SECRETARY OF LABOR,
Complainant,

v.

ADAMS STEEL ERECTION, INC.,
Respondent.

OSHRC Docket No. 77-3804

_DECISION_

Before:  BUCKLEY, Chairman, and WALL, Commissioner.

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).

This case arises from an OSHA inspection of a construction worksite in
Pittsburgh, Pennsylvania, where Adams Steel Erection, Inc. was the steel
erection subcontractor.  Before us on review are three items of two
citations.  Former Administrative Law Judge Henry F. McQuade affirmed
all three items.

Adams Steel objects to the disposition of these three items, to the
judge's denial of a motion to suppress the evidence on the ground that
the underlying inspection was illegal, and to the judge's ruling on its
challenges to the constitutionality of the Act.  We affirm the judge in
all but one respect; we reverse his disposition of one of the three
items, which we vacate because the cited standard was inapplicable.

I.

In its answer, Adams Steel alleged that:

The Citations . . . are invalid since the Occupational Safety and Health
Act of 1970 is unconstitutional, violating the Fourth, Fifth and Sixth
Amendments to the Constitution and since the inspection which resulted
in the Citations was unconstitutional and void, being an inspection
without a warrant.

In his decision, Judge McQuade noted Adams Steel's contention that the
Act is unconstitutional.  In response, he held that the Commission
lacked jurisdiction to question the constitutionality of the Act.

Adams Steel has not particularized its arguments under the Fifth and
Sixth Amendments, and therefore we affirm the judge's decision not to
rule on them.  As the judge correctly stated, under longstanding
Commission precedent, the Commission lacks authority to rule on
questions of the constitutionality of provisions of the Act on which no
court has yet ruled; the Commission can do no more than apply judicial
precedent concerning the constitutionality of the Act.  _E.g_., _McGowen
v. Marshall_, 604 F.2d 885, 892 (6th Cir. 1979); _Daniel International
Corp_.,81 OSAHRC 57/A2, 9 BNA OSHC 1980, 1985, 1981 CCH OSHD ¶ 25,492,
p. 31,792 (No. 15690, 1981), _order set aside on other grounds_, 683
F.2d 361 (11th Cir. 1982); _Bomac Drilling_, 81 OSAHRC 45/A2, 9 BNA OSHC
1681, 1699, 1981 CCH OSHD ¶ 25,363, p.31,555 (No. 76-2131, 1981).  See
also the cases cited by Judge McQuade.  Because Adams Steel has not
particularized its arguments, they cannot be addressed in any fashion,
even to such extent as might be permissible.  We therefore reject Adams
Steel's Fifth and Sixth Amendment challenges.

We reject Adams Steel's challenge under the Fourth Amendment, but for
different reasons.  The Supreme Court's decision in _Marshall v.
Barlow's, Inc_., 436 U.S. 307, 98 S.Ct. 1816 (1978), sustains Adams
Steel's contention that the Act violates the Fourth Amendment to the
extent that it purports to authorize warrantless searches.  The
_Barlow's_ decision nevertheless made clear that it was not invalidating
all inspections conducted under the authority of section 8(a) of the
Act, 29 U.S.C. § 651(a).  On the contrary, the Court suggested that only
an inspection conducted without an inspection warrant or its
constitutional "equivalent," e.g., the voluntary consent of the
inspected employer, would be invalid.  _See_, _e.g_., 436 U.S. at 316,
325, 98 S. Ct. at 1822, 1827.   _See_ _also_ 436 U.S. at 314, 98 S.Ct.
at 1821 (objection to warrantless entry is "[t]he critical fact in this
case").  Adams Steel is therefore entitled to relief only if OSHA's
inspection of Adams Steel's workplace violated the Fourth Amendment.

Adams Steel claims that OSHA's inspection violated the Fourth Amendment
because OSHA lacked a warrant and consent.  In support of a renewed
motion to dismiss at the end of the hearing, it alleged that "any
permission . . . granted for entry at the time . . . [was] permission
from the general contractor in possession of the premises and certainly
not . . . [from Adams Steel]."   When an employer seeks to suppress
evidence obtained in a warrantless inspection, the Secretary bears the
burden of proving that the inspection was lawful.  _Sarasota Concrete
Co_., 81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1612, 1981 CCH OSHD ¶ 25,360, p.
31,531 (No. 78-5264, 1981), _aff'd_, 693 F.2d 1061 (11th Cir. 1982). 
The inspection here was evidently warrantless.  We must therefore
determine whether there was consent.

When the compliance officer arrived at the Prudential Realty Building
construction project, the representative of the general contractor
invited Adams Steel's foreman, Donald McClendon, as well as
representatives of other subcontractors, to join the inspection party. 
Mr. McClendon accompanied the compliance officer during the inspection. 
The compliance officer inspected the operations of other employers at
the worksite in addition to Adams Steel's operations.

Adams Steel denies that it gave its own consent to the inspection.  It
seems to concede, however, that the general contractor consented to the
inspection; the only issue it raised before Judge McQuade was whether it
was bound by that consent.  It is, however, clear from the record that
Adams Steel itself consented to a warrantless inspection since its
foreman joined the inspection party.  There is also no evidence nor any
claim that Adams Steel objected to the warrantless inspection or
requested OSHA to obtain an inspection warrant.[[1]]  We therefore find
that the inspection was consensual.

II.

This case is one of three related cases in which Adams Steel raised
issues concerning the Secretary's inspection policies and procedures.  
The first in the series was a case we will refer to as _Adams Steel I_: 
_Adams Steel Erection, Inc_., 84 OSAHRC, 11 BNA OSHC 2073, 1984-85 CCH
OSHD ¶ 26,976 (No. 77-4238, 1984), _rev'd_, 766 F.2d 804 (3d Cir. 1985).

At the beginning of the hearing in _Adams Steel I_, the employer moved
to consolidate that case with the case now on review and with a third
related case, OSHRC Docket No. 77-3773.  Adams Steel sought this
consolidation so that a joint hearing could be held on its motions in
all three cases to suppress the evidence on the ground that the
inspections were unlawful, violating both the Constitution and the Act. 
Judge McQuade denied the motions to consolidate and the motions to
suppress in all three cases. However, he granted Adams Steel's motions
to incorporate relevant parts of the proceeding in Adams Steel I into
the records in the other two cases.  Accordingly, the inspection issues
we now review in this section of our decision are based on the record in
Adams Steel I.

Adams Steel's claim that the inspection violated the Act raises three
questions:

(1) Is the Secretary's authority to inspect in response to complaints
limited by section 8(f)(1) of the Act, 29 U.S.C. § 657(f)(1)?

(2) Did the Secretary comply with the "reasonableness requirement" of
section 8(a)(2) of the Act, 29 U.S.C. § 657(a)(2)?

(3) Did the Secretary exceed his statutory authority in adopting the
inspection policy set forth in OSHA Field Information Memorandum #76-20
(July 2, 1976)("FIM 76-20")?

Adams Steel's original formulation of its defense under section 8(f)(1)
was set forth in its answer, as follows:

The inspection of [Adams Steel's] work place on September 23, 1977 was
invalid because it was in response to a complaint from a person other
than an employee or employee representative.  [Adams Steel] avers that
the non-employee informer was engaged in intentional harassment of
[Adams Steel].

The issue implicitly raised by this defense is whether the Secretary
exceeded his authority under section 8(f)(1) by conducting an inspection
in response to a complaint of unsafe working conditions filed by someone
not an employee of Adams Steel nor a representative of its employees.[[2]]

Judge McQuade rejected this argument on the basis of _Aluminum Coil
Anodizing Corp_., 77 OSAHRC 70/A2, 1 BNA OSHC 1508, 1973-74 CCH OSHD ¶
17,185 (No. 829, 1974) ("_Aluminum Coil I_").  That case involved an
inspection conducted in response to a complaint of unsafe working
conditions.   The complainant was neither an employee nor a
representative of employees.   Aluminum Coil moved to vacate the
citation on the ground that the inspection was therefore invalid under
section 8(f)(1) of the Act.  The Commission disagreed, holding in effect
that, because the complaint had not been filed by an employee or an
employee representative, section 8(f)(1) was irrelevant in determining
the validity of the inspection.  Instead, the issue was whether the
Secretary had properly exercised his general inspection authority under
section 8(a) of the Act.[[3]]

Applying _Aluminum Coil I_ to this case, Judge McQuade held that the
status of the complainant as an anonymous telephone caller did not
render the inspection invalid.  He also rejected Adams Steel's argument
that the alleged motive of the complainant, i.e., the alleged intent to
harass Adams Steel, invalidated the inspection.  In essence, the judge
found that Adams Steel had failed to establish this allegation ("The
facts do not bear out the contention that anyone . . . was engaged in a
program of intentional harassment of [Adams Steel]").

The parties seem to agree that the complaint that precipitated the
inspection came from neither an employee nor a representative of
employees.  This does not mean, however, that the Secretary could not
act on it.  In _Aluminum Coil I_, former Commissioner Van Namee reasoned
as follows:  (1) section 8(f)(1) is not a limitation on the Secretary's
authority to conduct inspections in response to complaints of unsafe
working conditions but rather a "specific duty" to "conduct a 'special
inspection' when certain conditions are met"; (2) when complaints are
filed by individuals who are not employees or employee representatives,
the source of the Secretary's authority to conduct a responsive
inspection is section 8(a) of the Act; and (3) the validity of these
inspections is therefore determined under the "reasonableness" standard
of section 8(a)(2) rather than by applying the "formality
requirements"[[4]] of section 8(f)(1).

The Commission has not departed from this view of the relationship
between sections 8(a) and 8(f)(1).  _See_, _e.g_., _Quality Stamping_
_Products Co_., 79 OSAHRC sections 28/F11, 7 BNA OSHC 1285, 1288, 1979
CCH OSHD ¶ 23,520, p. 28,504 (No. 78-235, 1979); _Aluminum Coil
Anodizing Corp_., 77 OSAHRC 70/A2, 5 BNA OSHC 1381, 1977-78 CCH OSHD ¶
21,739 (No. 829, 1977) (_Aluminum Coil II_).  In addition, in those
federal court cases where the issue of the Secretary's authority has
been expressly raised, the courts have consistently agreed that the
Secretary can respond to complaints from persons who are neither
employees nor employee representatives.  _E.g_., _Marshall v. Horn Seed
Co._, 647 F.2d 96, 100 n.3, 103 (10th Cir. 1981); _Burkart Randall Div_.
_of Textron, Inc. v. Marshall_, 625 F.2d 1313, 1321-1322 (7th Cir.
1980); _Donovan v. Metal Bank of America, Inc_., 516 F. Supp. 674, 678
(E.D. Pa. 1981) (anonymous telephone call complaints).  We therefore
reject Adams Steel's argument that "[t]he inspection...was invalid
because it was in response to a complaint from a person other than an
employee or employee representative."

Adams Steel asserts, however, "that the non-employee informer was
engaged in intentional harassment of [Adams Steel]."   At the hearing in
_Adams Steel I_, the employer attempted to establish that it had been
subjected to a series of inspections that were interrelated.  The
parties stipulated that, during a five-week period in September and
October 1977, OSHA's area office in Pittsburgh, Pennsylvania, inspected
six different construction worksites where Adams Steel was performing
work as a steel erection subcontractor.  The first five of these
inspections were conducted in response to anonymous telephone call
complaints of unsafe working conditions.  Two of these calls were
directed against the unnamed steel erection contractor (later identified
as Adams Steel) on specified projects, while the other three expressly
named Adams Steel as the employer involved.  The sixth inspection was
conducted in response to a complaint that concerned a particular, named
subcontractor that was not Adams Steel at a worksite where Adams Steel
was also a subcontractor.  This last complaint apparently was not
received in the form of an anonymous telephone call.

This record does not identify the specific allegations of any of the six
complaints.  We are therefore unable to determine the extent to which
the safety complaints may have been meritorious.  However, four of the
six inspections resulted in the issuance of citations to Adams Steel. 
There is also no direct evidence as to the identity and motivation of
the complainant or complainants.  Adams Steel has argued throughout this
proceeding that all six complaints were filed by one person whose
purpose was to harass Adams Steel.

Nevertheless, after unsuccessfully attempting to establish its claim
through a request for admissions, Adams Steel made no further attempt to
establish any of these allegations.[[5]]

In sum, Adams Steel proved only that it was subjected to six complaint
inspections at six different construction project worksites in a period
of five weeks and that five of those inspections resulted from anonymous
telephone calls that directly or indirectly alleged safety violations by
Adams Steel.   Adams Steel did not show that the telephone calls were
not motivated by a genuine concern with safety.  We therefore agree with
Judge McQuade that, particularly in light of the hazardous nature of the
steel erection industry, the evidence was insufficient to establish a
claim of intentional harassment.  We further note that, under Commission
precedent, improper motivation on the part of the complainant is not in
itself sufficient grounds for declaring an inspection invalid.  _E.g_.,
_Quality Stamping Products Co_., 7 BNA OSHC at 1289, 1979 CCH OSHD at,
p. 28,505; _Aluminum Coil II_.

Consistent with _Aluminum Coil I_, Judge McQuade held that the issue
raised by Adams Steel's challenge to the underlying inspection "is
properly framed as whether the inspections were reasonable under section
8(a) of the Act...." He held that the Secretary had complied with the
reasonableness requirement of section 8(a)(2), which states that "the
Secretary...is authorized...to inspect and investigate...within
reasonable limits and in a reasonable manner...." See note 3 _supra_
(complete text of section 8 (a)).  In its petition for discretionary
review, Adams Steel expressly took exception to this conclusion.  Yet,
in its brief on review, it presents no argument in support of this
exception.

We note initially that Adams Steel has neither alleged nor sought to
prove any active misconduct or improper motivation on the part of OSHA
personnel.  On the contrary, the employer expressly states in its review
brief that "[i]t is not contended...that there was vindictive
enforcement of the statute by the Secretary against [Adams Steel]."  We
particularly note that Adams Steel does not direct any of its criticisms
to the manner in which the OSHA compliance officer conducted his
inspection.  Adams Steel's criticism refers instead to the procedures
followed by OSHA's Pittsburgh area office in handling anonymous
telephone call complaints and, in particular, OSHA's decision to conduct
workplace inspections in response to this series of complaints.

Adams Steel has not established a violation of section 8(a) of the Act. 
The Secretary may be required by the Fourth Amendment to obtain a
warrant based on evidence of probable cause before he inspects without
consent.   However, section 8(a) of the Act does not require the
Secretary to obtain evidence of any particular sort to support his
decision to seek a consensual inspection.  Of course, section 8(a) does
require the Secretary to inspect "within reasonable limits and in a
reasonable manner...." But we can find no basis in the record before us
to support a conclusion that the Secretary failed to do that.

Adams Steel's primary argument is that the inspection was conducted
under an inspection policy that circumvented the procedural protections
for employers in section 8(f)(1) of the Act.  This policy, which was
embodied in FIM 76-20, was to inspect in response to complaints "without
regard to the formality requirements of Section 8(f)."   See note 4
_supra_.  Citing _Aluminum Coil I's_ discussion of the legislative
history of the Act, 1 BNA OSHC at 1509, 1973-74 CCH OSHD at p. 21,797,
Adams Steel asserts that Congress intended for the Secretary to take
effective measures to prevent misuse of section 8(f) procedures as a
harassment device. In the employer's view, FIM 76-20 not only failed to
comply with this Congressional expectation; it actually invited and
encouraged harassment of employers by persons seeking to abuse the
complaint inspection procedures.  Specifically, Adams Steel contends,
_this_ is "a case wherein [OSHA's] 8(f) procedure has obviously been
used as a harassment device."

We have already held that the Secretary has the statutory authority
under section 8(a) of the Act to conduct inspections in response to
"non-formal complaints."  It necessarily follows that the Secretary had
the authority to adopt FIM 76-20 and to inspect "without regard to the
formality requirements of Section 8(f)."

In any event, we are not convinced that FIM 76-20 unfairly affected
Adams Steel.  We previously held that Adams Steel failed to establish
its assertion that the complaint that led to the inspection was filed to
harass Adams Steel.  There is also no evidence supporting Adams Steel's
broader allegation that FIM 76-20 invited and encouraged harassment of
employers generally.  FIM 76-20 contained provisions designed to prevent
such abuses of procedure.  For example, paragraph 3(f) stated that "all
complaints, regardless of formality requirements, will be thoroughly
evaluated by the receiving Area Office and an inspection shall be
conducted _in the event the existence of safety and health hazards is
indicated_...." (Emphasis added.)  In addition, paragraph 3(g) stated
that, "if there is compelling evidence to indicate that the complaint
procedure is abused groups or individuals for purposes other than safety
and health matters, the Area Director shall consult with the Regional
Administrator to determine whether to investigate the matter, and if the
determination is reached that conducting an inspection is not warranted,
shall so indicate in the complaint log."

We therefore affirm Judge McQuade's denial of Adams Steel's motion to
suppress the evidence.

III.

Item 1 of citation 1 alleges a violation of section 1926.750(b)(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.

This citation item relates to the third floor of the Prudential Realty
Building.  The building was triangular in shape and designed to have six
floors and a roof.  By the time of the inspection, structural steel had
been erected up to the fifth level while decking had been installed up
to the third level.   It is undisputed that no safety railing of any
type was in place around the perimeter of the third-floor decking. 
Three ironworkers employed by Adams Steel were working on the third
floor and were thereby exposed to the hazard of falling from its
unguarded edges.

The primary issue with respect to this citation item is whether the
standard applied to the third floor.  The standard requires a wire-rope
safety railing around "temporary metal-decked floors . . . during
structural steel assembly."  The specific question is whether the
standard applies when a steel erection contractor is in the process of
replacing temporary flooring or decking with permanent flooring or
decking.  Adams Steel asserts that "where, as here, the temporary deck
has been removed and the permanent deck is in the process of
construction, it must necessarily follow that the cited standard, by its
own terms, is inapplicable."   We disagree.

Adams Steel used the same sheets of metal in both its temporary decking
and its permanent decking.  For example, when Adams Steel installed
permanent decking on the third floor, it used the same metal sheets that
had previously been installed as the temporary decking at that level. 
That the same decking was used for both purposes, however, does not mean
that there is no difference between temporary and permanent flooring. 
All of the witnesses, the Secretary's as well as Adams Steel's,
acknowledged that there were differences between temporary and permanent
flooring.

Temporary decking, as described by the witnesses, was installed as a
safety measure and for convenience in carrying out the work of
structural steel assembly.  It served three functions during steel
erection work:   (a) as a storage area and base of operations for those
working above the floor, (b) as a working surface for those working at
floor level, and (c) as a catch platform for employees and materials
that might fall from upper levels.  A temporary deck consisted of sheets
of metal that were haphazardly laid and uncut.  Because the building was
triangular, this meant that the sheets overlapped the building's
perimeter.  The temporary decking was held in place by wire or cable.

Permanent decking, on the other hand, was a part of the building's
structure it was cut to shape, fitting within the perimeter of the
building.  It was welded into place, and it served as a foundation on
which a concrete floor eventually would be poured.   During steel
erection work, the primary function of the permanent decking was to
contribute to the stability of the building.

In replacing temporary decking with permanent decking, it appears the
procedure was essentially as follows:  When Adams Steel was ready to
complete construction of a floor, it "uncovered" the entire perimeter of
the temporary floor by pulling back the metal decking from the edges. 
Plumb-up cables, which were used to align the building, were extended
between the floors.  Once the building was properly aligned, the
"points" were "bolted" (i.e., apparently, pre-existing bolting in the
underlying structural members was tightened, or reinforced with
additional bolting, or both).  The decking was then cut by an employee
using an acetylene torch, so that the sheets would fit within the
building's perimeter.  Access areas and other openings were cut into the
decking (also with an acetylene torch), and the decking was welded into
place.  Once welded, the floor could no longer move and the plumb-up
cables could be removed.  At a later stage in the construction process,
concrete was poured onto the metal decking, thereby forming the
completed floor.

It is not clear on this record how far the installation of permanent
decking on the third floor had progressed by the time of the
inspection.  At various points in his testimony, ironworker Robert
Tierney stated that work on the permanent third floor had begun "about
the same day" as the OSHA inspection, the day before the inspection "at
least", and "perhaps" two days before the inspection.  At the time of
the inspection, he asserted, the employees "were laying the [permanent]
deck down and starting to cut it." The compliance officer testified that
the employees "had lifted the temporary floor back down, tightened up
the bolts and were putting down a permanent decking to weld."  Adams
Steel's foreman McClendon testified that an employee photographed by the
compliance officer was at the time "cutting everything to size around
the columns, around openings and welding it down."

The record indicates that the key factor in determining whether flooring
has become "permanent" is whether the flooring has been integrated into
the structure so that it contributes to the stability of the building. 
As stated by foreman McClendon, it is the welding that "holds the
building."  Yet, there is no evidence in this record as to what
percentage of the floor had been welded to the structural steel.

In any event, both parties agree on the two fundamental facts concerning
the stage of construction.  First, at the time of the inspection, Adams
Steel had disassembled the temporary decking on the third floor and
begun the process of installing the permanent decking.  Second, Adams
Steel had not yet completed the process, for the decking was yet not an
integral part of the building's structure, contributing to its
stability.  The question posed here is therefore whether section
1926.750(b)(1)(iii) requires a wire rope after the temporary decking is
disassembled but before the permanent flooring is complete.

Judge McQuade cited Ashton Co., 76 OSAHRC 6/B11, 3 BNA OSHC 1968,
1975-76 CCH OSHD ¶ 20,351 (No. 5111, 1976), and concluded that section
1926.750(b)(1)(iii) applied because the building "was still in the steel
erection stage and installation of permanent flooring was not yet
completed at the time of the inspection."

We agree with Judge McQuade's reading of Commission precedent.  Adams
Steel contends that _Ashton_ is distinguishable because the employees in
_Ashton_ were engaged in installing temporary decking rather than
permanent decking.  However, any ambiguity in _Ashton_ on that point was
resolved by the later Commission decisions in _Pima Construction Co._,
76 OSAHRC 106/D3, 4 BNA OSHC 1620, 1622, 1976-77 CCH OSHD ¶ 20,998, p.
25,229 (No. 5221, 1976), and _Carr Erectors, Inc_.,77 OSAHRC 14/C9, 4
BNA OSHC 2009, 2010, 1976-77 CCH OSHD ¶ 21,471, p. 25,777 (No. 7247,
1977).  Read together, Commission precedent holds that if the employer
is still engaged in structural steel erection and the permanent floor
has not yet been completed, then the floor is a "temporary-planked" or
"temporary metal-decked" floor within the meaning of section
1926.750(b)(1)(iii).

Our review of Subpart R in its entirety persuades us that Commission
precedent is correct.  Subpart R makes precisely the same distinction
between "permanent flooring" and "temporary flooring" and uses the terms
in the same sense, as the witnesses in this case did.  In particular,
paragraphs (a) and (b) of section 1926.750 are captioned "Permanent
flooring--skeleton steel construction in tiered buildings" and
"Temporary flooring--skeleton steel construction in tiered buildings,"
respectively.  Separate requirements are established under Subpart R for
these two distinct types of flooring.  Further, the text of the
permanent flooring requirements in section 1926.750(a), particularly the
final clause of section 1926.750(a)(1), shows that the section's purpose
is to insure the stability of the building.  _See_ _also_ section
1926.750(a)(2) ("permanently secured floor" used as synonym for
"permanent flooring").  Thus, section 1926.750(a) indicates that the
principal distinguishing feature of "permanent" flooring is that the
flooring has been made an integral part of the building's structure and
therefore contributes to stabilizing the building.  This is the same
sense in which the witnesses used the term "permanent flooring."

The decking here was temporary rather than permanent flooring.  The
decking had not been welded to the structural steel, had not become an
integral part of the building's structure, and therefore was not
contributing to the stability of the building.  Thus, section
1926.750(b)(1)(iii) was still applicable.

IV.

Item 2 of citation 1 alleges a violation of section 1926.500(b)(2).  The
cited standard, which is contained in Part 1926, Subpart M--Floor and
Wall Openings, and Stairways, provides as follows:

§ 1926.500 _Guardrails, handrails and covers_.

(b) _Guarding of floor openings and floor holes_.

(2) Ladderway floor openings or platforms shall be guarded by standard
railings with standard toeboards on all exposed sides, except at
entrance to opening, with the passage through the railing either
provided with a swinging gate or so offset that a person cannot walk
directly into the opening.

The primary issue with respect to this item is whether the cited
standard is preempted by more specifically applicable standards in Part
1926, Subpart R--Steel Erection.

The location of this alleged violation was the third floor of the
Prudential Realty Holding Building, that is, the same floor that was the
location of the violation alleged in item 1.  The compliance officer
testified that item 2 related to a 36-foot-long wooden ladder that
provided access from the ground up to the third floor.  At the
third-floor level, the ladder extended through a ladderway opening that
was not guarded.  The compliance officer further testified that Adams
Steel's employees "had to use" the ladder because it "was the only
ladder to the third floor."

Adams Steel does not dispute its failure to guard the ladderway opening
in accordance with section 1926.500(b)(2) or the exposure of its
employees to the unguarded opening.  Instead, it defends on the ground
that the cited standard was preempted by more specifically applicable
steel erection standards.   Its argument is based on 29 C.F.R. §
1910.5(c)(1).[[6]]

In its arguments before the judge, Adams Steel reasoned that, because it
was engaged in steel erection, Subpart R preempted section
1926.500(b)(2).  It noted that Subpart R specifically treats the subject
of access openings in floors in section 1926.750(b)(1)(i), which states
that a derrick or erection floor shall be solidly planked except for
access openings.  It further noted that Subpart R deals with safety
railings in section 1926.750(b)(1)(iii), which requires such railings
only around the perimeter of the floor.  Thus, Adams Steel concluded:

Had the Secretary intended that the floor at access openings be guarded
by safety railing, it must be presumed that the Secretary had the right
and the ability to so require by a specific regulation.  Instead, by
limiting safety railings only to the floor periphery and by permitting
access openings to exist in decked floors, it must be assumed that the
steel erection industry is not required to guard open ladderways.

(Emphasis in the original.)

In response, the Secretary contended that Subpart R "does not speak to
protection of workers from the hazard of falling into unguarded access
openings."  Therefore, he concluded, reliance on the generally
applicable standard at section 1926.500(b)(2) was appropriate.[[7]]  In
his decision, Judge McQuade essentially adopted the Secretary's
position.  Accordingly, he affirmed the citation item.  On review, both
parties resubmit the arguments that they made before the judge.

We agree with Adams Steel that the cited standard did not apply to the
ladderway opening in the third floor at the time of OSHA's inspection. 
However, our reasoning is based on another standard in Subpart R,
section 1926.752(j), which provides:

§ 1926.752  _Bolting, riveting, fitting-up, and plumbing-up_.

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

Section 1926.752(j) is a scope provision that limits the application of
the floor opening standards in Subpart M during the steel erection phase
of construction to floor openings that are "unused."  In this case,
since the opening in question was being actively used as the only means
of access to the third floor, guarding was not required.  We therefore
vacate item 2 of citation 1.

V.

Citation 2 as amended alleged a violation of section 1926.28(a) or
section 1926.105(a) in that employees were working on a structural beam
at the fifth-floor level, approximately 50 feet above the ground, and
"[s]afety nets, ladders, scaffolds, catch platforms, temporary floors,
safety lines, or safety belts were not used" to protect them.

On review, only the alleged violation of Section 1926.105(a), which the
judge affirmed, is still at issue.  See note 8 _infra_.  This general
construction standard 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.

Adams Steel defends against this charge on two grounds.  First, it
contends that, under the terms of section 1926.105(a), it was not
required to install safety nets because it had instead provided one of
the other listed alternatives, "temporary floors."  In any event, it
argues, section 1926.105(a) cannot be applied to steel erection work
because it is preempted by more "specifically applicable" standards in
Subpart R.

The relevant facts in determining the preemption issue are not in
dispute.  The compliance officer observed that two employees of Adams
Steel were working from a beam at the fifth-floor level while bolting up
objects identified as "relief angles for the masonry" or "masonry
lintels."   The compliance officer testified that the two employees, who
were wearing safety belts that were not tied off, were exposed to the
hazard of falling either 50 feet toward the outside of the building or
approximately 20 feet toward the inside of the building.  On the outside
of the building, there was nothing between the fifth-level beam and the
ground below.  If either employee had fallen to the inside of the beam,
he would have fallen to the third-floor decking.

This case is indistinguishable from two other cases in which the
Commission previously has ruled on the same preemption issue: _Adams
Steel I_, referred to above in connection with the employer's motion to
dismiss; and _Williams Enterprises of Georgia, Inc_., 86 OSAHRC ____, 12
BNA OSHC 2097, 1986 CCH OSHD ¶ 27,692 (No. 79-4618, 1986), appeal filed,
No. 86-8825 (11th Cir. Nov. 10, 1986).  In Adams Steel I, the Commission
concluded that section 1926.105(a) cannot be applied to the hazard of
falling from perimeter beams during steel erection work because it is a
general construction standard and is therefore preempted by more
"specifically applicable" standards in Subpart R. See note 6 supra.  On
review, the Court of Appeals for the Third Circuit reversed the
Commission, holding that section 1926.105(a) can be applied to the
hazard of exterior falls at issue because there are no "particular
standards" in Subpart R that apply to that hazard.  See note 7 _supra_.
  In _Williams Enterprises_, the Commission, with Commissioner Wall
dissenting, respectfully disagreed with the position of the Third
Circuit and reaffirmed the position it had taken in _Adams Steel I_.

In the absence of a ruling from the Supreme Court or a Court of Appeals
with jurisdiction over the case, Chairman Buckley would adhere to the
Commission's position on the preemption issue as stated in _Adams Steel
I_ and _Williams Enterprises_.  Nevertheless, because this case arises
in the Third Circuit, i.e., both the inspected workplace and Adams
Steel's principal place of business are located there, Chairman Buckley
defers to the appellate court for that circuit in rejecting the
preemption argument raised by Adams Steel.  _See Babcock & Wilcox Co. v.
OSHRC_, 622 F.2d 1160, 1166 (3d Cir. 1980) (binding effect of appellate
court's rulings on cases arising in the Third Circuit).  _See also Davis
Metal Stamping, Inc_., 85 OSAHRC _____, 12 BNA OSHC 1259, 1261, 1984-85
CCH OSHD ¶ 27,236, p. 35,156 (No. 78-5775), _aff'd_, 800 F.2d 1351 (5th
Cir. 1986).  Commissioner Wall rejects Adams Steel's argument on its
merits, concluding that section 1926.105(a) applies to the cited conditions.

The facts relating to Adams Steel's argument that it was in compliance
with the standard are also undisputed.  Based on the compliance
officer's uncontradicted testimony, Judge McQuade entered the following
finding:

It was not practical or of likely utility for Adams Steel employees at
the Prudential Building to use scaffolds, ladders, catch platforms, or
temporary floors as safety devices to protect against the dangers of
outer perimeter falls.

Resolving a conflict in the testimony over the feasibility of personal
protective equipment, the judge also entered this finding:

It was not practical or of likely utility for Adams Steel employees at
the Prudential Building to tie off to beams, relief angles, bolt holes,
or static lines.

This latter finding is not challenged on review.[[8]]  Because all of
these other forms of fall protection were impractical, the judge
concluded that, under the terms of section 1926.105(a), Adams Steel was
required to provide perimeter safety nets.  It is undisputed that
perimeter safety nets were not provided and that the temporary flooring
at the third-floor level would not have broken an exterior fall from the
perimeter beam at the fifth-floor level to the ground below.

Adams Steel contends that, because it provided temporary flooring
approximately 20 feet below the two employees on the perimeter beam, it
was in compliance with section 1926.105(a), even though this flooring
would not have provided protection if either employee had fallen toward
the outside of the building.  We conclude, however, that this argument
is contrary to the Third Circuit's decision in _Adams Steel I_.  We
interpret the court's decision as holding that, under the circumstances
that existed both in that case and in this case, section 1926.105(a) not
only applies but also is violated.  In the Third Circuit's view, the
hazard at issue in these cases is the hazard of falling from a perimeter
beam to the outside of a building.  _See_, _e.g_., 766 F.2d at 808. 
Section 1926.105(a) applies to this hazard as thus defined and requires
the employer to protect employees against it.  Since a temporary floor
provides no protection against exterior falls, _see_, _e.g_., 766 F.2d
at 808, an employer who relies solely on temporary floors is not in
compliance with section 1926.105(a), as it is interpreted by the Third
Circuit.  We therefore will affirm citation 2 as modified by the judge.

Accordingly, we affirm item 1 of citation 1, vacate item 2 of citation
1, and affirm citation 2 as modified by the judge.

FOR THE COMMISSION

Ray H. Darling Jr.
Executive Secretary

DATED: February 2, 1987

------------------------------------------------------------------------

SECRETARY OF LABOR,
Complainant,

v.

ADAMS STEEL ERECTION, INC.,
Respondent.

OSHRC Docket No. 77-3804

_DECISION AND ORDER_

Appearances:

David F. Street, Esq.
Office of the Regional Solicitor
U.S. Department of Labor
Philadelphia, Pennsylvania
for the Complainant

Richard S. Crone, Esq.
Crone and Zittrain
Philadelphia, Pennsylvania
for the Respondent

McQuade, Judge:

This proceeding was commenced pursuant to Section 10 of the Occupational
Safety and Health Act of 1970, 29 U.S.C. § 651, _et_ _seq_., (the Act). 
The Respondent is charged with serious violations of 29 C.F.R.
1926.28(a) or, in the alternative, 1926.105(a); 29 C.F.R.
1926.750(b)(1)(iii); and 29 C.F.R. 1926.500(b)(2).  Respondent is also
charged with an other-than-serious violation of 29 C.F.R. 1926.100(a).

Respondent, Adams Steel Erection, Inc., is a Pennsylvania corporation
having its sites as a steel erection company in the Pittsburgh area and
maintaining its headquarters in Kittaning, Pennsylvania.

The Pittsburgh office of the Occupational Safety and Health
Administration (OSHA) conducted six inspections of the Respondent's
construction sites pursuant to anonymous telephone calls.  Three
inspections resulted in issued citations, one inspection in an
uncontested nonserious violation, and two inspections in findings of
compliance (Tr. 321-322).

This case resolves the citations which were issued from the September
23, 1977, inspection of the Prudential Building worksite in Pittsburgh,
Allegheny County, Pennsylvania.  Adams Steel Erection, Inc., (Adams
Steel) was issued three citations on October 17, 1977.

On November 7, 1977, Citation No. 1 was amended to reduce the proposed
penalties of the two items from $800 each to $420 each.  The proposed
penalty for Citation No. 2, termed at that time as a "Repeated
Citation," was reduced from $2,000 to $840. Respondent contested all
citations on November 7, 1977, and a hearing was, conducted on March 27,
1978.

Complainant moved to amend Citation No. 2's classification from
"Repeated" to "Serious."  Without objection from the Respondent the
motion was granted (Tr. 8).

Serious Citation No. 1, Item 1, alleges noncompliance with 29 C.F.R.
1926.750(b)(1)(iii) because Respondent did not supply a safety railing
around the periphery of the third floor.

The regulation requires:

(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 inspecting compliance officer, James Weyrauch, observed during the
course of the inspection three Adams Steel employees working on the
third floor of the Prudential Building structure.  The workers were in
the process of converting temporary decking into permanent flooring.  No
wire rope or other safety railing was in place around the third-floor
perimeter (Tr. 13, 22-23; Ex. C-1, C-2, C-3).

Weyrauch testified that the employee shown kneeling in the background of
Exhibit C-1 was 3 feet from the edge of an unprotected outside
perimeter, with nothing to break a 27-foot fall should he fall from the
edge of the building (Tr. 16).  Weyrauch described the surface upon
which the employee could have fallen as either street, sidewalk, or
"excavated rocks and rubble from the trench." (Tr. 18).  Weyrauch
testified that an employee falling 27 feet from the third floor would
suffer "broken bones, possibly death." (Tr. 18-19).

Respondent's witness offered varying estimates of what percentage of the
third floor had already been converted to permanent flooring:   70, 80
and 85 percent.

Robert Tierney, Respondent's employee, testified that all the flooring
shown in Exhibits C-1, C-2, and C-3 had been temporary, but that by the
time of the inspection 70 percent of the third floor had been converted
to permanent flooring. (Tr. 116).

Don McClendon, Respondent's foreman, testified that the conversion from
temporary deck to permanent decking was 80 percent completed (Tr. 133).

Lloyd Leadbeter, Respondent's supervisor, gave the highest estimate of
the third-floor portion already converted to permanent, 85 percent (Tr.
165-167).  However, Complainant argues that Leadbeter's estimate is the
least reliable since he was not at the worksite on the day of the
inspection, nor had he been there for a week prior to the inspection
(Tr. 180).  He based his estimate only from examining the worksite the
day after the inspection and from examining Weyrauch's photographs.

Respondent argues that (1) the standard is inapplicable under the facts
of the case, and (2) compliance is impossible.  This is asserted in
Respondent's Eighth Defense in its Answer and reiterated in motions for
involuntary dismissal at the conclusion of the presentation of both the
Secretary's case (Tr. 89-90) and all evidence (Tr. 193).

Adams Steel points to the testimony of its witnesses Tierney, McClendon,
and Leadbeter to show that the third floor consisted primarily of
permanent flooring at the time of inspection (70 to 85 percent).
 Respondent thereby concludes that the standard in issue is inapplicable
to the facts because 1926.750(b)(1)(iii) prescribes safety railings only
for temporary flooring, not permanent floors.

Respondent contends that the standard in issue is vague as to time of
applicability and denies the employer fair warning of the conduct it
prohibits or requires.

Respondent also argues that the Secretary has the burden of proving that
the local custom in the steel erection industry requires use of a
railing around the perimeter of the structure during conversion from
temporary to permanent flooring.  Respondent claims that the Secretary
has failed this burden.

However, the Secretary has no such burden of proof.  Local custom and
usage cannot control in the face of a Federal standard. There is no
requirement that Federal law carry with it a showing that it does not
contradict local custom to be enforceable.

Furthermore, Respondent's contention is not sustained that the standard
is too vague to be enforced and does not supply the fair notice to which
employers are entitled.  The standard is very precise as to
specifications for railing, its placement, its height, the type of
floors and structures where it is to be placed, and the stage of
construction at which the safety railing is to be in place.  The
employer receives fair notice of what is required by the standard from
its language.  The requirement of safety railings around temporary
floors "during structural steel assembly" is a clear mandate for this
safety measure; the absence of exceptions or particular address to the
stages of temporary flooring does not function as a loophole to
compliance.  The standard is clear:  A safety railing is required around
the perimeter of temporary floors of multi-floored steel erection
structures.

Complainant relies on _The Ashton Company, Inc_., 76 OSAHRC 6/B11, 3 BNA
OSHC 1968, 1975-76 CCH OSHD 20,351, OSHRC Docket No. 511 (1976), in
which the Commission held 1926.750(b)(1)(iii) to apply to the working
conditions of a building "still in the steel erection stage [where] the
installation of permanent flooring had not completed."  In the case at
bar, the permanent flooring similarly had not been "completed" and the
construction similarly was still in the steel erection stage. 
Therefore, by the reasoning of the Commission in _Ashton Company_, it is
clear 1926.750(b)(1)(iii) applies to the Prudential Building inspection
facts.

The three elements of establishing a violation are:  (1) applicability
of the standard to the facts, (2) employer failure to comply with the
standard, and (3) employee access to the hazard resulting from the
violation.   _Anning-Johnson Company_, 76 OSAHRC 54/A2, 4 BNA OSHC 1193,
1975-76 CCH OSHD 20,690, OSHRC Docket Nos. 3694 and 4409 (1976).

Since it is clear that the Prudential Building was still in the steel
erection stage and installation of permanent flooring was not yet
completed, by the _Ashton Company_ standard, 1926.750(b)(1)(iii) applies
to the facts.  Therefore, the first of the three elements of a violation
is satisfied.  It is also clear that Adams Steel did not provide any
safety railing and that employees working on the third floor were
exposed to the danger of falling 27 feet to the ground, thereby
satisfying the second and third elements of establishing a violation.  
Complainant has thereby proven the violation.

Respondent's argument that because the floor in question had been
largely converted from temporary to permanent flooring, the standard is
inapplicable, lacks support.  During the conversion period, Respondent
is still required to provide protection for its employees.  Whether the
permanent floor safety railing requirement, 29 C.F.R. 1926.500(d)(1), or
the temporary floor safety railing requirement, 1926.750(b)(1)(iii), is
applicable, the prescription is clear:  An employer must provide a
safety railing around the building perimeter.  The basic purpose is to
protect workers during all phases of the steel erection, regardless of
whether 20 percent or 80 percent assembled.  The standard applies and
has been violated.

Serious Citation No. 1, Item 2, alleges noncompliance with 29 C.F.R.
1926.500(b)(2) because Respondent left a third-floor ladderway opening
unguarded by railings or toeboards.

The applicable regulation requires:

SUBPART M--FLOOR AND WALL
OPENINGS, AND STAlRWAYS

§ 1926.500 Guardrails, handrails, and covers.

(b) Guarding of floor openings and floor holes.

(2) Ladderway floor openings or platforms shall be guarded by standard
railings with standard toeboards on all exposed sides, except at
entrance to opening, with the passage through the railing either
provided with a swinging gate or so offset that a person cannot walk
directly into the opening.

The inspecting compliance officer, Weyrauch, testified that entry onto
the third floor was provided by a 36-foot wooden ladder. The ladder was
the sole means of access from the ground to the third floor for
ironworkers.  The Iadderway opening was in use and was not protected by
standard railings, standard toeboards, or any perimeter guarding
whatsoever.  Employees were exposed to a fall of 27 feet through the
hole erected by the opening (Tr. 19-22; Ex. C-4).  This evidence is
undisputed.

Weyrauch testified that the hazard workers were exposed to was a
possible 27-foot fall to dirt, material and rubble from a trench, and
steel scaffolding, a hazard which would result in serious injury or
death (Tr. 57-59).

Respondent's witnesses testified that the ladder had been in place one
week (Tr. 102), but the opening was smaller, only 2-1/2 feet wide, prior
to the day of inspection when cutting for the permanent flooring had
begun (Tr. 102-103, 131).  Messrs, Tierney, McClendon, and Leadbeter,
all Respondent witnesses with considerable industry experience, agreed
that they had never seen a steel erector install a handrail or cable
around an opening for an access way to a deck (Tr. 105, 134-136, 168). 
Supervisor Lloyd Leadbeter also stated that a reasonably prudent
employer in the steel erection industry in the Pittsburgh area would not
recognize the necessity of a steel erector to install standard railings
and toeboards (Tr.168).

Respondent denies the applicability of the standard, claiming Subpart R,
the steel erection standard, specifically treats the subject of access
openings in floors.  Subpart R only indirectly mentions access ways in
1926.750(b), however, in requiring that floors be solidly planked except
for access openings.  Respondent reasons that since Subpart R requires
tightly planked floors except for access openings, and also requires
safety railings around the periphery of the floor, this excludes steel
erectors from being required to place guardrails around openings. 
Respondent claims a reasonable employer would find in Subpart R
permission to leave access ways unguarded.

However, to assume that the steel erection industry is not required to
guard open ladderways is taking liberty with the spirit of the Act and
an application of loophole logic.  The Subpart R standards do not
address the issue of protection of workers from the hazard of falling
into unguarded access openings.   Complainant is correct in arguing that
since 1926.750(b) does not deal with protection of employees from this
hazard of falling through access openings, reference to the construction
standards pertaining generally to openings is necessary.

The Act provides in 1910.5(c)(2) that to the extent that a particular
standard does not apply (giving as an example Subpart R, the specific
standard in question in the case at bar), more general standards apply.

The relevant provision, 29 C.F.R. 1910.5(c)(2), after requiring the
priority of on-point specific standards over general standards, states:

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.  To illustrate, the general standard regarding noise
exposure in § 1910.95 applies to employment and places of employment in
pulp, paper, and paperboard mills covered by § 1910.261.

The rule of construction of 1910.5(c)(2) is that a general standard may
apply, even if a particular standard is also prescribed for the
industry, to the extent that the particular standard is inapplicable. 
_Bristol Steel & Iron Works, Inc_., 77 OSAHRC 181/D6, 5 BNA OSHC 1940,
1977-78 CCH OSHD 22,240, OSHRC Docket No. 14537 (1977).  In _Bristol_,
Commissioner Cleary held:

I agree with the Administrative Law Judge that the steel erection
standards were not intended to cover all situations related to steel
erection.  In other words, Subpart R contains some specific steel
erection standards.  It does not contain comprehensive rules for steel
erection, or rules covering work incidental thereto.  This is why the
rule of construction in 29 C.F.R. 1910.5(c)(2) should be applied.

Respondent argues that the standard is ambiguous and, therefore, custom
and practice in the industry in the Pittsburgh area is most significant
and a "reasonable man" test should be applied.  However, 1926.500(b)(2)
is clear in its language and applicability is in order.  Federal law
takes priority over local practice.

Complainant reasons that since 1910.5(c)(2) and _Bristol Steel and Iron
Works_, _supra_, support the applicability of the standard, the two
remaining elements for establishing a violation are:  Employer failure
to comply with the standard and employee access to the hazard resulting
from the violation _Anning-Johnson Company_, _supra_.  Since the facts
that the standard were not complied with and workers had access to the
danger of a 27-foot fall are undisputed, Respondent was in violation of
the cited standard.

Serious Citation No. 2 alleges a violation of 29 C.F.R. 1926.28(a) or,
in the alternative, 1926.105(a).  The inspecting compliance officer,
James Weyrauch, observed two employees tightening bolts on the structure
on beam B-16 between columns C-7 and C-13 at the inspected worksite.  To
their left side was a deck 22 feet below; to their right side was
concrete 50 feet below (Tr. 23, 86; Ex. C-5).

Complainant alleges that these employees should have been tied off to
beams or to a static line to reduce the potential hazard of these
workers falling.  Adams Steel's failure to provide lanyards and a static
line to tie off on is the basis of the alleged personal protective
equipment violation, 29 C.F.R. 1926.28(a), which reads:

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.

In the alternative, if such protective equipment is deemed to be
impractical or to present a greater hazard, Complainant alleges 29
C.F.R. 1926.105(a) noncompliance because Respondent did not supply
safety netting as an alternative safety precaution.

The safety nets regulation requires:  §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.

Compliance Officer Weyrauch testified that an employee fall of 50 feet
would result in serious injury or death (Tr. 25-26). Although both
employees observed (Ex. C-5) were wearing safety belts, there were no
lanyards or static line and if a static line had been erected above the
beam, the employees could have tied off to the line as a protection
against falling.  Weyrauch testified that the employees could have tied
off to the beam they were working on, to the previous relief angles they
had just put in, to the bolt hole (with a connector's lanyard), or to a
static line (Tr. 26-27).  Weyrauch also suggested that the fifth floor
perimeter guardrail could have been used as a static line with an O-ring
attached to the lanyard end for ease of movement (Tr. 77-79).  Weyrauch
also admitted on cross-examination, however, that the fifth floor had no
safety railing and no flooring.  Respondent's counsel tried to establish
that since there was no flooring, no railing was required or supplied,
and thus a perimeter safety railing could not practically be used as a
static line (Tr. 78-79).

Weyrauch admitted scaffolds, ladders, catch platforms, and temporary
floors were impractical as protection against injury from falls to the
outside of the building (Tr. 27-28).  Weyrauch also testified that there
were no safety nets in use at the inspected worksite (Tr. 27).

Respondent's employee, Robert Tierney, claimed it would be more of a
problem to tie off to the relief angle than not to tie off. Because the
beam was 30 or 33 inches deep and 12 inches wide, 42-45 inches of the
6-foot lanyard would be consumed by tying off itself.  This would
necessitate the worker bending over several feet and would have been
neither practical nor feasible (Tr. 107-108).

Tierney testified that the workers were bolting up either two or four
bolt holes, a process which took "about a minute," followed by movement
4 or 5 feet to the next position.  Tierney said the only bolt holes
available were the ones the workers were filling with bolts, so that it
is obvious you cannot tie off to the same bolt holes you are bolting up
(Tr. 109-110).

Tying off to the beam is also impractical, according to Tierney, because
the beam is 84 or 90 inches in circumference and the lanyards are only
72 inches long (Tr. 110-111).

Tierney also found Weyrauch's suggestion of tying off to a static line
from a perimeter railing impractical.  Since there was no temporary
floor, there was no perimeter railing around the temporary floor. 
Tierney testified he had never seen a railing where there was no floor
(Tr. 111).

Tierney did admit, however, that there had been scattered temporary
decking on the fifth floor prior to the inspection day (Tr. 126-127).

Foreman McClendon agreed with Tierney on several points:  It was 4 or 5
feet between work positions, the lanyards were too short to reach around
the beams, and tying off to the bolt holes was impossible since the
workers were engaged in the very act of filling those bolt holes with
bolts (Tr. 137-139).  McClendon said the bolting up process took 1 to 3
minutes, which was less time than it would take to tie off (Tr.
138-139).  McClendon testified that he had never seen a perimeter safety
railing used as a static line (Tr. 139).

Respondent's superintendent, Lloyd Leadbeter, said that tying off to
either the relief angle or the beam was more dangerous than simply
straddling it (Tr. 171, 173).  He testified that the lanyard and a bolt
could not both fit into a bolt hole (Tr. 172).  Leadbeter also testified
that a perimeter wire static line would be impractical because workers
as they stood up would have been "into the cable" (Tr. 176-177).

Complainant counters that an employee bumping his head is not a greater
danger than an employee working without protection from falling.  
Complainant maintains that the greater hazard defense fails since a knot
on the head is a less serious injury than the injury resulting from a
fall of 50 or 22 feet.

However, workers would be subjected to more serious harm than a bump on
the head; workers could be bumped, knocked down, or entangled by the
connecting, disconnecting, and wearing of the safety belt-lanyard-static
line-perimeter railing apparatus. The greater hazard claim of Respondent
has not been dispelled and the practicality of static lines is
doubtful.  Complainant's suggestion of a second perimeter railing being
installed above the normal railing (at a greater height) is also
impractical.  Under any of the suggested means of tying off - to the
beam, relief angle, bolt hole, or static line from perimeter railing -
tying off is impractical.

Complainant maintains that in the event 1926.28(a) safety measures be
deemed impractical, 1926.105(a) has been violated because Respondent has
not supplied safety nets.

Respondent's argument that both 1926.28(a) and 1926.105(a) are vague and
impossible to comply to, and therefore inapplicable, lacks merit.  Adams
Steel claims the standards are ambiguous and imprecise, but the
standards' language is clear and implicit in its prescription of
applicability.  Respondent claims that in the event of a citation under
an ambiguous standard, custom and practice in the industry should
prevail.  However, local industry custom does not prevail as against a
specific Federal standard.

Respondent also argues that 1926.105(a) is inapplicable because Subpart
R, the more specific steel erection standards section, applies.  Adams
Steel contends that 1926.750(b)(2)(i), in Subpart R, requires only a
tightly planked and substantial floor. Respondent argues that
1926.105(a) is ambiguous because safety nets are required only where
alternate protection is impractical.  In the case at bar, Respondent
maintains the employer had a floor within two stories or 25 feet of
employees, as required by the steel erection standard, and this suffices
as a valid form of fall protection as required.

However, Respondent's reliance for this argument is on the critically
distinguishable facts of _Southwestern Industrial Contractors_ _and
Riggers, Inc_., 77 OSAHRC 95/E9, 5 BNA OSHC 1631, 1977-78 CCH OSHD
22,840, OSHRC Docket No. 14424 (1977).  In _Southwestern_, the employer
had safety belts in use as a form of fall protection already, so that
safety nets were not required.  The safety belts in use protected
Southwestern's employees against harm from falls on the interior and
exterior of the structure.  In the case at bar, Respondent's argument
that temporary flooring is a valid substitute for the use of safety nets
ignores the hazard of falls on the outside of the structure.

Although temporary flooring protects high steelworkers against falls to
the interior sides of the building structure, absolutely no protection
against falls on the outside perimeter of the building was provided by
Adams Steel.  As Complainant points out, an employee falling in the
"wrong" direction, to the outside of the structure, would fall 50 feet
to the ground below.

Complainant relies on precedent to show that 1926.105(a) is applicable
when personal protective equipment is impractical under 1926.28(a). 
_Roanoke Iron & Bridge Works, Inc_., 77 OSAHRC 74/C9, 5 BNA OSHC 1391,
1977-78 CCH OSHD 22,522, OSHRC Docket No. 10411 (1977), _Cornell &
Company, Inc_., 77 OSAHRC 18/D10, 5 BNA OSHC 1018, 1977-78 CCH OSHD
21,532, OSHRC Docket No. 9353 (1977).  Particularly on point is the
_Cornell_ holding that Respondent was "required under the terms of Sec
1926.105(a) to protect its employees by erecting safety netting on the
outside perimeter of the building."

Other-than-Serious Citation No. 3 alleges a violation of the Act for
noncompliance with 29 C.F.R 1926.100(a) because an employee of
Respondent was not wearing a hard hat and was exposed to the potential
harm which would result from being struck by falling materials.

The relevant statute requires:

§ 1926.100   Head protection.

(a) Employees working in areas where there is a possible danger of head
injury from impact, or from falling or flying objects, or from
electrical shock and burns, shall be protected by protective helmets.

The employee shown in Exhibit C-7 is not wearing a hard hat and is
"standing directly beneath the man working on beam-16," according to the
inspector (Tr. 35).  The employee, foreman McClendon's son, was employed
as an apprentice and was carrying ice as part of his duties as a
"go-fer" (Tr. 115).  Respondent's witnesses testified that the employee
was "maybe five feet" (Tr. 114) and "about ten feet away from the
building" (Tr. 140).  The employee's father, foreman McClendon,
testified that his son had long hair, didn't "get along" well with his
hard hat, and "would take it off every chance he could." (Tr. 140-141).

Complainant argues that since this employee was directly under or near
the perimeter of the building and was without a hard hat, Respondent was
in violation of the cited standard.

Respondent argues that there is no violation because (1) the employee
was not working, and (2) he was not in a place where there was a
possible danger of head injury from impact or from falling or flying
objects.

Respondent points out that the employee depicted in Exhibit C-7 was
merely standing near the street smoking a cigarette.  He was carrying
ice for a water bucket and looked as if he were calling up to people to
see if they wanted coffee, to which his father, the foreman, attests "he
is not doing much work..." (Tr. 140).  Respondent claims this leads to
the factual dispute -- was the employee working?--since the standard
only applies to "employees working" in areas where danger exists.

However, the presence of the employee in an area of exposure to hazard
is enough; he doesn't have to be actively working.  We need not assume
that employees momentarily inactive are excluded from coverage of the
standard regardless of exposure to the hazard.  The standard's language,
"employees working," simply means "on the job" and if the employee is on
the worksite, it is spurious reasoning to rationalize exemption from the
standard because he is on "break."

Respondent also argues that the employee is not in a position of danger
since its witnesses testified that the employee was 5 or 10 feet away
from the building's perimeter.  Complainant's witness, the inspecting
officer, testified that the employee was right under a beam being worked
on, and Exhibit C-7 appears to bear this out.

Regardless of the dispute as to distance of the employee from the
building's, outside perimeter, whether 10 or 5 feet or less, he is still
an employee working on the worksite without wearing a hard hat.  It is
enough to be near the perimeter of the building, not directly under, to
be exposed to the hazard the standard seeks to rectify.  The regulation
contemplates the entire worksite and it is Respondent's duty to ensure
that the exposure to the hazard is minimized, especially for an employee
whom the foreman knows "would take off (his hard hat) every chance he
could." (Tr. 141).

_Harassment Issue_

Respondent argues that the six inspections of Adams Steel construction
sites are invalid because they were in response to the complaints of
anonymous caller(s), and the informant(s) who, aided by OSHA, were
engaged in a program of intentional harassment of the Respondent.

In the Ninth Defense in its Answer, Respondent contends that the
inspection is invalid because (1) it was in response to a person other
than an employee or his representative and (2) the non-employee informer
was engaged in intentional harassment.  Respondent motioned to suppress
all evidence (Tr. 4), and later motioned twice for involuntary dismissal
(Tr. 89, 192).

Adams Steel objected to the series of inspections and the administrative
policy elucidated in Field Information Memorandum No. 76-20, which
represents an intent to inspect all but the clearly frivolous
complaints, including anonymous complaints, and to give priority to
steel erection site complaints because of the high hazard of this work.

Respondent considers the series of Adams Steel worksite inspections,
totaling six inspections within 33 days, unreasonable and therefore
beyond the reasonableness prescribed in Section 8(a) of the Act. 
Section 8(a) gives the Secretary inspection authority during reasonable
times, within reasonable limits and in a reasonable manner.

Section 8(a) of the Act provides that:

Inspections, Investigations, and Recordkeeping

Sec. 8. (a) In order to carry out the purposes of this Act, the
Secretary, upon presenting appropriate credentials to the owner,
operator, or agent in charge, is authorized--

(1) to enter without delay and at reasonable times any factory, plant,
establishment, construction site, or other area, workplace or
environment where work as performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other
reasonable times, and within reasonable limits and in a reasonable
manner, any such place of employment and all pertinent conditions,
structures, machines, apparatus, devices, equipment, and materials
therein, and to question privately any such employer, owner, operator,
agent or employee.

Respondent maintains that the six inspections from September 23 to
October 26, 1977, transcend this statutory authority and constitute
harassment of the Respondent which Adams Steel alleges to be both
unwarranted and illegal.  The schedule of anonymous telephone complaints
and subsequent OSHA inspections of Adams Steel's plants totaling six
inspections within a five-week period is as follows:

Plant 	Date of Anonymous Call 	Date of Inspection
Prudential Building
(the site at which
inspection is at bar) 	September 21, 1977 	September 23, 1977
L. B. Foster Project 	September 19, 1977 	September 23, 1977
U.S. Steel Supply 	October 6, 1977 	October 11, 1977
Bridgeville Bridge 	October 6, 1977 	October 12,1977
Robinson Township Project 	October 18, 1977 	October 20, 1977
Beaver County Medical
Center 	General schedule inspection* 	October 26, 1977


*A sewer contractor on the job site was named in a complaint received by
OSHA, and all contractors and subcontractors on the site, including the
Respondent, were subsequently inspected.

Respondent argues that Section 8(f),[[1/]] unlike the general inspection
provision Section 8(a), requires that the Secretary determine there are
reasonable grounds to believe such a violation or danger exists.  
Respondent further points to Field Information Memorandum (FIM) No.
76-20[[2/]] and its consideration of the handling of Section 8(f)
complaints.  Paragraph 3(g) of FIM No.76-20 lists some exceptions to the
general rule of the memorandum's policy to conduct the inspection
without regard to source or adherence to Section 8(f) formality.  One of
these exceptions is "if there is compelling evidence to indicate that
the complaint procedure is abused by groups or individuals for purposes
other than safety and health matters."  Harassment certainly is not a
safety or health matter and would be a proper reason for non-response to
complaints if it was clearly determined that the purpose of such
complaints was harassment of an employer.  However, it has not been
shown by Respondent that the series of six Adams Steel inspections,
given the hazardous nature of the industry, constitutes "compelling
evidence" that the complaint response process has been abused.  The
facts do not bear out the contention that anyone, let alone an employee,
was engaged in a program of intentional harassment of the Respondent.

The Complainant maintains that in relation to worker safety, the steel
erection industry is one of the "highest hazard" of all American
industries, citing the Bureau of Labor Statistics discussed at the
hearings (Tr. 339-341) to bear this out.  The Pittsburgh Area Office,
like several other Region III offices, ranks complaints on a system of
three priorities with "serious" being the highest priority assigned. 
Complaints dealing with Steel erecting contractors are always given a
"serious" designation with the intention to inspect within 3 days of the
complaint (Tr. 328-330).

The Secretary points to the number and severity of worker injuries in
the steel erection industry as justification for the quick and thorough
response to complaints in this area and as strong policy against
ignoring such complaints.

Charles Straw, OSHA's Pittsburgh Area Director, testified that "(i)f
somebody reports an unsafe condition at a workplace, we cannot afford to
ignore that simply on the basis that it may or may not be
valid...(b)ecause somebody may suffer serious injury or death as a
result of our ignoring the complaint" (Tr. 355).

OSHA argues that public policy favors inspection over non-response since
lives are at stake.  The possibility that too frequent or inconvenient
inspections of a business' worksite may occur is overbalanced by the
hazardous nature of the industry.  Because of these dangers, the need
for assured worker safety is greater, as is the compulsion to respond to
complaints.

Complainant's further evidence is not only as to the need, but also as
to the routineness of response to anonymous complaints.

OSHA's operations officer for the Pittsburgh area, William Mason,
testified that his office received 1,400 safety and health complaints in
1976 and all of them, excepting the clearly frivolous, lead to
inspections (Tr. 358, 360-361).  Charles Straw's testimony that between
20 and 25 percent of the complaints received at the Pittsburgh office
are anonymous phone calls (despite attempts to ascertain informant's
names) (Tr. 331-332) indicates that the Prudential Building inspection,
which the Respondent alleges to be intentional harassment, is only one
of over 300 inspections a year which that office routinely conducts in
response to anonymous complaints.

Since all serious complaints are followed up, and all steel erection
firms are inspected quickly after a complaint is received, the issue as
to the source of the complaint is rendered moot.  Regardless of
anonymity, each Adams Steel complaint would have been followed through
by an inspection.

Straw also testified on behalf of Complainant as to the infeasibility of
requiring informants to supply their names to OSHA before complaints are
responded to.  He said that requiring names would reduce both the number
of complaints received and the effectiveness of OSHA's safety program
(Tr. 354).

Complainant contends that informants call anonymously because of fear of
employment discrimination despite advisement of their rights and the
protection of Section 11(c) of the Act[[3/]], and efforts by OSHA
personnel to ascertain the identity of callers (Tr. 331-333).

The proof does not establish harassment.  Complainant's proof left
unfettered the longstanding premise that anonymous calls are a valid
basis for industrial searches under Section 8(a) of the Act.  Section
8(a) gives the Secretary the right to inspect.  This section begins
"(i)n order to carry out the provisions of this Act."  Since the Act's
first words are "(t)o assure safe and healthful working conditions for
working men and women," the purposes of this Act are clear.  Since
nearly all witnesses agreed that it is a high-hazard occupation, it is
not unreasonable for the Secretary to give priority to complaints, even
anonymous complaints, in this occupational field.

OSHA is not only entitled to inspect, but in the case of high
safety-risk industries such as this, the statute demands timely and
efficient response to complaints.

Respondent complains that OSHA policy opens it to anonymous complaints
by competitors, estranged wives, and nonunion contractors (Tr. 344).

Anonymous complaints are not the same as employee complaints and cannot
be assumed to be so.  Therefore, Section 8(f), and any arguments
pursuant thereto, are inoperable in this case.  Employees are not known
to be the informants and logically can only be considered a subgroup of
the callers.

Regardless of the source of the complaint, Respondent, in a high worker
safety-risk industry, was inspected and issued three citations, two of
them serious.

Respondent cites the Congressional Record as quoted in _Aluminum Coil
Anodizing Corporation_, 77 OSAHRC 70/A2, 5 BNA OSHC 1381, 1977-78 CCH
OSHD ¶ 21,789, OSHRC Docket No. 829 (1977) as showing the Secretary is
aware of the potential for harassment, including harassment by
competitors.  The passage notes "we (Congress) have seen very few cases
wherein it might conceivably be said there was a harassment factor
involving either labor or business."  However, contrary to Respondent's
contention, this supports the proposition that the Secretary is
complying with Congress' expectations, and abuse of the standard for
harassment is uncommon.

Since the identity of the caller(s) is unknown, the issue is properly
framed as whether the inspections were reasonable under Section 8(a) of
the Act, not Section 8(f).  The formality requirements of Section 8(f)
or the judiciousness of FIM No. 76-20 are not at issue.  What is at
issue is whether the Prudential Building inspection in particular, and
the series of six inspections in general, are a reasonable and valid
exercise of OSHA authority to inspect.

As to the Section 8(f) employee complaints provisions, the specification
of employee status renders this section inapplicable to the facts of
this case.  At no point was it shown that the complaints received were
from employees of the Respondent and there is no reason to believe,
absent such proof, that the anonymous caller(s) were necessarily either
employees or employee representatives.   In discussing its contention
that there is no evidence that a former employee made any of the calls,
Respondent readily admits "it appears agreed that anyone could have made
these complaints."  Since Section 8(f) is inapplicable, the proper
standard to use to measure the validity of the inspections is Section
8(a).  Like Section 8(f), FIM No. 76-20 and any purpose it may have or
duty it may create is inappropriate as the measure of inspection validity.

Complainant relies on _Aluminum Coil_, _supra_, in which the Commission
held:

The identity or purpose of the individual responsible for making the
complaint does not alter the fact that the Secretary is broadly
authorized by subsection 8(a) to conduct inspections.

This holding was reaffirmed by the Commission In _Robberson Steel
Company_, 78 OSAHRC 21/C14, 6 BNA OSHC 1430, 1977-78 CCH OSHD 22,603,
OSHRC Docket Nos. 76-4636 and 76-4637 (1978).

In _Aluminum Coil_ the complaint received was from a non-employee, which
may or may not be the case here.  The Commission in _Aluminum Coil_
barred subsequent Respondent's evidence, proposed to show the informer's
intent was to harass, because "(t)he purpose of the individual does not
affect the validity of the inspection."  The Commission held that the
Section 8(a) general authority to inspect "is not limited by the special
inspection provision of subsection 8(f)."

Based on this recent, unanimous Commission policy, Complainant here
argues that the identity or purpose of a caller is irrelevant to any
inquiry as to the OSHA inspection's legality.  _Aluminum Coil_ supports
Complainant's argument that the Secretary may exercise his authority to
respond to complaints not meeting the Section 8(f) formality
requirements.  The inspection in this case was made pursuant to the
Secretary's general inspection authority.

The record evidences Complainant's good faith and does not bear out
Respondent's contention that the OSHA inspections reached an unbiased
level.  The disagreement concerns whether six inspections in five weeks
are reasonable under the circumstances.  These circumstances favor the
validity of the inspection:  OSHA's broad authority under Section 8(a)
to conduct inspections, relied upon by Complainant with reference to
_Aluminum Coil Anodizing Corporation_, _supra_, and _Robberson Steel
Company_, _supra_; the high-hazard nature of the industry and priority
given by OSHA to complaints concerning steel erection; the prevalence of
both anonymous complaints and subsequent inspections; and the public
policy heavily favoring the concerns of protecting worker safety and
lives over employer convenience, accommodation, and freedom from
determination of compliance.  The inspections were routinely authorized
and conducted within the requirements of Section 8(a).

_Constitutional Issue_

Adams Steel contends that the Occupational Safety and Health Act of 1970
is unconstitutional because it violates the Fourth, Fifth, and Sixth
Amendments to the Constitution.  Respondent argues that the citations
are invalid based on these constitutional grounds in the Third Defense
of its Answer and in motions for involuntary dismissal at the conclusion
of evidence presented by both Complainant (Tr. 89) and Respondent (Tr.
192-193).

These arguments must be discounted, however, since the Commission is not
an Article 3 court and, therefore, cannot decide constitutional issues.

Precedent makes it clear the Review Commission lacks authority to
determine constitutional issues.  The Commission has no jurisdiction
over issues which question the constitutionality of the Act itself. 
This was announced in _Secretary of Labor v. Grebb_ _Electric Company_
74 OSAHRC 63/C10, 1974-75 CCH OSHD ¶ 18,567, OSHRC Docket No. 3552
(1974) which held, "judges of this Commission have no authority to rule
on issues which involve direct attacks upon the constitutionality of
provisions of the Act." _Grebb Electric_ cites _Public Utilities
Commission of California v. United States_, 335 U.S. 534, 78 S. Ct. 446
(1958) and _Secretary_ _of Labor v. American Smelting and Refining
Company_, 76 OSAHRC 5/A2, 3 BNA OSHC 1992,1975-76 CCH OSHD ¶ 20,345,
OSHRC Docket No. 10 (1975).  The Court in _Public Utilities Commission
of California v. United States_, _supra_, held that not only direct
attacks on the Act's constitutionality, but also indirect constitutional
questions are not within the province of the Commission's discretion.  
Only when "an administrative proceeding might leave no remnant of the
constitutional question" may it apply administrative remedy; otherwise,
judicial relief should be sought.

Substantial additional precedent states that the Review Commission lacks
authority to decide constitutional questions.  _Secretary of_ _Labor v.
Colorado Pipe Lines, Inc_.; 75 0SAHRC 23/A2, 3 BNA OSHC 1865, 1975-76
CCH OSHD ¶ 20,251, OSHRC Docket No. 2805 (1975); _Secretary v. Garland
Call Pole Company_; 75 OSAHRC 57/E12, 3 BNA OSHC 1188, 1974-75 CCH OSHD
¶ 19,603, OSHRC Docket No. 2028 (1975); _Secretary v. Heede
International Inc._, 75 OSAHRC 26/C9, 2 BNA OSHC 1466, 1974-75 CCH OSHD
¶ 19,182, OSHRC Docket No. 1889 (1975); _Secretary v. Marino Development
Corporation_, 74 OSAHRC 73/B12, 2 BNA OSHC 1260, 1974-75 CCH OSHD ¶
18,825, OSHRC Docket No. 1040 (1974).

Furthermore, there is sufficient precedent in the Federal courts
upholding the constitutionality of the Occupational Safety and Health
Act of 1970 and holding that employers are not denied due process
because the Secretary inspects, cites, and penalizes as a final order
absent a challenge.  _Atlas Roofing v. Occupational Safety and Health
Review Commission_, 97 S. Ct. 1261, 518 F.2d 990 (1977) and _Lake Butler
Apparel Company v. Secretary of Labor_, 519 F.2d 84 (5th Cir., 1975).
 Civil penalties are not penal in nature and, therefore, are not invalid
because the Act does not provide for the constitutional protections
given criminal defendants by the Constitution.  _Atlas Roofing_,
_supra_; _Lake Butler Apparel Company_, _supra_.  Although its full
impact is yet to be seen, the Supreme Court's holding in _Marshall v.
Barlow's, Inc_., 98 S. Ct. 1816 (1978) concerns only inspections where
the employer refused consent to the search and denied entry, which did
not occur in this case.

Nonetheless, it is clear that this proceeding has no jurisdiction over,
and cannot determine, constitutional issues.

Respondent is a relatively large steel erector in the Pittsburgh,
Pennsylvania area.  Previous violations or employee injuries have not
been shown.  In the past, it should be noted, Adams Steel has
demonstrated a safety program and significant concern for the safety of
its employees.  Use of safety nets around building perimeters is
uncommon in the industry.  Therefore, Respondent should not suffer a
large penalty simply because it is one of the first employers to be
determined in violation of the general standard 29 C.F.R. 1926.105(a).

_FINDINGS OF FACT_

1.  Adams Steel Erection, Inc., is a corporation headquartered in
Kittaning, Pennsylvania which conducts its principal business activities
in the Pittsburgh, Pennsylvania area.

2.  The inspection of the Prudential Building was in response to an
anonymous complaint received at the Pittsburgh Occupational Safety and
Health Administration Office.

3.  The inspection was one of six inspections of Adams Steel worksites
conducted within a 5-week period.  All six inspections were conducted
pursuant to anonymous telephone call complaints.

4.  Of all American industries, the steel erection industry is one of
the most hazardous to employees.

5.  The inspection took place at what Section 8(a)(1) of the Act
describes as a "construction site . . . where work is performed by an
employee of an employer."  The physical inspection itself was within the
limits prescribed in Section 8(a)(2), having been conducted "during
regular working hours" and within reasonable limits and in a reasonable
manner."

6.  Employees working at an elevation of greater than 25 feet above the
ground are exposed to a substantial risk of harm from falling.

7.  No wire rope or other safety railing was in place around the
third-floor perimeter.

8.  Three employees were observed working on the third floor of the
Prudential Building structure at a height of 27 feet above the ground.

9.  An employee falling over the outside perimeter of the building would
have suffered serious injury or death.

10.  The third floor was between 70 and 85 percent converted from
temporary to permanent flooring.

11.  The safety railing around temporary flooring statute, 29 C.F.R.
1926.750(b)(1)(iii), is sufficiently clear and precise, and gives
employers fair notice so as to be enforceable.

12.  The Prudential Building was still in the steel erection stage and
installation of permanent flooring was not yet completed at the time of
inspection.

13.  The ladder in issue was in use at the time of inspection, was the
sole means of access from the ground to the third floor, and ascended
through a third-floor opening unprotected by railings, toeboards or any
similar safety guards.

14.  An employee falling 27 feet through the opening to the ground would
have suffered serious injury or death.

15.  Subpart R does not, by omission of addressing the subject, permit
steel erectors to leave access ways unguarded.

16.  General standards apply to the extent that particular standards are
inapplicable.

17.  An employee falling 50 feet over the outside perimeter of the
building would have suffered serious injury or death.

18.  It was not practical or of likely utility for Adams Steel employees
at the Prudential building to tie off to beams, relief angles, bolt
holes, or static lines.

19.  It was not practical or of likely utility for Adams Steel employees
at the Prudential Building to use scaffolds, ladders, catch platforms,
or temporary floors as safety devices to protect against the dangers of
outer perimeter falls.

20.  Both 29 C.F.R. 1926.28(a) and 1926.105(a) are sufficiently clear
and precise, and give employers fair notice so as to be enforceable.

21.  Respondent did not provide safety nets or other protection against
outside perimeter falls.

22.  Safety nets were practical and useful as safety device which could
have been employed at the Prudential Building to protect workers against
the dangers of falling.

23.  There was need for safety nets on the outside perimeter of the
structure since employees were working on or near the outside perimeter
and were subject to outside perimeter falls of 50 feet.

24.  The employee depicted in Exhibit C-7 was in close enough proximity
to the structure so as to be exposed to possible head injury from impact
or from falling or flying objects.

25.  The employee depicted in Exhibit C-7 was "working" for the purposes
of 29 C.F.R. 1926.100(a), even though he is momentarily inactive.

26.  The complaints were anonymous and, therefore, it is unknown whether
the complaints were made by employees, non-employees, or both.

27.  Both anonymous complaints and subsequent inspections are routine
and common.

28.  The Secretary has broad authority to inspect under Section 8(a) of
the Act.

29.  Respondent has an excellent safety record in the past and is
participating in employee safety protection.

_CONCLUSIONS OF LAW_

1.  Adams Steel Erection, Inc., comes within the jurisdiction of Section
10(c) of the Occupational Safety and Health Act of 1970.

2.  Citation No. 1 was amended to reduce the proposed penalty of the two
items from $800 to $420 each.

3.  Citation No. 2 was amended to reduce the proposed penalty from
$2,000 to $840.

4.  Citation No. 2 was amended to be classified as "Serious" instead of
"Repeated."

5.  The Secretary of Labor has validly exercised his authority under
Section 8(a)(2) "to inspect and investigate during regular working
hours. . . and within reasonable limits and in a reasonable manner ..."
places of employment.  Inspections of the Adams Steel construction sites
are authorized by the Act and were reasonable and valid as performed
thereunder.

6.  The Commission is not an Article 3 court and cannot rule on
constitutional issues.

7.  Section 8(f) of the Act is inapplicable to the facts of this case
since it is unknown who made the complaints and an employee provision
cannot be applied based on an unfounded assumption.  Section 8(a)'s
general inspection authority is the applicable statute governing the
inspections.

8.  Local custom and practice in an industry or trade does not prevail
as against a specific Federal standard.

9.  Adams Steel has violated 29 C.F.R. 1926.750 (b)(1)(iii) by failing
to supply a safety railing around the periphery of the third floor.  The
standard is applicable to the facts of this case and compliance is feasible.

10.  Adams Steel has violated 29 C.F.R. 1926.500(b)(2) by failing to
protect workers from the dangers of an open ladderway by supplying
standard railings and standard toeboards.  Employees had access to the
hazard and Respondent failed to comply with the standard which is
applicable under the facts of this case.

11.  Adams Steel is not in violation of 29 C.F.R. 1926.28(a) requiring
personal protective equipment where there is exposure to hazardous
working conditions because the installation and use of static lines or
lanyards are rendered infeasible by the dangers to which installation
and use would subject workers.  Tying off not only was impractical, it
would have created a greater hazard than the risks involved in nonuse. 
Under the facts, tying off to a beam, relief angle, bolt hole, or static
line are all infeasible.

12.  Adams Steel has violated 29 C.F.R. 1926.105(a) by failing to
install safety nets which is Respondent's duty in view of the
infeasibility of the use of personal protective equipment.  Section
1926.105(a) requires safety nets to be provided when work places are
more than 25 feet above the ground and Adams Steel has clearly failed to
meet this requirement, subjecting its workers to possible unprotected
falls of 50 feet.

13.  Adams Steel has violated 29 C.F.R. 1926.100(a) because an employee
of Respondent while working was observed not wearing a hard hat and was
exposed to danger from being struck by falling materials.

_ORDER_

1.  Serious Citation No. 1, Item 1, alleging a 29 C.F.R.
1926.750(b)(1)(iii) violation, is affirmed.

2.  Respondent is assessed a penalty of $420 for the 29 C.F.R.
1926.750(b)(1)(iii) violation.

3.  Serious Citation No. 1, Item 2, alleging a 29 C.F.R. 1926.500(b)(2)
violation, is affirmed.

4.  Respondent is assessed a penalty of $420 for the 29 C.F.R.
1926.500(b)(2) violation.

5.  Serious Citation No. 2 is partially vacated and partially affirmed. 
The serious violation of 29 C.F.R. 1926.28(a) is vacated; the
alternative serious violation of 29 C.F.R. 1926.105(a) is affirmed.

6.  Respondent is assessed a penalty of $50 for the 29 C.F.R.
1926.105(a) violation.

7.  Other-than-Serious Citation No. 3, alleging a 29 C.F.R. 1926.100(a)
violation, is affirmed.

8.  Respondent is not assessed a penalty for the Other-than-Serious
violation of 29 C.F.R. 1926.100(a).

HENRY F. McQUADE
Judge, OSHRC
Dated:  April 25, 1979
Hyattsville, Maryland


FOOTNOTES:

[[1]] Commissioner Wall would additionally find that the general
contractor consented to the inspection and that its consent was binding
on Adams Steel.  The compliance officer informed the general contractor
of the purpose of his inspection; he presented his credentials and a
copy of the transcribed safety complaint.  The response of the general
contractor was to gather together the inspection party.  Commissioner
Wall therefore infers that the general contractor gave its voluntary
consent to the inspection.   _See_ _Daniel Construction Co. of Alabama_,
81 OSAHRC 71/A2, 9 BNA OSHC 2002, 2004 n.3, 1981 CCH OSHD ¶ 25,553, p.
31,861 n.3 (No. 13874, 1981)(voluntary consent found where employer had
no intent to object to entry at time of inspection and OSHA did not
misrepresent itself or coerce the employer).  That consent bound Adams
Steel.  The relationship between these two employers was the typical
general contractor/subcontractor relationship common to nearly all of
the multiple-employer, construction-worksite cases the Commission has
adjudicated.  Adams Steel's work area was not a discrete or private
area.  Instead, it was an open area consisting of the third-floor
decking and structural steel above the third floor.  Commissioner Wall
therefore finds that the general contractor shared authority with Adams
Steel over the area in question so that it could give effective consent
to an inspection of this area.  _See_ _Donovan v. A.A. Beiro
Construction Co_., 746 F.2d 894 (D.C. Cir. 1984) (general contractor's
consent binding on subcontractor.)

[[2]] Section 8(f)(1) of the Act, 29 U.S.C. § 657(f)(1), provides as
follows:

(f)(1) Any employees or representative of employees who believe that a
violation of a safety or health standard exists that threatens physical
harm, or that an imminent danger exists, may request an inspection by
giving notice to the Secretary or his authorized representative of such
violation or danger.  Any such notice shall be reduced to writing, shall
set forth with reasonable particularity the grounds for the notice, and
shall be signed by the employees or representative of employees, and a
copy shall be provided the employer or his agent no later than at the
time of inspection, except that, upon the request of the person giving
such notice, his name and the names of individual employees referred to
therein shall not appear in such copy or on any record published,
released, or made available pursuant to section (g) of this section.  If
upon receipt of such notification the Secretary determines there are
reasonable grounds to believe that such violation or danger exists, he
shall make a special inspection in accordance with the provision, of
this section as soon as practicable, to determine if such violation or
danger exists.  If the Secretary determines there are no reasonable
grounds to believe that a violation or danger exists he shall notify the
employees or representative of the employees in writing of such
determination.

[[3]] Section 8(a) of the Act, 29 U.S.C. § 657(a), provides as follows:

(a) In order to carry out the purposes of this Act, the Secretary, upon
presenting appropriate credentials to the owner, operator, or agent in
charge, is authorized--
(1) to enter without delay and at reasonable times any factory, plant,
establishment, construction site, or other area, workplace or
environment where work is performed by an employee of an employer; and
(2) to inspect and investigate during regular working hours and at other
reasonable times, and within reasonable limits and in a reasonable
manner, any such place of employment and all pertinent conditions,
structures, machines, apparatus, devices, equipment, and materials
therein, and to question privately any such employer, owner, operator,
agent or employee.

[[4]] OSHA uses the term "non-formal complaints" to refer to safety and
health complaints that do not meet the "formality requirements" of §
8(f)(1), note 2 _supra_.  At the hearing in _Adams Steel I_, OSHA
Regional Administrator Rhone identified the following "formality
requirements" for a § 8(f)(1) complaint:  (a) it must be submitted by an
employee or an employee representative, (b) it must describe its
allegations with sufficient particularity, and (c) it must be signed. 
Paragraph 3(f) of FIM 76 20 lists the following examples of "non-formal
complaints":  complaints that do not state with reasonable particularity
the nature of the violation, unsigned complaints, anonymous complaints,
complaints received by telephone, and complaints filed by anyone other
than an employee or an employee representative.

[[5]] Specifically, Adams Steel requested admissions that the complaint
in this case had been made by Donald Gardner, who was neither an
employee of Adams Steel nor a representative of its employees, and that
this same person had also made an earlier complaint that led to the
inspection of the L.B. Foster Building project.  The Secretary admitted
that the complainant in this case was neither an employee nor an
employee representative.  However, he further asserted that he did not
know the identity of the complainant and that he therefore could neither
admit nor deny that this complainant had filed other complaints or that
this complainant was Donald Gardner.  The record contains no other
references to Donald Gardner.

[[6]] The Secretary's regulation at § 1910.5 is captioned "Applicability
of standards."  It instructs employers as to which standards they must
comply with when a situation appears to be governed by more than one
standard.  The provision relied upon by Adams Steel states:

(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 . . . .

[[7]] The Secretary cites to the following provision of his regulations,
which is also found in § 1910.5(c):

(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...to the
extent that none of such particular standards applies....

[[8]] The case was tried before the judge on alternative theories, i.e.,
that the two employees should have been protected by tied-off safety
belts under § 1926.28(a) or that they should have been protected by
perimeter safety nets under § 1926.105(a).  The judge upheld only the
charge under § 1926.105(a).  He vacated the § 1926.28(a) charge on the
basis of his finding that it would have been impractical for the two
employees to tie off.  The Secretary has not taken exception to the
judge's disposition of the § 1926.28(a) charge.

 

[[1/]] That section is set forth for reference purposes:

(f)(1) Any employees or representative of employees who believe that a
violation of a safety or health standard exists that threatens physical
harm, or that an imminent danger exists, may request an inspection by
giving notice to the Secretary or his authorized representative of such
violation or danger.  Any such notice shall be reduced to writing, shall
set forth with reasonable particularity the grounds for the notice, and
shall be signed by the employees or representative of employees, and a
copy shall be provided the employer or his agent no later than at the
time of inspection, except that, upon the request of the person giving
such notice, his name and the names of individual employees referred to
therein shall not appear in such copy or on any record published,
released, or made available pursuant to subsection (g) of this section. 
If upon receipt of such notification the Secretary determines there are
reasonable grounds to believe that such violation or danger exists, he
shall make a special inspection in accordance with the provisions of
this section as soon as practicable, to determine if such violation or
danger exists.  If the Secretary determines there are no reasonable
grounds to believe that a violation or danger exists he shall notify the
employees or representative of the employees in writing of such
determination.

[[2/]] Paragraph 3(c) of the Field Information Memorandum No. 76-20,
superceded December 1, 1977, requires "(w)henever information comes to
the attention of the Area Director without regard to its source and
without regard to whether it meets the formality requirements of Section
8(f), an inspection shall be conducted . . . ."

[[3/]] Section 11(c) of the Act provides that employees may not be
discharged or discriminated against because they have "instituted or
caused to be instituted any proceeding" under the Act.  "Any proceeding"
includes inspections the "cause" of which may be anonymous complaints by
employees.
Section 11(c) of the Act reads:

(c)(1) No person shall discharge or in any manner discriminate against
any employee because such employee has filed any complaint or instituted
or caused to be instituted any proceeding under or related to this Act
or has testified or is about to testify in any such proceeding or
because of the exercise by such employee on behalf of himself or others
of any right afforded by this Act.