“SECRETARY OF LABOR,Complaint,v.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. Bradyerred 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 DannyTaggart and rigger Jimmy Gleaton to remove six concrete pilings from thebottom of a stack of pilings and position them to be transported fromthe Savannah, Georgia, jobsite. White told the employees where to stackthe pilings and then he returned to his office. Taggart could not seethe pilings to be moved by his crane because other stacks of pilingsobstructed his line of vision. Gleaton had to come out from between thestacks and give Taggart hand signals to communicate operatinginstructions. The pilings weighed about 6,000 pounds each, were between45 and 60 feet long, and were 14\” x 14\” square. After pilings wereremoved from the existing stack to provide access to the six pilings tobe transported off site, Taggart heard a loud noise that sounded likefalling pilings. He left his crane to investigate and saw that Gleatonhad been crushed to death by pilings that they had just moved.The next day, OSHA compliance officer David Hubert commenced aninvestigation at the site of the fatal accident. Subsequently, theSecretary issued a serious citation to Gary Concrete alleging aviolation 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) inthat concrete pilings stored in tiers were not stacked, blocked,interlocked or limited in height so that the pilings were stable andsecure 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 andsecure against sliding or collapse.After a hearing conducted in Atlanta, Georgia, Judge Brady affirmed thecitation and assessed a $200 penalty. For the reasons that follow, weaffirm the serious citation found by the judge and assess the penaltywhich he found to be appropriate._Analysis_To prove a violation of the cited standard, the Secretary must establishthat: (1) the standard applies to the cited conditions; (2) the employerviolated the terms of the standard; (3) its employees were exposed orhad access to the violative conditions; and (4) the employer had actualor constructive knowledge of the violation. _See, e.g., TrimmedConstruction Co._, 14 BNA OSHC 1784, 1788, 1990 CCH OSHD ? 29,079, p.38,859 (No. 86-1139, 1990) .The Secretary has set forth competent evidence to establish theapplicability of the standard and the exposure of Gleaton to theviolative conditions. Gary Concrete has disputed neither theapplicability of the standard nor employee exposure. Thus, the Secretaryhas 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 methodof stacking the pilings caused the stack to be unstable and resulted inits collapse. In addition, the fact that the stacked pilings fell andkilled Gleaton provides further evidence to establish that they were notstacked so as to be secure from collapse. In its defense, Gary Concretehas identified no other cause for the collapse of the pilings.Accordingly, we conclude that the Secretary established that the termsof the standard were violated. Remaining for decision is whether GaryConcrete had knowledge of the violation and whether it proved theaffirmative defense of unpreventable employee misconduct.I. _Did Gary Concrete Have Actual or Constructive Knowledge of theUnstable Pilings?_To satisfy her burden of establishing knowledge, the Secretary mustprove that a cited employer knew or, with the exercise of reasonablediligence, could have known of the presence of the violative conditions._United States Steel Corp., _12 BNA OSHC 1692, 1699, 1986-87 CCH OSHD ?27,517, p.36, 671 (No. 79-1998, 1986). The Review Commission hasconsistently held that actual or constructive knowledge of an employer’sforeman can be imputed to the employer. 1_A. P. O’Horo Co.,_4 BNA OSHC2004, 2007, 1991 CCH OSHD ? 29,223, p. 39,128 (No. 85-369, 1991);_Dun-Par Engineered Form Co._, 12 BNA OSHC 1962, 1965-1966 1986-87 CCHOSHD ? 27,651 p. 36,033 (No. 82-928, 1986); _Daniel Construction Co_.,10BNA OSHC 1549, 1552, 1982 CCH OSHD ? 26,027, p. 32,672 (No. 16265, 1982).Gary Concrete lacked actual knowledge that the pilings were stacked inan unstable manner. As noted above, Foreman White returned to his officeafter instructing Taggart and Gleaton to move the pilings. Only Taggartand Gleaton were involved in stacking the pilings that subsequentlycollapsed. Accordingly, the Secretary was required to establishconstructive knowledge on the part of Gary Concrete in order toestablish the final element of the violation.Gary Concrete argues that even with the exercise of reasonablediligence, it could not have known that the pilings were stacked in anunstable manner. It contends that neither reasonable diligence norexpress regulation requires a supervisory employee to be present at alltimes to observe the actions of a subordinate employee. Furthermore, itcontends that it had no reason to believe that an employee \”with thetraining and experience of the deceased\” would disobey safety regulations.The Secretary argues that the deceased was a relatively inexperiencedemployee known by Gary Concrete to have failed to work safely on anumber of past occasions. The Secretary further contends that ForemanWhite instructed Taggart and Gleaton to stack two different sizes ofpilings, which he knew creates a substantial likelihood of an unstablestack, and that he also was aware of Gelatin’s safety-deficient jobperformance. Furthermore, the Secretary contends that, despite knowledgeof these facts, White failed to observe the performance of the stackingjob to ensure that it was properly done. Relying on _Baroid Div., NLIndustries, Inc.,_ 7 BNA OSHC 1466, 1469, 1979 CCH OSHD ? 23,661, p.28,689 (No. 16096, 1979), _vacated and remanded on other grounds.,_ 660F.2d 439 (10th Cir. 1981), the Secretary argues that an employer withnotice that a hazard may exist must make reasonable efforts to ascertainif in fact the hazard does exist.In resolving the issue of whether, with the exercise of reasonablediligence, Gary Concrete could have known of the unstable stack ofpilings, we set forth the following relevant evidence regarding: (1) thecircumstances 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\” squarepilings from the bottom of an existing stack so that they could betransported from the worksite. To accomplish this, it was firstnecessary to move eight 14\” pilings which were stacked on top of the sixthat were to be removed. White instructed Taggart and Gleaton to stackfour of the eight 14\” pilings atop two 18\” square pilings, and to stackthe remaining four of the eight upon one another on the ground next tothe newly-created stack. White further told Taggart and Gleaton to makesure that the \”dunnage\” was correct. He gave no additional instructionsbefore leaving Taggart and Gleaton and returning to his office.The record establishes that in stacking different-sized pilings, thecorrect use of \”dunnage\” is essential. Ordinarily, dunnage used by thisemployer consists of 4\” x 4\” square pieces of wood, generally about twoand one-half feet long, which is placed between each tier of stackedpilings to ensure a level stack. Paul Dentall, Gary Concrete’s vicepresident for production, testified that to achieve a stable stack ofdifferent-sized pilings, it is necessary to use dunnage as \”that keepsthe stack plumb.\” Taggart testified that employees \”were instructedgenerally to avoid stacking two different[-]sized products,\” but that ifit were necessary to do so, dunnage was to be used to ensure properstacking.After White returned to his office, Taggart and Gleaton began moving thepilings. At the point in the job when they were to start moving the sixpilings from the bottom of the first stack, the upper pilings, whichthey had just stacked, fell on Gleaton, fatally injuring him. GaryConcrete investigated the accident and determined its cause to be theimproper placement of dunnage. The record does not specificallyestablish how the dunnage placement was improper._Safety Training at Gary Concrete_The record shows that Gary Concrete furnished new employees, includingGleaton, with a copy of its safety manual. The manual was the onlywritten document containing Gary Concrete’s safety requirements at thetime 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 stablestacking. If dunnage has a rectangular cross section, put long dimensiondown. 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 higherthan 7 feet. Cross tie loose items such as bags or blocks.4. Keep banding straps in place during storage. Remove bands frompallets and from work area when they are cut loose. If banding strapsare fastened to underside of pallet, cut band flush with pallets, orfold ends into pallet.In addition to being given the company’s safety manual, employees ofGary Concrete received on-the-job training. Also, weekly tool box safetymeetings were held by supervisors for their employees. White testifiedIn general terms that, at safety meetings attended by Gleaton, hediscussed the stacking of different-sized materials and the proper useof dunnage. He further testified that a crane operator is responsiblefor overseeing a stacking operation and assuring that the rigger workingwith him selects the proper dunnage. Production foreman trainee JohnClinton and Taggart also generally testified that they had discussedwith Gleaton the use of dunnage and the way to stark pilings. Taggart,however, stated that Gary Concrete had not provided him with \”anyspecifics\” on how to stack materials of different sizes. He testifiedthat 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 atsafety meetings \”generally to avoid stacking two different sizedproducts ….\” Finally, Dentall, Gary Concrete’s vice president forproduction, testified that, with respect to making a good stack, \”youdon’t really have to get very specific in your training. The concepts ofbuilding a good stack are … easy to comprehend by almost all theemployees.\”_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 personnelrecord 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 toissuance of the reprimand:I observed Jimmy [Gleaton] and that particular crane placing two pilingson an existing stack. The stack, the way it was before they tried to putthe pilings on, there was only room for one more piling, and theyattempted to put two more on there, and the way they set it on thereleft one of the pilings hanging half way off the pilings below it. Theonly thing supporting that outside piling was the dunnage itself. Thewhole time Jimmy never got down, looked on the side of it, and checkedit 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 employeeGleaton had been written-up for safety lapses on at least two otheroccasions. Gary Concrete employees were evaluated on the quality oftheir work at the end of each week. Gelatin’s evaluations were preparedby White, who provided the following explanation of his evaluations:[I]f I go out there and I see … [one of the employees that Isupervise] doing something wrong during this week or period oftime…[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 tosafety, 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 theabove-mentioned written reprimand and two-and-one-half weeks before theaccident — Gelatin’s evaluation characterized his safety attitude as\”fair\”. Under \”Suggestions for improvement,\” the evaluation noted thatGleaton \”needs to pay more attention to his work.\”For the week of June 2-7, 1986 — ending just 10 days before theaccident —- Gelatin’s safety attitude was evaluated as \”good,\”indicating some safety deficiency during that week. Finally, GaryConcrete plant safety officer Michael Anderson testified that Gleatonhad been given verbal disciplinary warnings by his immediate supervisorsfor violations of company safety rules._Disposition_We conclude that with the exercise of reasonable diligence, GaryConcrete could have discovered the violation. The company failed toexercise reasonable diligence in two ways. First, it failed toadequately supervise Gleaton while he performed the job of stackingdifferent-sized pilings. Gelatin’s foreman, White, knew that Gleaton hada history of safety-deficient job performance in his short tenure withthe company. Nevertheless, on the day of the fatal accident, Whiteassigned Gleaton the job of stacking different-sized pilings, a taskwhich involved exercising an appreciable amount of discretion. Becauseof the danger inherent in the potential for these pilings to slide orcollapse when stacked, company instructions were that such stacking wasgenerally to be avoided. White also knew that while Gleaton wasperforming 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 withspecific instructions on how to safely perform the task. Indeed, afterproviding Gleaton and Taggart with only general instructions on what wasto be accomplished, White left them and returned to his office. ForemanWhite thus failed to ensure the adequate supervision of Gleaton, andthereby failed to exercise the reasonable diligence which would have ledto discovery of the violation. Knowledge of the violation is imputed toGary Concrete through its foreman, White. _See Dun Par Engineered Form,__supra._Secondly, Gary Concrete failed to formulate and implement adequatetraining and work rules necessary to ensure that its employees couldsafely perform the job of stacking different – sized pilings. Thetraining which Gleaton received was too general in nature tohave,effectively taught him to be aware of how to prevent the violationof the standard which resulted in his death. Although the record showsthat Gleaton was told to use dunnage to stack different – sizedmaterials, the record does not show that he was given the specifics of_how_ to use dunnage to safely perform that stacking job. Because thestacking of pilings was a common work duty of Gary Concrete employees,the company was obliged to frame specific work rules on how to stackpilings, especially different – sized pilings, so that they would bestable and secure against sliding or collapse. Gary Concrete failed tomeet this obligation; thus, it failed to exercise reasonable diligence._See Towne Construction Co._, 12 BNA OSHC 2185, 2190, 1986-87 CCH OSHD ?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 toprovide clear information on load capacity of crane). It bears notingthat even Taggart testified that he had not been given \”any specifics\”on how to stack materials of different sizes. As stated above, a craneoperator, such as Taggart, was responsible for ensuring that the riggerproperly stacked pilings and selected proper dunnage.The failure of GaryConcrete to provide him with specific training or instructions on properstacking techniques clearly illustrates the inadequacy of the company’ssafety instructions and further supports our finding that the companyfailed to exercise reasonable diligence. _See Candler-Rusche, Inc_., 4BNA OSHC 1232, 1233-34, 1976-77 CCH OSHD ? 20,723 p. 24,845 (No. 4675,1976)_aff’d_ mem., 559 F.2d 187 (D.C. Cir. 1977) (safety instructions tocrane operator inadequate, so accident preventable and Respondent couldhave known of violation). We conclude that with the exercise ofreasonable diligence, Gary Concrete could have discovered the violationat issue here. The Secretary has therefore established a violation ofsection 1910.176(b).II. _Did Gary Concrete Establish the Defense of Unpreventable EmployeeMisconduct?_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 effectivelyenforced the rules when violations had been discovered._Jensen-Construction Co._, 7 BNA OSHC 1477, 1479, 1979 CCH OSHD ?23,664, p. 28,695 (No. 76-1538, 1979).In his decision, Judge Brady found that Gary Concrete failed to provethe affirmative defense, essentially because it had not formulated awork rule that specified how employees were to perform the job ofstacking different-sized pilings. The judge found that it was \”entirelypossible that … Gleaton could perform his tasks in total compliancewith [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 consistentwith industry practice and included specific training in the properstorage of materials of different sizes, the use of dunnage, and thetechniques for building a safe stack. In addition, it argues that safetyrules more detailed than what it provided would be impractical andcontends that \”it was necessary to rely on employee judgment in thecircumstances shown.\” The company further submits \”that it was justifiedin expecting that the deceased employee would be guided by his safetytraining and work experience. Gary Concrete claims that the actionswhich caused Gelatin’s death were unforeseeable and contrary to companysafety policy. Finally, Gary Concrete contends that its work rules andsafety regulations were uniformly enforced, and that employees whoviolated them were disciplined. Citing the Commission decision in_Alabama Power Co.,_ 13 BNA OSHC 1240, 1245, 1986-87 CCH OSHD ? 27,392,p. 36,580 (No. 84-357, 1987), the company asserts that \”[i]n evaluatingthe adequacy of an employer’s efforts to implement a safety program, theCommission must consider all of the circumstances of the employer’s workenvironment, including the degree of compliance with its safety rules.\”In response to the company’s arguments, the Secretary contends that thedeceased employee could not have violated the company’s safety rulesbecause there was nothing in the company’s safety manual that \”evenapproache[d] being a specific work rule regarding the activities beingperformed.\” She argues that for the defense to be applicable, the workrules must be specific, citing J. K. _Butler Builders, Inc_., 5 BNA OSHC1075, 1076, 1977-73 CCH OSHD ? 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 ? 24,853, p. 30,656 (No.76-1296, 1980) (rule that work should not be done under overheadoperations too general in Section 5(a)(1) case). The Secretary furthercontends that only \”very general\” testimony was given about the deceasedemployee’s training, and that there was no specific testimony on thenature of any training given with respect to the stacking ofdifferent-sized material. She argues that this lack of specific trainingleft 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 theaffirmative defense of unpreventable employee misconduct. First, GaryConcrete has not established work rules designed to prevent the citedviolation. As set forth more fully above, the \”safety training\” thecompany provided to Gleaton was too general in nature to inform him ofhow to prevent the violation of the standard which resulted in his death.Secondly, Gary Concrete did not adequately communicate work rules. Thisis illustrated by the company’s failure to provide Taggart with anyspecific information on how to stack pilings of different sizes, eventhough he was also responsible for the stacking of materials.Finally, Gary Concrete failed to prove that it had taken steps todiscover safety violations, or that it had effectively enforced its workrules when violations were discovered. As mentioned above, Foreman Whitewas aware of the safety-deficient nature of Gelatin’s job performance,yet, directed him to perform a job which turned out to be fatallydangerous, and also did not supervise Gleaton while he was performingthat job._ORDER _For the foregoing reasons, we affirm the judge’s conclusion that GaryConcrete violated section 1910.176(b). After consideration of thepenalty 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.ChairmanDonald G. WisemanCommissionerDated: May 16, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.GARY CONCRETE PRODUCTS, INC.,Respondent.OSHRC Docket No. 86-1087APPEARANCES:Larry A. Auerbach, Esquire, Office of the Solicitor, U. S. Department ofLabor, AtIanta ,Georgia, on behalf of complainant.Malberry Smith, Jr., Esquire, Lee and Clark, Savannah, Georgia, onbehalf of respondent._DECISION AND ORDER_BRADY, Judge:This proceeding is brought pursuant to section 10 of the OccupationalSafety and Health Act of 1970 (Act) to contest a citation and proposedpenalty issued by the Secretary of Labor (Secretary) pursuant to section9(a) of the Act.The facts which gave rise to issuance of the citation are not indispute. Respondent, a manufacturer of concrete products, wasnecessarily involved in the movement and storage of concrete pilings. OnJune 17, 1986, while some pilings were being moved; a rigger, JimmyGleaton, was killed. Each piling weighing approximately 6,000 pounds waseither 14 or 18 inches square and varied in length between 40 and 60feet. These pilings were moved with the use of a crane as depicted inexhibit C-1.At the time of the fatal accident, Mr. Danny Taggart, the craneoperator, and Mr. Gleaton were moving certain pilings in accordance withthe instructions of Mr. Johnny White, their foreman. In order to reachfour pilings for shipment, it was first necessary to remove six pilingswhich were placed on an existing stack designated by the foreman. It wasthe recently stacked pilings which toppled, or fell over on the employee. The facts further disclose that the crane operator, who was in chargeof the operation, could not observe removal and stacking of the pilingsbut 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 pilingswere stacked that caused them to collapse.Mr. David Hubert, the compliance officer who conducted theinvestigation, found that the on-the-job fatality was caused by theinstability of the stacked pilings in violation of 29 C.F.R ?1910.176(b) (Tr. 17-18). The regulation, which pertains to materialshandling 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 limitedin height so that they are stable and secure against sliding or collapse.While respondent acknowledges that the method of stacking caused thecollapse, it maintains any such violative condition was created solelyby the employee contrary to rules, procedures and training.Respondent, therefore, asserts the affirmative defense of unpreventableemployer misconduct. The basis of this substantive defense is that itwould be unfair and not promote employee safety and health to penalizean employer for conditions which are unpreventable. The Commissionrecognizes such defense but only if an employer can show (1) that it hasestablished work rules designed to prevent the violation; (2) hasadequately communicated these rules to its employees; (3) has takensteps to discover violations; and (4) has effectively enforced the ruleswhen violations have been discovered. _See Jensen Construction Co_., 79OSAHRC 49\/D3, 7 BNA OSHC 1477, 1979 CCH OSHD ? 23,664 (No. 76-1538, 1979).The question in this case is whether respondent has an established workrule designed to prevent the violation. The record discloses thatrespondent maintained a safety program and provided general trainingconsistent with the practice in the prestress concrete manufacturingindustry (Exs. R-1, R-3, R-4; Tr. 36, 40, 104). The applicable workrules contained in respondent’s written safety manual (Ex. R-1) state:_MATERIAL STORAGE_1. Put dunnage down under material for easier rehandling and for morestable stacking. If dunnage has a rectangular cross section, put longdimension down. Remove dunnage when material is removed. Store dunnagefor 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 higherthan 7 feet. Cross tie loose items such as bags or blocks.4. Keep banding straps in place during storage. Remove bands frompillets and from work area when they are cut loose. If banding strapsare fastened to underside of pallet, cut band flush with pallets, orfold ends into pallet.Although the precise cause of the collapse could not be determined, Mr.Tony Hatcher, Operations Manager and Safety Director, concluded thatimproper dunnage had been used (Tr. 43, 49).[[*\/]] The focus ofrespondent’s evidence was, therefore, to show that its conduct wasconsistent with the written rule requiring the proper use of dunnagethrough safety meetings and instruction. The evidence shows Mr. Gleatonwas 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 workrule 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 isincumbent on respondent to establish that its overall conduct was suchthat a violation could not have been prevented. The regulation which hasbeen violated specifically requires that the storage of material shallnot create a hazard. It then states that further measures shall be takento insure that the stored material is stable and secure againstcollapse. Obviously, there was a hazard created and pilings were notstacked so they were stable and secure.Although the work rules providing for the use of dunnage, such useaccording to the regulation, is deemed only one means of preventing theviolation. The record does not reveal whether respondent requiredstacking to be limited to a particular height or whether the pilingscould be tied, banded or otherwise supported to insure stability. Inthis regard the testimony of Mr. Paul Dentall, Vice President ofProduction who was closely involved with development of the safetyprogram, is noted (Tr. 107). He stated:[T]here’s only a few things that the employee really needs tounderstand. He builds on good ground, with substantial dunnage at thebottom, as he builds a stack, he chooses good dunnage; he ties stacks orcolumns together, and that achieves the wider base because it acts as aunit versus a height; and you keep it plumb as you go up by keepingthings at the same elevation.Even if it were assumed Mr. Dentall’s statement applied to stacking ofmaterial in general and not pilings in particular, respondent obviouslyknew of other means to insure stability besides use of dunnage. In lightof this knowledge, the testimony of Mr. Taggart, the crane operator whenthe accident occurred and foreman at the time of the hearing, questionsthe existence of any such work rules or whether they were communicatedto the employees. Aside from the use of dunnage he was not sure anyspecific methods for safe stacking of material were discussed at safetymeetings. He also stated that employees were instructed to generallyavoid stacking two different sizes of pilings, but no specificinstructions 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-inchpilings in this case was accomplished according to the personal judgmentof the rigger (Tr. 92, 98-99).Clearly, the procedure followed by respondent for stacking the pilingsand its work rules were not adequate to prevent the violation.Recognizing that employers are not required to have written proceduresfor all jobs, and that the occurrence of an accident is of itself nobasis for issuing a citation, the safety rules fail to meet therequirements to establish the affirmative defense. As aptly pointed outby the Secretary in brief, there is no rule which tells an employee howto do the job that the rigger was performing. Accordingly, \”[a] workrule is an employer directive that requires or proscribes certainconduct, and that is communicated to employees in such a manner that itsmandatory nature is made explicit and its scope clearly understood.\” _J.K. Butler Builders, Inc_., 77 OSAHRC 26\/A2, 5 BNA OSHC 1075, 1977-78 CCHOSHD ? 21,535 (No. 12354, 1977).Under the facts of this case, it is entirely possible that a rigger suchas Mr. Gleaton could perform his tasks in total compliance with the workrules and his conduct would be violative of the regulation. Afterinstructing employees to avoid stacking material of different sizes, theemployer had the responsibility to provide specific instructions forthis type of stacking when necessary. The Commission has held thatbasically \”[a]n employer has a duty under the Act to anticipate thehazards to which its employees may be exposed and to take the stepsnecessary to prevent such exposure.\” _Automatic Sprinkler Corp. ofAmerica,_ 79 OSAHRC 102\/B2, BNA OSHC 1979 CCH OSHD ? 24,007 (No.76-5271, 1979); _SouthWestern Bell Telephone Co.,_ 79 OSAHRC 4\/G4, 7 BNAOSHC 1058, 1979 CCH OSHD ? 23,178 (No. 15841, 1979).The affirmative defense of unpreventable employee misconduct has notbeen proved and the violation was preventable by the employer.The violation is alleged to have been serious. The death of the employeesufficiently establishes the serious violation under section 17(k) ofthe Act, which requires a determination that death or serious physicalharm could result therefrom.A determination of an appropriate penalty must now be made. TheCommission, in all contested cases, has the authority to access civilpenalties for violations of the Act. Section 17(j) of the Act provides:The Commission shall have authority to access all civil penaltiesprovided in this section, giving due consideration to the size of thebusiness 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 withinthe 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 isthe principal factor to be considered. _Nacirema Operating Co._, 72OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ? 15,032 (No. 4, 1972).The Commission stated in _Secretary v. National Realty and ConstructionCo.,_ 72 OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ? 15,188 (No.85, 1971), that the elements to be considered in determining the gravityare: (1) the number of employees exposed to the risk of injury; (2) theduration 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 itmanufactured concrete products.2. Following the death of an employee on June 17, 1986, authorizedrepresentatives of the Secretary conducted an inspection of the worksite. As a result of the inspection, respondent was issued a citationwith 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 6,000pounds and 40 to 60 feet long each.4. The employees, a crane operator and a rigger, were moving somepilings arid placing them on existing stacks as instructed by theirforeman. Some 14-inch pilings which were placed on 18-inch pilings fellstriking the rigger.5. Although employees were instructed to generally avoid stacking twodifferent sizes, no specific instructions were given as to how thisstacking was to he performed when necessary.6. Respondent’s work rules provided for the use of dunnage, but therewere no specific rules requiring the stable and secure stacking of thepilings._CONCLUSIONS OF LAW_1. Gary Concrete Products, Inc., at all times pertinent to theseproceedings, was an employer engaged in a business affecting commercewithin the meaning of section 3(5) of the Occupational Safety and HealthAct of 1970, and the Commission has jurisdiction of the parties andsubject matter herein pursuant to section 10(c) of the Act2. Respondent is, and at all times pertinent to these proceedings,required to comply with safety and health regulations promulgated by theSecretary 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 ishereby assessed.Dated this 8th day of April, 1987.\/s\/ Paul L. BradyPAUL L BRADYJudgeFOOTNOTES:[[*\/]] The use of dunnage is discussed at pages 75 and 76 of the transcript.”