UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 78-0819
October 17, 1980
Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
BY THE COMMISSION:
A decision of Administrative Law Judge John J. Morris is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). On the basis that the Secretary of Labor (‘the Secretary’) failed to issue the citation with ‘reasonable promptness’ as required by section 9(a) of the Act, Judge Morris vacated the Secretary’s citation which alleged that Respondent, Stearns-Roger, Inc. (‘Stearns-Roger’ or ‘the company’), violated section 5(a)(2) of the Act by failing to comply with 29 C.F.R. § 1926.28(a). Commissioner Cottine granted the Secretary’s petition for review of the judge’s decision on the following issue:
Whether the Administrative Law Judge erred in vacating the citation on the ground that the citation was not issued with reasonable promptness, and if so, whether the alleged violation of 29 C.F.R. § 1926.28(a) should be affirmed.
For the reasons that follow, we reverse the judge’s ruling and affirm the citation.
On September 21, 1977, a compliance officer of the United States Department of Labor inspected Stearns-Roger’s worksite in Waterflow, New Mexico, as a result of an employee complaint. At this worksite, Stearns-Roger was constructing a precipitator tower of an electrical power plant. When the compliance officer arrived at the worksite, she discussed the complaint with Stearns-Roger’s safety supervisor and the ironworker superintendent. The employee complaint concerned pieces of iron being suspended and swung over the heads of ironworkers. Accompanied by the safety supervisor and the ironworkers’ union steward, the compliance officer inspected the area at the ground level where the complaint arose and also ascended to the 90-foot level of the tower to talk to an ironworker who filed the complaint.
At the time of the inspection, the tower was a large skeletal steel structure 142 feet high. From the 94-foot level to the 120-foot level, a crew of from 10 to 25 employees were performing ‘bolting-up’ operations. Bolting-up involves installing the bolts that secure the structural steel members to each other. Employees in the bolting-up crew carried 20-pound pneumatic hammers attached to 25-foot hoses. While employees were in a stationary position to perform bolting-up work at a connection point, the employees tied off the 6-foot lanyards of the safety belts they wore. However, while they walked the several feet from one connection point to the next on the 8-inch wide girders, they did not tie off unless there happened to be a ‘static line’ installed at approximately waist-level along the girder. Stearns-Roger did not install static lines along all of the girders on which employees walked and did not require that employees tie off at any time other than when they were stationary at a connection point. Although Stears-Roger’s safety supervisor considered that the employees’ exposure to a fall hazard while installing all necessary static lines would be greater than the exposure while walking unprotected on the girders, he acknowledged that it would be possible to install static lines that would enable all employees walking on girders to tie off their safety belts. The ironworker superintendent, as well as Stearns-Roger’s safety supervisor, believed that a static line installed along the girder in the area where the employee walked would restrict and trip the employee, but the ironworker superintendent testified that the static line could be installed above the level of the employees’ heads. The company did not use nets, catch platforms, or other devices under the girders to protect the employees from falling during bolting-up operations.
During the walkaround portion of the inspection, the compliance officer discussed her observations to some extent with Stearns-Roger’s safety supervisor, but she did not indicate that there were any violations. The discussions that were held during the inspection primarily concerned the employee complaint.
As a result of the inspection, the area director of the Labor Department’s area office determined that a willful citation for failure to use tied-off safety belts or other fall protection devices should be issued to Stearns-Roger. Although the determination was made late in October 1977, the Secretary’s internal procedures dictated that a willful citation be reviewed by the Regional Solicitor. In this case, the citation did not issue until February 21, 1978, which was 139 days after the inspection.
Stearns-Roger contested the citation and, along with its answer to the Secretary’s complaint, the company filed a motion to dismiss the citation on the basis that it was not issued with reasonable promptness as required by section 9(a) of the Act. The company argued that the delay prejudiced its investigation and defense of the citation. As to the prejudice, the company contends that it lacked knowledge of any alleged violations until approximately four months after the inspection and that by then many employees and much evidence had become unavailable. In its brief to the judge, the company added a second argument. Citing Commissioner Barnako’s concurring opinion in Jack Conie & Sons Corp., 76 OSAHRC 70/A2, 4 BNA OSHC 1378, 1976–77 CCH OSHD ¶20, 849 (No. 6794, 1976) (‘Jack Conie’), Stearns-Roger contended that the delay was unconscionable. The company argued that the substantial delay was not satisfactorily explained and could not be excused in view of the seriousness of the allegations. Moreover, Stearns-Roger asserted that the employer’s need for an adequate opportunity to investigate the allegations before it could determine whether to contest them should have been obvious to the Secretary.
In his response to Stearns-Roger’s motion to dismiss, the Secretary countered that the citation was issued well within the six-month limitation of section 9(c) of the Act and that the company did not allege and should not have suffered actual prejudice. The Secretary relied on the fact that Stearns-Roger’s safety supervisor had accompanied the compliance officer on the inspection when she made the observations underlying the citation. The Secretary also indicated that discovery procedures could be used to ascertain the underlying facts before the hearing. The Secretary further argued that the scrutiny of the willful citation by the Regional Solicitor before the citation was issued justified the delay. The Secretary did not further argue the issue in his brief to the judge.
Judge Morris vacated the citation on the alternate ground presented by Stearns-Roger, that the delay was unconscionable. Because the company’s safety supervisor had fully observed the inspection which generated the citation, the judge found that Stearns-Roger was not prejudiced by the delayed issuance of the citation. He did not apply a prejudice test to uphold the citation, however, because he considered that the Commission decision in Jack Conie, to which Stearns-Roger referred, constituted the applicable Commission precedent and that Jack Conie required an examination of the justification for the delay. He concluded that in this case the Secretary had failed to show sufficient justification since the only explanation presented was the requirement that the Regional Solicitor review citations for willful violations. Because the delay was 139 days, which he noted was longer than that in Jack Conie, Judge Morris considered the delay unconscionable.
On review, the parties continue to make substantially the same arguments that they made to the judge. The Secretary contends that the section 9(a) requirement of reasonable promptness in issuing citations is intended primarily to protect employees by promoting prompt abatement of hazards. The Secretary accordingly continues to argue that vacation of the citation for his alleged failure to comply with the statutory provision cannot be justified unless the employer shows prejudice from the delay. Stearns-Roger asserts that the Secretary’s compliance with section 9(a) and the prompt abatement of hazards can best be achieved by vacating the citation where a substantial delay is unjustified in the circumstances. The company also argues that actual prejudice is virtually impossible to establish but that generally a delay in the issuance of a citation will increase the difficulty of investigating and defending the citation. On the basis of these alleged difficulties, the company asks that the Commission find that the company was prejudiced in this case.
The Commission has held that unless the employer establishes prejudice, a citation will not be vacated for the Secretary’s alleged failure to issue it with reasonable promptness. Laclede Gas Co., 79 OSAHRC ___, 7 BNA OSHC 1874, 1979 CCH OSHD ¶24,007 (No. 76–3241, 1979). Judge Morris in this case found that Stearns-Roger was not prejudiced by the 139-day delay. Although Stearns-Roger on review requests the Commission to reexamine the evidence regarding prejudice, the company has never specifically demonstrated that its investigation and defense of the citation was materially harmed by the delay. Accordingly, we conclude that the company was not prejudiced by the delay in the issuance of the citation. We reject the judge’s reliance on an unconscionability test and reverse his ruling vacating the citation on the basis that the Secretary allegedly failed to issue the citation with reasonable promptness.
Although he vacated the citation on the basis of Stearns-Roger’s reasonable promptness defense, Judge Morrie entered alternative findings and conclusions on the merits. Among other things, he found that Stearns-Roger’s bolting-up crew was exposed to a fall hazard requiring the use of tied-off safety belts, that the installation of static lines for use in tying-off the lanyards of the safety belts would not create greater hazards and was not impossible, and that the violation was serious. He accordingly concluded that, except for his ruling on the reasonable promptness issue, he would affirm the citation for serious violation of section 1926.28(a).
On review, the Secretary argues in support of the judge’s decision. The Secretary argues that the fall hazard to which Stearns-Roger’s employees were exposed was obvious—the bolting-up crew was required to walk upon beams eight inches wide and 94 to 120 feet above the ground but the employees frequently did not and were not required to tie off their safety belts. The Secretary also argues that the use of tied-off safety belts was feasible—Stearns-Roger had installed some static lines for use in tying-off, and the company failed to prove that greater hazards existed from the use of static lines.
Stearns-Roger presents one argument on review against the judge’s findings and conclusions. The company argues that without proof that the use of tied-off safety belts by employees moving upon the beams during bolting-up operations was a custom or practice in the construction industry, a citation for noncompliance with section 1926.28(a) cannot be affirmed. The company cites the decision of the Court of Appeals for the Fifth Circuit in B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364 (1978) and also relies on the Commission’s decision in Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976–77 CCH OSHD ¶21,162 (No. 7792, 1976).
In S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ¶23,480 (No. 15855, 1979), appeal filed, No. 79–2358 (5th Cir. June 7, 1979), the Commission considered the significance of industry custom and practice in proof of noncompliance with section 1926.28(a). We held that industry custom and practice are relevant to, but do not control, the determination of whether a reasonable person familiar with the facts unique to a particular industry would recognize a hazard requiring the use of personal protective equipment. We accordingly respectfully declined to follow B & B Insulation, Inc. v. OSHRC, supra. We held that to satisfy his burden of proof of noncompliance with section 1926.28(a), the Secretary must prove employee exposure to a hazardous condition requiring the use of personal protective equipment, applying a reasonable person test to determine the existence of such a hazardous condition. The Secretary must also identify the appropriate form of personal protective equipment to eliminate the hazard. We specifically held that the Secretary is not required to prove the feasibility or likely utility of the identified form of personal protective equipment.
The Secretary satisfied his burden of proof in this case. The record establishes employee exposure to an obvious fall hazard requiring personal protective equipment. In his citation charging noncompliance with section 1926.28(a), the Secretary indicated that safety belts and safety lines were appropriate to abate the hazard. The record contains no evidence concerning industry custom and practice, but even if we assumed that Stearns-Roger’s practice of requiring employees to tie off only when working in a stationary position reflects the custom and practice of the industry as a whole, we would not conclude that there was no hazard at other times. As we said in S & H Riggers and Erectors, Inc., supra, where the employees are exposed to hazards recognized by a reasonable person familiar with the facts, the industry cannot be permitted to set its own standards which fail to afford adequate protection to the employees.
Judge Morris considered and rejected Stearns-Roger’s arguments concerning the defenses of greater hazard and impossibility. See S & H Riggers and Erectors, Inc., supra. Our review of the record indicates his determinations are proper and therefore we adopt his factual findings and legal conclusions on these defenses. See Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD ¶ 22,737 (No. 14281, 1977). Accordingly, we conclude that Stearns-Roger committed a serious violation of section 1926.28(a).
The following factors were considered in assessing an appropriate penalty under section 17(j) of the Act, 29 U.S.C. § 666(i). Because 10 to 25 employees were exposed to falls of at least 94 feet, and were thereby exposed to a substantial likelihood of serious physical harm or death, the gravity of the violation was high. Giving further consideration to Stearns-Roger’s size, prior history of violation under the Act, and good faith toward compliance, we assess a penalty of $900.
Accordingly, we reverse the judge’s decision vacating the citation on the basis that it was not issued with reasonable promptness as required by section 9(a) of the Act. We modify the citation to allege a serious violation of 79 C.F.R. § 1926.28(a) and affirm the citation as so modified. We assess a penalty of $900. SO ORDERED.
FOR THE COMMISSION:
RAY H. DARLING, JR.
DATED: OCT 17, 1980
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 78-0819
January 17, 1979
James F. Gruben, Esq., Office of Ronald M. Gaswirth, Regional Solicitor, U. S. Department of Labor, Dallas, Texas, for the Complainant,
John L. Reiter, Esq., Assistant General Counsel, Stearns-Roger, Incorporated, 4500 Cherry Creek Drive, Denver, Colorado, for the Respondent.
DECISION AND ORDER
John J. Morris, Judge:
Respondent is charged with not providing fall protection for its workers thereby violating the specific duty clause of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.).
Citation 1 alleges a willful violation of three standards on respondent’s precipitator tower. The standards were allegedly violated either singularly or in the alternative. They provide as follows:
§ 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.
§ 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.
§ 1926.750 Flooring requirements.
(b) Temporary flooring—skeleton steel construction in tiered buildings.
(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.
Respondent contends the citation was not issued with reasonable promptness. Further, it argues § 1926.28(a) was not properly promulgated. In addition, respondent states it complied and its workers ‘used’ their safety belts and lanyards even though they would be tied off for insubstantial short periods of time. Respondent further states § 1926.28(a) is unenforceably vague if it purports to require an employer to install static lines. Also, the time required to install static lines is at least equivalent to the time unsecured workers are bolting up the structure.
Concerning § 1926.105(a), respondent maintains that the installation of safety nets was not practical. Further, it insists Commission case law does not require safety nets when belts and lanyards are being used.
Concerning § 1926.750(b)(ii) respondent declares the standard is not applicable to its worksite.
In concluding respondent contends there is insufficient evidence to support a willful violation.
The issues raised here require a review of the uncontroverted evidence.
Complainant’s evidence. A compliance officer inspected respondent’s precipitator tower unit #3 on September 21, 1977. The citation was issued 139 days later on February 7, 1978. The unit, a structural steel tower, measures 24 by 44 feet. The top of the tower is 142 feet above the ground.
To discuss a complaint previously filed with the Department of Labor, worker Songco descended to the 90-foot level where the compliance officer was located. Songco climbed 28 feet down the diagonals to that point. He did not tie off when climbing down. In coming down in such a manner, he could fall. Respondent’s safety director did not say anything to Songco (Tr. 90–96, 115, 116, 119, 175, Exhibits C–7 to C–12).
There were 10 to 25 workers on the tower. Some workers were tied off to static lines but not all were tied off at all times. The workers do not tie off when moving between work stations. Safety nets had not been installed. There was a fall potential of 94 feet (Tr. 97–99, 123, Exhibit Cp-12).
There were, in small areas, some float scaffolds on the structure. The worksite was not amenable to temporary floors but ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts would prevent the workers from falling. Safety nets would prevent serious injuries (Tr. 99–100, 119–120, Exhibits C–7 to C–11). If a worker fell, serious physical harm could result (Tr. 101).
Company policy, in effect, requires a worker in an exposed location to tie off. However, it is not necessary to tie off if an employee is working as a connector or if he is moving along a beam from one point to another (Tr. 118–119, 121, 122, 136).
Five prior citations, which became final orders of the Commission, have been issued against respondent. In 1973 and 1975, it received citations for violating 29 C.F.R. § 1926.105(a). In 1976 and 1977, it received three citations for violating 29 C.F.R. § 1926.28(a). Two fatalities have occurred at the jobsite (Tr. 102, 128–134, Exhibits C–13–C–19).
In 1976, a compliance officer, other than the inspector in the instant case, discussed fall protection with respondent’s management (Tr. 135–136).
After the inspection, the compliance officer discussed her findings with the area director. Thereafter, in the second or third week in October, the file was referred to the regional administrator for his concurrence concerning the issuance of an alleged willful violation (Tr. 106–107).
Respondent’s evidence. During the inspection at the tower unit, respondent’s safety director saw no workers at their work stations who were not tied off. During the inspection and at the closing conference, the compliance officer made no statement about a violation having occurred nor did she comment on respondent’s work practices (Tr. 143, 146–149, 154, 155, 157–158, 183).
At the time of the inspection, in addition to bolting up work, respondent’s workers were plumbing up the building with wire ropes.
Bolt bags could not be lowered through any safety nets. Workers walk the beams to get from one connection to another. Unless there is a static line, they are not tied off. If a worker slipped, nothing would prevent his fall (Tr. 164–166, 170, 171).
Workers carry 6-foot lanyards. Company policy is for workers not to tie off when going from one work station to another (Tr. 176, 177).
Nets and static lines were not practical; nets close off access. In using a static line, a worker must lean away from a 6 to 8 inch wide steel beam to get any benefit from the line. Respondent attempts to install static lines at 42 inches. Where there is a solid floor, static lines or temporary guardrails are installed (Tr. 173, 184–189).
First, in the order of construction activity, come the raising gang (also called connectors). This group has no protection because there is nothing available. Next comes the bolt-up gang who are protected by static lines, temporary handrails and decks. The next group are the detail people who do the welding and finish work (Tr. 191–193).
The threshold question concerns whether the citation was issued with reasonable promptness as required by 29 U.S.C. § 658(a).
The inspection occurred September 21, 1977, and the citation was issued 139 days later on February 7, 1978. Respondent raised the defense in its answer.
The only evidence to explain the delay between the inspection and the issuance of the citation was to the effect that the file was referred to the regional office for staff review and consultation with the solicitor’s office (Tr. 106–107).
Respondent, in its brief, argues it was prejudiced by the delay but the evidence fails to demonstrate any such prejudice. Respondent’s safety supervisor was present when worker Songco climbed down the scaffold without being tied off and he confirmed the inspector’s description of the incident (Tr. 95, 96, 180). In addition, it is company policy to permit workers to move between work stations without being tied off (Tr. 99, 118, 119, 123, 136, 170, 177, Exhibit C–12).
On these facts I accordingly rule that respondent did not suffer any prejudice by virtue of the delay in the issuance in the citation.
The cases cited by respondent do not involve prejudice to an employer; rather, they involve an unconscionable delay in the issuance of a citation.
Complainant’s brief does not address the reasonable promptness issue. In support of its position, respondent relies on Jack Conie & Sons Corporation, 76 OSAHRC 70/A2, (No. 6794, 1976); Todd Shipyards Corporation, 77 OSAHRC 18/A2, (No. 8500, 1977); Aluminum Coil Anodizing Corporation, 77 OSAHRC 70/A2, (No. 829, 1977); National Industrial Constructors, Inc., 77 OSAHRC 168/A2, (No. 76–3721, 1977).
In Jack Conie, the Secretary failed to show any exceptional circumstances for the 126-day delay between the inspection and the issuance of the citation. The citation was vacated. In Aluminum Coil, Chairman Cleary and Commissioner Barnako articulated their separate views concerning reasonable promptness. This same divergence, prejudice or unconscionable delay, appears in Todd Shipyards Corporation. In National Industrial Constructors, the citation was upheld but complainant presented detailed evidence on the day-to-day activities of the compliance officer that justified the delayed issuance of the citation.
I am aware that the composition of the members of the Review Commission recently changed, but I am obliged to follow applicable precedent. Gulf and Western, 77 OSAHRC 72/A2, (No. 6804, 1977); Grossman Steel and Aluminum, 76 OSAHRC 54/D9, (No. 12775, 1976); F. H. Sparks of Maryland, Inc., 78 OSAHRC 13/C13, (No. 15472, 1978).
The delay here (139 days) is greater than the delay in Jack Conie (129 days). Since the record fails to offer a justifiable explanation, I will vacate the citation since the delay in issuing the citation was unconscionable within the case law expressed above. However, I decline to turn this case on a procedural issue since the remaining substantive issues require discussion and analysis.
29 C.F.R. § 1926.28(a) Promulgation
Respondent insists that § 1926.28(a) was not properly promulgated. The original version of the regulation provided:
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. (Emphasis added.)
By an amendment dated December 16, 1972 and without resorting to the rule making process of 29 U.S.C. § 655(b), the Secretary changed the word ‘and’ to ‘or.’ Respondent relies on Usery v. Kennecott Copper Corporation, 577 F.2d 1113, 10th Cir. 1977.
In Kennecott Copper, the U. S. Court of Appeals upheld a Review Commission order vacating an alleged violation of 29 C.F.R. § 1910.28(a)(12). Further, and as respondent contends here, the 10th Circuit ruled the Secretary must adopt national consensus standards verbatim. I agree the foregoing statement constitutes the law. The Commission likewise agrees since it has ruled on several occasions that the Secretary’s attempt to amend § 1926.28(a) without resorting to the rule making machinery is a nullity. The Commission has ruled that the original standard remains intact and enforceable to the same extent it existed prior to the Secretary’s publication in the Federal Register. For cases ruling on the exact issue urged by respondent here, see Island Steel and Welding, Ltd., 75 OSAHRC 51/A2, (No. 2931, 1975); Leon Marrano & Sons, Inc., 75 OSAHRC 51/E5, (No. 3580, 1975); Eichleay Corporation, 75 OSAHRC 35/B6, (No. 2610, 1975). No conflict exists between Kennecott Copper and Commission decisions. Both views invalidate the Secretary’s attempted standard change.
29 C.F.R. § 1926.28(a) Application to the Worksite
Respondent’s pivotal argument centers on its view that no violation of § 1926.28(a) occurs if the employees tie off at their work stations and only untie to move to another station. Respondent relies on Scioto Erectors, Inc., 77 OSAHRC 190/A3, (No. 76–2258, 1977) and Southwestern Industrial Contractors and Riggers, Inc., 77 OSAHRC 95/E9, (No. 14424, 1977) in support of this position.
Complainant failed to establish facts showing the distance a worker would traverse when going unprotected from one work station to another. However, the company’s stated policy of permitting such movement combined with the photographs of the tower cause me to conclude that the distance is not insubstantial. To hold otherwise would put form above substance.
The cases relied on by respondent support its view, but the writer is not bound by the cited case law. In Scioto Erectors, Inc. the Commission split 1 to 1 on the issue of whether a violation occurred when workers tied off while at their work stations but were unprotected during periods of movement. A split Commission decision is accorded the significance of an unreviewed Judge’s decision. Scioto Erectors lacks precedential value. On the above stated facts, I rule complainant proved a prima facie violation of § 1926.28(a).
Respondent’s argument, basically the greater hazard defense, is imbedded in the proposition that the very act of installing static lines exposes the installer to a fall hazard at least equivalent in time to the danger incurred by the unprotected workman moving on the beams between work stations. I would reject this argument since a worker could coon the iron and tie off in the process if in fact there is no reason install a static line for later use.
Respondent further maintains that §1926.28(a) is unenforceably vague in requiring that it install static lines. Respondent cites Frank A. Briscoe Company, Inc., 76 OSAHRC 129/A2, (No. 7792, 1976) and relies on the testimony of his witness that static lines are impractical (Tr. 166). In Briscoe the Commission restated its view that in a violation of 29 C.F.R. §1926.28(a) complainant must prove the feasibility and utility of the specific measures it urges for an employer. The record confirms the testimony of respondent’s witness; however, the physical facts would require me to disregard such testimony. The facts show there were some static lines at the worksite. Further, there are various ways to connect them and they can be connected between two points (Tr. 121, 177, 179).
Respondent’s additional evidence that a worker would have to lean away from a static line to get any benefit from it at best amounts to inconvenience, not infeasibility. In addition, any ‘leaning away’ problem appears speculative since the evidence shows an overhead static line could be installed (Tr. 184–185, 187, 188).
Respondent’s evidence shows the bolt-up gang can be protected by static lines (Tr. 191). I consider this to be sufficient proof to overcome its vagueness argument.
Respondent failed to prove the greater hazard defense. A company policy that permits workers to move from one work station to another without providing fall protection conflicts with the standard.
The activities of worker Songco certainly constitute a violation of some safety regulation, for example the ladder regulation, as in the companion case, but no violation of § 1926.28(a) is involved. Photographs show Songco holding what appears to be a diagonal wire rope in his hands. However, there is no indication the rope has sufficient strength to be used as a tie off. While vertical wire ropes appear in the photograph, a tie off to them could present the possibility of a free fall to the ground (Exhibit C–12). The facts do not warrant a 15(b) amendment here.Complainant did not seek to amend, and I do not find that the issue was tried by the express or implied consent of the parties.
I would reject respondent’s argument that no violation occurred since the workers were only tied off for a very short time. It is in this ‘short time,’ while unprotected on the beams, that the workman is exposed to the greatest danger.
For the above reasons I would affirm the citation alleging the violation of § 1926.28(a).
29 C.F.R. § 1926.105(a) Safety Net Standard
Respondent alleges that the installation of safety nets was not practical on the structure involved in the citation.
The uncontroverted evidence shows nets would close off access particularly for the bolt bags which could not be raised or lowered to the bolt-up deck (Tr. 165–166). In addition, various steel pieces would not permit sufficient clearance if a worker fell into the net. Further, the diagonal members would prevent coverage outside the perimeter and also prevent installation of the nets. The cross wire ropes would likewise interfere with the nets (Tr. 193–1668, 185, 185A). On the basis of these facts, I would vacate the alleged violation of 29 C.F.R. § 1926.105(a). Cf. Alberici-Koch-Laumand, a Joint Venture, 77 OSAHRC 179/A2, (No. 13026, 1977).
29 C.F.R. § 1926.750(b)(ii) Tiered Buildings
The above standard applies to tiered buildings. Complainant, who carries the burden of proof, failed to establish that this tower was a tiered structure. I would therefore vacate the alleged violation of § 1926.750(b)(ii). Daniel Construction Company, 77 OSAHRC 21/A2, (No. 7734, 1977); Jake Heaton Erecting Company, Inc., 78 OSAHRC 33/B6, (No. 15892, 1978).
Respondent’s argument concerning willfulness rests on the proposition that § 1926.28(a) is a performance standard, and absent a similarity of circumstances, there is no showing that respondent substituted its judgment for what is clearly prescribed by the cited standards. The cases relied by complainant in his brief do not appear controlling. Whether an act is willful is now clearly defined by the Commission and various appellate courts. Intercounty Construction Company v. OSHRC, 522 F.2d 777, 4th Cir. (1975), cert. denied 96 S. Ct. 854; F. X. Messina Construction Corp. v. OSHRC, 505 F.2d 701 (1st Cir. 1974); Empire Detroit Steel Division, Detroit Steel Corporation v. OSHRC, 579 F.2d 378. There is evidence that a compliance officer conferred with respondent’s management concerning fall protection, including nets, in 1979 (Tr. 135–137). However, the record is bare as to the nature of the discussion at the conference.
The previous citations, which became final orders, involved two allegations of a worker walking a beam in violation of § 1926.28(a). Only one such allegation became a final order of the Commission (Tr. 128–135, Exhibits C–13, C–14, C–15(a), C–15(b), C–16, C–18, C–19). I would not base a willful violation on a single prior incident particularly when a Commission decision post dating the final order against respondent appears to approve respondent’s policy. See Scioto Erectors, Inc., supra. I would not find that respondent willfully violated § 1926.28(a).
Under certain circumstances, the Commission has ruled that a serious violation may be found when a willful violation was originally alleged. The test is whether the issue of seriousness was tried by the express or implied consent of the parties. Toler Excavating Company, 75 OSAHRC 76/C8, (No. 2637); Environmental Utilities Corporation, 77 OSAHRC 40/A2, (No. 5324, 1977). In this case complainant established that if a worker fell it is likely that death or serious physical harm could result (Tr. 101). Respondent knew of the violation since it was company policy to permit such activity. I would accordingly rule that these facts establish a serious violation of § 1926.28(a).
PROPOSED CIVIL PENALTY
Respondent, as prime contractor, employs 400 to 1000 workers at this site, a project involving a multi-million dollar contract (Tr. 90–91, 145, 169–170).
The Commission has ruled that of the four statutory factors bearing on the appropriateness of a penalty the gravity of a violation should generally be accorded the greatest weight, 29 U.S.C. § 666(i); Secretary v. Baltz Brothers Packing Company, 73 OSAHRC 3/C4, (No. 91, 1973). In the instant case the gravity of a fall from 94 feet is apparent.
Considering the statutory criteria, I would assess a civil penalty of $1500 for the violation of § 1926.28(a).
Respondent admits jurisdiction (Tr. 88).
FINDINGS OF FACT
No conflict exists in the evidence and the facts are as related above.
Based on the uncontroverted record, I enter the following:
CONCLUSIONS OF LAW
1. The citation should be vacated since it was issued after an unconscionable delay.
2. In the alternative I would affirm the alleged violation of 29 C.F.R. § 1926.28(a).
3. Further, and in the alternative, I would vacate the alleged violations of 29 C.F.R. § 1926.105(a) and 29 C.F.R. § 1926.750(b)(ii).
Based on conclusion of law number 1, I enter the following:
Citation 1 and the proposed penalty therefor are vacated.
John J. Morris
Dated: January 17, 1979
 29 U.S.C. § 661(i).
 29 U.S.C. § 658(a). In pertinent part, this section provides that
[i]f, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, [or] of any standard . . . promulgated pursuant to section 6 of this Act . . ., he shall with reasonable promptness issue a citation to the employer.
 29 U.S.C. § 654(a)(2).
 This standard pertains to personal protective equipment and provides that
[t]he 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.
 Note 2 supra.
 29 U.S.C. § 658(c). The section provides that ‘[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.’
 In Jack Conie, Commissioner Moran and Commissioner Barnako set forth their individual tests on reasonable promptness. Each looked to evidence concerning the circumstances surrounding the delay but in no other respect were their tests similar. Commissioner Moran would vacate a citation issued more than 72 hours after the inspection unless the Secretary established ‘exceptional circumstances warranting a limited delay.’ Commissioner Barnako explicitly disagreed with this 72-hour rule and held that the vacation of the citation could be justified ‘if the facts surrounding the issuance of the citation show patently unnecessary and unjustifiable delay.’
Commissioners Moran and Barnako in Jack Conie formed a majority vacating the citation on the basis of the Secretary’s failure to comply with section 9(a). Chairman Cleary dissented on the ground that the employer failed to establish it was prejudiced by the delay in the preparation or presentation of its defense and that such prejudice should be the sole basis for granting relief to an employer if the Secretary fails to comply with section 9(a).
 See note 9 infra.
 In its review brief, in arguing the circumstances that could lead to prejudice, Stearns-Roger states the following:
The [factual] particulars provided in the [citation and] pleadings prior to the Answers To Interrogatories give little information for Respondent to rely upon in developing its defenses. Until supplied with these particulars, Respondent was required to rely at its own risk on what activities the Complainant would rely on in proving its case. The fact that Respondent is able to present a defense, and even that the defense is successful on the merits does not eliminate prejudice. [Emphasis added]
 Commissioner Barnako adheres to his view expressed in Jack Conie, supra, and would vacate a citation notwithstanding the absence of demonstrated prejudice when the delay in issuance of the citation is unconscionable. Respondent, however, has the burden to establish that the delay is unconscionable. Laclede Gas, supra, 7 BNA OSHC at 1876 n. 8, 1979 CCH OSHD ¶ 24,007 at 29,153 n. 8. Although the Secretary’s procedure for review and approval of the area director’s decision to issue a willful citation took an extremely long length of time, such delay does not become unconscionable simply because it is of long duration. See Louisville & Nashville R.R., 76 OSAHRC 141/A2, 4 BNA OSHC 1868, 1976–77 CCH OSHD ¶21,310 (No. 9740, 1976). Respondent presented no other evidence regarding the basis for the delay in issuance of the citation and, in particular, offered no evidence from which Commissioner Barnako could conclude that the delay was patently unnecessary and unjustifiable. Commissioner Barnako points out that this case is factually distinguishable from Jack Conie, where the record demonstrated that the delay was caused by the area director’s refusal to accept the regional solicitor’s decision not to authorize the issuance of a willful citation.
 In the citation, the Secretary alleged that Stearns-Roger willfully failed to comply with general construction safety standards 29 C.F.R. § 1926.28(a) and 29 C.F.R. § 1926.105(a) by not using safety nets or tied-off safety belts or, in the alternative, failed to comply with the construction safety standard for steel erection 29 C.F.R. § 1926.750(b)(1)(ii) by not using safety nets.
Judge Morris determined that § 1926.750(b)(1)(ii) is inapplicable in this case because Stearns-Roger’s employees were not working upon a ‘tiered building’ within the meaning of § 1926.750(b). He further determined that he would vacate the charges under § 1926.105(a) because Stearns-Roger established impossibility defenses to a requirement to use safety nets. The judge determined that the company failed to comply with § 1926.28(a) by not using tied-off safety belts, but he declined to characterize the violation as willful because he concluded that the Secretary had not established willfulness. Although Stearns-Roger was not charged with a serious violation, Judge Morris held that the issue of seriousness was tried by the consent of the parties and that the § 1926.28(a) violation was serious.
In his petition for discretionary review, the Secretary took exception to Judge Morris’ ruling on the reasonable promptness defense and asked that the Commission affirm the citation for violation of §§ 1926.28(a) and 1926.105(a) and assess an appropriate penalty. The petition for review was granted by Commissioner Cottine.
Because exception has not been taken to and review has not been directed on issues concerning § 91926.750(b)(1)(ii), willfulness, the propriety of the amendment, and seriousness, these issues are not before the Commission on review. See Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975–76 CCH OSHD ¶20,387 (No. 4090, 1976); see generally, Commission Rule 92, 44 Fed. Reg. 70,106 at 70,111 (1979) [formerly Rule 91a, 29 C.F.R. § 2200. 91a].
Whether Stearns-Roger failed to comply with § 1926.105(a) is before the Commission for review. However, because we find that Stearns-Roger failed to comply with § 1926.28(a), we do not reach the question of noncompliance with § 1926.105(a). See Forest Park Roofing Co., 80 OSAHRC ___, 8 BNA OSHC 1181, 1980 CCH OSHD ¶24,344 (No. 76–1844, 1980).
 Commissioner Barnako’s view of the elements of the Secretary’s burden of proof under § 1926.28(a) differs substantially from that of the majority. S & H Riggers and Erectors, supra (concurring opinion); Forest Park Roofing Co., 80 OSAHRC ___, 8 BNA OSHC 1181, 1186–87, 1980 CCH OSHD ¶24,344 at 29,672–73 (No. 76–1844, 1980) (concurring opinion). Commissioner Barnako agrees that in this case the Secretary satisfied his burden of proof because the evidence demonstrates an obvious fall hazard and a feasible method, safety belts and lines, to abate the hazard. Additionally, 29 C.F.R. § 1926.104 places employers on notice that safety belts provide appropriate protection against falling hazards.
 See note 11 supra.
 Chairman Cleary and Commissioner Cottine reject the judge’s conclusion that the present version of § 1926.28(a) resulted from an impermissible amendment to a prior version of the standard. S & H Riggers and Erectors, Inc., supra, 7 BNA OSHC at 1263, 1979 CCH OSHD at 28,435. In Commissioner Barnako’s view, the judge’s conclusion that the amendment was invalid and that the original version of the standard therefore remains enforceable is correct. S & H Riggers and Erectors (concurring opinion), 7 BNA OSHC at 1268, 1979 CCH OSHD at 28,440–41.
 29 U.S.C. § 654(a)(2).
 Such as a reference to the OSHA National Office to determine possible jurisdictional conflicts resulting in a 102-day delay as in Louisville and Nashville Railroad Company, 77 OSAHRC 209/C8, (No. 5521, 1977).
 Request for Admissions.
 The second case relied on by respondent, Southwestern Industrial Contractors and Riggers, Inc., supra, is an unreviewed Judge’s decision.
 29 C.F.R. § 1926.451(a)(13).
 Rule 15(b), F.R.C.P.