Williams Enterprises of Georgia

Read the official release (oshrc.gov)

Plain-English summary

Williams was the steel-erection subcontractor on a high-rise project where employees worked on perimeter beams and columns without exterior fall protection. The Commission had previously vacated the safety-net item after concluding that steel-erection rules displaced the general construction fall-protection standard. The Eleventh Circuit reversed that ruling. Following the court's direction, the Commission reinstated the citation for failing to provide safety nets and reinstated the judge's $350 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.105(a)
• Outcome: Safety-net citation item and $350 penalty reinstated.
• Key point: Under the controlling court decision, the general safety-net standard applied to exterior fall hazards during steel erection.

Full text (OSHRC public release)

Docket No. 79-4618

SECRETARY OF LABOR,

Complainant,

v.

WILLIAMS ENTERPRISES OF

GEORGIA,

Respondent.

Docket No. 79-4618

ORDER

BY THE COMMISSION:

This case is here at the direction of the United
States Court of Appeals for the Eleventh Circuit.  Brock v. Williams Enterprises
of Georgia , 832 F.2d 567, 574 (11th Cir. 1987), rev'g Williams Enterprises
of Georgia , 12 BNA OSHC 2097, 1986-87 CCH OSHD � 27,692 (No. 79-4618, 1986).  In
accordance with the Eleventh Circuit's decision, we reinstate the Secretary of Labor's
citation 1, item 2, insofar as it alleges that Williams Enterprises of Georgia violated 29
C.F.R. � 1926.105(a).  We also reinstate the penalty of $350 assessed by the
administrative law judge.

FOR THE COMMISSION

Ray H. Darling Jr.

Executive Secretary

January 3, 1989

SECRETARY OF LABOR,

Complainant,

v.

WILLIAMS ENTERPRISES OF GEORGIA, INC.,

Respondent.

OSHRC Docket No. 79-4618

DECISION

Before:  BUCKLEY, Chairman; RADER and WALL, Commissioners.

BY THE COMMISSION:

This case is before the Occupational Safety and
Health Review Commission under 29 U.S.C. � 661(j), section 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 651-678 ("the Act").  The
Commission is an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration ("OSHA").  It was established
to resolve disputes arising out of enforcement actions brought by the Secretary of Labor
under the Act and has no regulatory functions.  See section 10(c) of the Act,
29 U.S.C. � 659(c).

At issue on review are three items of a citation
alleging serious violations of the Act.  Administrative Law Judge Joe D. Sparks
affirmed item 2 as a serious violation, affirmed item 4 as a nonserious violation, and
vacated item 5.  For the reasons stated in this decision, we reverse the judge's
decision.  We affirm item 5 as a serious violation of the Act, but vacate items 2 and
4.

The primary issue in this case relates to item 2
of the citation.  That issue, which is once again before us, is whether fall
protection for employees engaged in steel erection work is governed solely by the steel
erection standards located at Subpart R of Part 1926, Code of Federal Regulations, or
whether standards located in other subparts of Part 1926 may properly be applied to
require additional fall protection beyond that required under Subpart R[[1]]  For the
reasons set forth below, we conclude that Subpart R is exclusive and that fall protection
standards located in other subparts of Part 1926 are not applicable to steel erection.
  We therefore reaffirm Commission precedent holding that 29 C.F.R. �
1926.105(a)[[2]] may not be applied in the steel erection industry to require fall
protection methods different than those specified in Subpart R.  E.g., Adams Steel
Erection, Inc ., 84 OSAHRC, 11 BNA OSHC 2073, 1984 CCH OSHD � 26,976 (No. 77-4238,
1984), rev'd , 766 F.2d 804 (3d Cir. 1985).

I

A.

The citation in question was issued as a result of a four-day inspection in July 1979 of a
multi-employer construction worksite in Atlanta, Georgia.  Williams Enterprises of
Georgia, Inc., was the steel erection subcontractor on the project, which was the
construction of a "tiered" or "multi-floored" high-rise office
building.  Item 2 of the citation alleges that Williams violated 29 C.F.R. ��
1926.105(a) and 1926.28(a)[[3]] by failing to provide its employees protection against
exterior falls from "beams" (horizontal structural steel members) and
"columns" (vertical members) at the perimeter of the building.

The alleged violation involves employees in the
three job classifications of connectors, bolt-up men and plumb-up men.  These are the
employees who carry out the first three stages of the steel erection process.  The
connectors are part of the erection crew, which is responsible for the "setting of
the iron," that is, the placement and the initial attachment of the structural steel
members to form the framework of the building.  Working from columns or from diagonal
members, the connectors guide the hoisted beams into place and temporarily connect them to
the vertical and diagonal members.  The bolt-up crew then goes up onto the
newly-created framework to make more secure connections of the steel members by inserting
and tightening bolts.  The plumb-up crew follows next, working from the structural
steel to properly align or "plumb" it in relation to the more stable and
completed lower elevations of the building.

During the inspection, the OSHA compliance
officer observed employees in all three of these job classifications working at the
perimeter of the building.  At various times throughout the four-day inspection
period, members of the bolt-up and plumb-up crews worked on perimeter beams at the fifth,
sixth and seventh levels of the building, while connectors worked between these three
levels on vertical and diagonal steel.  It is undisputed that any of these employees
could have fallen from the perimeter of the building to the ground.

There is also no disagreement between the
parties over what fall protection measures Williams took to safeguard the three work crews
at issue and what measures it did not take.  The Secretary concedes that Williams
provided temporary floors within two stories of the structural steel on which its
employees were working, i.e., initially a floor at the fourth level of the building and,
later in the inspection, a floor at the sixth level.  Neither does he dispute the
testimony that Williams' employees strictly complied with its work rule requiring them to
work no more than two stories or 30 feet above the highest "completed deck"
(fully-planked temporary floor).  In addition, the Secretary acknowledges that
Williams provided safety belts and lanyards for its bolt-up and plumb-up crews and
required these employees to tie off their lanyards whenever they worked in stationary
positions on the perimeter beams.[[4]]

On the other hand, Williams concedes that it did
not require the members of these two work crews to use personal protective equipment while
they were traveling along the beams, and that it did not require the connectors to use
personal protective equipment at any time.  It is also undisputed that Williams did
not install "perimeter safety nets," i.e., safety nets attached to and extending
out from the perimeters of the temporary floors.

Based on the compliance officer's observations of the work at the perimeter of the
building, the Secretary cited Williams for an alleged serious violation of sections
1926.105(a) and 1926.28(a) in that members of the erection, bolt-up and plumb-up crews
were not protected against falls "to the outside of the perimeter of the building . .
. by the use of lifelines, lanyards and safety belts or other means."  At the
hearing, the Secretary (through the testimony of his witnesses) described with greater
particularity the additional precautionary measures that Williams allegedly should have
implemented.  First, the Secretary claims that members of the bolt-up and plumb-up
crews could and should have used safety belts and lanyards during the entire time they
worked on perimeter beams, rather than just using this equipment while working in
stationary positions.[[5]]  Second, he asserts that the connectors should have used
another type of personal protective equipment known as a "connector's toggle" to
secure themselves to the columns they worked from "when they [were] not actually
receiving and connecting steel."  Finally, the Secretary contends that Williams
should have provided perimeter safety nets, because in his view no other form of fall
protection could have eliminated the exterior fall hazard to which the connectors were
exposed.

Williams defends against the charge in item 2 on
the grounds that it had complied fully with the applicable fall protection standards in
Subpart R and that the standards cited by the Secretary were not applicable because its
employees were engaged in steel erection work.  Thus, it argues that the duties of
steel erectors with respect to fall protection for employees working on structural steel
are governed exclusively by the following provisions of 29 C.F.R. � 1926.750(b).  It
asserts that the requirement that was "specifically applicable" to its worksite,
see note 6 infra , was section 1926.750(b)(2)(i), which provides:

(b) Temporary flooring--skeleton steel
construction in tiered buildings .

(2)(i) Where skeleton steel erection is being
done, a tightly planked and substantial floor shall be maintained within two stories or 30
feet, whichever is less, below and directly under that portion of each tier of beams on
which any work is being performed, except when gathering and stacking temporary floor
planks on a lower floor, in preparation for transferring such planks for use on an upper
floor.  Where such a floor is not practicable, paragraph (b)(1)(ii) of this section
applies.

Williams also cites us to the referenced
paragraph, � 1926.750(b)(1)(ii), which provides:

(ii) On buildings or structures not adaptable to
temporary floors, and where scaffolds are not used, safety nets shall be installed and
maintained whenever the potential fall distance exceeds two stories or 25 feet.  The
nets shall be hung with sufficient clearance to prevent contacts with the surface of
structures below.

Williams claims that it complied with its duty
under section 1926.750(b)(2)(i) by providing temporary floors and instructing its
employees to work no more than two stories or 30 feet above the highest floor.  It
adds that, under the terms of section 1926.750(b)(1)(ii), it therefore was not required to
install safety nets in addition to temporary floors.  Finally, it argues that it was
not required to comply with sections 1926.28(a) and 1926.105(a) because those standards
are preempted, under the Secretary's regulations, by the more "specifically
applicable" standards of Subpart R.[[6]]

The Secretary concedes that Williams fully
complied with its duty under section 1926.750(b)(2)(i).  He also concedes that
Williams' practices with regard to the use of personal protective equipment were
consistent with the custom and practice of the steel erection industry.  For this
reason, the Secretary has abandoned his charge under section 1926.28(a).
 Nevertheless, the Secretary has not abandoned his claim that Williams should have
required its employees to make greater use of personal protective equipment.  He now
"maintains that safety belts were and are required under 1926.105(a)" and that
Williams violated this standard both by failing to install perimeter safety nets and by
failing to require greater use of personal protective equipment.  In the Secretary's
view, section 1926.105(a) can be applied to steel erection work because it is not
preempted under his regulations.[[7]]

Judge Sparks affirmed both of the allegations of item 2, i.e., the alleged violations of
sections 1926.28(a) and 1926.105(a). Accordingly, both of the allegations are before us on
review.  We dispose of the section 1926.28(a) charge summarily.  It is well
established, under precedent created by the United States Court of Appeals for the Fifth
Circuit, that in order for the Secretary to sustain a section 1926.28(a) charge arising in
that Circuit, he must prove that an employer's conduct with respect to the use of personal
protective equipment did not conform to the custom and practice of its industry.  E.g.,
S & H Riggers & Erectors, Inc. v. OSHRC , 659 F.2d 1273 (5th Cir. 1981);
B & B Insulation, Inc. v. OSHRC , 583 F.2d 1364 (5th Cir. 1978).  As argued
by Williams, this precedent is also considered binding in cases arising in the Eleventh
Circuit.  See Bonner v. City of Prichard , 661 F.2d 1206 (11th Cir. 1981)
(holding that decisions of the Fifth Circuit of Appeals issued prior to October 1, 1981,
are binding as precedent in the Eleventh Circuit).[[8]]  The Secretary implicitly
acknowledges that the Fifth Circuit precedent discussed above is binding in this case and
that he has failed to meet his burden of proof under that precedent.  In particular,
we note that the Secretary has not taken exception to the judge's finding that Williams'
practices with regard to the use of personal protective equipment were consistent with the
custom and practice of the steel erection industry.  On the contrary, the Secretary
in effect abandons the section 1926.28(a) charge in his arguments before us.  Under
these circumstances, we vacate the allegation that Williams violated 29 C.F.R. �
1926.28(a).

As noted at the beginning of this decision, the Commission has previously held that the
steel erection standards in Subpart R preempt the application of section 1926.105(a) to
falling hazards during structural steel assembly.  E.g., Adams Steel Erection, Inc .
However, several courts have reached conclusions contrary to the Commission's on this
point and have held that general fall protection standards can be applied to steel
erection in addition to the standards in Subpart R.  The first such case was Bristol
Steel & Iron Works v. OSHRC , 601 F.2d 717 (4th Cir. 1979).  There, the
court reasoned that Subpart R standards could not be exclusive because those standards,
"while providing safety protection to employees engaged in steel erection, cannot
achieve the goal of adequately protecting those employees in every conceivable
situation."  Id . at 721.  Similar reasoning led other courts to
conclude that "the remedial purposes of the Act" justify the application of
standards governing fall protection during general construction work to steel erection
work presenting the risk of falls as to which, in their view, the steel erection standard
did not require a level of protection comparable to that mandated by the general
construction standards.  Brock v. L.R. Willson & Sons , Inc ., 773
F.2d 1377 (D.C. Cir. 1985;[[9]]  Donovan v. Adams Steel Erection , 766 F.2d 804
(3d Cir. 1985); Donovan v. Daniel Marr & Son Co ., 763 F.2d 477 (1st Cir.
1985).  Those courts reversed the Commission in Adams and related cases on the
grounds that 1) � 1926.750(b) does not provide protection against exterior falls and to
that extent does not preempt � 1926.105(a); 2) the Commission's decisions contained
inadequate evidence that the Secretary made a reasoned and deliberate decision to preempt
the general construction standards on fall protection; and 3) the Commission reversed its
precedent, Williams Enterprises, Inc. , 83 OSAHRC 26/42, 11 BNA OSHC 1410, 1983-84
CCH OSHD � 26, 542 (No. 79-843, 1983), aff'd in part , rev'd in part , 744
F.2d 170 (D.C. Cir. 1984), without announcing a principled and rational reason for doing
so.  We have reexamined the Commission's holding in Adams in light of these court
decisions.  While we recognize that the Subpart R standards might not protect steel
erection workers "in every conceivable situation," we do not believe that we
have the authority to resolve the issue on that basis.  Rather, as set forth in F
below, we conclude that the specific standards in Subpart R supercede any provisions of a
more general standard.  We have engaged in a more detailed examination of the
rulemaking in Subpart R than appears in our Adams decision.  That examination shows
that Subpart R represents a clear effort to establish exclusive requirements for fall
protection during steel erection work.  We conclude that the Secretary so intended
because Subpart R's provisions are consistently narrower than those in the general fall
protection standards.  If the general fall protection standards were superimposed on
the specific requirements of Subpart R, the rulemaking decision to require less protection
in steel erection than in general construction work would be nullified. We reaffirm the
Commission's decision in Adams and set forth below in greater detail the reasons for
overruling Williams .

B.

Under the Act, the authority to promulgate occupational safety and health standards is
granted to the Secretary of Labor.  It is axiomatic that such standards must provide
fair notice to affected parties of their requirements.  Moreover, where, as here,
there is disagreement as to the scope and application of a specific OSHA standard, the
Commission must carefully examine the public record to determine whether it evidences an
intent to replace or to merely supplement general standards.  That intent cannot be
determined simply by reciting the Act's remedial purpose.  See Marshall
v. Anaconda Co ., 596 F.2d 370, 376-77 & n. 6 (9th Cir. 1979).  "The
remedial purpose of the Act does not give the Commission license to ignore the standard's
plain meaning."  Lisbon Contractors, Inc ., 84 OSAHRC , 11 BNA OSHC
1971, 1973, 1984 CCH OSHD � 26,924, p. 34,500 (No. 80-97, 1984).  See Bunge
Corp. , 86 OSAHRC , 12 BNA OSHC 1785, 1791, 1986 CCH OSHD �   27,565, p. 35,806
(Nos. 77-1622, 78-838 & 78-2213, 1986) ("Adoption of a strained interpretation .
. . [of a standard] would not serve the purposes of the Act because the standard would not
be effective in guiding the conduct of employers.") [[10]]  Nor is it
appropriate to rely on section 6(a) of the Act as did the Third Circuit in Adams Steel
for the proposition that the Secretary is under a duty to promulgate "the standard
which assures the greatest protection of the safety and health of the affected
employees."  766 F.2d at 810.  That merely prescribes a rule for the
Secretary in selecting among national consensus and established federal standards "in
the event of conflict among any such standards."  That rule is inapposite here.
  Both Subpart R and � 1926.105(a) were adopted as part of one package of
established federal standards - the Construction Safety Act standards.  Therefore, we
are not asked to determine whether the Secretary properly chose to adopt Subpart R instead
of some other standard.  Moreover, it cannot be assumed that the Secretary's intent
in promulgating a particular standard is to create a "risk-free" working
environment, as opposed to providing some lesser degree of protection.  See , e.g.,
Donovan v. General Motors Corp ., 764 F.2d 32, 35-36 (1st Cir. 1985); Lisbon
Contractors, Inc. , 11 BNA OSHC at 1973, 1984 CCH OSHD at p. 34,500 ("The
Secretary's standards . . . strike a balance between the protection of employees and the
imposition of burdens on employers").

In determining whether Subpart R sets forth
exclusive requirements for fall protection in steel erection, we must look beyond the view
as to whether Subpart R is sufficiently protective and focus first on whether the
Secretary intended it to be exclusive, and also on whether any employer subject to
sanctions under the standards would have had fair notice that he was subject to both
Subpart R and such general construction safety standards as � 1926.105(a) and �
1926.28(a).  The legislative history of Subpart R offers no explicit statement of the
Secretary's intent at the time of promulgation of the subpart with respect to its intended
interrelationship with the general construction industry standards.  We must
therefore ascertain the applicability of the general construction standards by reference
to general rules of statutory construction (reflected in OSHA regulation 1910.5(c)) and by
carefully examining Subpart R's provisions concerning fall protection.  In
considering this question we are mindful of the principles set down by the U.S. Court of
Appeals for the Fifth Circuit for construing OSHA standards:

The respondents contend that the regulations
should be liberally construed to give broad coverage because of the intent of Congress to
provide safe and healthful working conditions for employees.  An employer, however,
is entitled to fair notice in dealing with his government.  Like other statutes and
regulations which allow monetary penalties against those who violate them, an occupational
safety and health standard must give an employer fair warning of the conduct it prohibits
or requires, and it must provide a reasonably clear standard of culpability to
circumscribe the discretion of the enforcing authority and its agents .... If a violation
of a regulation subjects private parties to criminal or civil sanctions, a regulation
cannot be construed to mean what an agency intended but did not adequately express.

Diamond Roofing Co. v. OSHRC , 528 F.2d
645, 649 (5th Cir. 1976).

Only in recent years, and only in his
communications with his compliance officers has the Secretary asserted an intent to
supplement Subpart R with � 1926.105(a).  See OSHA Instruction STD 3-3.1 (July 18,
1983) reprinted in Employment Safety and Health Guide (CCH) � 12,855 at
17,166.  But this interpretation has not been published in the Federal Register in a
manner calculated to inform affected employers and bind the Secretary.  At the time
this citation was issued, neither the Commission nor any court had held � 1926.105(a)
applicable to employers in steel erection.  Thus, even if we assumed arguendo
that the Secretary originally intended that Subpart R would not be exclusive, we do not
believe that an employer in steel erection would have had any reason to believe, from the
public record, that he was also subject to the general construction standards.
 Therefore, under the teaching in Diamond Roofing , it would be unfair to
"construe" the general construction standards to apply to steel erection.

Perhaps more importantly, our thorough analysis
of the history of Subpart R compels us to conclude that the Secretary originally intended
that Subpart R would exclusively govern protection from falls in the steel erection
industry.

We recognize that the Commission once held that
the steel erection subpart cannot be considered exclusive where "general standards
provide meaningful protection to employees beyond the protection accorded by the steel
erection standards."  Williams Enterprises, Inc ., 11 BNA OSHC at
1416, 1983-84 CCH OSHD at p. 33,877.  That decision relied on the 1983 Willson
decision of the D.C. Circuit and contains no independent reasoned analysis for its
conclusion.  For the reasons set forth below, we believe that the Commission erred in
the 1983 Williams case; our review of this issue leads us to the inescapable
conclusion that Subpart R evidences an intent to establish an exclusive and comprehensive
scheme of protection from falls in the steel erection industry.

C.

Subpart R was promulgated as a part of a larger package of standards that comprise Part
1926.  Part 1926, including Subpart R, was initially adopted by the Secretary as a
set of standards under the Construction Safety Act, 29 U.S.C. � 333 (1969).  Shortly
after their initial promulgation under the Construction Safety Act, the standards were
adopted as "established federal standards" under section 6(a), 29 U.S.C. �
655(a), of the Occupational Safety and Health Act.[[11]]  See generally, National
Industrial Constructors, Inc. v. OSHRC , 583 F.2d 1048, 1050-51 (8th Cir. 1978).

We begin our analysis with a review of Subpart R
in the context of Part 1926 as a whole.  This leads us to two conclusions.  
First, Subpart R contains a set of specifically applicable fall protection standards that
appears to be comprehensive in its scope.  Second, Subpart R contains some provisions
that make sense only if the drafters of Subpart R intended it to be exclusive (or at least
worked under the assumption that it would be exclusive).

In concluding that Subpart R establishes a
comprehensive regulatory scheme with respect to falling hazards during steel erection, we
have looked at both the types of falls that are regulated and the types of fall
protection measures that are required.  From either viewpoint, Subpart R appears to
be comprehensive.  Thus, Subpart R deals with all of the major categories of falls
that occur during steel erection work--from structure steel (� .750(b)(2)(i)), from the
perimeter of the building (� .750(b)(1)(iii)), and through floor openings (��
.750(b)(1)(i) & .752(f), (h), & (j)).  In addition, it refers to all of the
principal fall protection devices, as well as to personal protective equipment, defining
circumstances under which each is to be used--safety belts (�� .750(b)(2)(iii) and
.752(k)), safety nets (� .750(b)(1)(ii)), temporary floors (�� .750(b)(10)(i),
(b)(2)(i) & (b)(2)(ii)), scaffolds (�� .750(b)(1)(ii) & .752(k)), and safety
railings (� .750(b)(1)(iii)).

We have also compared the fall protection
standards in Subpart R with the protection standards found elsewhere in Part 1926,
standards that are applicable to general construction work, including the construction of
high-rise buildings once steel erection phase has been completed.  That review
reveals that there are at least three instances where specific steel erection standards
were drafted that were essentially no different than general construction standards
covering the same situation.  The existence of these provisions strongly suggests
that the drafters of Subpart R did not intend or anticipate that the general fall
protection standards in other subparts of Part 1926 would be used to supplement the
Subpart R standards.

In particular, we note the existence of two
steel erection standards that essentially duplicate general construction fall protection
standards.  Thus, Subpart R standard 1926.752(k) states, as follows:

Employees shall be provided with safety belts in
accordance with � 1926.104 when they are working on float scaffolds.

The general construction standard governing work
on float scaffolds contains this same requirement in section 1926.451(w)(6):

Each employee [working on a float scaffold]
shall be protected by an approved safety lifebelt and lifeline, in accordance with �
1926.104.

Similarly, the Subpart R standard at section
1926.750 (b)(1)(ii) includes the following specification requirement applicable to the
safety nets that are required under that section:

The nets shall be hung with sufficient clearance
to prevent contacts with the surface of structures below.

The standard governing safety nets during
construction work generally also contains this same requirement in section 1926.105(c)(1):

Nets shall be hung with sufficient clearance to
prevent user's contact with the surfaces or structures below.

Clearly, the drafters of these two Subpart R
provisions must have believed it was necessary to duplicate these provisions in Subpart R
because the general construction standards would not be applicable to steel erection work.
 If the general standards were to be applied, there would have been no reason to
repeat their requirements in Subpart R.

Indeed, we question whether the drafters of
Subpart R would have gone to the effort of drafting that subpart's two most important fall
protection standards, sections 1926.750(b)(2)(i) and (b)(1)(ii), which are quoted in part
IA supra , if they had believed that section 1926.105(a), note 2 supra , would
be applied to steel erection work.  In this regard, we note that the original version
of section 1926.750(b)(2) stated, as follows:

Where erection is being done by means of a crane
operating on the ground, a tight and substantial floor shall be maintained within two
stories or 25 feet, whichever is less, below and directly under that portion of each tier
of beams on which bolting, riveting, welding, or painting is being done.

Therefore, under the original version of Subpart
R, sections 1926.750(b)(2) and (b)(1)(ii), when read together, accomplished two basic
objectives:  (1) they established 25 feet as the maximum distance an ironworker could
fall and (2) they established a preference for temporary floors over safety nets.[[12]]
  Yet, section 1926.105(a) also accomplishes both of these objectives.[[13]]
Accordingly, when the standards are viewed in terms of their essential requirements, it
becomes clear that the original versions of sections 1926.750(b)(2) and (b)(1)(iii) were
no more than a duplication of the general construction standard at section 1926.105(a).

In sum, our analysis of Subpart R's fall
protection standards in the context of Part 1926 as a whole leads us to conclude that the
drafters of Subpart R intended these provisions to be exclusive.  The fact that the
drafters attempted to develop a comprehensive set of fall protection requirements supports
this conclusion.  In addition, the fact that the drafters developed separate Subpart
R standards that merely duplicate general construction standards supports this conclusion.
  Certainly, the drafters would not have intentionally created redundant and
unnecessary standards if they had believed that the general construction standards would
be applied to falling hazards during steel erection work.

D.

We also look at Subpart R in the context of evidence, from this record and from other
cases, on the industry custom and practice with respect to fall protection measures during
steel erection.  This analysis leads us to three conclusions.  First, there is a
strong correlation between the fall protection requirements of Subpart R and the custom
and practice within the steel erection industry. Second, there is an equally strong
divergence between the fall protection requirements for general construction (the
standards found outside of Subpart R) and the industry custom and practice in steel
erection.  Third, this industry custom and practice reflects a consensus within the
industry as to the feasibility of various fall protection measures as well as a common
industry understanding of its responsibilities under Part 1926.

These points are well illustrated by the record
in the case before us.  The record compels a finding, which the judge in fact
entered, that Williams' safety practices met or exceeded the level of protection set by
industry custom and practice.  Williams established this claim through the unrebutted
testimony of five witnesses with an average of twenty years of experience in the steel
erection industry.[[14]]  We specifically note the testimony of the union business
agent that he had never received any complaints about any of Williams' jobs and that he
considered Williams to be "one of the better contractors in compliance" because
"they make an extra effort to try."  Similarly, the compliance officer
admitted that he had made a statement at the time of the inspection "that this was
about the safest erection job [he] had seen."

As we noted previously, the Secretary has conceded that Williams' practices with respect
to the use of personal protective equipment were consistent with industry custom and
practice.  The record also conclusively establishes that Williams' nonuse of
perimeter safety nets was fully consistent with industry custom and practice.
  Indeed, based on this record, it appears that the use of perimeter safety nets on
multi-storied buildings, like the high-rise office building that Williams was erecting,
was virtually unknown in the industry, at least in those areas where Williams performed
its work.  General foreman Aenchbacher testified that, during his 32 years of steel
erection work, he had never seen connectors work over perimeter safety nets.
 Erection crew foreman Johnson testified that, in his 14-1/2 years of experience, he
had never worked on a building where safety nets were installed.  Plumb-up crew
foreman Robinson, who had worked in the industry for 35 years, testified that he had never
known of a high-rise construction project where perimeter safety nets were used during
steel erection.  Similarly, union business agent Mayotte testified that, in his 12
years of experience, he had never known perimeter netting to be used on a building during
steel erection.

The Secretary made no attempt to rebut this
showing.  His proof on the feasibility of perimeter safety nets came from the
testimony of his expert witness, safety consultant Casey.  Yet, even this witness
testified that he had never seen perimeter safety nets installed on a high-rise building.
 Through his consulting work, he was aware that perimeter safety nets were
occasionally used on these buildings, but he only knew of three specific instances.
 Understandably, therefore, Casey fully conceded that the use of perimeter safety
nets on high-rise buildings "is not common in the industry at all."

The conclusions we draw from this record are
corroborated by the history of litigation between the Secretary and the steel erection
industry, as revealed by an extensive body of case law extending over a period of several
years.  That litigation history demonstrates, among other things, the sharp conflict
between the Secretary's enforcement position and the customs and practices of the steel
erection industry.[[15]]  Specifically, we note that the Secretary's attempts to
enforce general fall protection standards have brought him into direct and sustained
conflict with the steel erection industry.  The litigation history also reveals a
noticeable consistency in the arguments presented by the steel erectors--a common belief
that Subpart R was intended to be a comprehensive and exclusive set of fall protection
requirements for the industry and an equally widespread belief that the fall protection
measures sought by the Secretary through his attempted enforcement of the general fall
protection standards are infeasible if not themselves hazardous when applied in the
context of steel erection work.

In his efforts to require the installation of
perimeter safety nets, the use of personal protective equipment by connectors, and the use
of personal protective equipment by other ironworkers when they are moving along
structural steel, the Secretary is seeking dramatic changes in the relatively uniform
practices of an entire industry.  Simply stated, the industry practice is to protect
its employees by complying with the requirements of Subpart R, including most notably the
provisions of section 1926.750, part IA supra .  The Secretary seeks to
persuade us that his enforcement efforts are consistent with his intent in drafting
Subpart R. However, we find this difficult to believe.  It does not seem reasonable
to us that a regulator whose intent was to change the practices of an entire industry
would rely on general standards to achieve these changes while drafting a set of specific
standards that essentially codified the customs and practices of that industry.

It is far more likely, in light of the strong
correlation between the fall protection requirements of Subpart R and the custom and
practice within the steel erection industry, that Subpart R was drafted to reflect the
prevailing practices within the industry.  Thus, the drafters of Subpart R presumably
agreed with or at least deferred to the industry's consensus view as to what fall
protection measures are feasible during steel erection work and what measures are not.
 As indicated above, that consensus view was (and still is) that the fall protection
measures required under Subpart R, and only those measures, are feasible and appropriate
during the steel erection phase of the construction process. Accordingly, our analysis of
Subpart R in the context of industry custom and practice corroborates our belief that the
drafters of Subpart R intended its fall protection requirements to be exclusive.

E.

Finally, we examine Subpart R in the context of the evidence on the feasibility of various
fall protection measures during steel erection work and in the context of the differences
between the steel erection (Subpart R) fall protection standards and the general
construction (non-Subpart R) fall protection standards.  This analysis leads us to
conclude that, in drafting Subpart R, the Secretary made several deliberate decisions to
treat steel erection work differently than general construction work, including decisions
to establish less stringent fall protection requirements where practical considerations
warranted differential treatment.

We note initially that there are significant
differences between steel erection work and other kinds of construction work, differences
that have a substantial bearing on the feasibility and likely utility of various forms of
fall protection.  See , e.g ., Industrial Steel Erectors, Inc .,
74 OSAHRC 2/E5, 1 BNA OSHC 1497, 1973-74 CCH OSHD � 17,186 (No. 703, 1974) (early
Commission decision recognizing the existence of these differences).  The contrast is
especially pronounced during the early stages of steel erection that are at issue in this
case.  As explained in part IA supra , the Secretary's charge here involves
employees in the job classifications of connectors, bolt-up men and plumb-up men.
  These are the employees who carry out the first three stages of the steel erection
process.  They share common working conditions that are different from those normally
faced by other construction workers and even by other categories of ironworkers.

Unlike the typical worker in general
construction, the employees at issue in this case do not perform their work while
standing, sitting or kneeling on either temporary or permanent flooring.  Instead
their working surface is the structural steel framework (beams and columns) at the highest
levels of the building.  Accordingly, these employees do not receive the fall
protection that most construction workers receive from working on solid floors or
platforms with standard railings installed around the open sides.  See 29 C.F.R. �
1926.500(d)(1).[[16]]

Similarly, because of the differences in working
conditions, the ironworkers at issue in this case do not receive the degree of fall
protection many general construction workers receive from safety belts, lanyards and
lifelines.  This distinction is most dramatically illustrated by examining the
situation with respect to the connectors.  These employees work at levels where the
framework of the building has not even been completely erected.  They work on and
from vertical or diagonal steel members and in the presence of steel beams being moved
into position by crane.  Given these circumstances, all of the witnesses, including
those appearing for the Secretary as well as those appearing for Williams, agreed that
connectors should not be provided with and required to wear safety belts and lanyards.
 These witnesses shared the opinion that a connector would be exposed to a greater
hazard if he tied off because he then would not be able to move out of danger if
structural steel suspended by a crane suddenly swung toward him.[[17]]

For most workers engaged in general construction
work on a high-rise building, safety belts and/or perimeter safety railings are basic fall
protection measures.  Ladders and scaffolds are also common means of eliminating fall
hazards in some situations.  Most, if not all, of the falling hazards that the
general construction worker is exposed to can be eliminated through these means.  In
sharp contrast, all of these fall protection measures play a much less significant role in
the protection of ironworkers, particularly during the early stages of steel erection at
issue in this case.  Conversely, temporary floors and interior safety nets play a
much greater role in the protection of ironworkers during the early stages of steel
erection than they do in protecting other construction workers.[[18]]

Subpart R provides strong evidence that the
Secretary recognized these and other differences between steel erection work and other
types of construction work, as well as their effect on the feasibility and likely utility
of various fall protection methods.  Moreover, Subpart R reveals that the Secretary,
in recognition of these differences, made deliberate decisions to impose less stringent
fall protection requirements on employers engaged in steel erection work than on other
contractors.  The clearest example of this is the Secretary's decision to rely on
temporary floors and safety nets as the primary methods of fall protection for ironworkers
working on structural steel.  29 C.F.R. �� 1926.750 (b)(1)(ii) & (b)(2)(i).
 While these fall protection devices are more practical in steel erection work, they
definitely provide less protection to the ironworker than the typical construction worker
receives from such fall protection devices as safety belts and scaffolds.

Another clear example occurs in the context of
perimeter fall protection at levels where temporary floors have already been installed.
 Under the general provisions of Part 1926, most construction workers are protected
against perimeter falls by a substantial physical barrier that includes a top rail, an
intermediate rail and a toeboard; this barrier must be strong enough to withstand a
200-pound load applied in any direction.  29 C.F.R. �� 1926.500(d)(1) & (f).
 In contrast, ironworkers are protected only by a device that obviously provides less
protection than a standard railing, i.e., by "[a] safety railing of 1/2-inch wire
rope or equal . . . approximately 42 inches high."  29 C.F.R. �
1926.750(b)(1)(iii).

A third example occurs in the context of
protection against falls through floor openings.  Subpart M of Part 1926 contains
several provisions requiring guardrails around or covers over various floor, roof or wall
openings.  General construction workers receive this protection regardless of whether
the openings are being used, e.g., for employee access, the performance of work on the
movement of materials.  In contrast, ironworkers are only protected against falls
through those floors openings that are "unused."[[19]]

Still another example occurs in the context of
limitations on the distance an employee can fall.  Under section 1926.105(a), a
safety net is required when work is performed without other kinds of fall protection
"more than 25 feet above the ground or water surface, or other surfaces."
 Thus, general construction workers are protected against a fall of more than 25
feet.  Yet, under section 1926.750(b)(2)(i), an ironworker is allowed to work as high
as 30 feet above the temporary floor that is installed for the purpose of protecting him
against falls.  The legislative history of this provision, which was created by a
1974 amendment of Subpart R's original requirements, clearly shows that the 30-foot fall
limit was the result of a deliberate decision by the Secretary to provide less stringent
fall protection for ironworkers than for other construction workers, who are protected by
the 25-foot fall limit of section 1926.105(a).  Moreover, the basis for this
differential treatment was the Secretary's recognition that a 25-foot fall limit is
impractical in steel erection work.  39 Fed. Reg. 24360-361 (July 2, 1974).

This analysis of the differences between Subpart
R and non-Subpart R fall protection standards in the light of practical considerations
affecting the feasibility of various fall protection measures adds further corroboration
for our determination that the drafters of Subpart R intended its fall protection
requirements to be exclusive.  Indeed, when we combine this analysis with our
previous conclusions, we are persuaded beyond a doubt that this was the Secretary's
original intent at the time of promulgation.

Because of the differences between steel
erection and general construction work, the drafters obviously concluded that it was not
feasible to apply the general construction fall protection standards to steel erection
work and that it was necessary to draft a separate set of fall protection standards that
would be specifically applicable to the steel erection process.  As noted, this
separate set of standards reflected the practices that prevailed within the industry and
the industry's consensus view as to what fall protection measures are feasible during
steel erection.  In addition, the drafters apparently attempted to deal with all
aspects of the falling hazard during steel erection work.

Under these circumstances, for us to apply the
general construction standards to steel erection would be to negate what the drafters
attempted to do by establishing separate and different requirements for steel erection.
 Surely, this would be contrary to the apparent intent of the drafters.
 Conversely stated, the drafters must have intended that their Subpart R fall
protection standards would be applied as exclusive requirements so that the distinctions
they had deliberately created between fall protection during steel erection and during
general construction would be preserved.

F.

For all of the reasons set forth above, we conclude that the Secretary intended Subpart R
to establish fall protection requirements for steel erection that would be exclusive.
  In reaching a contrary conclusion, the courts have relied heavily on a regulation
governing the applicability of OSHA standards, 29 C.F.R. � 1910.5;[[20]]

� 1910.5 Applicability of standards .

(c)(1) If a particular standard is specifically applicable to a condition, practice,
means, method, operation, or process, it shall prevail over any different general standard
which might otherwise be applicable to the same condition, practice, means, method,
operation, or process . . . .

(2) On the other hand, any standard shall apply according to its terms to any employment
and place of employment in any industry, even though particular standards are also
prescribed for the industry, as in Subpart B or Subpart R of this part, to the extent that
none of such particular standards applies . . . .

Section 1910.5(c)(1) is a restatement of the
basic principle of statutory construction that the specific takes precedence over the
general.  E.g ., 2A Sutherland Statutory Construction , � 46.05, p. 92
& n. 12 (4th ed. 1984).  The Secretary must have had this principle in mind when
he drafted the construction standards for, as we have discussed above, there are overlaps
in the standards that can be resolved only by applying this principle.  Section
1910.5(c) simply codifies the principle.  The regulation recognizes that, where the
Secretary has decided that a specific means of protecting against a hazard is appropriate
in certain circumstances and has drafted a "particular" standard reflecting that
determination, it would defeat the intent of the rulemaker to apply a "general"
standard that requires a different means of protection.  To apply the more general
standard because it provides additional or greater protection would render the particular
standard redundant and defeat the rulemaking decision made by the Secretary when he
promulgated the particular standard.  Nothing in � 1910.5(c) suggests that the
employer's duty to comply with generally applicable safety standards depends upon whether
employees are adequately protected by more specifically applicable safety standards.
  Under the terms of � 1910.5(c)(1), general standards are preempted by more
specifically applicable standards even when the general standards provide greater
protection for employees.

An analogous situation has arisen in cases where
the Secretary has cited employers under section 5(a)(1) of the Act, 29 U.S.C. �
654(a)(1), the Act's "general duty clause," even though the hazard at issue is
addressed by a standard or a group of standards.  See , e.g., Daniel
International, Inc. , 82 OSAHRC 23/D3, 10 BNA OSHC 1556, 1982 CCH OSHD � 26,033 (No.
78-4279, 1982).  In these cases, the Commission has held that the Secretary cannot
use the general duty clause to achieve greater protection for employees than his standards
require.  For example, in Daniel International, Inc ., the Commission stated:

To permit the Secretary to require further
precautions under section 5(a)(1) because his standards purportedly do not provide
sufficient protection would circumvent the rulemaking process and is impermissible.

10 BNA OSHC at 1559, 1982 CCH OSHD at p. 32,683.
  In the same way, to permit the Secretary to require further precautions under
general standards because applicable particular standards appear to be inadequate would
also circumvent the rulemaking process.

We are not persuaded by the Secretary's argument
that the situation before us is governed by section 1910.5(c)(2) rather than section
1910.5(c)(1).  The Secretary reasons that general standards can be applied to the
"condition" at issue in this case, which he defines as the hazard of exterior
falls from structural steel at the perimeter of the building, because none of the
particular standards in Subpart R apply to this "condition".  We do not
agree with this reasoning.

First, we note that the Secretary colors the
preemption issue at the outset by defining the relevant "condition" as those
"hazards" that the particular standard does not require protection against.
 Thus, the Secretary asserts "that Subpart R does not provide for exterior fall
protection for steel erection employees working at levels at which the temporary floor has
not yet been installed."  He then defines the relevant "condition,"
for purposes of implementing section 1910.5(c), as the hazard of exterior falls from
structural steel at the perimeter of the building.  Additionally, many of the court
decisions that held that Subpart R did not preempt the general fall protection standards
agreed with the distinction between interior and exterior falls drawn by the Secretary.
  Brock v. L.R. Willson & Sons , 773 F.2d at 1382; Donovan v.
Adams Steel Erection , 766 F.2d at 808; Donovan v. Daniel Marr & Son Co. ,
763 F.2d at 483.  An earlier Commission decision also accepted this distinction.
  Williams Enterprises , 83 OSAHRC 26/A2, 11 BNA OSHC 1410, 1416, 1983 CCH OSHD
� 26,542, p. 33,877 (No. 79-843, 1983), aff'd on this point , 744 F.2d 170 (D.C.
Cir. 1984).  We have carefully considered the Secretary's reasoning and that of these
decisions, but we cannot agree with it.

The problem with the Secretary's argument is
that it predetermines the answer.  By defining the relevant "condition" as
those matters that a particular standard does not require protection against, the argument
assures that the standard does not "apply" to that condition.  We can think
of no legitimate reason for defining the relevant "condition" so narrowly.
  Such a definition of the condition to which a specific standard applies insures
that any decision by the drafters of the specific standard to impose only limited duties
on an employer will be nullified.

Indeed, any attempt to employ a definition of
the regulated condition as the linchpin of a preemption analysis will draw one's attention
away from the quint-essential question:  Did the drafter of the specific standard
intend that employers be required to provide a specific form of protection but no more?

This problem is particularly acute under the
Secretary's argument, which presumes that a standard does not apply to a condition unless
the standard provides for protection against the condition.  Thus, the Secretary and
the courts reason, none of the standards in Subpart R apply to the hazard of exterior
falls from structural steel at the perimeter of the building because none of the standards
in Subpart R require protection against that hazard.[[21]]  The Secretary's reasoning
is that employed by the Commission in Williams I .  See 11 BNA at 1416.
 However, this reasoning overlooks that a standard can apply to a condition and yet
require no protection against it.  This is inherent in the very nature of regulation,
which requires regulators to draw lines between what is required and what is not.  
For example, the current standard on lead states that the permissible exposure level is 50
ug/m3, averaged over an eight-hour period.  29 C.F.R. � 1910.1025(c)(1)
(1985).  In establishing this limit, the Secretary did not conclude that all
exposures below 50 ug/m3 were safe, but he determined that 50 ug/m3 was the lowest
airborne level the major lead-based industries could feasibly achieve and he balanced this
feasibility constraint against the need for employee protection.  See Amax Lead
Co. of Missouri , 86 OSAHRC ____, 12 BNA OSHC 1878, 1880, 1986 CCH OSHD �
27,629, pp. 35,919-20 (No. 80-1793, 1986).  The Secretary's approach in this case
implies that a general standard (e.g., section 1910.134, which deals with respiratory
protection) or the general duty clause could be applied to require protection against
hazardous lead levels below 50 ug/m3.  That approach, however, would overturn the
balance the Secretary drew in rulemaking and would effectively nullify the lead
standard.[[22]]

Unquestionably, a worker standing on a narrow
steel girder is subject to a falling hazard.  The Secretary was obviously aware of
that hazard in drafting Subpart R.  As in drafting any standard, the Secretary had to
draw lines.  One line he drew was in permitting ironworkers to work 30 feet rather
than 25 feet above temporary floors.  This requirement obviously does not entirely
eliminate the hazard that a worker could be injured in such a fall.  Yet under the
Secretary's reasoning, � 1926.105(a) could be applied, in a situation where employees
worked 30 feet above a temporary floor, to require a safety net 25 feet below the
employees.[[23]] However, to define the hazard as a fall of 30 feet, and thereby conclude
that the standard does not apply to lesser falls and that measures mandated by more
general standards can be required for such lesser falls, would be to entirely ignore the
line the Secretary drew in rulemaking.  Similarly, to require the use of perimeter
nets for exterior falls would also ignore a line the Secretary drew in rulemaking, not to
require safety nets when a building was "adaptable to temporary floors."  
Accordingly, we decline to follow the Secretary's approach because it fails to give effect
to policy decisions made during rulemaking proceedings and leaves employers in the dark as
to their obligations.

To impose general standards on top of the
comprehensive scheme, which was crafted to conform to the special conditions of steel
erection work, would result in disruption of that regulatory scheme and reversals of
decisions made during the rulemaking process. Section 1910.5(c) clearly states that such
superimposition is not the usual scheme of the OSHA standards.  Such superimposition
is done only when no specific standard applies to the condition, practice, means, method,
operation or process.  We therefore hold in accordance with 1910.5(c)(1), as well as
existing Commission precedent, e.g ., Adams Steel Erection, Inc ., that the
general fall protection standards found outside of Subpart R are preempted during the
steel erection phase of the construction process.

We are aware that in reaching this conclusion we
have rejected the interpretation advanced by the Secretary as to section 1910.5(c)(1) and
Subpart R.  However we do not believe the interpretation proffered by the Secretary
is entitled to any deference. Although the Secretary drafted Subpart R and enforces the
standards contained therein, we are not convinced that his current interpretation reflects
his views as of the time Subpart R was adopted.  Indeed, for the reasons advanced
above, it is implausible that when drafted the Secretary intended the various fall
protection standards outside Subpart R to apply to steel erection.

Accordingly, for the above reasons, we vacate
the Secretary's allegation that Williams violated section 1926.105(a).  Since we have
also previously vacated the section 1926.28(a) charge, we vacate item 2 of the citation in
its entirety.

II

Item 4 alleges that the sixth floor of the inspected building was not solidly planked as
required by 29 C.F.R. � 1926.750(b)(1)(i). That standard provides, in pertinent part:

� 1926.750 Flooring requirements.

(b) Temporary flooring--skeleton steel construction in tiered buildings .  
(1)(i) The derrick or erection floor shall be solidly planked or decked over its entire
surface except for access openings . . . .

It is undisputed that Williams left several
openings in the decking of the sixth floor, which was the erection floor at the time of
the inspection.  The parties disagree, however, over whether the openings were the
"access openings" permitted by the standard's exception.  We agree with the
Secretary that the "access openings" exception does not apply to the openings in
question.  We further conclude, however, that another standard does apply.
  Because the Secretary cited the wrong standard, we vacate this citation item.

The disputed openings were intentionally created
by Williams in the sixth-floor decking along the "column lines," which are
parallel rows of columns connected by beams.  The openings were directly over the
beams, which were in the center of the openings and between 12 and 18 inches below the
level of the decking.  In some areas, the beams had been built up to floor level by
placing I-beams on top of the structural beams.

There were ten to twelve openings in the sixth
floor, corresponding to the number of column lines.  The average opening was three
feet wide, but the beam in the center in effect divided it into two separate openings, one
on each side of the beam, and these were only 10 to 12 inches wide.  From the
photographic exhibits, it appears that the openings were approximately 80 feet long and
that they extended across the entire width of the sixth floor.  The compliance
officer testified, without contradiction, that the openings remained uncovered throughout
his inspection, which lasted four days.

Through the testimony of general foreman
Aenchbacher, Williams sought to prove that it had complied with the custom and practice in
the steel erection industry by leaving these "column line" openings in the
sixth-floor decking.  Aenchbacher's testimony does establish that the openings were
customary.  However, it further establishes that Williams violated industry custom,
and also

its own standard practice, by failing to keep the openings covered while they were not in
use.

The parties agree that the purpose of the
openings was to permit the welding and the "final bolting" of the structural
beams to the columns, as well as the subsequent inspection of the bolting and welding
work.  According to general foreman Aenchbacher, it was standard practice at every
job, whether for Williams or for other steel erectors, to leave the column lines open to
work on the connections between the columns and the beams.  The witness also
testified, however, that it was customary, following the welding of connections, to put
decking temporarily in place until the time arrived for the inspection of the welds.
  The decking would then be removed so the inspection could be conducted.
 Similarly, it was apparently customary to cover the openings temporarily during the
period between the bolting-up work and the inspection of that work.

General foreman Aenchbacher gave additional
testimony to the effect that Williams' normal practice and the custom within the industry
was to leave the openings uncovered for no more than a day, since the welding operation
usually took less than a day. However, the witness made no claim that the cited
sixth-floor openings were uncovered only for a day or less.  Nor did he dispute the
compliance officer's testimony that the cited conditions existed throughout the
inspection.  On the contrary, the general foreman implicitly acknowledged that the
customary practice had not been followed because "the welding was behind at that time
a little bit."[[24]]

The principal dispute in this case has been over the meaning of the cited standard's
exception for "access openings."  The judge held that Williams did not
qualify for this exception because "the extent and duration of the openings far
exceed[ed] the legitimate needs to be served by the exception."  Williams seeks
to have this conclusion reversed.  It argues that the openings were literally
"access openings" because their purpose was to give welders and inspectors
"access" to the connections between the columns and the beams.  In any
event, it reasons, because the term "access openings" is ambiguous, the standard
"must be construed to require what is commonly done in the industry."  The
Secretary supports the judge's conclusion that the openings were not "access
openings," but he urges a different rationale.  In the Secretary's view, the
exception is limited to openings used for employee transit between floors.

We agree with Williams that the term
"access openings" is ambiguous.  This is shown by the fact that the two
parties have offered different definitions of the term and yet both definitions are
compatible with its literal meaning.  We further agree with Williams that it is
appropriate to look to the custom and practice in the steel erection industry in defining
the term.  We conclude, however, that industry custom and practice supports the
Secretary's definition rather than Williams'.

The most persuasive extrinsic evidence of the standard's meaning of which we are aware is
found in the provisions of American National Standard Safety Requirements for Steel
Erection, ANSI A10.13-1972.  Based on the striking similarity between not only the
substance but even the language of these two steel erection codes (Subpart R and the ANSI
standard), we conclude that the standard cited in this case, section 1926.750(b)(1)(i),
was probably derived from section 6 of ANSI A10.13-1972.[[25]]  In any event, because
of the consensus procedures followed by ANSI in developing its standards, we view section
6 as a strong indication of the steel erection industry's custom and practice with regard
to floor openings.  Thus, regardless of whether we characterize it as a source
document or merely an indicia of industry custom and practice, we consider ANSI
A10.13-1972 to be highly relevant in resolving the issue before us.

Section 6 of the ANSI standard reveals that the
steel erection industry draws a clear distinction between relatively permanent openings
for the purpose of employee movement between floors and temporary openings for the purpose
of performing work, like those at issue in this case.  These two types of openings
are treated differently under the following related provisions of the ANSI standard:

6.1  The derrick or working floor of every building shall be solidly decked over its
entire surface except for access openings.

6.11  All unused openings in floors, temporary or permanent, shall be completely
planked over or barricaded until such time as they are used.

6.12  Floor planks that are temporarily removed to perform work shall be replaced as
soon as possible, or the open area shall be guarded.

We conclude that, under the ANSI standard, the
"access openings" referred to in section 6.1 are relatively permanent openings
for the purpose of employee movement between floors.  In contrast, temporary openings
for the purpose of performing work are governed by sections 6.11 and 6.12.[[26]]

We further conclude that the distinction
reflected in the ANSI standard was carried over by the Secretary into Subpart R.  As
indicated, section 6.1 of the ANSI standard finds its counterpart in the cited standard,
section 1926.750(b)(1)(i).  However, section 6.11 of the ANSI standard also has a
counterpart, in 29 C.F.R. � 1926.752(j), which is quoted at note 19 supra .

We therefore agree with the Secretary that the
openings at issue were not "access openings" within the meaning of the cited
standard.  We hold that that exception applies only to openings for the purpose of
employee transit between floors.  Temporary openings for the purpose of performing
work are governed instead by the requirements of section 1926.752(j), that is, they must
be "completely planked over or guarded" whenever they are "[u]nused."

Accordingly, we further conclude that the
Secretary cited the wrong standard in this case.  Under the terms of the Secretary's
regulatory guidelines at section 1910.5(c)(1), note 6 supra , the cited standard is
not applicable to the cited conditions because another standard, section 1926.752(j), is
more "specifically applicable."  Because the cited standard does not apply,
we reverse the judge and vacate item 4 of the citation.[[27]]

III

Item 5 of the citation alleges a serious violation of 29 C.F.R. � 1926. 750 (5)(1)(iii),
which provides:

� 1926.750 Flooring requirements .

(b) Temporary flooring--skeleton steel construction in tiered buildings . (1)

(iii) Floor periphery--safety railing.  A safety railing of 1/2-inch wire rope or
equal shall be installed, approximately 42 inches high, around the periphery of all
temporary-planked or temporary metal-decked floors of tier buildings and other
multifloored structures during structural steel assembly.

The occurrence of the violative conditions is
not at issue.  However, two issues are raised concerning this item.  The first
issue is whether Williams had actual or constructive knowledge of the violative
conditions.  The second is whether Williams was the employer responsible for the
violation.  The judge concluded that Williams lacked both knowledge and
responsibility and accordingly vacated the citation item.  However, the judge failed
to consider the conditions that existed on the second day of the OSHA inspection.
 With respect to those conditions, we conclude that the Secretary established the
alleged violation.  We therefore reverse the judge and affirm this citation item, but
only as it relates to the conditions on the second day of the inspection.

The location of the alleged violation was a
stairway landing at the building's first-floor level, which was approximately 20 feet
high. The stairway came up from ground level to the landing and then reversed direction,
going back on itself to continue up to the higher elevations.  On the west side of
the landing, the side opposite the stairs, was the perimeter of the building.  On the
other two sides of the landing (the north and south sides) were elevated sections of the
first floor.  The first-floor decking was approximately 30 inches above the landing.
 The width of the landing, which extended along the building's perimeter, was
approximately 6 feet.

At the hearing, the compliance officer testified
that he had observed the area described above on both the first and second days of his
inspection.  On both of those days, the perimeter of the building had been guarded by
a single wire-rope safety railing.  This single wire rope served as the sole
perimeter protection not only for the landing itself but also for the adjacent elevated
sections of the first floor on the north and south sides of the landing.  When the
inspection party observed it on the first day of the inspection, the wire-rope railing was
sagging to the extent that it touched the elevated floor on both sides of the landing.
  Thus, in relation to the landing, the railing was approximately 30 inches high.

When the compliance officer returned to the area
on the second day, the wire-rope railing was stretched taut.  Accordingly, in
relation to the landing, the railing was close to the height required under section
1926.750(b)(1)(iii) ("approximately 42 inches high").  On the other hand,
the railing was still only 6 to 10 inches above the adjacent first-floor decking.
 During the interval between these two observations, the railing had been tightened
by employees of Williams.  The compliance officer described this occurrence, as
follows:  after he saw the sagging railing on the first day, he pointed out the
condition to Williams' representatives "and they immediately put someone to drawing
it tight; and, the next day it was tight."

The record does not disclose why the cable was
sagging at the time it was observed on the first day of the inspection.  The evidence
suggests, however, that the condition could have been created by other contractors at this
multi-employer construction worksite.  At the time in question, the prime contractor
was doing form work on the first floor.  Eight or nine subcontractors were also
present at the worksite.  Whether these other employers were also working on the
first floor is not clear.  Nevertheless, it is clear that Williams was no longer
working on the first floor.  Williams' witnesses further testified that it was not
uncommon for other contractors to take down, damage or improperly replace railings after
Williams had left a floor.

The record does not establish how long the
sagging railing had existed prior to the inspection.  Nor does it establish whether
any of Williams' supervisory personnel had prior knowledge of the sagging railing.
 General foreman Aenchbacher and several of his crew foremen were called as witnesses
at the hearing.  Yet, no witness was asked whether he had been aware of the condition
of the railing prior to the inspection and no witness volunteered this information.

In his decision, Judge Sparks found that, when
the compliance officer first observed it, the first-floor "safety cable"
(wire-rope railing) had been sagging to the floor; that Williams had originally installed
the cable; and that employees of Williams had been exposed to a falling hazard as a result
of the cable's inadequacy.  However, the judge vacated the item because the record
did not convince him "that respondent was responsible for or had knowledge of the
sagging safety cable at the time . . . alleged in the citation."

We express no opinion as to whether the judge's
ruling was correct with respect to the conditions observed by the compliance officer on
the first day of the inspection. Nevertheless, we reverse the judge's decision because we
agree with the Secretary that, regardless of whether there was a violation on the first
day, Williams violated the standard on the second day of the inspection.[[28]]

Williams claims that it relinquished its
responsibility for maintenance of the first-floor railing after it completed its work on
that floor and moved on to higher elevations.  If so, then it re-assumed
responsibility after the compliance officer pointed out to it that the railing was sagging
during the first day of the inspection.  The compliance officer gave unrebutted
testimony that Williams' response to this information was immediately to assign someone to
tighten the wire-rope railing.  We conclude that, when Williams assumed this
responsibility, it also assumed the responsibility for seeing that the railing was
installed in accordance with the requirements of the cited standard.

We also find that employees of Williams were
exposed to the falling hazard present on the first-floor landing.  The compliance
officer explained that in going to the only water barrel on the site, workers were
observed within 12-18 inches of the perimeter while on the first-floor landing.  He
stated that he saw a Williams employee come within 18-inches of the perimeter while going
to get a drink of water.

We further conclude that Williams either knew, or could have known with the exercise of
reasonable diligence, that the railing was not re-erected in compliance with the
standard's requirements and that its employees were exposed to this condition.
 Indeed, it was physically impossible for a single wire-rope railing to provide
adequate perimeter protection for two different elevations, one 30 inches higher than the
other.  The same railing could not have been both "approximately 42 inches"
above the first-floor landing and "approximately 42 inches" above the adjacent
first-floor decking.  Therefore, Williams had actual or constructive knowledge of the
violative conditions on the second day of the inspection because it either knew, or could
have known with the exercise of reasonable diligence, that its employees had re-erected
the wire-rope railing improperly and were exposed to the falling hazard created thereby.

We also agree with the Secretary that the
violation was "serious" within the meaning of section 17(k) of the Act, 29
U.S.C. � 666(k).  An employee falling over the inadequately guarded perimeter would
have fallen 20 feet onto uneven ground or a poured-concrete pad.  Thus, death or
serious physical harm was substantially probable.  We disagree, however, with the
proposed penalty of $420.  Because of Williams' good faith in tightening the sagging
railing as soon as the condition was pointed out to it, notwithstanding its belief that it
was no longer responsible for maintaining the railing, we conclude that a penalty of $200
is appropriate.

Accordingly, the judge's decision with respect to items 2, 4 and 5 is reversed.  
Items 2 and 4 are vacated.  Item 5 is affirmed as a serious violation of the
Act.  A Penalty of $200 is assessed.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

Dated: September 12, 1988

WALL, Commissioner, concurring in part and
dissenting in part:

I dissent from the majority's disposition of
item 2.  The analysis on this item is predicted in part on an interpretation of 29
C.F.R.� 1910.5(c) of the Secretary's Regulations.  I cannot agree to a reading of
the standard that affords virtually no fall protection to employees in a recognizably
hazardous occupation, and I do not agree to apply this general guideline in a way that has
been overwhelmingly rejected by the federal courts.

The employees in this case were working on
perimeter beams of skeletal steel without fall protection.  Williams Enterprises was
cited for a violation of � 1926.105(a) for failing to provide exterior safety nets.[[1]]
 The question before us is whether section 1926.105(a), which appears in the general
construction industry standards, has been "preempted" by standards drafted
specifically for the steel erection industry.

The steel erection standards (Subpart R) include
several standards directed to fall hazards, but none of them provides exterior fall
protection for employees working on perimeter beams of skeletal steel.[[2]]  Section
1926.105(a), however, does provide for falls to the exterior of the building; it requires
safety nets or other fall protection without regard to whether the fall is to the interior
or the exterior of the building.

The "preemption" rule at 1910.5(c)
states that "[i]f a particular standard is specifically applicable to a condition,
practice, means, method, operation, or process, it shall prevail over any different
general standard which might otherwise be applicable to the same condition, practice,
means, method, operation, or process . . . . " The majority identifies standards in
Subpart R that deal with various kinds of fall hazards[[3]] and concludes that they
prevail over the more general construction standard at 1926.105(a). Having found that
steel erection standards apply to the facts of this case, the majority vacates because
none of those standards requires protection against exterior falls from perimeter beams.

The essential elements of the majority analysis
are these:  First, that the steel erection standards apply to steel erection work
where there is a hazard of falling.  Second, that the omission from Subpart R of any
protection against exterior falls from perimeter beam reflects a deliberate policy
decision by the drafters of Subpart R.  And third, that under the
"preemption" rule at 1910.5(c), the specific fall provisions in the steel
erection standards may not be supplemented with a general standard like 1926.105(a).

These essential elements of the majority
rationale formed the basis of four Commission decisions that were reversed in the Circuit
Courts.  Bristol Steel & Iron Works, Inc. , 77 OSAHRC 181/D6, 5 BNA OSHC
1940, 1977-78 CCH OSHD � 22,240 (No. 14537, 1977), rev'd , 601 F.2d 717 (4th Cir.
1979); Adam Steel Erection, Inc ., 84 OSAHRC 29/A2, 11 BNA OSHC 2073, 1984 CCH OSHD
� 26,976 (No. 77-4238, 1984), rev'd , 766 F.2d 804 (3d Cir. 1985), (" Adams
Steel "); Daniel Marr & Son Co ., 84 OSAHRC 37/E7, 11 BNA 2088, 1984 CCH
OSHD � 26,980 (No. 82-612, 1984), rev'd , 763 F.2d 477 (1st Cir. 1985), (" Daniel
Marr "); L. R. Willson & Sons, Inc ., 84 OSAHRC 36/A2, 11 BNA OSHC
2182, 1984 CCH OSHD � 26,978 (No. 80-5866, 1984), rev'd , 773 F.2d 1377 (D.C. Cir.
1985), (" L. R. Willson III ").  Moreover, the D.C. Circuit Court of
Appeals affirmed three prior Commission decisions in which general construction industry
standards supplemented the steel erection standards with respect to exterior falls.  Donovan
v. Williams Enterprises, Inc ., 744 F.2d 170 (D.C. Cir. 1984), (" Williams
Enterprises "); L. R. Willson & Sons, Inc. v. OSHRC , 698 F.2d
507 (D.C. Cir. 1983), (" L. R. Willson II "); L. R. Willson & Sons,
Inc. v. Donovan , 685 F.2d 664 (D.C. Cir. 1982), (" L. R. Willson I ").

The majority justifies preemption by Subpart R
by reciting those provisions in Subpart R that apply to fall hazards.  The Fourth,
Third, First, and District of Columbia Circuits have all rejected this simplistic
approach.  Each court has said it is not enough to speak of "falls," the
applicability of a standard depends on the employee's location and whether the fall is to
the interior or exterior: "The question is not whether Subpart R provides any
exterior fall protection standards, but rather whether it provides standards to guard
against the particular exterior fall hazard for which Willson was cited."
  L. R. Willson I at 672 (emphasis by the court).

"The particular hazard at issue . . . was
exterior falls from above the level of temporary floors or decking" and
"exterior falls and interior falls are different hazards . . . ." L. R.
Willson III at 1381-1382.  "The particular hazard at issue here is the
danger of an exterior fall from a perimeter beam . . . . Although the steel erection
standards address interior falls, and exterior falls from temporary flooring, no section
applies to exterior falls from perimeter beams."  Adams Steel Erection at
808.

"We find no other standard in Subpart R
which could be considered as addressing the hazard of an exterior fall.  Section
1926.750 (b)(1)(iii) which requires that a railing be provided on the perimeter of the
temporary flooring might be deemed to provide exterior fall protection for employees doing
work on that floor, but not for connectors working on beam above that level."  Daniel
Marr at 483.

The majority suggests that the absence of
exterior fall protection for ironworkers on perimeter beam is a deliberate omission.
  Again, this view has been rejected and sharply criticized by the courts:

The Third Circuit:

"The Commission's wishful reliance on the
supposed intent of the Secretary also is misplaced.  In concluding that the Secretary
intended to leave the hazard of exterior falls from perimeter beam totally unregulated,
the Commission pointed to three standards . . . [that] do not apply to the hazard under
consideration here.  We reject this reasoning . . . . it would take a lot more
evidence than that cited by the majority to convince [us] that the Secretary made a
reasoned and deliberate decision" such as this."

"Furthermore, there is convincing evidence
that the Secretary did not intend the more rigorous standards enunciated in section
1926.105(a) to be preempted by the relaxed rules of Subpart R . . . ."

"In sum, the Commission's interpretation
contradicts the legislative scheme which contemplates that general safety standards will
supplement specific safety standards by filling those gaps necessarily remaining after the
promulgation of specific standards."

Adams Steel Erection at 809-810.

The Third Circuit found the inference of a deliberate omission by the Secretary "hard
to square" with the fact that the Secretary is the author of section 1910.5(c)(2),
which specifically addresses the question of regulatory lacunae:  "General
standards shall apply . . . to the extent that none of such particular standards
applies."

The District of Columbia Circuit considered the
majority's inference of a deliberate omission "counterintuitive,"
"unconvincing," and "mysterious."

The Fourth and Ninth Circuits have held that
supplementing specific standards with general standards is both consistent with the
structure of the OSH Act itself and necessary for realistic improvement.
 "Lacking the omniscience to perceive the myriad conditions to which specific
standards may be addressed, however, the Secretary, in an effort to insure the safety of
employees as required by the Act must at times necessarily resort to the general safety
standards."  Bristol Steel & Iron Works, Inc. v. OSAHRC, 601 F.2d
717, n.11 (4th Cir. 1979).  The Ninth Circuit pointed out that the OSH Act itself
contemplates a mix of specific and general responsibilities: "Petitioner's complaint
that they were misled by the regulations into believing that no guards are required on
press brakes is not credible in view of 29 U.S.C. � 654(a)(1) [the general duty clause]
which, even in the absence of any regulations, requires every employer to protect his
employees from 'recognized hazards that . . . are likely to cause . . . serious physical
[injury].'" Irvington Moore v. OSHRC , 556 F.2d 431, 435 (9th Cir. 1977).

In sum, the majority today elaborates and
expands upon a rationale previously rejected by four federal courts of appeals in the
strongest of terms.  While generally omitting the characterizations placed on the
Commission rationale, the District of Columbia Circuit Court declared that "There is
really nothing for us to add to the other courts' decisions, other than to express our
hope that the Commission will finally accept the unanimous position of three courts of
appeals and the Secretary of Labor that � 105(a) does apply to protect workers from
exterior fall hazards in the steel erection industry." L. R. Willson II at
1382.  When, on the other hand, the Commission held that general construction
standards may supplement steel erection standards with respect to exterior falls, those
decisions were roundly affirmed.  L. R. Willson I , L. R. Willson II ,
and Williams Enterprises .  In addition, the Ninth and Fourth Circuits strongly
support the general proposition that specific standards can be augmented by more general
standards.

It is worth noting that the Fifth Circuit
recently felt constrained to eschew its own interpretation of an aspect of the OSH Act
because four other circuits had reached unanimity on an opposing view.  "Were we
writing on a clean slate, we would be inclined to uphold the Union and Commission position
. . . . Nevertheless we feel constrained to adopt the Secretary's interpretation because
we find a compelling reason to do so in the unanimity of the authorities behind the
Secretary's position."  Donovan v. Oil, Chemical, and Atomic Workers
International Union, Local 4-23 , 718 F.2d 1341, 1351-52 (5th Cir. 1983), cert. den .,
104 S.Ct. 2344 (1984).

The majority also places considerable reliance
on the practice in the industry.  I am less inclined to do so, particularly where the
industry provides no protection whatsoever against falls to the exterior of a building,
and virtually none against falls to the inside.[[4]]  In Cape & Vineyard Div.
v. OSHRC , 512 F.2d at 1152 (1st Cir. 1975) the court said:

"There may, however, be instances where
industry practice fails to take reasonable precautions against hazards generally known in
the industry; in such event it may not be unfair to hold the employer to a standard higher
than that of actual practice."

The Fourth Circuit reached a similar conclusion
in Bristol Steel Iron Works ( supra ) saying

"While the custom and practice of most
industries will adequately protect employees from hazardous conditions, the inquiry must
be broad enough to prevent an industry, which fails to take sufficient precautionary
measures against hazardous conditions from subverting the underlying purposes of the
Act."

It is true, as the majority decision explains,
that the Fifth Circuit relies to a greater extent on the custom and practice in the
industry, S & H Riggers & Erectors ( supra ), and B & B
Insulation ( supra ), but as pointed out in the recent Fifth Circuit decision in Brock
v . City Oil Well Service Co ., 795 F.2d 507 (5th Cir. 1986), industry custom has
been used to flesh out generally worded regulations in order to avoid notice problems
under the due process clause.  The Fifth Circuit has recognized that where an
employer has actual knowledge of the requirements imposed by a regulation the problem of
fair notice does not exist, and the employer may be found in violation even though its
conduct complies fully with the general practice in the industry; see S & H
Riggers & Erectors , 659 F.2d at 1278.  The court also said:

"We did not hold [in B & B
Insulation ] that industry custom is controlling in all OSHA cases, or that the
Secretary cannot impose standards more stringent than those customarily followed in an
industry.  We merely held that he cannot do so under as general and broadly worded a
regulation as � 1926.28(a)."

S & H Riggers , 659 F.2d at 1282.

One of Congress' purposes in requiring that all contested cases begin in this forum was to
foster a uniform national body of OSHA law.[[5]]  But on this issue it is the
Commission that injects disunity into what is, up to this point, a cohesive body of case
law.

BUCKLEY, Chairman, concurring in part and dissenting in part:

I agree with the lead opinion's conclusion that
the standards in Subpart R contain exclusive requirements for fall protection during steel
erection, with its discussion of that issue, and with its corresponding vacation of item 2
of the citation.  I also concur with its affirmance of item 5.  I dissent,
however, from the decision to vacate item 4.  I would affirm the judge's decision
finding that Williams violated 29 C.F.R. � 1926.750(b)(1)(i).

As the lead opinion notes, the principal issue
under item 4 argued by the parties is whether the unguarded openings on the sixth floor
were "access openings" within the meaning of section 1926.750(b)(1)(i).
 Unlike the lead opinion, I would not limit "access openings" to openings
used only for the movement of people from floor to floor.  It is obviously not the
intent of the standards to preclude openings created for the purpose of performing
required work.  Thus, the openings in this case, to the extent they were necessary to
give access to girders for the purposes of bolting, welding, and inspecting, would fit
within both the plain meaning of "access opening" and the intent of the
standard.  However, an opening only qualifies as an "access opening" to the
extent it provides access to a required work area.  The judge found that the openings
in this case existed for a longer period of time than was necessary to permit the required
bolting, welding, and inspecting to be done, and the evidence supports that finding.
  I therefore conclude that Williams violated section 1926.750(b)(1)(i).

Having so concluded, I would not vacate the
citation on the basis that section 1926.752(j) is more specifically applicable to the
cited condition.  Section 1926.750(b)(1)(i) applies to the derrick or erection floor,
which is the floor involved in this item, while section 1926.752(j) is more general,
applying to openings on all floors.  Both standards thus apply to openings on the
derrick or erection floor, and to that extent they overlap, but the cited standard is
clearly the one that is specifically applicable.  In any event, there need be made no
choice between them.  The two standards prescribe consistent requirements, and there
is no possibility that employers will be misled with respect to what they are required to
do.  Where two standards might be regarded as equally applicable and are consistent
with each other, the employer can be properly cited under either standard.  I would
therefore affirm the citation item under section 1926.750(b)(1)(i).

SECRETARY OF LABOR, Complainant, V. WILLIAMS ENTERPRISES OF GEORGIA, INC., Respondent.

OSHRC Docket No. 79-4618

DECISION AND ORDER

APPEARANCES:

Larry A. Auerbach, Esquire, Office of the
Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant

Ira J. Smotherman, Jr., Esquire, Atlanta,
Georgia, on behalf of respondent

SPARKS, Judge:  In July 1979, respondent,
Williams Enterprises of Georgia, Inc., was erecting structural steel at the construction
site of a new Georgia Power Company building in Atlanta, Georgia.  An inspection by a
safety compliance officer of the Occupational Safety and Health Administration resulted in
the issuance of serious and nonserious citations.  Only the serious citation was
contested.

At the time of the inspection between July 24 to
27, 1979, respondent was erecting steel at the sixth floor level.

Respondent's employees are divided into six work
crews or "gangs" which perform specialized functions (Tr. 57-58).  First,
the erection crew "sets the iron" and then connectors insert two or three bolts
at each joint of steel beam and columns (Tr. 60).  The bolt-up gang inserts
additional bolts where the steel members join, and the plumb-up crew plumbs the building
and places safety cables around the perimeter.  The decking crew follows and prepares
the decking for the pouring of concrete.  The welding crew then welds the beams into
the vertical columns (Tr. 58).

During the inspection Mr. Lloyd Black, the
compliance officer, observed employees working without being tied off by their safety
belts (Exh. C-1).  Connectors were observed climbing the vertical steel and inserting
bolts without being tied off.  He testified that "inherently" connectors
cannot tie off (Tr. 18).

Bolt-up men were seen using safety belts while
at their work stations but not while they were moving from station to station.  It
was estimated that 50 percent of their time was spent at the work stations, and 50 percent
of their time was moving from place to place.

The compliance officer observed a "plumb-up
man" walking perimeter steel, approximately 90 feet above ground level, who was
wearing a safety belt but did not have on a lanyard (Tr. 16).

The compliance officer also observed that the
decking had not been installed at any locations on the working floor where horizontal
beams joined vertical columns, thereby leaving openings about three feet wide (Tr. 21-23).

On the first floor Mr. Black observed that the
entire perimeter safety cable was slack and in some cases touched the deck.  Workers
had to come near the perimeter to obtain drinking water and use the stairways.

The compliance officer was of the opinion that
each of the circumstances described exposed employees to the danger of falling from 20 to
90 feet and would have resulted in serious injury or death.

Other items charged in the citation have been settled by stipulation (Tr. 5).

Respondent contends that its work practices
conform to those prevailing in the industry (Tr. 60, 62, 72, 85, 98-99, 100-101, 103, 112,
134).  Union work rules do not require safety belts while moving (Tr. 68, 80; Exh.
R-1).  Complainant does not allege that respondent's practices fall below the
industry norm (Tr. 112, 134) but insists they were not in compliance with safety
regulations.

29 C.F.R. � 1926.28(a) 29 C.F.R. �
1926.105(a)

Failure to Use Personal Protective Equipment and/or Safety Nets

The evidence clearly establishes that employees
did not wear personal protective equipment such as safety belts while exposed to the
hazard of falling, nor did respondent use safety nets or other alternate means of
protection.  Respondent, however, makes the following contentions:

1.  The legal doctrines of res judicata and
collateral estoppel bar complainant from enforcing the cited standards because the issue
of whether or not such standards are applicable to steel erection activity has been tried
and lost by the Secretary in previous cases involving the respondent.

2.  The regulations cited are inapplicable to the circumstances of this case because
steel erection activities are exclusively governed by Subpart R of the construction
regulations.

3.  The facts and circumstances of this case fail to establish a violation of 29
C.F.R. � 1926.28(a).

4.  The facts of record fail to establish a violation of 29 C.F.R. � 1926.105(a).

5.  The evidence of record establishes that it was impossible and infeasible to use
safety nets for perimeter protection for connectors, bolt-up workers and others.

6.  The evidence fails to establish a serious violation of 29 C.F.R. �
1926.750(b)(1)(i) as a result of the floor openings.

7.  The alleged violation of 29 C.F.R. � 1926.750(b)(iii) relating to the sagging
safety cable was not created or caused by respondent, and respondent's employees had
little or no exposure to the hazard created by the alleged violation.

There is little doubt that the doctrine of res
judicata which includes collateral estoppel is applicable to administrative proceedings of
the type involving the Review Commission.  The Supreme Court has stated as follows:

Occasionally, courts have used language to the
effect that res judicata principles do not apply to administrative
proceedings, but such language is certainly too broad.  When an administrative agency
is acting in a judicial capacity and resolves disputed issues of fact properly before it
which the parties have had an adequate opportunity to litigate, the courts have not
hesitated to apply res adjudicata to enforce repose ... U. S. v. Utah Construction and
Mining Co., 384 U.S. 394, 421, 86 S.C. 1545, 1560 (1966)[citations and footnote omitted].

Collateral estoppel was recently applied to
enjoin the Secretary of Labor from prosecuting alleged violations of noise standards at
different plants of the Continental Can Company where prior proceedings had resulted in
findings that controls were not economically feasible.  Continental Can Company v.
Marshall , 603 F.2d 590 (7th Cir. 1979).

Complainant contends that res judicata and
collateral estoppel should be restricted to instances of attempts to relitigate alleged
violations occurring on the same date and place alleged in the prior action.  Such
restrictive application or collateral estoppel would make the doctrine meaningless and is
inconsistent with the purpose of collateral estoppel.  It is the identity of parties
and legal issues that give rise to the doctrine.  Secretary v. Continental Can Co .,
supra .

Respondent contends that prior decisions of the
Review Commission involving the use of personal protective equipment foreclose
complainant's action in this case.  In Secretary v. Williams Enterprises of
Georgia, Inc . (No. 13063), Judge Larkin held that 29 C.F.R. � 1926.28(a), � 1926.104
and � 1926.105 do not apply to steel erection.  The decision became the final action
of the Commission since the two Commission members at that time could not agree.  In
Docket No. 15449, the same parties and same alleged violations were involved.  Judge
Brady held that steel erection was the general business of respondent, and the specific
work being performed by the employees involved in that action.  On that basis, the
alleged violations were vacated.  Judge Brady specifically held that "the
general regulations of 29 C.F.R. � 1926.28(a) and (b) and 29 C.F.R. � 1926.104 and
� 1926.105 do not apply to steel erection."

The decision of Judge Brady in Docket No. 15849
was ordered reviewed by the Commission upon its own motion.  The decision was
affirmed after the Commission noted that ". . . the parties have filed no objection
to the administrative law judge's decision, either by way of petitions for discretionary
review or response to the order for review.  Accordingly, there has been no appeal to
the Commission, and no party has otherwise expressed dissatisfaction with the
administrative law judge's decision."  In his decision, Judge Brady found that
"the evidence in this case establishes that respondent was engaged in steel erection
at the work site, and employees working at various levels without protective equipment did
so at or near open beams."

The courts have recognized, however, that the
doctrine of res judicata should not be rigidly applied so as to prevent normal development
of administrative law or to permit different applications to affected parties.
 Professor Davis, in discussing the decision of the Supreme Court in Federal Trade
Commission v. Raladam Co. , 283 U.S 643, 51 S. Ct. 587 (1931), which refused to apply
res judicata to a second proceeding brought on the same grounds as an earlier case, stated
as follows:

. . . Why may the same question be tried again?
  Probably the best answer is that the question of the legality of the company's 1929
practices is not necessarily the same as the question of the legality of the company's
1935 practices, even if the practices remained the same.  Otherwise the opportunity
for development of law and policy by processes of administrative and judicial
interpretation would be cut off.  The doctrine of res judicata should prevent a
second prosecution for the same act or acts.  And it should prevent an agency from
harassing a respondent by repeated prosecutions for continuing the same practices.  
But it should not prevent an agency, after a decent interval, from testing the question
whether or not law or policy concerning continuing practices may have changed.  2 K.
Davis, Administrative Law Treatise at 571 (1958).

Since the earlier decisions by Judge Larkin
(1975) and Judge Brady (1976), there have been significant developments in the legal
principles applicable to this case which mitigate against strict adherence to the
principles of res judicata.

On February 9, 1979, the standards applicable to
the construction industry were published by the Occupational Safety and Health
Administration as a supplement to the Federal Register .  The supplement
provides a single source of standards for construction activities and includes general
industry standards applicable to construction as well as general and specialized
construction standards.

The general provisions of Subpart C relate to
problems commonly found in the construction industry, and the other subsections deal with
specialized problems.

Respondent contends the requirement for personal
protective equipment found among the general requirements of 29 C.F.R. � 1926.28(a) is
preempted by the specific safety requirements of Subpart R concerning steel erection.
 A similar contention was recently considered by the Review Commission and by the
Court of Appeals for the Fourth Circuit in Secretary v. Bristol Steel & Iron
Works, Inc ., 77 OSAHRC 181/D6, 5 BNA OSHC 1940,1977-78 CCH OSHD � 22,240,1979 CCH
OSHD � 23,651 (No. 14537).  Although the two members of the Commission were unable
to agree, the Court of Appeals held that the general safety requirements were not
preempted by Subpart R.  The Court stated as follows:

The specific standards relied upon by Bristol,
while providing safety protection to employees engaged in steel erection, cannot achieve
the goal of adequately protecting those employees in every conceivable situation.
 Infinite hypotheticals can be envisioned in which employees engaged in steel
erection would be exposed to an unnecessary hazard not covered by a Subpart R specific
safety standard.  The general safety standard dealing with personal protective
equipment found in 29 C.F.R. � 1926.28(a) complements the Subpart R specific standards
dealing with steel erection by requiring "the wearing of appropriate personal
protective equipment [where there is a need] for using such equipment to reduce the
hazards to the employees."

Bristol suggests that its position is supported
by 29 C.F.R.� 1910.5(c)(1) which provides that a specific standard applicable to a
condition shall prevail over any different general standard which might otherwise be
applicable thereto.  This argument, however, elides the language of � 1910.5(c)(2)
that any standard shall apply according to its terms, even though particular standards are
also prescribed for an industry, to the extent that none of such particular standards
apply.  Were � 1910.5(c) read in the manner Bristol suggests, the Secretary would be
prevented from coping with the variety of hazards not covered by the specific standards,
and we decline to read it in such a limited fashion.  Bristol Steel & Iron
Works, Inc. v. OSHRC , 601 F.2d 717, 721 [footnote omitted].

It would be improvident to apply res judicata so
as to freeze the development of safety law as applied to this employer, especially after
reviewing bodies have questioned the vitality of the legal principle upon which the
earlier decisions were based.  A change in the "legal climate" is
sufficient reason to render inapplicable the doctrine of collateral estoppel in
administrative proceedings.  2 K. Davis, Administrative Law Treatise at 574
(1958).

Respondent further contends that Subpart R
preempts the application of general regulations requiring personal protective equipment.
  Respondent argues as follows:

Section 28 of Part 1926 is found in Subpart C of the regulations, "General Safety and
Health Provisions", and Section 105 is found in Subpart E, "Personal Protective
and Lifesaving Equipment", to which reference is specifically made in Section 28(b).
 These regulations, on their face and read in context with the rest of the
regulations in Part 1926, are general regulations which apply to construction conditions
in the absence of specific standards.  Where a more specific standard is applicable,
it prevails over a general standard which would otherwise be applicable.  29 C.F.R.
� 1910.5(c)(1).

The evidence in this case that the Respondent
was engaged in steel erection on the worksite in question, and that its employees engaged
in steel erection worked without continuous protection by personal protective equipment or
safety nets on steel beams at levels above the floors that were temporarily or permanently
decked over, makes applicable the requirements of Subpart R, "steel erection."
  Moreover, the condition or hazard involved in this case, working on steel beam
construction without protection against falls, is specifically covered by a specific
regulation, 29 C.F.R. � 1926.750, which provides in pertinent part:

(b) Temporary Flooring - Skeleton Steel
Construction in Tiered Buildings

. . .

(1)(ii) On buildings or structures not adaptable to temporary floors, and where scaffolds
are not used, safety nets shall be installed and maintained whenever the potential fall
distance exceeds 2 stories or 25 feet.  The nets shall be hung with sufficient
clearance to prevent contacts with the surface of structures below.

. . .

(2)(i) Where skeleton steel erection is being done, a tightly planked and substantial
floor shall be maintained within 2 stories or 30 feet, whichever is less, below and
directly under that portion of each tier of beams on which any work is being performed,
except when gathering and stacking temporary floor planks on a lower floor, in preparation
for transferring such planks for use on an upper floor.  Where such a floor is not
practicable, (b)(1)(ii) of this section applies.

The effect of these standards is to require fall
protection by way of temporary floors within 30 feet or 2 stories of all steel erection
work, except where the structure is not adaptable to temporary floors, in which case
safety nets are required to be hung where the potential fall distance exceeds 25 feet or 2
stories.  The difference in the figures is attributable to an amendment to bring the
temporary flooring requirement into line with current steel design.  See 39 Fed .
Reg . 24360 (1974).  (Respondent's Brief, pp. 17- 18)

It is noted by complainant, however, that
temporary floors do not provide any fall protection to the outside of the building and
would permit falls as great as 30 feet or two stories to the inside of the building.
  Such fall protection is inadequate and could not have been intended to be
exclusive.  Temporary floors simply do not provide effective protection from falls,
and the requirement of temporary floors does not preempt the general requirement of
personal protective equipment, safety nets or other protection.  Bristol Steel
& Iron Works v. OSHRC , supra ; Guy , Incorporated , 7 BNA OSHC
2115, 1979 CCH OSHD � 23,911 (No. 78-5795, 1979).

Respondent next contends that courts of appeal
have held that the constraints of due process require that broad regulations such as 29
C.F.R. � 1926.28(a), which prescribe general standards of safe conduct be interpreted and
applied in such a manner as to assure that an employer has adequate warning of the conduct
prohibited by such regulations.  B & B Insulation, Inc. v. OSHRC , Et .
Al ., 583 F.2d 1364, 1367-1368 (5th Cir. 1978); Power Plant Division, Brown &
Root, Inc. v. OSHRC , Et . Al ., 590 F.2d 1363,1365 (5th Cir. 1969); Bristol
Steel & Iron Works v. OSHRC , 601 F.2d 717 (4th Cir. 1979); Cape and Vineyard
Division v. OSHRC , 512 F.2d 1148 (1st Cir. 1975).

The courts have devised various tests for
determining the standard for compliance with 29 C.F.R. � 1926.28(a).  The test of
Fifth Circuit in B & B Insulation , supra , requires only those protective
measures which the knowledge and experience of the employer's industry would clearly deem
appropriate under the circumstances.  The Court further states that:

Where the Government seeks to encourage a higher
standard of safety performance from the industry than customary industry practices
exhibit, the proper recourse is to the standard-making machinery provided in the Act,
selective enforcement of general standards being inappropriate to achieve such a purpose.
  B & B Insulation , supra , at p. 1371.

Other courts have applied a higher standard than
industry custom and practice.

The Review Commission respectfully declined to
follow the holding of  B & B Insulation Co ., supra , in S & H
Riggers and Erectors, Inc. , 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD �
23,480, on the grounds the Commission was responsible for developing consistent
interpretation of safety law of nationwide application.  The Review Commission has
very recently reaffirmed its intention not to utilize the test of industry custom and
practice announced in B & B Insulation , supra ; S & H Riggers
and Erectors, Inc . (Nos. 76-1104 and 76-1739, March 31, 1980).  The undersigned
is compelled to follow the decisions of the Review Commission.

Respondent further contends that it was
impossible or infeasible to use safety belts, safety nets or other protective equipment.
Respondent's evidence consisted primarily of testimony by its superintendent and foremen,
who have had many years' experience in the steel erection business, that use of safety
belts and safety nets, as suggested by the Secretary, are not used in the industry (Tr.
60, 62-72, 80, 85, 98-101,103).  Mr. Robinson, plumb-up foreman, testified that
safety nets would interfere with the plumb-up operations, but a larger "target"
or different means of plumbing the building could be used (Tr. 87, 109).

Common practice, however, is not the appropriate
test of what is feasible or possible because the act envisioned that higher levels of
safety practices may be required than was customary in industry.  The Secretary
offered the expert testimony of Mr. Charles Casey who has been in the "safety
business" since May 1966 (Tr. 110) primarily in the safety departments of
construction companies.  He has also worked as a safety inspector.  Much of his
experience has been with power plant and other large construction projects, but he has had
some experience with the erection of tiered buildings (Tr. 117).

Mr. Casey's testimony is convincing that employees moving along beams can tie off by means
of a long lanyard attached to the safety belt.  He described the procedure as
follows:

One end of that lanyard is snapped into a D-ring
on the person's safety belt.  Then, that lanyard is - is wrapped around the steel
member and brought back up to the other part of the safety belt and snapped in.  Both
ends of that lanyard snapped into the personal protective equipment, but looped the iron
(Tr. 123).

The bolt-up and plumb-up men could use such
protection while moving from work station to work station (Tr. 120-121).

Mr. Casey further testified that safety nets
could be placed around the perimeter of this and other high-rise structural steel
buildings. His experience in the use of safety nets in high-rise buildings is very
limited, and he acknowledged he had never seen them used in that manner (Tr. 143).
 Mr. Casey further testified that a connector's toggle is designed to allow a
connector to be secured to the steel that he is standing or working on.  He described
its use as follows:

This connector's toggle is designed that the
head of it, the bolt, fits to an existing hole in the steel, existing bolt hole, and it is
another method to reduce exposure of that man falling or that person falling if anything
else occurs or happens.  It, again, does not allow for mobility and it does not allow
him complete protection at all times; but, it was designed to reduce the exposure when the
connector, you know, is at a location or at a work station where - where there is
something that he can hook off to (Tr. 128).

Mr. Casey acknowledged that he had never seen
the connector's toggle in use, and the company he worked for refused to use it.

The evidence is convincing that plumb-up and
bolt-up men can, during times of movement, utilize lanyards slung around beams (Tr. 20,
120-121).  It was estimated that the use of safety belts would increase the time
spent on steel erection by 10 percent to 20 percent (Tr. 77).  The evidence is not
entirely reassuring that use of safety nets or connector's toggles is without problems
during construction of the type involved in this case.

As an affirmative defense, the burden of proof, however, is upon the respondent to
establish that safety nets and other personal protection are impossible or infeasible.
 The evidence produced by respondent demonstrates that nets and toggles are not
commonly used in high-rise construction especially in the South.  Respondent's
witnesses suggest problems associated with the use of nets while plumbing-up the building
and with wearing safety lanyards, but the evidence is not convincing that such problems
are of such magnitude as to make the use of personal protective equipment or nets
impossible or infeasible.  Respondent has failed to carry its burden of establishing
the affirmative defenses.  Bristol Steel & Iron Works, Inc. , 79 OSAHRC
102/C14, 1979 CCH OSHD � 24,080 (No. 78-3126); Guy, Incorporated, supra .

It is not disputed that openings were left in
the decking to permit the welding and inspection of beams and columns (Tr. 22). Respondent
contends the openings were "access openings" permitted by 29 C.F.R. �
1926.750(b)(1)(i).  The section provides as follows:

The derrick or erection floor shall be solidly planked or decked over its entire surface
except for access openings.

Respondent again contends it was following
industry practice, that the openings were usually uncovered of about one day only, and
that little hazard was presented to employees.  In this instance, however, they
remained open for two or three days (Tr. 21-22).

The openings were about 3 feet wide and ran the
length of the building because the design engineer would not permit decking to be cut less
than 40 feet long (Tr. 36, 69-71).  They intersected with every vertical column and
were over and extended 10 to 12 inches on each side of the floor beams (Tr. 21-22, 48;
Exh. C-2).  It is unlikely workers would fall entirely through the openings, although
employees stepping over the openings could trip and fall onto the floor (Tr. 22).
 The safety specialist testified that employees falling into the openings and thereby
striking the beams from heights up to 20 feet could suffer serious injuries (Tr. 23), but
serious injury could be expected from any fall from the height whether falling onto
temporary floors or beams.

It is necessary for access openings to be left
open for a reasonable period of time to permit welding and inspections.  Openings
which run the entire length of a building and which remain uncovered for several days
cannot be said to be within the exception for "access openings," since the
extent and duration of the openings far exceed the legitimate needs to be served by the
exception.  An accident involving the hazard, however, would likely result in less
than death or serious injury, thereby establishing an other than serious violation.

Finally, complainant alleges respondent violated
29 C.F.R. � 1926.750(b)(1)(iii) which states as follows:

Floor periphery--safety railing.  A safety
railing of 1/2-inch wire rope or equal shall be installed, approximately 42 inches high,
around the periphery of all temporary-planked or temporary metal-decked floors of tier
buildings and other multifloored structures during structural steel assembly.

A temporary floor was guarded by a
perimeter-wire cable which sagged so as to touch the floor (Exh. C-3; Tr. 38, 108).
 The cable had been installed by respondent originally but, as work had progressed,
responsibility for the cable had shifted to the general contractor (Tr. 63-64, 86).  
The evidence does not establish that the cable was erected improperly since other
contractors remove cables on occasion to facilitate work or the movement of materials or
equipment (Tr. 62, 108).  Respondent's employees were exposed to the hazard when
using stairway and to reach the water barrel (Tr. 32-34, 38-39, 41 50-52).  The
evidence is not convincing, however, that respondent was responsible for or had knowledge
of the sagging safety cable at the time observed by the compliance officer and alleged in
the citation.  It is uncertain how long the cable had been in that condition.
 That item is, therefore, vacated.

In assessing the penalty, as provided in section
17(j) of the Act, consideration must be given to the size of the business, gravity of the
violation, good faith of the employer and history of previous violations.  Respondent
had more than 100 employees.  Many employees working without safety belts or other
equipment were frequently exposed to the hazard of falling from great heights.  The
parties stipulated that final orders of the Review Commission have been entered finding
respondent in nonserious violation of several regulations and in serious violation of 29
C.F.R. � 1926.302(b)(7) on October 5 to 6, 1978 (Tr. 42, Letter of Complainant dated
March 7, 1980, and Letter of Respondent dated March 21, 1980).  Respondent was given
credit for having an average safety program (Tr. 35), although the compliance officer
acknowledged that the project was about the safest erection job he had seen (Tr. 38).
  There were regular safety meetings, and there had been no complaints from the union
(Tr. 64, 76).  Moreover, as previously discussed, two prior decisions had concluded
that respondent's failure to require the use of personal protective equipment was not a
violation of the standards.

FINDINGS OF FACT

1.  Respondent erected structural steel for the construction of the Georgia Power
Company building as a subcontractor.

2.  Employees of respondent worked on various crews performing work necessary to
erecting structural steel including raising, connecting, bolting-up, plumbing-up, decking
and welding.

3.  Employees often worked at heights above 20 feet without using safety belts and
lanyards or safety nets and were thereby exposed to a falling hazard.

4.  A fall from the heights at which respondent's employees were working would likely
result in death or serious bodily injury.

5.  Respondent's employees observed the customs and practices of the steel erection
industry in this area regarding use of safety nets and personal protective equipment
including safety belts.

6.  It was not infeasible for respondent's employees to use personal protective
equipment including safety belts and lanyards while moving along perimeter steel.

7.  The use of safety nets and connector's toggles were not infeasible under the
circumstances of this case.

8.  Respondent's employees were exposed to a tripping hazard by openings left in the
decking.

9.  The floor openings were too extensive to be "access openings" necessary
for welding operations.

10.  In the event of an accident, employees exposed to the hazard of floor openings
would likely suffer injury but probably not death or serious bodily injury.

11.  Although respondent originally erected the perimeter safety cable, which was
observed sagging to the floor, it was not responsible for the cable at the time of the
inspection.

12.  Safety cables were removed from time to time by other contractors on the job.

13.  Respondent's employees were exposed to a falling hazard by the sagging safety
cable, but responsible supervisors of respondent may not have been aware of such a
condition.

14.  Considering the gravity of the violations and size, history and good faith of
the respondent, the following penalties are warranted:

Item 1 -
Withdrawn by Complainant

Item 2 -
$350.00

Item 3 -
$300.00 (By Stipulation)

Item 4 -
$ 50.00

Item 5 -
Vacated

Item 6 -
$210.00 (By Stipulation)

CONCLUSIONS OF LAW

1.  The Review Commission has jurisdiction of the parties and the subject matter.

2.  The doctrine of res judicata will not bar proceedings alleging violations of 29
C.F.R. � 1926.28(a) and � 1926.105(a).

3.  Respondent violated 29 C.F.R. � 1926.28(a) and 29 C.F.R. � 1926.105(a) by
exposing employees to the hazard of falling without requiring personal protective
equipment or providing alternate protection including safety nets and connector's toggles.

4.  It was not infeasible to require safety belts and lanyards by bolt-up and
plumb-up workers, nor to provide safety nets and connector's toggles.

5.  Respondent failed to comply with 29 C.F.R. � 1926.750(b)(1)(i) under conditions
constituting a nonserious violation

6.  Respondent did not violate 29 C.F.R. � 1926.750(b)(1)(iii).

7.  Total civil penalties of $910.00 are appropriate.

It is ORDERED:

1.  Items 2, 3 and 6 of the citation are affirmed.

2.  Item 4 is modified to nonserious and is affirmed

3.  Items 1 and 5 are vacated.

4.  Civil penalties of $910.00 are assessed.

Dated this 27th day of May, 1980.

JOE D. SPARKS

Judge

FOOTNOTES:

[[1]] Part 1926 is entitled "Safety and
Health Regulations for Construction."  Subpart R, entitled "Steel
Erection," is located at 29 C.F.R. �� 1926.750-752.

[[2]] Section 1926.105(a) is published in Part 1926, Subpart E--Personal Protective and
Life Saving Equipment.  It provides:

� 1926.105 Safety nets .

(a) Safety nets shall be provided when workplaces are more than 25 feet above
the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch
platforms, temporary floors, safety lines, or safety belts is impractical.

[[3]] Section 1926.28(a) is published in Part
1926, Subpart C--General Safety and Health Provisions.  It provides:

� 1926.28 Personal protective equipment .

(a) The employer is responsible for requiring the wearing of appropriate personal
protective equipment in all operations where there is an exposure to hazardous conditions
and where this part indicates the need for using such equipment to reduce the hazards to
the employees.

See The L.E. Myers Co., High Voltage Systems
Div ., 86 OSAHRC 12 BNA OSHC 1609, 1986 CCH OSHD � 27,476 (No. 82-1137, 1986), appeal
filed , No. 86-3215 (6th Cir. March 14, 1986).

[[4]] The parties apparently agree that the work
of the bolt-up and plumb-up crews permitted the crew members to tie off in stationary work
positions approximately half the time they were present on the perimeter beams.  The
other half of the time, it was necessary for the crew members to be in motion, traveling
back and forth along the beams.

[[5]] Specifically, he contends, the employees
should have used the "long-lanyard method" of protection when they were moving
along the perimeter beams.  Under this method, the employee walks along the bottom
flanges of the beam while straddling the beam.  He wears a safety belt with an
extra-long lanyard that circles beneath the beam, with the two ends of the lanyard
attached to opposite sides of his safety belt.

[[6]] Williams cites to the following
regulation:

� 1910.5 Applicability of standards .

(c)(1) If a particular standard is specifically applicable to a condition, practice,
means, method, operation, or process, it shall prevail over any different general standard
which might otherwise be applicable to the same condition, practice, means, method,
operation, or process. . . . [Example omitted].

[[7]] The Secretary relies on the following
regulation:

� 1910.5 Applicability of standards .

(c) On the other hand, any standard shall apply according to its terms to any
employment and place of employment in any industry, even though particular standards are
also prescribed for the industry, . . . , to the extent that none of such particular
standards applies. . . . [Examples omitted].

[[8]] Both Williams' principal place of business
and the construction worksite where the inspection occurred were located in the state of
Georgia.  Accordingly, Williams asserts before us that it "both resides and
performed the work involved in this case in the jurisdiction of the new Eleventh
Circuit."

[[9]] The D.C. Circuit earlier reached similar
holdings in Donovan v. Williams Enterprises , 744 F.2d 170 (D.C. Cir. 1984); L.R .
Willson & Sons, Inc. v. OSHRC , 698 F.2d 507 (D.C. Cir. 1983); and L.R.
Willson & Sons, Inc. v. Donovan , 685 F.2d 664 (D.C Cir. 1982).

[[10]] In fact, it is our view that the
"remedial purposes of the Act" are not served by interpretations which seek to
bolster a vague standard; but rather that those purposes are best served by requiring the
Secretary to clarify those standards which are ambiguous or inconsistent or fail to give
adequate notice to employers of required conduct.  The relationship of Subpart R to
the general standards, and particularly to � 1926.105(a) with its history of litigation,
and which was described by one circuit court as "teetering on the precipice of
vagueness," is a prime example of regulatory failure which has dogged the Secretary
since the inception of the Occupational Safety and Health Act.  See Diamond
Roofing Co. v. OSHRC , 528 F.2d 645, 650 (5th Cir. 1976) ("The purpose of OSHA is
to obtain safe and healthful working conditions through promulgation of occupational
safety and health standards which tell employers what they must do to avoid hazardous
conditions.  To strain the plain and natural meaning of words for the purpose of
alleviating a perceived safety hazard is to delay the day when the occupational safety and
health regulations will be written in clear and concise language so that employers will be
able to understand and observe them.")

[[11]] Virtually all of the standards issued under the Construction Safety Act were
adopted without significant change under the Occupational Safety and Health Act.
 (The only substantial change was in the coverage of the standards, a change that
reflected the differences in the respective coverage of the two statutes).  The
repromulgation under OSHA occurred very shortly after the initial promulgation under the
Construction Safety Act.

[[12]] In 1974, � 1926.750(b)(2) was amended to
read as it does now.  39 Fed. Reg. 24360-361 (July 2, 1974).  The current
version permits a 30-foot fall distance when temporary floors are used during steel
erection, as opposed to the 25-foot limit during general construction.  However, the
creation of this height differential in 1974 has no bearing in determining the intent of
the drafters with respect to the original Subpart R.

[[13]] The fact that � 1926.105(a) allows the
use of other alternatives instead of temporary floors or safety nets is, as a practical
matter, irrelevant in the context of steel erection work.  As will be seen later in
this decision, temporary floors and interior safety nets are widely regarded as the only
practical alternatives during steel erection, and particularly during the early phases of
steel erection that are at issue in this case.  (Safety belts are generally viewed as
a supplemental form of protection and not as a substitute for the two basic safeguards.)

[[14]] These witnesses gave consistent testimony
concerning the customs and practices of the industry, which were essentially the same
practices followed by Williams at the time of the inspection.  According to these
witnesses, the standard practice was to protect connectors, plumb-up men and bolt-up men
by instructing them to work no more than two stories or 30 feet above the highest
completed deck floor.  Bolt-up and plumb-up men received supplemental protection at
times from tied-off safety belts. However, they did not use safety belts while moving
along structural steel, and connectors never used safety belts.

[[15]] In particular, that litigation history confirms the point made on this record
concerning the nonuse of perimeter safety nets on high-rise buildings within the steel
erection industry.  See , e.g ., Brock v. L.R. Willson & Sons, Inc .,
773 F.2d 1377, 1386-1388 (D.C. Cir. 1985); Donovan v. Daniel Marr & Son Co .,
763 F.2d 477, 480, 484 (1st Cir. 1985).

[[16]] At the hearing, the compliance officer
advocated a method of fall protection involving safety belts, lanyards, and a lifeline
strung between columns.  Williams' more experienced witnesses responded that a
lifeline strung between columns would be hazardous to the employees at issue because it
would interfere with their ability to walk along the perimeter beams safely.  For
this reason, the witnesses continued, the industry practice is to wait until a temporary
floor has been installed before putting up the wire-rope railing required under �
1926.750(b)(1)(iii).  Thus, customarily, not even wire-rope railings are installed
until sometime after the bolt-up and plumb-up crews complete their work on the perimeter
beams.

[[17]] The Secretary's expert witness, safety consultant Casey, nevertheless testified
that another type of personal protective equipment known as a "connector's
toggle" could have been used to provide some additional protection while the
connectors were not actually working with or near moving steel.  Casey conceded that
the device is of very limited utility because it does not permit any mobility.  He
was unable to even estimate the percentage of time toggles could have been used, and he
acknowledged that he had never seen them in use.  In fact, he admitted, on the one
occasion when he had recommended the use of connector's toggles on a particular project,
his own employer had rejected his recommendation.  The other witnesses who were asked
about connector's toggles indicated that they were totally unfamiliar with the device.
  In light of this record, the judge quite understandably stated that "[t]he
evidence is not entirely reassuring that use of . . . connector's toggles is without
problems."

[[18]] Consistent with Subpart R's preference
for temporary floors over safety nets, see �� 1926.750 (b)(1)(ii) & (b)(2)(i), the
industry apparently regards interior safety nets as a feasible means of fall protection
only in situations where temporary floors cannot be used.  Moreover, the industry
disputes the Secretary's contention that perimeter safety nets are feasible in high-rise
multi-floored construction.  Both of these points are well illustrated by the record
in this case.  With respect to the feasibility of perimeter safety nets, we note the
following.  General foreman Aenchbacher, who had 32 years of experience in the steel
erection industry, raised several objections to the use of perimeter safety nets.  He
argued that connectors cannot be protected by nets because there is nothing at that stage
of the erection process to which the nets can be attached.  He also expressed his
opinion that it would not be practical to protect the bolt-up and plumb-up crews with
perimeter safety nets because other employees would be exposed to a falling hazard while
hanging the nets, the nets could be burned during the welding phase of the steel erection,
and the nets would interfere with the plumbing-up operations.  Plumb-up crew foreman
Robinson, who had 35 years of experience in the industry, also believed that perimeter
safety nets would be infeasible because they would interfere with the plumbing-up
operations.

[[19]] Section 1926.752(j), a Subpart R standard, provides:

All unused openings in floors, temporary or permanent, shall be completely planked over or
guarded in accordance with Subpart M of this part.

[[20]] We note that this regulation does not by itself have any substantive significance.
 It was adopted under the Occupational Safety and Health Act after the construction
safety standards were promulgated under the Construction Safety Act.  36 Fed. Reg.
10466 (May 29, 1971).  It could not change the construction standards in any
substantive manner, for it was promulgated without notice-and-comment rulemaking
proceedings.  36 Fed.Reg. 10466 (1971).  See Usery v. Kennecott Copper Corp .,
577 F.2d 1113 (10th Cir. 1977); Senco Products , 82 OSAHRC 59/E9, 10 BNA OSHC 2091,
1982 CCH OSHD � 26,304 (No. 79-3291,1982).

[[21]] The 1982 Willson court went even further.  "The question is not
whether Subpart R provides any exterior fall protection standards, but rather whether it
provides standards to guard against the particular exterior fall hazard for which Willson
was cited." 685 F.2d at 672.  As we said in Adams Steel Erection , 11 BNA
OSHC at 2077, "An employer would not be able to determine what standards applied to
his workplace under this test because his obligations would shift depending on the nature
of the particular circumstances resulting in a citation."

[[22]] This same principle applies to other standards, such as the noise standard at 29
C.F.R. � 1910.95(c)-(p).  In establishing an 8 hour time weighted average to sound
levels of 85 dBA the Secretary did not conclude that all exposures below 85 dBA were safe;
indeed he estimated that there would be a substantial number of cases of hearing
impairment at exposure levels between 80 and 85 dBA.  46 Fed. Reg. 4078, 4105 (Jan.
16, 1981).  Nevertheless, the Secretary decided to leave the protection of these
particularly susceptible workers to voluntary employer action rather than mandating a
limit below 85 dBA.  Id . at 4095-96.

[[23]] The rationale for this result would be as follows.  Section 1926.750(b)(2)(i)
only eliminates the hazard of falling more than 30 feet.  Even if the employer
complies with this requirement, employees are still exposed to the hazard of falling more
than 25 feet. Therefore, � 1926.105(a) can be applied to this hazard since no standard in
Subpart R applies.  See, e.g., Williams Enterprises, Inc ., 83 OSAHRC 26/A2, 11
BNA OSHC 1410, 1423, 1983-84 CCH OSHD � 26,542, p. 33,883 (No. 79-843, 1983) (Cottine,
Commissioner, dissenting in part), aff'd in pertinent part , 744 F.2d 170 (D.C. Cir.
1984).  See also OSHA Instruction STD 3-3.1 (July 18, 1983) reprinted in Employment
Safety and Health Guide (CCH) � 12,855 at 17,166.

[[24]] With respect to the feasibility of
covering the openings, the witness gave contradictory testimony.  When asked why it
was necessary to leave openings that extended the entire distance between columns, he
responded that the sheets of decking were 40 feet long, that they could not have been cut,
and that they would have been hazardous if used to partially cover the openings.  
However, he then gave his testimony about the customary practice of placing temporary
covers over the openings between the welding of the connections and the inspection of the
welds and also between the bolting-up work and the inspection of that work. 
Furthermore, on cross-examination, he indicated that, at some time prior to the
inspection, the sixth floor in fact had been solidly decked.  Thus, the openings at
issue apparently were created by removing decking that previously had been installed.
 This decking was removed to allow for the welding.

[[25]] The ANSI standard sets forth in four separate subsections (6.1, 6.6, 6.7 and 6.10)
the substance and frequently the exact wording of the OSHA standard.  We recognize
that the Secretary of Labor promulgated his standard before ANSI formally adopted its
standard.  Nevertheless, the ANSI procedure for developing an industry consensus
standard is a lengthy one.  It is therefore likely that ANSI drafted and circulated
its standard before the Secretary drafted his and that the authors of Subpart R were aware
of the ANSI proposal.  We note in this regard that the Department of Labor was
represented on American National Standards Committee A10, Safety in the Construction
Industry.

[[26]] This conclusion is fully corroborated by the record in this case.  As
indicated, Williams introduced evidence to the effect that its own usual practice and the
practice of its industry was to leave the column line openings temporarily covered when
they were not being used.  Planking would then be removed when necessary to permit
bolting, welding or inspecting of connections.  Industry custom and practice
accordingly conformed exactly to the procedures prescribed in sections 6.11 and 6.12,
suggesting that the industry considered these provisions to be controlling.

[[27]] We decline to amend the citation to
allege a violation of section 1926.752(j), since the parties did not expressly or
impliedly consent to try a violation of this standard.  McWilliams Forge Co .,
84 OSAHRC 11 BNA OSHC 2128, 1984 CCH OSHD � 26,979 (No. 80-5868, 1984).

[[28]] We conclude that the allegation of the
citation is broad enough to include both of the dates (the first and second days of the
inspection) and both of the locations (the first-floor landing and the adjacent
first-floor decking) discussed above.  In particular, we note that Williams did not
object to the compliance officer's testimony concerning the conditions on the second day
of the inspection.  It has not asserted that this evidence went beyond the scope of
the pleadings.  Nor has Williams responded to the Secretary's claim that the citation
item can be sustained on the basis of this evidence.  Yet, Williams has been aware of
the Secretary's position at least since the filing of the Secretary's post-hearing brief.

[[1]] 29 C.F.R. � 1926.105(a) provides:

� 1926.105 Safety Nets

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground
or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms,
temporary floors, safety lines, or safety belts is impractical.

[[2]] 29 C.F.R. � 1926.750(b)(2)(i) deals with falls from structural beams to the
interior of the building; � 1926.750(b)(1)(iii) with falls from temporary flooring; ��
1926.750(b)(1)(i), and 752(f), (h), (i), and (j) with falls through floor openings.

[[3]] Id .

[[4]] The industry "protection" provides for a floor 30 feet or two stories
below employees working on beams.  One would presume it would not require an inspired
engineering feat to improve on this.

[[5]] See Keystone Roofing Co., Inc. v. OSHRC , 539 F.2d 960, 962 (3d Cir. 1976)
(the "statutory framework furthers two laudable goals of administrative law:  it
encourages the Commission to achieve uniformly applied occupational safety and health standards
in furtherance of the Act's overall objectives, while guaranteeing as far as practicable
that the administrative process will be efficient rather than protracted."
 (emphasis added); cf ., Brennan v. Gilles & Cotting, Inc ., 504 F.2d
1255 (4th Cir. 1974).