Docket No. 86-1087

SECRETARY OF LABOR,

Complaint,

GARY CONCRETE PRODUCTS, INC.

Respondent.

OSHRC Docket No. 86-1087

DECISION

Before: FOULKE, Chairman; WISEMAN, Commissioner.

BY THE COMMISSION:

At issue in this case is whether Administrative Law Judge Paul L. Brady erred in affirming a citation issued to Gary Concrete Products, Inc. ("Gary Concrete") for the violation of a materials handling standard.

Gary Concrete is a manufacturer of concrete products. On June 17, 1986, Gary Concrete foreman Johnny James White directed crane operator Danny Taggart and rigger Jimmy Gleaton to remove six concrete pilings from the bottom of a stack of pilings and position them to be transported from the Savannah, Georgia, jobsite. White told the employees where to stack the pilings and then he returned to his office. Taggart could not see the pilings to be moved by his crane because other stacks of pilings obstructed his line of vision. Gleaton had to come out from between the stacks and give Taggart hand signals to communicate operating instructions. The pilings weighed about 6,000 pounds each, were between 45 and 60 feet long, and were 14" x 14" square. After pilings were removed from the existing stack to provide access to the six pilings to be transported off site, Taggart heard a loud noise that sounded like falling pilings. He left his crane to investigate and saw that Gleaton had been crushed to death by pilings that they had just moved.

The next day, OSHA compliance officer David Hubert commenced an investigation at the site of the fatal accident. Subsequently, the Secretary issued a serious citation to Gary Concrete alleging a violation of 29 C.F.R. § 1910.176(b) and proposing a penalty of $560. The citation alleged that Gary Concrete violated section 1910.176(b) in that concrete pilings stored in tiers were not stacked, blocked, interlocked or limited in height so that the pilings were stable and secure against sliding and collapse. Section 1910.176(b) provides:

§ 1910.176 Handling materials--general.

(b) Secure storage. Storage of material shall not create a hazard. Bags, containers, bundles, etc., stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.

After a hearing conducted in Atlanta, Georgia, Judge Brady affirmed the citation and assessed a $200 penalty. For the reasons that follow, we affirm the serious citation found by the judge and assess the penalty which he found to be appropriate.

Analysis

To prove a violation of the cited standard, the Secretary must establish that: (1) the standard applies to the cited conditions; (2) the employer violated the terms of the standard; (3) its employees were exposed or had access to the violative conditions; and (4) the employer had actual or constructive knowledge of the violation. See, e.g., Trimmed Construction Co., 14 BNA OSHC 1784, 1788, 1990 CCH OSHD ś 29,079, p. 38,859 (No. 86-1139, 1990) .

The Secretary has set forth competent evidence to establish the applicability of the standard and the exposure of Gleaton to the violative conditions. Gary Concrete has disputed neither the applicability of the standard nor employee exposure. Thus, the Secretary has established these two elements of the violation.

As to whether Gary Concrete violated the terms of the standard, Taggart, the crane operator who moved the pilings, testified that a faulty method of stacking the pilings caused the stack to be unstable and resulted in its collapse. In addition, the fact that the stacked pilings fell and killed Gleaton provides further evidence to establish that they were not stacked so as to be secure from collapse. In its defense, Gary Concrete has identified no other cause for the collapse of the pilings. Accordingly, we conclude that the Secretary established that the terms of the standard were violated. Remaining for decision is whether Gary Concrete had knowledge of the violation and whether it proved the affirmative defense of unpreventable employee misconduct.

I. Did Gary Concrete Have Actual or Constructive Knowledge of the Unstable Pilings?

To satisfy her burden of establishing knowledge, the Secretary must prove that a cited employer knew or, with the exercise of reasonable diligence, could have known of the presence of the violative conditions. United States Steel Corp., 12 BNA OSHC 1692, 1699, 1986-87 CCH OSHD ś 27,517, p.36, 671 (No. 79-1998, 1986). The Review Commission has consistently held that actual or constructive knowledge of an employer's foreman can be imputed to the employer. 1A. P. O'Horo Co.,4 BNA OSHC 2004, 2007, 1991 CCH OSHD ś 29,223, p. 39,128 (No. 85-369, 1991); Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1965-1966 1986-87 CCH OSHD ś 27,651 p. 36,033 (No. 82-928, 1986); Daniel Construction Co.,10 BNA OSHC 1549, 1552, 1982 CCH OSHD ś 26,027, p. 32,672 (No. 16265, 1982).

Gary Concrete lacked actual knowledge that the pilings were stacked in an unstable manner. As noted above, Foreman White returned to his office after instructing Taggart and Gleaton to move the pilings. Only Taggart and Gleaton were involved in stacking the pilings that subsequently collapsed. Accordingly, the Secretary was required to establish constructive knowledge on the part of Gary Concrete in order to establish the final element of the violation.

Gary Concrete argues that even with the exercise of reasonable diligence, it could not have known that the pilings were stacked in an unstable manner. It contends that neither reasonable diligence nor express regulation requires a supervisory employee to be present at all times to observe the actions of a subordinate employee. Furthermore, it contends that it had no reason to believe that an employee "with the training and experience of the deceased" would disobey safety regulations.

The Secretary argues that the deceased was a relatively inexperienced employee known by Gary Concrete to have failed to work safely on a number of past occasions. The Secretary further contends that Foreman White instructed Taggart and Gleaton to stack two different sizes of pilings, which he knew creates a substantial likelihood of an unstable stack, and that he also was aware of Gelatin's safety-deficient job performance. Furthermore, the Secretary contends that, despite knowledge of these facts, White failed to observe the performance of the stacking job to ensure that it was properly done. Relying on Baroid Div., NL Industries, Inc., 7 BNA OSHC 1466, 1469, 1979 CCH OSHD ś 23,661, p. 28,689 (No. 16096, 1979), vacated and remanded on other grounds., 660 F.2d 439 (10th Cir. 1981), the Secretary argues that an employer with notice that a hazard may exist must make reasonable efforts to ascertain if in fact the hazard does exist.

In resolving the issue of whether, with the exercise of reasonable diligence, Gary Concrete could have known of the unstable stack of pilings, we set forth the following relevant evidence regarding: (1) the circumstances of the accident, (2) the employer's safety program, and (3) Gelatin's work history with the company.

The Accident

Foreman White directed Taggart and Gleaton to remove six 14" square pilings from the bottom of an existing stack so that they could be transported from the worksite. To accomplish this, it was first necessary to move eight 14" pilings which were stacked on top of the six that were to be removed. White instructed Taggart and Gleaton to stack four of the eight 14" pilings atop two 18" square pilings, and to stack the remaining four of the eight upon one another on the ground next to the newly-created stack. White further told Taggart and Gleaton to make sure that the "dunnage" was correct. He gave no additional instructions before leaving Taggart and Gleaton and returning to his office.

The record establishes that in stacking different-sized pilings, the correct use of "dunnage" is essential. Ordinarily, dunnage used by this employer consists of 4" x 4" square pieces of wood, generally about two and one-half feet long, which is placed between each tier of stacked pilings to ensure a level stack. Paul Dentall, Gary Concrete's vice president for production, testified that to achieve a stable stack of different-sized pilings, it is necessary to use dunnage as "that keeps the stack plumb." Taggart testified that employees "were instructed generally to avoid stacking two different[-]sized products," but that if it were necessary to do so, dunnage was to be used to ensure proper stacking.

After White returned to his office, Taggart and Gleaton began moving the pilings. At the point in the job when they were to start moving the six pilings from the bottom of the first stack, the upper pilings, which they had just stacked, fell on Gleaton, fatally injuring him. Gary Concrete investigated the accident and determined its cause to be the improper placement of dunnage. The record does not specifically establish how the dunnage placement was improper.

Safety Training at Gary Concrete

The record shows that Gary Concrete furnished new employees, including Gleaton, with a copy of its safety manual. The manual was the only written document containing Gary Concrete's safety requirements at the time of the accident. The most pertinent section of the manual, entitled Material Storage, provided:

1. Put dunnage under material for easier rehandling and for more stable stacking. If dunnage has a rectangular cross section, put long dimension down. Remove dunnage when material is removed. Store dunnage for reuse.
2. Store material in an orderly fashion with adequate access for rehandling.
3. Chock round items so they cannot roll. Stack loose items no higher than 7 feet. Cross tie loose items such as bags or blocks.
4. Keep banding straps in place during storage. Remove bands from pallets and from work area when they are cut loose. If banding straps are fastened to underside of pallet, cut band flush with pallets, or fold ends into pallet.

In addition to being given the company's safety manual, employees of Gary Concrete received on-the-job training. Also, weekly tool box safety meetings were held by supervisors for their employees. White testified In general terms that, at safety meetings attended by Gleaton, he discussed the stacking of different-sized materials and the proper use of dunnage. He further testified that a crane operator is responsible for overseeing a stacking operation and assuring that the rigger working with him selects the proper dunnage. Production foreman trainee John Clinton and Taggart also generally testified that they had discussed with Gleaton the use of dunnage and the way to stark pilings. Taggart, however, stated that Gary Concrete had not provided him with "any specifics" on how to stack materials of different sizes. He testified that the way to stack materials of different sizes was a "judgment call" for the crane operator and rigger that depended upon the situation. Furthermore, Taggart stated that he and Gleaton had been instructed at safety meetings "generally to avoid stacking two different sized products ...." Finally, Dentall, Gary Concrete's vice president for production, testified that, with respect to making a good stack, "you don't really have to get very specific in your training. The concepts of building a good stack are ... easy to comprehend by almost all the employees."

Gelatin's Work Record

The record shows that Gleaton was hired by Gary Concrete on January 27, 1986, approximately five months prior to the accident. His personnel record includes a written reprimand issued to him by Taggart on May 5, 1986, for "stacking and piling in a very careless and unsafe manner." Taggart testified as follows about Gelatin's actions which led to issuance of the reprimand:

I observed Jimmy [Gleaton] and that particular crane placing two pilings on an existing stack. The stack, the way it was before they tried to put the pilings on, there was only room for one more piling, and they attempted to put two more on there, and the way they set it on there left one of the pilings hanging half way off the pilings below it. The only thing supporting that outside piling was the dunnage itself. The whole time Jimmy never got down, looked on the side of it, and checked it out at all. He just told the [crane] Operator to let the thing down, and I felt that he was very careless and unsafe.

In addition to that written reprimand, the record reveals that employee Gleaton had been written-up for safety lapses on at least two other occasions. Gary Concrete employees were evaluated on the quality of their work at the end of each week. Gelatin's evaluations were prepared by White, who provided the following explanation of his evaluations:

[I]f I go out there and I see ... [one of the employees that I supervise] doing something wrong during this week or period of time...[I]t might not happen but just one time over the whole week . . . or a couple of times, and if I see it, especially when it comes to safety, then I'll take and mark ... [the evaluation form] either "fair" or "good" .... [the highest rating on the form is "exceptional"]

For the week of May 26-31, 1986 -- three weeks after he had received the above-mentioned written reprimand and two-and-one-half weeks before the accident -- Gelatin's evaluation characterized his safety attitude as "fair". Under "Suggestions for improvement," the evaluation noted that Gleaton "needs to pay more attention to his work."

For the week of June 2-7, 1986 -- ending just 10 days before the accident ---- Gelatin's safety attitude was evaluated as "good," indicating some safety deficiency during that week. Finally, Gary Concrete plant safety officer Michael Anderson testified that Gleaton had been given verbal disciplinary warnings by his immediate supervisors for violations of company safety rules.

Disposition

We conclude that with the exercise of reasonable diligence, Gary Concrete could have discovered the violation. The company failed to exercise reasonable diligence in two ways. First, it failed to adequately supervise Gleaton while he performed the job of stacking different-sized pilings. Gelatin's foreman, White, knew that Gleaton had a history of safety-deficient job performance in his short tenure with the company. Nevertheless, on the day of the fatal accident, White assigned Gleaton the job of stacking different-sized pilings, a task which involved exercising an appreciable amount of discretion. Because of the danger inherent in the potential for these pilings to slide or collapse when stacked, company instructions were that such stacking was generally to be avoided. White also knew that while Gleaton was performing that job, he would be outside the field of vision of Taggart, the crane operator, whose role it normally was to ensure that a rigger, such as Gleaton, properly stacked pilings and selected proper dunnage. Notwithstanding these factors, White failed to provide Gleaton with specific instructions on how to safely perform the task. Indeed, after providing Gleaton and Taggart with only general instructions on what was to be accomplished, White left them and returned to his office. Foreman White thus failed to ensure the adequate supervision of Gleaton, and thereby failed to exercise the reasonable diligence which would have led to discovery of the violation. Knowledge of the violation is imputed to Gary Concrete through its foreman, White. See Dun Par Engineered Form, supra.

Secondly, Gary Concrete failed to formulate and implement adequate training and work rules necessary to ensure that its employees could safely perform the job of stacking different - sized pilings. The training which Gleaton received was too general in nature to have,effectively taught him to be aware of how to prevent the violation of the standard which resulted in his death. Although the record shows that Gleaton was told to use dunnage to stack different - sized materials, the record does not show that he was given the specifics of how to use dunnage to safely perform that stacking job. Because the stacking of pilings was a common work duty of Gary Concrete employees, the company was obliged to frame specific work rules on how to stack pilings, especially different - sized pilings, so that they would be stable and secure against sliding or collapse. Gary Concrete failed to meet this obligation; thus, it failed to exercise reasonable diligence. See Towne Construction Co., 12 BNA OSHC 2185, 2190, 1986-87 CCH OSHD ś 27,760, p. 36,312 (No. 83-1262, 1986),aff'd, 847 F.2d 1187 (6th Cir. 1988)(lack of reasonable diligence from failure to supervise and to provide clear information on load capacity of crane). It bears noting that even Taggart testified that he had not been given "any specifics" on how to stack materials of different sizes. As stated above, a crane operator, such as Taggart, was responsible for ensuring that the rigger properly stacked pilings and selected proper dunnage.The failure of Gary Concrete to provide him with specific training or instructions on proper stacking techniques clearly illustrates the inadequacy of the company's safety instructions and further supports our finding that the company failed to exercise reasonable diligence. See Candler-Rusche, Inc., 4 BNA OSHC 1232, 1233-34, 1976-77 CCH OSHD ś 20,723 p. 24,845 (No. 4675, 1976) aff'd mem., 559 F.2d 187 (D.C. Cir. 1977) (safety instructions to crane operator inadequate, so accident preventable and Respondent could have known of violation). We conclude that with the exercise of reasonable diligence, Gary Concrete could have discovered the violation at issue here. The Secretary has therefore established a violation of section 1910.176(b).

II. Did Gary Concrete Establish the Defense of Unpreventable Employee Misconduct?

To prove the affirmative defense of unpreventable employee misconduct, an employer must prove that:

1) it had established work rules designed to prevent the violation; (2) the work rules had been adequately communicated to its employees; and (3) it had taken steps to discover violations, and had effectively enforced the rules when violations had been discovered.

Jensen-Construction Co., 7 BNA OSHC 1477, 1479, 1979 CCH OSHD ś 23,664, p. 28,695 (No. 76-1538, 1979).

In his decision, Judge Brady found that Gary Concrete failed to prove the affirmative defense, essentially because it had not formulated a work rule that specified how employees were to perform the job of stacking different-sized pilings. The judge found that it was "entirely possible that ... Gleaton could perform his tasks in total compliance with [Respondent's general] ... work rules and his conduct would [still] be violative of the (cited) regulation." We Agree.

Gary Concrete argues that its safety training procedures were consistent with industry practice and included specific training in the proper storage of materials of different sizes, the use of dunnage, and the techniques for building a safe stack. In addition, it argues that safety rules more detailed than what it provided would be impractical and contends that "it was necessary to rely on employee judgment in the circumstances shown." The company further submits "that it was justified in expecting that the deceased employee would be guided by his safety training and work experience. Gary Concrete claims that the actions which caused Gelatin's death were unforeseeable and contrary to company safety policy. Finally, Gary Concrete contends that its work rules and safety regulations were uniformly enforced, and that employees who violated them were disciplined. Citing the Commission decision in Alabama Power Co., 13 BNA OSHC 1240, 1245, 1986-87 CCH OSHD ś 27,392, p. 36,580 (No. 84-357, 1987), the company asserts that "[i]n evaluating the adequacy of an employer's efforts to implement a safety program, the Commission must consider all of the circumstances of the employer's work environment, including the degree of compliance with its safety rules."

In response to the company's arguments, the Secretary contends that the deceased employee could not have violated the company's safety rules because there was nothing in the company's safety manual that "even approache[d] being a specific work rule regarding the activities being performed." She argues that for the defense to be applicable, the work rules must be specific, citing J. K. Butler Builders, Inc., 5 BNA OSHC 1075, 1076, 1977-73 CCH OSHD ś 21,585, p. 25,902 (No.12354, 1977) (warning to avoid unsafe areas too general) and Brown and Root, Inc., 8 BNA OSHC 2140, 2144-45, 1980 CCH OSHD ś 24,853, p. 30,656 (No. 76-1296, 1980) (rule that work should not be done under overhead operations too general in Section 5(a)(1) case). The Secretary further contends that only "very general" testimony was given about the deceased employee's training, and that there was no specific testimony on the nature of any training given with respect to the stacking of different-sized material. She argues that this lack of specific training left to Gelatin's judgment the manner in which the job was to be performed.

Disposition

We find that Gary Concrete failed to prove each of the elements of the affirmative defense of unpreventable employee misconduct. First, Gary Concrete has not established work rules designed to prevent the cited violation. As set forth more fully above, the "safety training" the company provided to Gleaton was too general in nature to inform him of how to prevent the violation of the standard which resulted in his death.

Secondly, Gary Concrete did not adequately communicate work rules. This is illustrated by the company's failure to provide Taggart with any specific information on how to stack pilings of different sizes, even though he was also responsible for the stacking of materials.

Finally, Gary Concrete failed to prove that it had taken steps to discover safety violations, or that it had effectively enforced its work rules when violations were discovered. As mentioned above, Foreman White was aware of the safety-deficient nature of Gelatin's job performance, yet, directed him to perform a job which turned out to be fatally dangerous, and also did not supervise Gleaton while he was performing that job.

ORDER

For the foregoing reasons, we affirm the judge's conclusion that Gary Concrete violated section 1910.176(b). After consideration of the penalty factors enumerated in section 17(j) of the Act, 29 U.S.C. § 666(j), we assess a penalty of $200.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Dated: May 16, 1991

SECRETARY OF LABOR,

Complainant,

GARY CONCRETE PRODUCTS, INC.,

Respondent.

OSHRC Docket No. 86-1087

APPEARANCES:

Larry A. Auerbach, Esquire, Office of the Solicitor, U. S. Department of Labor, AtIanta ,Georgia, on behalf of complainant.
Malberry Smith, Jr., Esquire, Lee and Clark, Savannah, Georgia, on behalf of respondent.

DECISION AND ORDER

BRADY, Judge:
This proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 (Act) to contest a citation and proposed penalty issued by the Secretary of Labor (Secretary) pursuant to section 9(a) of the Act.

The facts which gave rise to issuance of the citation are not in dispute. Respondent, a manufacturer of concrete products, was necessarily involved in the movement and storage of concrete pilings. On June 17, 1986, while some pilings were being moved; a rigger, Jimmy Gleaton, was killed. Each piling weighing approximately 6,000 pounds was either 14 or 18 inches square and varied in length between 40 and 60 feet. These pilings were moved with the use of a crane as depicted in exhibit C-1.

At the time of the fatal accident, Mr. Danny Taggart, the crane operator, and Mr. Gleaton were moving certain pilings in accordance with the instructions of Mr. Johnny White, their foreman. In order to reach four pilings for shipment, it was first necessary to remove six pilings which were placed on an existing stack designated by the foreman. It was the recently stacked pilings which toppled, or fell over on the employee . The facts further disclose that the crane operator, who was in charge of the operation, could not observe removal and stacking of the pilings but relied on the rigger for hand signals to lift and lower the pilings. The parties agree that it was the faulty manner in which the pilings were stacked that caused them to collapse.

Mr. David Hubert, the compliance officer who conducted the investigation, found that the on-the-job fatality was caused by the instability of the stacked pilings in violation of 29 C.F.R § 1910.176(b) (Tr. 17-18). The regulation, which pertains to materials handling and storage, requires that:

Storage of material shall not create a hazard. Bags containers, bundles, etc, stored in tiers shall be stacked, blocked, interlocked and limited in height so that they are stable and secure against sliding or collapse.

While respondent acknowledges that the method of stacking caused the collapse, it maintains any such violative condition was created solely by the employee contrary to rules, procedures and training.

Respondent, therefore, asserts the affirmative defense of unpreventable employer misconduct. The basis of this substantive defense is that it would be unfair and not promote employee safety and health to penalize an employer for conditions which are unpreventable. The Commission recognizes such defense but only if an employer can show (1) that it has established work rules designed to prevent the violation; (2) has adequately communicated these rules to its employees; (3) has taken steps to discover violations; and (4) has effectively enforced the rules when violations have been discovered. See Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1979 CCH OSHD ś 23,664 (No. 76-1538, 1979).

The question in this case is whether respondent has an established work rule designed to prevent the violation. The record discloses that respondent maintained a safety program and provided general training consistent with the practice in the prestress concrete manufacturing industry (Exs. R-1, R-3, R-4; Tr. 36, 40, 104). The applicable work rules contained in respondent's written safety manual (Ex. R-1) state:

MATERIAL STORAGE

1. Put dunnage down under material for easier rehandling and for more stable stacking. If dunnage has a rectangular cross section, put long dimension down. Remove dunnage when material is removed. Store dunnage for reuse.

2. Store material in an orderly fashion with adequate access for rehandling.

3.Chock round items so they cannot roll. Stack loose items no higher than 7 feet. Cross tie loose items such as bags or blocks.

4. Keep banding straps in place during storage. Remove bands from pillets and from work area when they are cut loose. If banding straps are fastened to underside of pallet, cut band flush with pallets, or fold ends into pallet.

Although the precise cause of the collapse could not be determined, Mr. Tony Hatcher, Operations Manager and Safety Director, concluded that improper dunnage had been used (Tr. 43, 49).[[*/]] The focus of respondent's evidence was, therefore, to show that its conduct was consistent with the written rule requiring the proper use of dunnage through safety meetings and instruction. The evidence shows Mr. Gleaton was aware of the rule and that the rule was enforced (Tr. 61, 65-66). However, the evidence of record is not persuasive that there was a work rule which was adequate to prevent violation of 29 C.F.R. § 1910.176(b).

Since the Secretary has shown a violation existed in this case, it is incumbent on respondent to establish that its overall conduct was such that a violation could not have been prevented. The regulation which has been violated specifically requires that the storage of material shall not create a hazard. It then states that further measures shall be taken to insure that the stored material is stable and secure against collapse. Obviously, there was a hazard created and pilings were not stacked so they were stable and secure.

Although the work rules providing for the use of dunnage, such use according to the regulation, is deemed only one means of preventing the violation. The record does not reveal whether respondent required stacking to be limited to a particular height or whether the pilings could be tied, banded or otherwise supported to insure stability. In this regard the testimony of Mr. Paul Dentall, Vice President of Production who was closely involved with development of the safety program, is noted (Tr. 107). He stated:

[T]here's only a few things that the employee really needs to understand. He builds on good ground, with substantial dunnage at the bottom, as he builds a stack, he chooses good dunnage; he ties stacks or columns together, and that achieves the wider base because it acts as a unit versus a height; and you keep it plumb as you go up by keeping things at the same elevation.

Even if it were assumed Mr. Dentall's statement applied to stacking of material in general and not pilings in particular, respondent obviously knew of other means to insure stability besides use of dunnage. In light of this knowledge, the testimony of Mr. Taggart, the crane operator when the accident occurred and foreman at the time of the hearing, questions the existence of any such work rules or whether they were communicated to the employees. Aside from the use of dunnage he was not sure any specific methods for safe stacking of material were discussed at safety meetings. He also stated that employees were instructed to generally avoid stacking two different sizes of pilings, but no specific instructions were given for such stacking when it was necessary. In sum, he agreed that the stacking of the 14-inch pilings on top of the 18-inch pilings in this case was accomplished according to the personal judgment of the rigger (Tr. 92, 98-99).

Clearly, the procedure followed by respondent for stacking the pilings and its work rules were not adequate to prevent the violation. Recognizing that employers are not required to have written procedures for all jobs, and that the occurrence of an accident is of itself no basis for issuing a citation, the safety rules fail to meet the requirements to establish the affirmative defense. As aptly pointed out by the Secretary in brief, there is no rule which tells an employee how to do the job that the rigger was performing. Accordingly, "[a] work rule is an employer directive that requires or proscribes certain conduct, and that is communicated to employees in such a manner that its mandatory nature is made explicit and its scope clearly understood." J. K. Butler Builders, Inc., 77 OSAHRC 26/A2, 5 BNA OSHC 1075, 1977-78 CCH OSHD ś 21,535 (No. 12354, 1977).

Under the facts of this case, it is entirely possible that a rigger such as Mr. Gleaton could perform his tasks in total compliance with the work rules and his conduct would be violative of the regulation. After instructing employees to avoid stacking material of different sizes, the employer had the responsibility to provide specific instructions for this type of stacking when necessary. The Commission has held that basically "[a]n employer has a duty under the Act to anticipate the hazards to which its employees may be exposed and to take the steps necessary to prevent such exposure." Automatic Sprinkler Corp. of America, 79 OSAHRC 102/B2, BNA OSHC 1979 CCH OSHD ś 24,007 (No. 76-5271, 1979); SouthWestern Bell Telephone Co., 79 OSAHRC 4/G4, 7 BNA OSHC 1058, 1979 CCH OSHD ś 23,178 (No. 15841, 1979).

The affirmative defense of unpreventable employee misconduct has not been proved and the violation was preventable by the employer.

The violation is alleged to have been serious. The death of the employee sufficiently establishes the serious violation under section 17(k) of the Act, which requires a determination that death or serious physical harm could result therefrom.

A determination of an appropriate penalty must now be made. The Commission, in all contested cases, has the authority to access civil penalties for violations of the Act. Section 17(j) of the Act provides:

The Commission shall have authority to access all civil penalties provided in this section, giving due consideration to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

The determination of what constitutes an appropriate penalty is within the discretion of the Review Commission. Long Manufacturing Co. v. OSHRC, 554 F.d 902 (8th Cir. 1977); Western Waterproofing Co. v. Marshall, 576 F.2d 139 (8th Cir. 1978). The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ś 15,032 (No. 4, 1972). The Commission stated in Secretary v. National Realty and Construction Co., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ś 15,188 (No. 85, 1971), that the elements to be considered in determining the gravity are: (1) the number of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of injury.

Considering all the foregoing factors, a penalty in the amount of $200.00 is deemed appropriate for the violation set forth in the citation.

FINDINGS OF FACT

1. Gary Concrete Products, Inc., at all times hereinafter mentioned, maintained a work site at Wahlstrom Road, Savannah, Georgia, where it manufactured concrete products.

2. Following the death of an employee on June 17, 1986, authorized representatives of the Secretary conducted an inspection of the work site. As a result of the inspection, respondent was issued a citation with notice of proposed penalty.

3. The fatality occurred while two employees, with the use of a crane, were moving and stacking concrete pilings weighing approximately 6,000 pounds and 40 to 60 feet long each.

4. The employees, a crane operator and a rigger, were moving some pilings arid placing them on existing stacks as instructed by their foreman. Some 14-inch pilings which were placed on 18-inch pilings fell striking the rigger.

5. Although employees were instructed to generally avoid stacking two different sizes, no specific instructions were given as to how this stacking was to he performed when necessary.

6. Respondent's work rules provided for the use of dunnage, but there were no specific rules requiring the stable and secure stacking of the pilings.

CONCLUSIONS OF LAW

1. Gary Concrete Products, Inc., at all times pertinent to these proceedings, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein pursuant to section 10(c) of the Act

2. Respondent is, and at all times pertinent to these proceedings, required to comply with safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.

3. On June 17, 1986, respondent was in serious violation of 29 C.F.R § 1910.176(b).

ORDER

Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, it is ORDERED:
The citation is affirmed and a penalty in the amount of $200.00 is hereby assessed.

Dated this 8th day of April, 1987.

/s/ Paul L. Brady
PAUL L BRADY
Judge

FOOTNOTES:

[[*/]] The use of dunnage is discussed at pages 75 and 76 of the transcript.