to hoist employees on a work platform abovethe floor level so that the employees could perform certain work duties.\u00a0 StoneContainer’s contest of that citation was resolved in a Stipulation and SettlementAgreement that became a final order of the Commission on November 16, 1987.\u00a0 In thesettlement agreement, Stone Container withdrew its notice of contest to the amendedcitation and proposed penalty, represented that abatement had been accomplished, andagreed that the final abatement date was to be the date of the final order.The method of abatement was not described in thesettlement agreement, but the parties understood that Stone Container would not be citedfor continuing to use a crane to hoist employees in the manner alleged in the citation aslong as it complied with OSHA Instruction STD 1-11.2B (\”the Instruction\”).\u00a0 The Instruction states that it clarifies section 29 CFR 1926.550(b)(2) [theconstruction industry equivalent of cited section 1910.180(h)(3)(v)] and the ANSIreferenced requirement [ANSI B30.5-1968] that the operator shall not hoist, lower, swingor travel the crane while anyone is on the load, or hook, as related to the use of workingplatforms suspended from cranes.\”[[3\/]]The Instruction provides that employers will not be cited for violating section1926.550(b) (2) by using cranes \”to hoist and suspend employees on a work platform… when such action results in the least hazardous exposure to employees\”–if anumber of criteria are met.\u00a0 The criteria most important to this case require that: A full-cycle operational test lift shall be made prior to lifting of employees.\u00a0 Theplatform shall carry twice the intended load during the test lift.Conversely, the Instruction further providesthat, if the employer fails to meet any of the criteria set forth in the Instruction, theemployer will be cited for a violation of the governing standard, section 1926.550(b)(2).Stone Container expressed its intention onseveral occasions of complying with the Instruction, and it does not dispute that it wasobligated to conduct weight testing under the terms of the settlement agreement.B. The Citation on ReviewOn December 8 and 9, 1987, the Secretaryconducted another inspection of Stone Container’s Frenchtown facility and later issued acitation alleging that Stone Container committed a repeated violation of section1910.180(h)(3)(v) in that:Employees were lifted in a manbasket suspendedfrom a crane hook.\u00a0 Test lifts with twice the intended load were not conducted priorto hoisting the men.The violations were alleged to have occurred onfour separate dates between November 16 and December 10, 1987.C. Test Lifting at the FacilityStone Container began developing a procedurethat would be consistent with the Instruction before it even entered into the settlementagreement with the Secretary.\u00a0 Roy Johnson, the Stone Container employee in charge offormulating the program, testified that it included (1) the manufacture of new personnelbaskets with test weights, (2) a requirement that test lifts be conducted before employerswere lifted, and (3) the development of a certification form to be used in conjunctionwith weight test lifts.\u00a0 The form was entitled \”USE OF MANBASKET – \u00a0Decision, Pre-lift test, Documentation-FORM\” and was required to be completed andsigned by those conducting test lifts.Johnson testified that in April of 1987, StoneContainer’s crane operators were provided with a training course on the new program andprocedures he had developed.\u00a0 Although he had been told by the personnel departmentand others in the company that Stone Container would not have to comply with the testlifting requirements of the Instruction until its contest of the January 1987 citation wasresolved, Johnson testified that he believed it was his responsibility to \”get intocompliance\” with the Instruction without regard to when the contest of the citationmight finally be resolved.\u00a0 He testified that the test lift procedures he developedtherefore were in place as of the November-December 1987 dates that are alleged in therepeat citation.However, three different crane operatorstestified that, throughout the time period in question, they failed to conduct test liftswith twice the intended load prior to hoisting employees.\u00a0 They also testified thatthey had not been instructed to conduct weight test lifts prior to lifting employees inpersonnel baskets until after the OSHA inspections of December 8 and 9, 1987.\u00a0 Thecrane operators stated that they either performed test lifts without the required weightsand filled out the forms as if they had. Furthermore, crane operator Felstet noted on theform he completed on December 10, 1987, that he could not test lift because there were noweights to use for the test.\u00a0 He also testified, however, that he had conducted sometest lifts using improvised weights before the Secretary’s December 1987 inspections.\u00a0 Mr. Felstet maintains he conducted the test lifts even though it was not required,because he knew it was going to be required at some point in the future, and because hebelieved that it was safer to test lift than not to do so.\u00a0 Mr. Felstet was notalways able to test lift before the December 1987 inspections because the improvisedweights he was using for test lifts–chains in a barrel–were not always available foruse.The crane operators were supervised by Stone Container’s building maintenance foreman,Thomas O’Connor, who was also responsible for reviewing their test lift forms.\u00a0 Mr.O’Connor–like the crane operators he supervised–testified that he did not know that testlifting was mandatory on the dates alleged in the repeat citation.\u00a0 Although he knewthat the crane operators would not be required to conduct test lifts until after theinitial, January 1987 citation was resolved by settlement agreement, he did not learn thatthat case had been settled until after the repeat citation was issued.\u00a0 Mr. O’Connortestified that he did not discipline crane operators who failed to test lift before theJanuary 1987 case was settled because \”circumstances … made it very difficult toperform\” the test lifts.\u00a0 He did not explain what the circumstances were.At the hearing, Mr. O’Connor reviewed the formsthat the Secretary alleges document the crane operators’ failures to test lift. Althoughhe testified that he had not reviewed the forms when they were first completed, he stilltestified to a belief that the lifts described on the forms had indeed been conducted.\u00a0 He attributed the omission of certain entries in the forms to a lack of familiaritywith the forms on the part of the crane operators.\u00a0 He denied crane operatorFelstet’s assertions that test weights were not always available but was unable to statewhen the weights did become available.Roy Johnson, the employee in charge ofimplementing the test lift procedure, testified that employee allegations of any failuresto test lift were part of a \”game\” being played by the employees, who wereinvolved in a labor-management dispute with Stone Container.\u00a0 Mr. Johnson stated thathe believed that the crane operators actually did conduct the test lifts they claimed theyhad not conducted, because the employees were too safety-conscious not to conduct them.\u00a0 Mr. Johnson admitted, however, that he was not present during the allegedlydeficient test lifts cited by the Secretary and did not review the test lift formscompleted by the employees.II. RESOLUTION OF THE ISSUESA. Whether Stone Container Violated theStandard by Failing to Comply with the Settlement AgreementStone Container argues that section1910.180(h)(3)(v) does not require weight test lifts.\u00a0 Of course, Stone Container isliterally correct.\u00a0 Stone Container’s initial obligation is to comply with thestandard’s requirements.\u00a0 However, an employer who does not comply with the terms ofa standard has violated that standard–except when the employer is legally excused fromcompliance.\u00a0 A legal excuse may take several forms: a variance granted by theSecretary under section 6(b)(6)(A) of the Occupational Safety and Health Act, 29 U.S.C. ?655(b)(6)(A); a judicially-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.2d 1135 (8th Cir. 1988); or, asis the case here, a settlement agreement that excuses strict legal compliance with theterms of a standard, but imposes a requirement for alternative protective measures. \u00a0Thus, when an employer is excused from compliance with the terms of a standard, thatemployer is still required to provide alternative means of protection for itsemployees.\u00a0 See Dun-Par Engineered Form Co.; ITT Grinnell Corp. v.Donovan, 744 F.2d 344, 349-350 (3d Cir. 1984).\u00a0 If the employer fails to providethese alternative protections, then OSHA is justified in citing it for failure to complywith the governing standard, as it did in this case.The record contains abundant evidence that StoneContainer did not comply with the terms of the cited standard.\u00a0 Stone Container doesnot dispute that it knew its crane operators used crane hooks to hoist employees inpersonnel baskets up to where they could perform their work duties.\u00a0 Normally, thiswould be sufficient to establish a violation of section 1910.180 (h)(3)(v).\u00a0 However,under the terms of the settlement agreement, the parties understood that Stone Containerwould not be cited for violating section 1910.180(h)(3)(v) if it conducted the pre-liftweight tests required by the Instruction before it used cranes to move employees in apersonnel basket.[[4\/]]Therefore, to establish that Stone Container did not comply with section1910.180(h)(3)(v), the Secretary must show that (1) Stone Container failed to comply withthe terms of the standard, (2) the weight test lifts agreed to by the parties were notmade, and (3) Stone Container knew, or with the exercise of reasonable diligence couldhave known, that the test lifts were not made.\u00a0 See Astra PharmaceuticalProducts, Inc., 9 BNA OSHC 2126, 1981 CCH OSHD ? 25,578 (No. 78-6247, 1981).Stone Container contends that the only evidenceof its alleged failure to conduct test lifts comes from \”disputed employee testimony[arising out of] … a hostile [labor] environment\”.\u00a0 Although theAdministrative Law Judge considered the testimony regarding Stone Container’s test liftpractices to be \”somewhat contradictory\”, he nevertheless found that \”theweight of the evidence establishes that ? 1910.180 (h)(3)(v) was violated….\”The Judge’s finding that Stone Container failedto test lift is supported by the evidence.\u00a0 Stone Container’s crane operatorstestified that they were not instructed to perform pre-lift testing before the Secretary’sDecember 1987 inspections were conducted.\u00a0 They testified that they were told to fillout the employer-developed \”Use of Manbasket\” forms requiring them to certifysuccessful performance of prelift testing on a \”practice\” basis until the daythe equipment approved for such testing arrived.\u00a0 Their partially filled out formscorroborate their testimony that test lifts were made without the required weights. \u00a0Further, Stone Container foreman O’Connor, who supervised the aforementioned craneoperators and was responsible for reviewing their test lift forms, testified that he didnot know that test lifting had become mandatory prior to the issuance of the citationresulting from the Secretary’s December 1987 inspections.\u00a0 Mr. O’Connor alsotestified that he did not think that weight test lifting had to be implemented on amandatory basis until after the earlier, January 1987 citation had been settled, and thathe did not learn that that citation had been settled until after the current, January 1988citation had been issued.\u00a0 Stone Container’s contention that the testimony of itsemployees is tainted because of a labor-management dispute is therefore not persuasive.\u00a0 The testimony of its crane operators that they were not told that weight testlifting was mandatory until after the Secretary’s inspections was supported by thetestimony of foreman O’Connor, who also was not told until after the December 1987inspections.Stone Container also contends that it did notknow that weight test lifting was not being conducted, and that it did everything in itspower to assure that it was being conducted.\u00a0 The Judge disagreed and found thatStone Container supervisory personnel were aware or should have been aware of theviolation.\u00a0 He placed particular reliance on evidence that Stone Container’s foremanO’Connor was made aware of two instances of failures to test lift and still took noaction.The evidence, however, does not establish thatStone Container had actual knowledge of the failures to test lift.\u00a0 Mr. O’Connor didnot testify that he failed to act after learning that test lifts had not been conducted ontwo occasions.\u00a0 Instead, he testified as to what he would have done had he learnedtwo test lifts had not been conducted.\u00a0 Mr. O’Connor testified that if he had seenforms that suggested test lifts had not been made, he would have concluded that the testlifts had been made, but that some of the necessary numbers had not been entered on theforms.\u00a0 Mr. O’Connor also testified that if he had seen the December 10, 1987 formcompleted by crane operator Felstet noting that it was not possible to perform test liftsbecause test weights were not available, he would have dismissed the notation because acertified personnel basket was in fact then present at the worksite.The Commission finds, however, that the evidencedemonstrates that Stone Container, with the exercise of reasonable diligence, could haveknown of the failures to weight test lift.\u00a0 Stone Container made substantial effortsto set up the test lifting procedures required by the Instruction.\u00a0 These includedthe fabrication of new personnel baskets, the development of the \”Use ofManbasket\” certification forms to be filled out for each lift, and the introductionof a new training course for its crane operators.\u00a0 However, these efforts went fornaught because Stone Container failed to communicate to the three crane operators and toMr. O’Connor, their foreman, that test lifts were mandatory when the Stipulation andSettlement Agreement became a final order of the Commission on November 16, 1987.\u00a0 SeeCombustion Engineering, Inc., 5 BNA OSHC 1943, 1977-78 CCH OSHD ? 22,241 (No.76-2210, 1977).\u00a0 The cited instances of noncompliance all occurred on or after thedate on which test lifting became mandatory under the settlement agreement.\u00a0 If StoneContainer had been reasonably diligent, the crane operators and their supervisor wouldhave known when the test lifting procedures became mandatory.\u00a0 Although thesettlement agreement had been posted at the worksite, it did not state either whatabatement was required or when it was required. B. Whether the Violation was RepeatedWe next examine whether the violation wasrepeated within the meaning of section 17(a) of the Act.\u00a0 Under Commission precedent:A violation is repeated… if, at the time ofthe alleged repeated violation, there was a Commission final order against the sameemployer for a substantially similar violation.Potlatch, 7 BNA OSHC at 1063, 1979 CCHOSHD at p. 28,171.\u00a0 Under Potlatch, the Secretary establishes a prima faciecase of similarity by showing that both violations are of the same standard.\u00a0 Theemployer then has the burden of rebutting the evidence of similarity.The Judge found that the Secretary established aprima facie showing of similarity and that Stone Container failed to \”introduce anyevidence regarding the nature of the original alleged violation\” in rebuttal. \u00a0He affirmed the citation as repeated.\u00a0 Stone Container argues that it did not attemptto show that the violations were dissimilar and not repeated because there was no priorviolation of the same standard.\u00a0 It claims that the Secretary’s only evidence thatthe violations were similar concerned the methods of abatement agreed to in thesettlement.Although the abatement required by the twocitations differs, the principal factor to be considered in determining whether aviolation is repeated is whether the prior and instant violations resulted insubstantially similar hazards.\u00a0 See Austin Road Co., 8 BNA OSHC 1916, 1918,1980 CCH OSHD ? 24,688, p. 30,301 (No. 77-2752, 1980).\u00a0 Here, both the prior and thepresent violations resulted in employee exposure to very similar or identical fallhazards.\u00a0 The hazards occurred in the same workplace and involved the same types ofcranes.\u00a0 That the possible fall distances may have varied somewhat is notsignificant.\u00a0 See Automatic Sprinkler Corp. of America, 7 BNA OSHC1957, 1979 CCH OSHD ? 24,077 (No. 76-5371, 1979).\u00a0 Since the evidence establishesthat the citations involved the same standard and applied to similar conditions, theSecretary has proven a repeated violation of section 1910.180(h)(3)(v) under Potlatch.Stone Container contends that its failure toconduct test lifting was not a repeated violation of the same standard, but rather afailure to abate according to the terms of the settlement agreement.\u00a0 It alsocontends that the settlement agreement indicates that it had devised a way to makepersonnel hoisting safe without following the standard, not that it had violated thestandard.\u00a0 We reject Stone Container’s contentions.Although the settlement agreement does notexplicitly state that section 1910.180(h)(3)(v), the standard involved in the earliercitation, had been violated, this does not prevent the Secretary from relying on theearlier violation as the basis for a repeated violation under Potlatch.\u00a0 Thefact that the earlier citation became a final order as a result of the withdrawal of thenotice of contest does not affect the finality of the order.\u00a0 The withdrawal of anotice of contest is an \”agreement to the affirmance\” of a citation. WeldshipCorporation, 8 BNA OSHC 2044, 2045 n.5, 1980 CCH OSHD ? 24,750, p. 30,480 n.5 (No.77-3769, 1980).\u00a0 A Judge’s order approving a settlement agreement in which anemployer withdrew its notice of contest to a citation establishes the existence of aviolation of the cited standard.\u00a0\u00a0 See Dic-Underhill, A Joint Venture, 8BNA OSHC 2223, 2227, 1980 CCH OSHD ? 24,959, pp. 30,799-30,800 (No. 10798, 1980). \u00a0Stone Container claims that neither of the parties believed that the settled citationwould ever form the basis for a repeated citation, but it points to nothing in thesettlement agreement or elsewhere to suggest this. The Secretary does not share this view,since she has attempted to use the earlier citation for just that purpose. \u00a0 StoneContainer may not have realized that withdrawing its notice of contest left it open to arepeated citation in the future, but that cannot constitute a defense to a repeatedallegation.\u00a0 Stone Container is presumed to have knowledge of the Act, which hasprovided for repeated citations since its effective date.Stone Container also contends that it did notviolate the standard for a second time but merely failed to abate according to thesettlement agreement.\u00a0 Stone Container is estopped from making such an argument,however, because in the settlement agreement reached with the Secretary resolving theoriginal section 1910.180(h)(3)(v) citation, Stone Container represented \”[t]hat theabatement of both items of serious citation 3 [including the section 1910.180(h)(3)(v)allegation upon which the instant repeated violation is based] has beenaccomplished…\” See MWS Wire Industries, Inc. v. California Fine Wire Co.,797 F.2d 799, 803 (9th Cir. 1986), citing Beer Nuts, Inc. v. King Nut Co., 477 F.2d326, 329 (6th Cir. 1973) (person should be held to own undertakings and is estopped fromtaking position contrary to that taken in earlier settlement agreement).\u00a0 Also seeFarmers 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 priorsettlement agreement in manner contrary to its terms).\u00a0 On the basis of thatstatement, and others appearing in the settlement agreement, the Secretary agreed tosettle the case.\u00a0 That case is now a final order.\u00a0 Therefore, Stone containermay not successfully contradict the representation in the settlement agreement and contendhere that it failed to abate its prior violation of the cited standard.We would also note that from one standpoint atleast, Stone Container is benefited by the fact that it is here defending against arepeated allegation and not a failure to abate.\u00a0 Had this been a failure to abatecase, Stone Container could have been subjected to a higher penalty assessment than thepenalty we assess here.\u00a0 An employer may only be assessed a civil penalty of not morethan $10,000 for a repeated violation, but a penalty as high as $1,000 per day ispossible for a failure to abate.\u00a0 See Sections 17(a) and (d) of the Act, 29U.S.C. ? 666(a) and (d).\u00a0 As of the Secretary’s initial inspection date here, StoneContainer could have been subjected to a possible penalty of $18,000 for a failure toabate, not just the possible $10,000 penalty involved in this case.\u00a0 We thereforereject Stone Container’s argument.III. ORDERThe Judge assessed a $1,200 penalty for therepeated violation.\u00a0 After consideration of the penalty factors enumerated in section17(j) of the Act, 29 U.S.C. ? 666(j), we conclude that the assessed penalty isappropriate.Accordingly, the Judge’s decision is affirmed.\u00a0 Item 1 of repeat citation 8 is affirmed as a repeated violation, and a penalty of$1,200 is assessed.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDATED: August 29, 1990SECRETARY OF LABOR, Complainant, v. STONE CONTAINER CORPORATION, Respondent, UNITED PAPERWORKS INTERNATIONAL UNION HELLGATE LOCAL NO. 885, Authorized Employee Representative.OSHRC DOCUMENT NO. 88-0310APPEARANCES: For the Complainant:Tobias B. Fritz, Esq., Office of the Solicitor U.S. Department of Labor, Kansas City, MOFor the Respondent:Kenneth Sovereign, Esq., Lake Elmo, MN For the Employees:Robert L. Culp, UPIU, Hellgate Local 885, Missoula, MTDECISION AND ORDERMullins, Judge:This proceeding arises under the Occupational Safety and Health Act of 1970 (29 U.S.C.Section 651 et seq.; hereafter called the \”Act\”).As the result of an employee complaint, the Occupational Health and Safety Administration(OSHA) inspected the workplace of respondent, Stone Container Corporation, a manufacturerof paper goods, on December 8-9, 1987.\u00a0 Of the citations that were issued as a resultof the inspection, respondent timely contested Serious citation 7, Repeat citation 8 andOther than serious citation 9.A hearing was held in Missoula, Montana onOctober 18, 1988 and the parties have both filed briefs in the matter.\u00a0 Based on thefollowing, Serious citation 7 is vacated.\u00a0 Repeat citation 8 is affirmed and apenalty of $1200.00 is assessed.\u00a0 Other than serious citation 9 is affirmed withoutpenalty. IssuesJurisdiction is not at issue as, in its answer,respondent stipulated to coverage by the Act and to the Commission’s jurisdiction.1) Whether the Secretary’s inspection wasreasonable under ? 8(f) and (g) of the Act.2) Whether the Secretary demonstrated, by apreponderance of the evidence, a violation of ? 1920.24(b).3) Whether the Secretary demonstrated, by apreponderance of the evidence, a violation of ?1910.180(h)(3)(v). a) Whether the alleged violation of ?1910.180(h)(3)(v) was shown to be a \”repeat\” violation. 4) Whether the Secretary demonstrated, by apreponderance of the evidence a violation of 1910.132(a).Reasonableness of InspectionSection 8(f) and (g) requires the Secretary tomake a special inspection if, upon receipt of an employee complaint, she determines thatthere are reasonable grounds to believe a violation or a dangerous condition exists.Respondent initially relies on legislativehistory of the Act which indicates that legislators opposed requiring compulsoryinspections whenever an employee lodged a complaint.\u00a0 Respondent argues that toeffectuate that intent the Commission should require discussion of the employee complaintwith the employer before a determination of reasonableness is made.Upon review of the legislative history, theundersigned is satisfied that the portions referred to were intended solely to preservethe Secretary’s limited resources and not to provide any substantive rights to employersor to in any way limit the Secretary’s prosecutorial discretion.\u00a0 See e.g.,LEGISLATIVE HISTORY OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 (S. 2193, P.L.91-596), p. 300).. . .it is contemplated that the Secretarywould, of course, give full consideration to employee complaints of safety and healthviolations, and he would conduct necessary inspections. . . However, under existing safetylaws the Secretary is not required to respond to every complaint.\u00a0 And rightlyso, because of the limited resources at his disposal.Id.If respondent felt that there was no reasonablebasis for an inspection, its remedy was to require a warrant at the time inspection wasrequested.\u00a0 The Secretary would then have been required to make a showing ofreasonable suspicion.\u00a0 No relief is available at this stage of the proceedings.Finally, Respondent errs in relying on a provision in its collective bargaining agreementrequiring employees to notify management of hazardous conditions.\u00a0 The Commission hasno jurisdiction to either consider or enforce the terms of respondent’s labor agreementwith its employees.\u00a0 The Secretary, moreover, is not bound by that labor agreement.In this proceeding, the employee\/managementhostility at respondent’s workplace bears solely on credibility of the witnesses to bedetermined by the trier of fact.Serious citation 7 Section 1920.24(b) states:Where fixed stairs are required. . .Fixed stairs shall also be provided where access to elevations is daily or at each shiftfor such purposes as gauging, inspection, regular maintenance, etc. where such work mayexpose employees to acids, caustics, gases, or other harmful substances, or for whichpurposes the carrying of tools or equipment by hand is normally required. . .Facts: Mr. Ronald Ritter, a millwright with respondentfor the last 6-1\/2 years, testified that he frequently observed employees being raised inthe bucket of the bobcat loader for the purpose of \”reroping the chives,\” orreplacing ropes which had jumped the wheels of the paper machine pulley system (Tr. 86-87;Ex. C-1a to 1e, C-1g).\u00a0 Mr. Ritter stated that reroping was normally done by hand butthat a pole with a hook was sometimes used.\u00a0 He testified that some of the wheels are10 feet off the ground and that reroping could be required several times a week (Tr. 87).Mr. Craig Hoylo, a back tender on the #1 paper machine testified that when he began towork for respondent he was responsible for cleaning out paper out from underneath thedryers with broom or shovel handles and reroping the chives with rope hooks, as well asopening valves, and cleaning out trim shoots (Tr. 106).\u00a0 Mr. Hoylo stated that he waslifted on a payloader or fork truck, up to 12-15 feet above the ground in order to performthese tasks, sometimes daily, although at times a week would go by where no maintenancewas required (Tr. 106-107, 113).Mr. Frank Jensen, utility man on the #2 papermachine, testified that a \”spare hand\” is elevated in the bobcat every day totake paper off the pipes, to put \”felts\” on the press section and to rerope thechives, sometimes using sticks and hooks (Tr. 122-124).All of the Secretary’s witnesses felt that thepractice of lifting employees in the bucket of the bobcat was dangerous and all had atsometime in the past complained to management about it (Tr. 91, 114, 125).\u00a0 Mr. Hoylotestified that the bucket was subject to tipping and was slippery, often filled withdebris such as oil, starch, and old paper stock (Tr. 110, 116).\u00a0 Mr. Hoylo hadactually fallen from the bucket in the past but was unhurt (Tr. 110-111).Discussion: In order to prove a violation of section 5(a)(2)of the Act, the Secretary must prove by a preponderance of the evidence that:\”(1) the cited standard applies, (2) therewas a failure to comply with the cited standard, (3) employees had access to the violativecondition and (4) that the cited employer either knew or could have known of the conditionwith the exercise of reasonable diligence.\”Astra Pharmaceutical Products, Inc., 9BNA OSHC 2126, 2127 (No. 78-6247, 1981).Although it is clear from the evidence that therespondent’s practice of using the bobcat bucket for lifting employees is unsafe, theSecretary failed to demonstrate the first element of her prima facie case.The Secretary apparently contends that since\”elevation\” was approximately daily, the requirements of the standard arefulfilled. Under the Secretary’s reading of the standard an employer would be required toinstall fixed stairways to each elevated work station if access to allelevated locations, no matter how widely spread, is five or more times a week.The undersigned is satisfied that ? 1910.24(b)does not impose such an onerous requirement and that fixed stairways must be provided onlywhere employees’ duties require daily access to the same elevated workstation.It is clear that there were a wide variation ofelevated tasks requiring respondent’s employees’ attention, involving completely separatemachinery: presses, dryers, pulleys, etc.Evidence was adduced regarding the possible placement of stairs at the bottom of thecolumn pictured in Exhibit C-1d (Tr. 94-95); however, the record discloses neither whetherdifferent columns (and pulleys requiring service) are pictured in Exhibits C-1a, 1b and 1gnor where the tasks not associated with reroping the pulleys were performed.\u00a0 In theabsence of any evidence as to job frequency in a single proximity, respondent cannot befound in violation of ? 1910.24(b).Serious citation 7 is therefore vacated. Repeat citation 8Section 1910.180(h)(3)(v) requires that ”[n]ohoisting, lowering, swinging or traveling shall be done while anyone is on the load orhook.\”\u00a0 However, OSHA Instruction STD 1-11.2B (Ex. C-3) allows the use of cranemounted manbaskets if they are used in compliance with guidelines contained therein and inANSI standard B30.5-1968.\u00a0 Guideline F(2)(b)(2), included in STD 1- 11.2B, requires:\”A full-cycle operational test lift shallbe made prior to lifting of employees.\u00a0 The platform shall carry twice the intendedload during the test lift.\”Facts: The parties agree that as a result of a previousinspection, respondent was cited for a violation of ? 180(h)(3)(v).\u00a0 An agreementwas reached with the Secretary, and Respondent withdrew its contest to the citation.\u00a0 The settlement agreement was entered into the record on October 6, 1987 and becamea final order on November 16, 1987 (Tr. 21; Response to Secretary’s First Request forAdmissions 8a and 8b).\u00a0 As part of its settlement agreement, respondent representedthat the alleged violation had been abated in accordance with STD 1- 11.2B as of September21, 1987 (Secretary’s First Request for Admissions, Appendix B and C).Following the initial citation, respondentdeveloped a form which was to assure compliance with OSHA regulations (Tr. 141, 164). Oneof the sections of the form required operators to sign off certifying successfulperformance of prelift tests required by Guideline F(2)(b)(2) (Ex. C-2, R-1).Dick Grimes, and Duane Felstet, crane operatorswith respondent, testified that until December, 1987, however, they were not aware thatrespondent owned a \”certified float with weight\” with which to perform pre-lifttests (Tr. 134, 140, 159).All three of respondent’s crane operatorstestifying, Mr. Grimes; Herb Meagher; and Duane Felstet, stated that they were notinstructed to perform pre-lift tests but were told that they were supposed to fill out theforms as \”practice\” for that day when approved equipment arrived (Tr. 134-35,146-148, 157-161).Mr. Meagher and Mr. Felstet testified that theyoccasionally performed practice pre-lifts with an empty basket or with a barrel of chains.\u00a0 They stated that the barrel did not fit in the 2 man basket, manbasket #2, and wasnot always available (Tr. 147-149, 167-171).Mr. Grimes testified that on November 23, 1987, he did not perform a pre-lift test onmanbasket #1 prior to hoisting employees in the manbasket, though he signed off on theform (Tr. 134; Ex; C-2a).\u00a0 Mr. Meagher testified that on November 23 and 24, 1987 hefailed to perform a pre- lift test on the same basket prior to hoisting employees in themanbasket (Tr. 146, 150; Ex. C-2b, C- 2c). Mr. Felstet specifically noted on the manbasketforms for manbasket #1 on November 16, 1987, and for manbasket #2 on December 10, 1987,that no prelift tests were performed (Tr. 158, C-2d, C- 2e).Mr. Roy Johnson, who was employed in February,1987 to train the crane operators, testified that he personally instructed the operatorsin the pre-lift requirement (Tr. 240, 270-271; Ex. R-3, R- 4).\u00a0 He also stated thatthe new \”certified\” four man manbasket, equipped with its own weights, arrivedearly to mid November (Tr. 255, 263; See also Mr. O’Connor’s testimony, Tr.299-300). Mr. Johnson stated that the four man manbasket was designated #1 and the old #1basket was scrapped (Tr. 256, 266). Mr. Johnson recalled that the basket was given tosomeone who wanted to take it home (Tr. 279).\u00a0 Mr. Johnson felt that there was noproblem test-lifting the old baskets with barrel of chains; however, he had never seen thetest barrel himself (280).Mr. Tom O’Connor, respondent’s foreman, was incharge of compliance with the form’s requirements (Tr. 154, 176, 253).\u00a0 Mr. O’Connorstated that he would assume that pre-lift testing had been performed if a signed form weresubmitted to him and stated that since the #1 basket came with weights he discounted Mr.Felstet’s comments on the forms (Tr. 299-300).\u00a0 However, Mr. O’Connor admitted thatthough he had been told that testing was required pursuant to the new form, he was notunder the impression the tests were \”mandatory\” until after the second citationwas issued (Tr. 301-303).\u00a0 Mr. O’Connor stated that he knew that pre-lift test werenot being performed prior to that time.\u00a0 He stated that no discipline was in orderbecause of the \”circumstances\” (Tr. 309-313).Mr. Johnson stated that he would have becomesuspicious at forms coming back incomplete and would have questioned the undocumented lift(Tr. 276).\u00a0 Manbasket forms, however, did not go any higher in the chain of command(Tr. 279).Neither Mr. Johnson nor Mr. O’Connor witnessedany of the operations here at issue (Tr. 281-282, 305).Discussion: Respondent argues initially that ? 180(h)(3)(v)is not applicable as employees were not \”riding on the load\”, but werethemselves the load.Respondents’ argument has been addressed by theCommission in Alfred S. Austin Construction Company, 4 BNA OSHC 1166 (No. 4809,1976).\u00a0 The Commission there considered an alleged violation of ? 1926.550(b)(2),which incorporates an ANSI section directed towards crawler, locomotive and truck craneswhich is virtually identical to ? 1910.180(h)(3)(v).\u00a0 In Alfred S. Austin,the Commission found that employees riding within a material box suspended from the hookdid so in violation of the standard because:\”Viewing the regulation in [the] light[suggested by respondent] would require that the employees being transported always beincluded as part of the load.\u00a0 If employees are always part of the load, thenit follows that they could never be on the load. Therefore, this interpretationwould render the standard meaningless.The undersigned finds Alfred S. Austin tobe controlling here and ? 1910.180(h)(3)(v) to be applicable.Respondent’s other arguments are also withoutmerit.\u00a0 While the testimony was somewhat contradictory, the weight of the evidenceestablishes that ? 1910.180(h)(3)(v) was violated and that respondent’s supervisorypersonnel was or should have been aware of the violation.It is clear that respondent failed to adequatelyinstruct its crane operators and their foreman that pre-lift testing was mandatory or toassure that adequate testing equipment was provided for all manbaskets from October, 61987 on.\u00a0 As a result, crane operators did not perform test-lifts, apparently despitethe availability of certified equipment in some cases.\u00a0 Even though in at least twocases, respondent’s foreman was specifically informed of this failure, he failed to followup.\u00a0 Both the actual and constructive knowledge of a foreman regarding violativeconduct is imputable to a corporate employer for the purpose of establishing employerknowledge. MCC of Florida, Inc., 9 BNA OSHC 1895, 1988 (No. 15757, 1981).Classification as RepeatedThe Commission has held that:\”A violation is repeated under section17(a) of the Act if, at the time of the alleged repeated violation, there was a finalorder against the same employer for a substantially similar violation.Potlatch Corporation, 7 BNA OSHC 1061,1063 (16183, 1979).\u00a0 In that case the Commission went on to state that:The entry into the record of a prior citationissued to respondent alleging a violation of the same standard, combined with respondent’sfurther concessions that the prior citation was not contested and had become a final orderprior to the date of the inspection giving rise to the present citation was sufficient tocomplete the Secretary’s prima facie case.\”Id. at 1065.\u00a0 Once the Secretarymakes out a prima facie case, the burden of demonstrating the dissimilarity of theviolation is shifted to the Respondent.\u00a0 Respondent here failed to introduce anyevidence regarding the nature of the original alleged violation. The citation willtherefore be affirmed as a Repeat violation.Respondent is a very large corporation with40,000 employees (Answer, #2).\u00a0 The gravity of the violation is high; a fall from theworking heights of 30 to 110 feet identified on the manbasket forms would certainly resultin serious injury or death.\u00a0 The violation is a repeat one and therefore theSecretary’s proposed penalty of $1,200.00 is affirmed.Other than serious citation #9Section 1910.132(a) states that:Protective equipment, including personalprotective 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 necessary by reason ofhazards of processes or environment, chemical hazards, radiological hazards, or mechanicalirritants encountered in a manner capable of causing injury or impairment in the functionof any part of the body through absorption, inhalation or physical contact.Discussion:Respondent admits that safety belts were notworn by its employees (Respondent’s Brief, p. 27), but argues that belts are not requiredby the standard.The Commission has held that the language of ?1910.132(a) is broad enough to encompass falling hazards requiring protective equipment,specifically, safety belts and lanyards.\u00a0 Bethlehem Steel Corp., 10 BNA OSHC1470 (No. 79-310, 1982).The remaining issue is whether the factualcircumstances surrounding the allegedly hazardous condition would provide a reasonableperson with actual or constructive notice of a hazard warranting the use of personalprotective equipment.\u00a0 Lukins Steel Company, 10 BNA OSHC 1115, 1123 (No.76-1053, 1981).\u00a0 Owens Corning Fiberglass Corp., 7 BNA OSHC 1291 (No. 76-4990,1979).Mr. Will Wooden, loss prevention manager forrespondent, testified that he researched the OSHA and ANSI standards to ascertainrespondent’s compliance with OSHA requirements for manbasket use.\u00a0 Mr. Wooden foundthat the ANSI Standard B30.5 1968 referred to in OSHA instruction STD 1-11.2B made noreference to safety belts (Ex. C-3, p. 2).\u00a0 Mr. Wooden noted that the 1982 ANSIstandard B30.5-3.2.2(a)(11) required that \”Employees on the platform shall wearsafety belts with lanyards attached, preferably above the hook or shackle\” (Tr. 322,335; Ex. C-4).\u00a0 Mr. Wooden’s research should have alerted him, and respondent, toindustry recognition of the existence of a hazard related to the hoisting of employees ina manbasket without a safety belt.\u00a0 Under ? 1910.132(a) respondent must protectagainst such a recognized hazard regardless of the fact that the particular standard whichalerted it was not directly applicable under OSHA instructions because of a laterpublication date.Other than serious citation 9 is affirmedwithout penalty.Findings of Fact and Conclusions of LawAll findings of fact and conclusions of lawrelevant and necessary to the termination of the contested issues have been foundspecially and appear in the decision above.\u00a0 See Rule 52(a) of the Federal Rules ofCivil Procedure.\u00a0 Proposed findings of fact and conclusions of law that areinconsistent with this decision are denied.ORDER Based on the findings of fact, conclusions of law and the entire record, it is ORDERED:1.\u00a0 Serious Citation 7 is VACATED.2.\u00a0 Repeat Citation 8 is AFFIRMED and apenalty of $1200.00 is ASSESSED.3.\u00a0 Other-than-serious Citation 9 isAFFIRMED without penalty.William R. Mullins Judge, OSHRCDated: February 24, 1989FOOTNOTES: [[1\/]] These issues were not mentioned in the direction for review.\u00a0 The only issuespecified in the direction for review was whether the Commission should reexamine its testfor a repeated violation first enunciated in Potlatch Corp., 7 BNA OSHC 1061, 1979CCH OSHD ? 23,294 (No. 16183, 1979).\u00a0 We see no compelling reason to reexamine thatprecedent.\u00a0 Neither party has expressed an interest in overturning Potlatch,and the courts of appeals that have considered Potlatch have generally approved ofthe Commission’s determination that classifying a violation as repeated may be appropriateafter finding a single prior violation.\u00a0 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-Par Engineered FormCo. 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 isbefore the Commission in cases directed for review, see Commission Rule 92(a), 29C.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 issues raised by StoneContainer and briefed by both Stone Container and the Secretary, even though those issueswere not directed for review.[[2\/]] Section 1910.180(h)(3)(v) provides:? 1910.180 Crawler locomotive and truckcranes. (h) Handling the load(3) Moving the load.(v) No hoisting, lowering, swinging, or traveling shall be done while anyone is on theload or hook.[[3\/]] Section 1926.550(b)(2) requires allcrawler, locomotive, and truck cranes to comply with ANSI B30.5-1968, Safety Code forCrawler, Locomotive and Truck Cranes.\u00a0 Section 1910.180 derives from this same ANSIstandard.\u00a0 See 29 C.F.R. ? 1910.189.\u00a0 On August 2, 1988, section1926.550 was modified by the addition of a paragraph (g), which codifies OSHA InstructionSTD 1-11.2B.\u00a0 53 Fed. Reg. 29116 (1988).\u00a0 Section 1910.180 (h)(3)(v) has notbeen modified in this fashion.[[4\/]] We note that by agreeing to treat anyStone Container violations of section 1910.180(h)(3)(v) as de minimis–if Stone Containercomplied with the terms of the Instruction–the Secretary was permitting Stone Containerto follow an easier course at its fixed, industrial worksite than an employer working at atemporary construction site is now required to follow.\u00a0 The counterpart constructionstandard governing cranes at section 1926.550, subsection (g), encompasses the terms ofthe Instruction within its requirements, but also goes much further and includes manyother detailed requirements intended to increase safety for construction site employeestraveling on personnel platforms attached to crane hooks.”