(dissenting):
An employer is guilty of a serious violation of OSHA for which a penalty can be assessed only if it knew or through the exercise of reasonable diligence should have known of the violation, 29 U.S.C. § 666(j). In Horne Plumbing and Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976), this court recently adopted the Ninth Circuit’s requirement that employer knowledge be proved even for nonserious violations. Brennan v. OSHRC, 511 F.2d 1139, 1144-45 (9th Cir. 1975).1 Since it is undisputed that the company did not have actual knowledge that the vessel was untested, the sole remaining issue is whether Getty could have discovered this safety violation with reasonable diligence.
The majority of the Commission agreed with the Administrative Law Judge s conclusion that “reasonable diligence would have required Getty to ask Robison prior to putting the fluid booster into operation whether or not it had been pressure-tested.” Sometime on the morning of February 20, 1973, Robison telephoned his supervisor King to inform him that he was on his way to put the vessel -into service.2 A reading of the facts as stated indicates that the Administrative Law Judge believed Robison called King after he picked up the vessel and learned it had not been pressure tested by its fabricator:
The time for the exercise of reasonable diligence commenced with the employer’s knowledge that the fabrication had been completed. This knowledge was first acquired on the morning of the day the vessel was placed into service when Robison called the Area Engineer and announced he was on his way to make the installation.
The Commission, too, seemed to think that the morning telephone call, gave King a clear chance to inquire if the device had been pressure tested:
When he picked up the fluid booster at the shop, Robison was informed that it had not been pressure tested as required by recognized industry safety practices. Although Robison informed King that he was about to install the device, King did not ask if the fluid booster had been pressure-tested. (Emphasis added).
If the Commission found that Getty could have discovered the hazard on the *1148Slaughter Lease with reasonable diligence because the early morning telephone call provided an opportunity to ask if the vessel had been tested, I find this conclusion unsupported by the evidence. The combination of the fact that Robison’s call found King at home on the morning of a work day (February 20, 1973, was a Tuesday) and the fact that Robison said he was “going to Palacios,” where the welding shop was located and the lease was not, strongly suggests that the call was before Robison’s visit to the welder, where he learned of the failure to pressure test. In that event, Getty could not have learned from the call whether the vessel had been pressure tested in accordance with King’s repeated instructions to Robison if at the time of the call Robison did not know this.
The majority recognizes this factual discrepancy but affirms the Commission anyway, suggesting that a question at the time of the early morning call might have persuaded Robison to make a test which he already knew he was to make. This holding imposes a continuous supervision rule on employers: given an experienced employee who knows what he is supposed to do, and given that he has been told to do so N times, then the number of times that he should have been told to do so is N + 1. I do not think that is what Congress meant to require by reasonable diligence. It would be imposing unreasonable diligence to require Getty to check to see if every order to a reliable employee had been complied with. In the words of Chairman Moran’s dissent from the Commission’s ruling:
Requiring that respondent ask such an experienced employee if he did his job seems merely a way of holding this employer strictly liable for this reckless and unexpected act.
In Horne Plumbing and Heating Co. v. OSHRC, supra, this court refused to hold an employer liable for experienced employees’ willful violations of safety instructions. I find Robison’s failure to test the fluid booster just as “unforeseeable, implausible and therefore unpreventable” as the employees’ violations in Horne. OSHA was adopted to encourage the cooperative efforts of employers and employees in maintaining safe working conditions. As we noted in Horne, “[i]f employers are told that they are liable for violations regardless of the degree of their efforts to comply, it can only tend to discourage such efforts.” 528 F.2d, at 571, citing Secretary v. Ocean Electric Corp., 3 CCH Employment Safety & Health Guide, 1120,167 (Docket No. 5811, November 21, 1975) (footnotes omitted).
The majority tries to bolster its opinion with the make-weight argument that even without the last-chance phone call Getty could have learned of Robison’s violation with negligible effort because the lease operator or the production foreman who were present at the installation site could have inquired if the fluid booster had been pressure tested. On the undisputed record, neither of these employees was Robison’s supervisor or superior. Their duties ran in other lines, it being without dispute that Robi-son was a specialist who worked directly for the area superintendent, for whom King also worked. To require the lease operator and production foreman to double check on Robison would be similar to requiring a Chief Petty Officer to press an Air Force armorer about whether he had cleared all the guns on a visiting bomber. The Commission did not look to their failure to inquire about testing; it properly focused only on King’s failure to check on Robison.
Congress never intended that whenever a serious accident happens the employer must be found to have known of any violation which caused it. Such a requirement would be punitive and, as we noted in Horne counter-productive. Moreover:
Fundamental fairness would require that one charged with and penalized for violation be shown to have caused, or at least to have knowingly acquiesced in, that violation. Under our legal system, to date at least, no man *1149is held accountable, or subject to fine, for the totally independent act of another.
Brennan v. OSHRC, 511 F.2d 1139, 1145 (9th Cir. 1975). The Secretary has not met his burden of proof that Getty should have learned of this violation through the exercise of reasonable diligence. To impose liability for a violation without requiring such proof is to adopt a standard of strict liability which Congress specifically eschewed and which this circuit rejected in Horne, supra. The citation of the Commission should be vacated.
. Both Brennan and Horne applied this rationale to a special duty violation, but I see no reason for distinguishing the requirement when the violation involves the general duty to furnish a workplace free of recognized hazards.
. The testimony of King at the administrative hearing:
The morning of the accident on February the 20th, Mr. Robison called me at my home and said that he was going to Palacios to put the unit in service, and he was in a hurry.
And it was just a two sentence conversation. And he hung up, and that’s the last word I had -from him.