UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 6415
ISSEKS BROTHERS, INC.,
Respondent.

January 29, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

On September 17, 1974, Judge Charles K. Chaplin rendered his decision affirming a citation for a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (hereinafter ‘the Act’). On October 10, 1974, Commissioner Moran directed review of the Judge’s decision. Submissions were invited on the following issues:

(1) Is the occupational safety and health standard published at 29 CFR § 1926.28(a) an enforceable regulation?

(2) If so, was the same properly promulgated in accordance with law?

We have considered the entire record, and for the reasons that follow we affirm the Judge’s order.[1]

Background of the Case

The hearing held in June 1974 concerned a citation issued during January 1974 charging the respondent with serious violation of section 5(a)(2) of the Act for a failure to comply with 29 CFR § 1926.28(a). This standard provides that:

§ 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 or where this part indicates the need for using such equipment to reduce the hazards to the employees (emphasis added).

The complaint alleged a failure to insure that employees wore appropriate equipment where there was exposure to the hazard of falling from fixed ladders. The employees were performing maintenance on a rooftop water tank about eight floors above the street. As part of their job tasks, the workers climbed up and down fixed metal ladders. The ladder leading to the top of the water tank was inclined at a steep angle, and the top of the tank was between 26 and 30 feet above the rooftop. No personal protective equipment was worn by any of the workers to protect against falls from these ladders although respondent’s own unenforced safety rule is that safety belts are to be worn while climbing ladders. Respondent’s industry has also published manuals indicating the need for such equipment. None of the ladders was caged.

Testimony at the hearing was limited to that of the compliance officer who conducted the original inspection and the President of the respondent employer. Judge Chaplin after considering the evidence and the employer’s post hearing brief, affirmed the citation and proposed penalty of $500.

Vagueness of 29 CFR § 1926.28(a)

The respondent employer argues that the standard at issue is so vague and indefinite as to violate Constitutional due process protections against vagueness. The standard allegedly fails to give fair notice to employers of what conduct is required. The phrases ‘appropriate protective equipment’ and ‘when there is exposure to hazardous conditions’ are considered too vague.

We disagree. As we have stated before, if the employer is uncertain of what personal protective equipment is ‘appropriate’ he may look to the specifications in Subpart E of Part 1926, entitled ‘Personal Protective and Lifesaving Equipment.’ With specific reference to the hazard of falling, he may comply with the standard by requiring the use of tied-off safety belts, lanyards and safety lines to protect employees as required by 29 CFR § 1926.104(a). See generally, Hoffman Constr. Co., 2 BNA OSHC 1523, CCH 1974–75 OSHD para. 19,275 (No. 664, January 31, 1975). If personal protective equipment for the particular hazard is not listed in Subpart E, and the employer requires guidance in devising or finding appropriate equipment, he may consult publications such as ANSI A14.3–1974 ‘Safety Requirements for Fixed Ladders’ § 6 at 24–25, or trade publications on safety (such as the ones in this record).[2] Also, the employer may consult with the Secretary pursuant to section 21(c) of the Act which requires the Secretary to advise and consult with employers.

A condition that is ‘hazardous’ is one having a direct and immediate adverse effect on safety or health (Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864, 869 (10th Cir. 1975)) which is not so remote as to be nearly negligible (General Electric Co., 3 BNA OSHC 1031, 1044, CCH 1974–75 OSHD para. 19,567 at 23,369 (No. 2739, April 21, 1975). The term is not vague. In rejecting respondent’s theory of the case, the Judge relied upon Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230 (5th Cir. 1974) and inquired whether respondent’s industry recognized the requirement for a safety belt where no other form of protection from falling, i.e., a cage, was available, and whether such hazards are recognized by respondent’s industry. The Judge noted that the respondent’s president conceded that the fall hazard involved is recognized in the industry and also that respondent required generally the use of safety belts whenever his employees were climbing ladders. Hence, the Judge concluded that there was no problem of Constitutional notice. We agree.[3]

Validity of 29 CFR § 1926.28(a)’s Adoption[4]

Section 1926.28(a) was initially adopted in 1971 as an ‘established Federal standard.’[5]Late in December 1971 the standard was numerically redesignated without any change in its substance.[6] About one year later the standard was changed.[7] This change forms the basis for an argument that the amended standard was invalidly adopted.

The change of section 1926.28(a) was part of a revision of Part 1926 as a whole. Three purposes of the revision were the following:

(1) to publish fully in one place the present occupational safety and health standards contained therein in order to reflect many changes made during the current year and thereby to improve their usefulness and facilitate their enforcement;

(2) to correct a number of typographical and clerical errors in the text of the standards; and

(3) to publish indexes with the standards, which are intended to permit quicker access to pertinent standards.

37 Fed. Req. 27503 (1972). No notice or opportunity for public comment was provided, since the Assistant Secretary explicitly stated that no substantive changes were made in the standards.

The change made to section 1926.28(a) in the course of this revision was the substitution of the conjunction ‘or’ for the conjunction ‘and’ used in the initial standard. Both Hoffman Constr. Co., supra, and Carpenter Rigging & Contracting Corp., supra, considered at length the construction to be given to the use of ‘and’ in the standard.

Detailed discussion of this issue is unnecessary, for we feel that Eichleay Corp., supra, is dispositive. The Commission in Eichleay took note of the change made in the standard and the Secretary’s statement in the preamble of the revision that no substantive changes were made. The Commission then concluded that the word ‘or’ should receive the same reading as the word ‘and’ used in the previous version of the standard.

Since 29 CFR § 1926.28(a) underwent no substantive change in this revision, the standard was validly adopted. The only change was a minor one. 29 CFR § 1911.5. Furthermore, the preamble to the Federal Register revision of § 1926.28(a) included a finding of good cause to this effect, in that the document did not make ‘substantive changes in the standards.’ 37 Fed. Reg. 27503 (1972).

Objections Raised in the Respondent’s Brief on Review

In its brief on review, the respondent raised two main objections to Judge Chaplin’s decision. Respondent first argued that § 1926.28(a) is in effect an application of the ‘general duty’ clause, and that no recognized hazard existed under the facts of this case. The simple answer is that the citation charged a violation of a specific standard adopted under section 5(a)(2) of the Act. At no point in the case was an attempt made to allege a violation under section 5(a)(1). The elements of a section 5(a)(1) violation are thus not relevant to this case. Indeed, the existence of a specifically applicable standard would preempt the application of the general duty clause. 29 CFR § 1910.5(f); Brisk Waterproofing Co., Inc., 1 BNA OSHC 1263, CCH 1973–74 OSHD para. 16,345 (No. 1046, July 27, 1973); Godwin-Bevers Co., Inc., 2 BNA OSHC 1470, CCH 1974–75 OSHD para. 19,206 (No. 1373, January 7, 1975); Brennan v. Butler Lime & Cement Co., 520 F.2d 1011, 1017–1018 n.9 (7th Cir. 1975), citing National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1261 (D.C. Cir. 1973).

Respondent’s argument that section 5(a)(1) elements are applicable apparently derives from language used in McLean Trucking Co. v. O.S.H.R.C., 503 F.2d 8 (4th Cir. 1974). The Court there drew a parallel between the breadth of the ‘general duty’ clause, and that of the standard at issue. Both furthered the goals of the Act and both were drafted with as much exactitude as possible. At no point, however, did the Court hold the requirements for a section 5(a)(1) violation applicable to a cited violation of a broad section 5(a)(2) standard.

On the merits of the allegation of non-compliance, we affirm and adopt the Judge’s findings that respondent did not require the use of appropriate personal protective equipment, (cf. Otis Elevator Co., 3 BNA OSHC ——, CCH 1975–76 OSHD para. 20,159 (No. 1184, November 19, 1975)) and that the hazard of falling from ladders existed. That respondent’s employees had not yet suffered any injuries does not alone negate the existence of a hazardous condition. Cf. Ryder Truck Lines, Inc., 497 F.2d 230 (5th Cir. 1974). We also agree with the Judge’s finding that the violation was serious.

Accordingly, it is ORDERED that the decision of Judge Charles K. Chaplin be affirmed.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: JAN 29, 1976

BARNAKO, Chairman, Concurring:

I concur but do not join in my colleague’s discussion of the vagueness and validity issues. The Commission’s decisions in Hoffman Construction Co., supra, and Eichleay Corp., supra, are dispositive. In my opinion the administrative law judge’s findings and conclusions were appropriate for the reasons assigned by him.

MORAN, Commissioner, Dissenting:

In a determined effort to pay homage to the opinions of Humpty-Dumpty rather than the U.S. Court of Appeals, the lead opinion continues to insist that the Commission can make words mean different things.[8] Undeterred by the failure to make the word ‘roof’ mean ‘floor,’ it is now revealed that the word ‘or’ has the same meaning as the word ‘and.’ I quote directly from the lead opinion:

‘. . . the word ‘or’ should receive the same reading as the word ‘and’ . . ..’

For 200 years students of American History believed that Patrick Henry was speaking in the alternative when, on March 23, 1775, he said:

‘. . . give me liberty, or give me death!’

But in this bicentennial year the Commission’s guide to word-usage would have that famous declaration read—brace yourself now—

‘. . . give me liberty, and give me death!’

Our forefathers who launched a revolution because they believed they had the ‘unalienable right’ to ‘life, liberty, and the pursuit of happiness’[9] might have reacted differently if one of my colleagues had been there to advise them that proper word usage requires that this declaration of the rights they cherished could also be interpreted to mean ‘life, liberty, or the pursuit of happiness.’

Logic requires that one ask this question: If there were no difference between the two words, why did the Secretary of Labor go to the trouble of making the change as chronicled in notes 5 through 7, supra, and the accompanying text? The three ‘reasons’ which appeared in the Federal Register, and which are listed in the lead opinion, give no clue whatsoever. Certainly replacing ‘or’ with ‘and’ has nothing to do with publishing the standards fully in one place—correcting textual errors—or publishing indexes.

Clearly the requirements of the standard were altered by the change. Under the ‘established Federal standard‘ which was adopted pursuant to the limited authority contained in 29 U.S.C. § 655(a) an employer’s duty was to see that his employees wear protective equipment where there existed both a hazardous exposure and where the regulation so indicated. What my colleague refers to as a ‘slight change‘ mandated a totally different duty for employers: protective equipment is required either where there is hazardous exposure or where the regulation so indicates.

The lead opinion implicitly concedes that the Secretary of Labor could not legally change this requirement in the manner he employed—because the Act limits the summary adoption of standards to ‘established Federal standards’ and ‘national consensus standards.’ Once the word ‘or’ was substituted for the word ‘and’ it was no longer an established Federal standard so the procedure which the Secretary employed to ‘adopt’ the change—29 U.S.C. § 655(a)—was improper. Such a change could only be made by following the public scrutiny provisions which appear in 29 U.S.C. § 655(b).

A recent decision of the Court of Appeals for the Third Circuit, AFL-CIO v. Brennan, —— F.2d —— (3d Cir., No. 75–1105, decided December 31, 1975) considered the authority of the Secretary of Labor to make changes in national consensus standards which, under the Act, have the exact same status as established Federal standards. Said the Court:

‘. . . if his [the Secretary of Labor’s] standard differs substantially from an existing national consensus standard he must . . . attempt to show . . . what reasons there are for the departure. If the reasons for the departure are based in whole or part on factual matters susceptible of evidentiary development, they must, as in any other case, be supported by substantial evidence in the record as a whole.’

That, of course, was not even attempted in this case. The resort of the Commission in this case to the mind blowing nonsense of proclaiming that there is no difference between the two words at issue is a clear admission that legal procedures were not observed in making the change.

Because the Secretary had no statutory authority to make the change in the wording of § 1926.28(a) without observing the requirements of 29 U.S.C. § 655(b), the version of the standard containing the word ‘or’ is invalid. I have also made this point in Secretary v. Island Steel & Welding, Ltd., 17 OSAHRC 143, 144 (1975), and Secretary v. Carpenter Rigging & Contracting Corporation, 15 OSAHRC 400, 409 (1975).

Where the modified version of a standard is invalid, it does not repeal the original standard. See 1A Sutherland Statutory Construction § 23.24 (4th ed. C. Sands rev. 1972). Consequently, the original version of 29 C.F.R. § 1926.28(a) [10]remains in force and effect.

To establish a violation under the original (and only valid) version of the standard, proof of two things is required:

(1) exposure to a hazardous condition warranting the use of personal protective equipment, and

(2) failure to use this equipment when its use is required elsewhere in Part 1926 of the regulation.

Secretary v. Island Steel & Welding, Ltd., supra. Therefore, to establish a violation of the standard in this case, it must be shown that another standard within Part 1926 required respondent’s employees to wear safety belts.

The standard that comes closest to requiring the use of safety belt is 29 C.F.R. § 1926.105(a) which provides:

‘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.’

This standard has been interpreted to require the use of safety nets or one of the other enumerated items when work is performed at heights of more than 25 feet. Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974). There is nothing therein to indicate that any of these devices must be used in conjunction with one another.

In the instant case respondent’s employees were performing emergency repairs upon a roof-top water tank. The men used fixed ladders. Neither § 1926.105(a) nor any other standard within Part 1926 requires that safety belts be used as well. Accordingly, the citation should be vacated.

Regrettably the trial below was conducted while the Judge and all parties to the case were unaware of the wording change in the regulation. Nevertheless, I believe the facts involved were carefully set forth in Judge Chaplin’s decision so I incorporate the same herein as Appendix A.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 6415
ISSEKS BROTHERS, INC.,
Respondent.

FINAL ORDER DATE: October 17, 1974

APPEARANCES:

Theodore Gotsch, Esq. For the complainant and

Joseph S. Kaming, Esq. For the respondent

Charles K. Chaplin, Judge

The above identified cause arose at a workplace where respondent’s employees had been summoned to perform maintenance on a rooftop water tank.

This is a proceeding pursuant to Section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter the Act) wherein the respondent contested both the violation and the proposed penalty for an alleged serious violation.[11]

The violation as cited was alleged noncompliance with the standard at 29 CFR 1926.28(a) and it was described in the citation as:

‘Employees are exposed to the hazards of falling due to failure to utilize personal protective equipment such as ladder safety devices (for five ladders) safety belts and life lines or safety nets for work performed on January 17, 1974.’

The applicable standard provides:

‘1926.28 Personal Protective Equipment

The complaint alleged that on or about January 17, 1974, at a workplace located at 149 W. 45th Street, New York, New York ‘. . . the respondent failed to insure that its employees wore the appropriate personal protective equipment in an operation where there was exposure to hazardous conditions in that there was no ladder safety devices for a number of ladders utilized at the worksite.’

The parties stipulated that respondent was engaged in interstate commerce, that respondent is small in relative size with yearly gross revenue of approximately $700,000, that respondent has no history of violations under this act, and daily has between 10 and 13 employees. Respondent then advised that it wished to withdraw its contest to a nonserious violation respecting protective helmets. Respondent stated it had provided helmets but the employees were not wearing them on the date of inspection, that respondent has again instructed all employees to wear helmets and will continue to abide by the regulations. Respondent’s motion to withdraw was then granted.

At trial complainant moved to amend the complaint to conform to the citation. This motion was denied on the basis that dropping a portion of the citation was an abandonment of such element and to resurrect it on the date of trial would prejudice respondent.

The Evidence

The complainant offered the testimony of Mr. Theodore Corcoran, a Compliance Safety and Health Officer, who had conducted an inspection on January 17, 1974 of a worksite where respondent’s employees were making emergency repairs to a rooftop water tank.[12] The tank was on the roof of a theater building at 149 West 45th Street (Tr. 36), about eight floors above the street. The roof was in three levels with vertical fixed metal ladders from the lower to intermediate level and to the top level (Tr. 37). There was a fixed metal ladder at a 75 degree angle,[13] in excess of 30 feet (35 rungs), from the rooftop to the top of the tank (Tr. 38). On arriving at the worksite Mr. Corcoran observed four workmen of respondent (Tr. 41), one on the lower roof level, one on the upper roof level, and two at the tank level, with one of these on top of the tank (Tr. 40). During the inspection the men changed locations and went up and down the ladders (Tr. 61) and he observed no personal protective equipment being used. He described such protective equipment as a safety belt with ladder climbing attachments (Tr. 43). He discussed with the employees the need for measures to prevent falls from the ladders and observed that in the ‘normal’ use of fixed ladders, falls frequently result without intervening cause (Tr. 47). During the time he was at the worksite he did not see any safety belts and when he left the men were tying off with a manila rope (Tr. 50). He determined the hazards to which these employees were exposed were serious because of the possibility of falling from over 30 feet and sustaining serious physical harm or death. In computing the penalty respondent was allowed the maximum consideration for size, good faith and prior history so that the initial penalty was reduced 50% (Tr. 60).

On cross examination Mr. Corcoran stated that these ladders should have had wells or cages or, in the alternative, personal protective equipment in conjunction with climbing grabs or a track could have been used. He described a track as sections of pole bolted to the ladder and to which the worker could attach his safety belt on a sliding device.[14] He described the hand grabs as attachments to the belt which are fitted over the rungs or sides of the ladder and released and reattached as the wearer climbs (Tr. 81). If a temporary ladder, as distinguished from a fixed ladder, was properly placed no such device would be required while using the ladder. He felt the roof ladders to be more hazardous than the tank ladder. The experience of the workmen was not a factor in determining the form of device required (Tr. 94). He also related that the hazard to which the workman on top of the water tank was exposed was his principal concern and although this was no longer in issue the penalty remained unchanged.

He further stated that at the lower roof level ladder there was a rope alongside the ladder, used for hoisting materials, and that a workman could possibly grab this rope. A rope was also beside the tower ladder (Tr. 190).

On redirect testimony Mr. Corcoran testified that he specifically asked the workmen if they had safety belts with them and was informed they were back in the shop (Tr. 192). His instructions from his office were that a rope is not an acceptable ladder safety device (Tr. 206).

Respondent’s president, Mr. Marshall Hochhauser, testified that he was actively involved in respondent’s business, has taken safety and engineering courses in construction and is Chairman of the Safety Committee of the National Wood Tank Institute. His involvement with respondent included selling and office, shop and erection procedures. The safety committee of which he was chairman, set up policies which the members tried ‘. . . to live up to and to conform with the OSHA regulations and also where we disagree, to send in what we feel the requirements should be.’ (Tr. 132). Respondent offered as an exhibit a report of the National Wood Tank Institute Safety Committee.[15] This exhibit contained a safety manual, Basic Safety Rules for Field Erection and Construction by Caldwell Tanks, Inc. setting forth at page 5 that ‘In places where no other form of protection from falling is available, a safety belt and tail line must be used.’ Mr. Hochhauser also stated (Tr. 141) that his employees were required to wear safety belts when climbing ladders. This requirement was enforced by supervisors, foreman or leaders (Tr. 143). The only reason he could advance for his employees not wearing safety belts on the day of inspection was because the work being performed was an emergency repair and the employees were expediting it (Tr. 147). He described the safety device he utilized as

‘. . . they clip right on to the ladder they go up . . . (Tr. 166)

Q. They clip from rung to rung as they go up?

A. Yes.’

Further he stated the material hoist rope was a safety device (Tr. 170).

Findings of Fact

1. Respondent had employees working on a building roof for the purpose of repairing a wooden water tank rising approximately 26 feet to its top.

2. The roof top was in three levels with access to each higher level by way of fixed metal ladders.

3. The water tower was reached by way of a fixed metal ladder.

4. The roof ladders were vertical and the tank ladder was inclined at an indeterminate angle.

5. Respondent had four workmen at the worksite and at least three of them traversed the roof ladders and two of them the tank ladder.

6. None of the ladders was caged and none of the men wore any personal protective devices.

7. Injury from falling from one of these ladders would have resulted in serious physical harm or death.

Discussion

Much trial time was devoted to a device that could be attached to a ladder to make working with a safety belt easier. Just as in sports a player must keep his eye on the ball, so too in the law lawyers must keep their eye on the point in litigation. Here the issue is whether respondent’s employees were wearing any personal protective device that would assist them in the event of a fall. This issue arose because the building’s owner had not provided any type of ladder safety device so safety was left solely to the person climbing the ladder. A climber in these circumstances can achieve ladder safety only by wearing a safety belt that will catch him if he falls. Thus ladder safety devices are not part of the issue. Official notice is taken of the fact that people fall off of ladders for a variety of reasons including slipping, vertigo, and physical reasons. Thus a rope, as testified to as a safety device, is not a safety device when just hanging alongside the ladder since an unconscious person or one falling away from the rope could not avail himself of it.

The proposed penalty covered not only the failure to wear personal protective gear but also the use of other devices to protect the workmen on top of the tank. However in deleting the latter item from the issues no penalty adjustment was made.

Respondent has cited various decisions by Commission Judges to the effect that the standard at 1926.28(a) is vague and unenforceable.[16] In general these decisions stand for the proposition that § 28(a) is vague when standing alone. A substantially similar standard at 1910.132(a) requiring ‘. . . protective equipment . . . shall be provided, used . . . wherever it is necessary by reason of hazards . . . encountered in a manner capable of causing injury . . .’ was recently reviewed[17] and the court held that

‘The regulation appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury. Moreover, we think inherent in that standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard of foot injuries to dockmen, in a somewhat confined space, from falling freight and the rapid movement of heavy mechanical and motorized equipment, which would warrant protective footwear. So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster.’

There is little to distinguish the standards at 1910.132(a) and 1926.28(a) insofar as their general applicability is concerned. Using the test enunciated in Ryder, supra, it is clear that respondent’s industry recognized the requirement for a safety belt where no other form of protection from falling, i.e., a cage, was available. Further respondent’s president required such belts whenever his employees were climbing ladders. A hanging rope alongside the ladder does not begin to approximate ‘. . . personal protective equipment . . .’ Whether respondent’s employees have had no ladder falls is not determinative of the hazard which respondent’s president concedes is recognized in the industry.

Conclusions of Law

1. The Occupational Safety and Health Review Commission has jurisdiction over the respondent and the matter in issue.

2. Respondent was in noncompliance with the standard at 1926.28(a) and thus in violation of 29 USC 654.

3. Such violation was a serious violation within the meaning of 29 USC 666.

Order

The citation for a serious violation of the standard at 1926.28(a) and the proposed penalty of $500 are affirmed.

It is so ORDERED.

CHARLES K. CHAPLIN

Judge, OSHRC

Dated: September 17, 1974

Washington, D.C.

[1] For my own part, I would add that in my opinion the Commission lacks authority to decide the Constitutional question of vagueness inherent in the first issue, and to review the validity of rulemaking actions of the Secretary of Labor. My views on these matters are expressed fully in Carpenter Rigging & Contracting Corp., 2 BNA OSHC 1544, 1546–47, CCH 1974–75 OSHD para. 19,252 at 23,030 (No. 1399, February 4, 1975) (lead opinion), Divesco Roofing & Insulation Co., 1 BNA OSHC 1279, CCH 1973–74 OSHD para. 16,443 (No. 345, August 13, 1973) (concurring opinion), United States Steel Corp., 2 BNA OSHC 1343, 1345, CCH 1974–74 OSHD para. 19,047 at 22,773 (Nos. 2975 & 4349, November 14, 1975) (concurring opinion), and Santa Fe Trail Transport. Co., 1 BNA OSHC 1457, 1460, CCH 1973–74 OSHD para. 17,029 at 21,707 (No. 331, December 18, 1973) (dissenting opinion), rev’d 505 F.2d 869 (10th Cir. 1974).

[2] This interpretation is consistent with the purposes of the Act. Society of the Plastics Industry, Inc. v. O.S.H.A., 509 F.2d 1301, 1309 (2d Cir.), cert. denied 95 S.Ct. 1998 (1975).

[3] It should be noted, however, from the application of the terms of the standard in the text of this decision that the standard does not actually require the use of a ‘reasonable man’ test in determining the course of conduct required of an employer. Hoffman Constr. Co., supra, Carpenter Rigging & Contracting Corp., supra at note 1, and Eichleay Corp., 2 BNA OSHC 1639, CCH 1973–74 OSHD para. 16, 811 (No. 2610, October 16, 1973) (Administrative Law Judge), aff’d by the Commission, 2 BNA OSHC 1635, CCH 1974–75 OSHD para. 19,324 (February 20, 1975) should be read accordingly. Of course, whether a hazardous condition exists can be determined by reference to industry’s recognition of a hazard, but this is not necessarily controlling. Cf. United States Steel Corp., Am. Bridge Div., CCH 1973–74 OSHD para. 17,243, (No. 3010, January 31, 1974) (Administrative Law Judge), aff’d by an equally divided Commission, 19 OSAHRC 512, 3 BNA OSHC 1434, CCH 1975–76 OSHD para. 19,883 (July 29, 1975). Other probative evidence, such as records of personal injury may be used as well. See Texports Stevedore Co., Inc. v. Secretary of Labor, 484 F.2d 465, 467 (5th Cir. 1973) which relies upon the circumstances of a particular incident without reference to industry practices.

[4] This issue was raised sua sponte in the direction for review, and it is doubtful whether it is properly before us. Cf. Puterbatgh Enterprises, Inc., 2 BNA OSHC 1030, CCH 1973–74 OSHD para. 18,158 (No. 1097, July 1, 1974) (vagueness raised in direction for review untimely).

[5] 36 Fed. Reg. 10469 (1971).

[6] 36 Fed. Reg. 25232 (1971).

[7] 36 Fed. Reg. 27503 (1972).

[8] See Langer Roofing and Sheet Metal Inc. v. Secretary of Labor, —— F.2d —— (7th Cir., Nos. 74–1645 and 75–1203, decided November 20, 1975) where the Court overturned the Secretary of Labor’s effort to sustain a Commission decision holding that a roof is a floor, and stated:

‘Unlike Humpty-Dumpty, the Secretary may not give a word whatever meaning he chooses, and while we would defer to any reasonable interpretation on his part, we are convinced that the interpretation he advances here is unreasonable.’ (Footnote omitted.)

[9] Declaration of Independence, July 4, 1776.

[10] 36 Fed. Reg. 7347 (1971) as adopted by 29 C.F.R. § 1910.12, 36 Fed. Reg. 10469 (1971). The standard, originally designated as 29 C.F.R. § 1518.28(a), was redesignated as 29 C.F.R. § 1926.28(a) on December 30, 1971. 36 Fed. Reg. 25232 (1971).

[11] During a pretrial conference the parties had settled the issue raised in the notice of contest respecting a nonserious violation of 29 CFR 1926.100(a).

[12] The tank was of wooden stave construction (Tr. 184), about 10 feet in height sitting on a supporting structure 16 to 18 feet in height (Tr. 155).

[13] On cross examination Mr. Corcoran stated the ladder angle of incline was an approximation and he did not answer when queried specifically if the angle could have been less (Tr. 88).

[14]Exhibit C–1.

[15] Exhibit R–1.

[16] Edward M. Ream, Inc., OSHRC Docket No. 1504, CCH ¶15,569; American Bridge, OSHRC Docket No. 2249, CCH ¶16,284; Everhart Steel Construction Company, Inc., OSHRC Docket No. 3217, CCH ¶17,062, and United Engineers and Constructors, Inc., OSHRC Docket No. 2414, CCH ¶17,161.

[17] Ryder Truck Lines, Inc. v. Brennan, (5th Cir.), No. 73–3341, July 18, 1974.