“Docket No. 77-4238 SECRETARY OF LABOR, Complainant,v. ADAMS STEEL ERECTION, INC., Respondent.OSHRC Docket No. 77-4238DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BUCKLEY, Commissioner:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission is an adjudicatoryagency, independent of the Department of Labor and the Occupational Safety and HealthAdministration.\u00a0 It was established to resolve disputes arising out of enforcementactions 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).Two citation items affirmed by the administrative law judge are before us onreview.\u00a0 The citations resulted from an OSHA inspection of a multi-employerconstruction worksite known as the Robinson Plaza Project in Robinson Township,Pennsylvania. Adams Steel Erection, Inc. (\”Adams Steel\”) was the steel erectionsubcontractor on the project and its employees were engaged in structural steel erectionwork on a four-story tiered building.\u00a0 For the reasons that follow in this andChairman Rowland’s concurring opinion, we conclude that both citation items must bevacated and accordingly we reverse the judge’s decision.IThe first item on review involves three ironworkers who were observed working on perimeterbeams.\u00a0 Two of these employees were working at the fourth level, which was forty feetabove the ground and twenty feet above metal decking that had been installed as atemporary floor.\u00a0 The third employee at issue was working on a different side of thebuilding at the third level, which was thirty feet above the ground and ten feet above thetemporary floor on the second level.\u00a0 In his citation the Secretary alleged thatAdams Steel had a duty under 29 C.F.R. ? 1926.28(a) to require the three employees towear tied-off safety belts while working on the perimeter beams.\u00a0 The judge foundthat this method of fall protection would have been impractical and vacated the citation.\u00a0 In his brief on review, the Secretary expressly states that he is not challengingeither the finding described above or the judge’s disposition of the section 1926.28(a)charge.\u00a0 The judge also found that an employee falling to the outside of the buildingwould have fallen more than 25 feet to the ground below.\u00a0 Based on this finding, heconcluded that Adams Steel had a duty under section 1926.105(a) to install safety nets inaddition to temporary floors.[[1]] Because Adams Steel did not install these safety nets,the judge affirmed the section 1926.105(a) charge.\u00a0 Adams Steel’s exception to thedisposition of this citation item is before us on review.Before the judge, Adams Steel presented several defenses to the section 1926.105(a)charge.\u00a0 Among its defenses was its contention that citation to this generalconstruction standard was inappropriate in the circumstances of this case because otherstandards were more \”specifically applicable\” within the meaning of 29 C.F.R. ?1910.5(c)(1).[[2]]\u00a0 In particular, Adams Steel argued that its duties were governedby 29 C.F.R. ? 1926.750(b)(2)(i) and that it complied with its obligations under thisstandard.[[3]]\u00a0 This standard is contained in subpart R of the constructionstandards, which apply specifically to the steel erection industry.\u00a0 Adams Steelcorrectly notes on review that the judge failed to rule on this defense even though it hadraised this issue before the judge in a clear and timely manner.\u00a0 For the reasonsexpressed in our separate opinions, Chairman Rowland and I agree with Adams Steel that itspreemption argument has merit.The Commission has previously considered the issue whether section1926.750(b) is specifically applicable to steel erection work to the exclusion of section1926.105(a) in Williams Enterprises, Inc., 83 OSAHRC 26\/A2, 11 BNA OSHC 1410, 1983 CCHOSHD ? 26,542 (No. 79-843, 1983), petitions for review filed, Nos. 83-1687 & 83-1690(D.C. Cir. June 23 and 24, 1983).\u00a0 A divided Commission, applying differingrationales in three opinions, held that section 1926.105(a) was preempted by the fallprotection standards contained in subpart R section 1926.750(b)(2)(i), with respect tosome, but not all fall hazards.\u00a0 But see Daniel Construction Co., 9 BNA OSHC 1854,1858, 1981 CCH OSHD ? 25,385, p. 31,621, 31,624 (1981), aff’d, 705 F.2d 382 (10th Cir.1983) (steel erection not governed by general industry fall protection standards insection 1926.105(a)). Three courts of appeals have also considered this issue and reached differingconclusions.\u00a0 Compare Daniel International Corp. v. Donovan, 705 F.2d 382, 386 (10thCir. 1983) (because steel erection standards apply, conditions at worksite are not judgedby general industry standards) [and] Builders Steel Co. v. Marshall, 622 F.2d 367 (8thCir. 1980) (section 1926.750(b)(2) preempts application of safety net requirements ofsection 1926.105(a) with L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664 (D.C. Cir.1982) (\”Willson I\”) (section 1926.750(b) does not preempt section 1926.105(a)for \”exterior\” fall hazards).[[4]]\u00a0 The Third Circuit, in which this casearises, has not ruled on this issue.\u00a0 However, the Secretary has taken the positionbefore the Third Circuit that the net requirement of section 1926.750(b) is morespecifically applicable to steel erection and prevails over section 1926.105(a), anargument the court cited with approval.\u00a0 United States Steel Corp. v. OSHRC, 537 F.2d780, 784 (3rd Cir. 1976).\u00a0 Moreover, the rationale of at least one member of theCommission majority in Williams Enterprises differs from that of the court in Willson Iand departs from past Commission precedent addressing the question of preemption.\u00a0 Areexamination of the preemption issue is warranted therefore. The portions of subpart R that Adams Steel contends are specifically applicable set forthcertain types of mandatory fall protection methods (temporary flooring, scaffolds, safetynets) and establish a specific hierarchy governing their use.\u00a0 The preferred methodof fall protection, to be used unless it is \”not practicable,\” is that providedby Adams Steel in this case, temporary flooring.\u00a0 29 C.F.R. ? 1926.750(b)(2)(i).Safety nets are required under this standard \”only if temporary flooring cannot beused and scaffolds are not in use.\”\u00a0 Willson I, 685 F.2d at 672; 29 C.F.R. ??1926.750(b)(2)(i) and 750(b)(1)(ii).\u00a0 The general construction standard which theSecretary seeks to apply here, 29 C.F.R. ? 1926.105(a), mandates that \”[s]afety netsshall be provided . . . where the use of ladders, scaffolds, catch platforms, temporaryfloors, safety lines, or safety belts is impractical.\”\u00a0 Thus, both the steelerection standards at section 1926.750(b) and the general construction standard at section1926.105(a) are specific standards addressing fall hazards and setting forth particularprotective methods.\u00a0 In both standards, safety nets are alternative means of fallprotection to be used when floors are impractical.\u00a0 Williams Enterprises, 11 BNA OSHCat 1418, 1983 CCH OSHD at p. 33,878.In attempting to answer the question whether the fall protection standards insection 1926.750(b) are more specifically applicable within the meaning of section1910.5(c)(1) and take precedence over the general industry standards in section1926.105(a), several rationales have emerged from the decisions, not all of which can bereconciled, either with each other or with past Commission precedent.\u00a0 TheSecretary’s regulation at section 1910.5(c)(1) restates the general rule of statutoryconstruction that the specific takes precedence over the general.\u00a0 See, e.g.,Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 107 (1941) (broad remedial purposeof statute does not justify ignoring words of statute and rule that specific languageprevails over general).\u00a0 As set forth inthat rule:\u00a0 \”If a particular standard is specifically applicable to a condition,practice, means, method, operation, or process, it shall prevail over any differentgeneral standard which might otherwise be applicable . . . .\”Although not entirely consistent, the decisions do seem to share a commonstarting point: the proposition that general standards are not rendered inapplicable to\”an entire industry simply because some specific standards for that industry havebeen promulgated.\” Willson I, 685 F.2d at 669.\u00a0 See Williams Enterprises, 11 BNAOSHC at 1416, 1983 CCH OSHD at pp. 33,876-77.\u00a0 This conclusion is mandated by thelanguage of section 1910.5(c)(2): \”any standard shall apply according to its terms toany employment and place of employment in any industry, even though particular standardsare also prescribed for the industry . . . to the extent that none of such particularstandards applies.\” 29 C.F.R. ? 1910.5(c)(2).\u00a0 Application of this principle,however, does not answer the question at issue here.\u00a0 The contention of Adams Steelis that the fall protection measures of section 1926.750(b) do apply to Adams Steel andthe Secretary agrees.\u00a0 Whether and on what basis the fall protection standards ofsection 1926.105(a) can be applied in addition is the point at which the decisions partcompany.In Williams Enterprises two Commissioners agreed that section 1926.750(b)does not preempt section 1926.105(a) with respect to exterior falls and held that theSecretary could cite an employer for failing to provide safety belts to its employees.\u00a0 The lead opinion relied on the decision in Willson I in distinguishing betweenexterior and interior falls.\u00a0 In a concurring and dissenting opinion, the secondmember of this majority reasoned that a standard was not preempted in any instance inwhich it afforded \”the greatest protection for employees.\”\u00a0 WilliamsEnterprises, 11 BNA OSHC at 1421, 1983 CCH OSHD at pp. 33,881-82 (Cottine, Commissioner,concurring and dissenting).\u00a0 A different majority rejected this rationale, however,holding that section 1926.750(b) preempted section 1926.105(a) with respect to interiorfalls and preempted section 1926.500(d)(1) with respect to exterior falls notwithstandingthe greater protection afforded by these standards against a fall hazard.[[5]]The Williams Enterprises decision, consistent with other Commissiondecisions, correctly rejected the argument that the sufficiency of the protection affordedby a standard is material to the determination of which standard is applicable undersection 1910.5(c)(1). See also General Supply Co., 77 OSAHRC 6\/A2, 4 BNA OSHC 2039,1976-77 CCH OSHD ? 21,503 (No. 11752, 1977), pet. for review dismissed, No. 77-1614 (5thCir. June 22, 1977); The Ashton Co., Inc., 76 OSAHRC 6\/B11, 3 BNA OSHC 1968, 1969, 1975-76CCH OSHD ? 20,351, p. 24,275 (No. 5111, 1976).\u00a0 Cf. Daniel International, Inc., 82OSAHRC 23\/D3, 10 BNA OSHC 1556, 1559, 1982 CCH OSHD ? 26,033, p. 32,683 (No. 78-4279,1982) (\”To permit the Secretary to require further precautions under Section 5(a)(1)because his standards purportedly do not provide sufficient protection would circumventthe rulemaking process and is impermissible.\”)\u00a0 Whether section 1926.105(a) ispreempted does not depend, therefore, on the adequacy of temporary floors as a means offall protection.The court in Willson I applied a different rationale to reach the conclusionthat section 1926.750(b) was not a more specifically applicable standard within themeaning of 1910.5(c)(1). Consistent with Commission precedent, the court initially setforth the rule under section 1910.5(c)(1) that a \”general standard is not preemptedunless a specific standard sets forth the measures that an employer must take to protectemployees from a particular hazard.\” Willson I, 685 F.2d at 670.\u00a0 See DravoCorp. v. OSAHRC, 613 F.2d 1227, 1234 (3rd Cir. 1980) (An employer may be held to thegeneral industry standards \”in those situations where no specific standard isapplicable.\”)\u00a0 See also General Supply Co., 4 BNA OSHC at 2040, 1976-77 CCH OSHDat p. 25,806. The court, however, did not apply that rule.\u00a0 By applying that rule inthis case I reach a different conclusion than did the Willson I court.Section 1926.750(b) is, of course, specifically applicable to the steelerection industry in general and to the work on the tiered building at this constructionsite in particular.\u00a0 Both parties here, as well as the Commission and Willson courtdecisions, are in agreement that this standard sets forth measures that an employer musttake to protect employees in situations where the employee may be exposed to a fall.\u00a0 Both standards specify safety nets, the type of protection the Secretary seekshere, as alternative fall protection devices.\u00a0 Moreover, it is undisputed thatsection 1926.750(b) specifies methods such as temporary flooring to protect againstinterior falls and methods such as scaffolds and perimeter safety railing to protectagainst exterior falls.\u00a0 See Willson I, 685 F.2d at 671 (section 1926.750(b)(1)(iii)provides protection against exterior falls; scaffolds may protect against exterior falls);Williams Enterprises, 11 BNA OSHC at 1417, 1983 CCH OSHD at p. 33,878 (section1926.750(b)(1)(iii) protects against exterior falls preempting section 1926.105(a)).\u00a0 See also Daniel Construction, 9 BNA OSHC at 1858, 1981 CCH OSHD at p. 31,624 (1981)(\”standards in section 1926.750 are intended to provide fall protection to workersengaged in structural steel erection\”). These facts compel the conclusion thatsection 1926.750(b) specifically addresses the particular hazard of falls and sets forththe measures that an employer must take to protect employees from this particular hazard.\u00a0 This is so whether the hazard is further subdivided by definition to distinguishinterior from exterior falls.The court in Willson I reached a different conclusion, however, by alteringthe test it stated under section 1910.5(c):We believe both [the Secretary and the employer] have framed the issue toobroadly.\u00a0 The question is not whether subpart R provides any exterior fall protectionstandards, but rather whether it provides standards to guard against the particularexterior fall hazard for which Willson was cited.\u00a0 [685 F.2d at 672 (emphasis inoriginal).]The court thus predicates preemption on facts peculiar to the particularcircumstances leading to a citation.\u00a0 An employer would not be able to determine whatstandards applied to his workplace under this test because his obligations would shiftdepending on the nature of the particular circumstances resulting in a citation. \u00a0Moreover, applying this rationale would preclude finding a general standard to bepreempted by a more specific standard in any instance where the Secretary specifies lesscomprehensive safety methods that may not cover all of the myriad situations that developon a worksite.\u00a0 The Secretary’s decision not to require particular methods of fallhazard protection in section 1926.750(b) should be given the same preemptive effect as theSecretary’s decision to adopt a specific standard addressing the hazard.\u00a0 If this isnot done, the result may well be the application of general standards to situations thatthe Secretary has deliberately decided to leave unregulated, thereby impairing or evendestroying the regulatory scheme developed in the rulemaking process.The absence of a specific perimeter safety net requirement in subpart R maywell have been the result of a deliberate decision by the drafters of subpart R not torequire such protection because, for example, it would interfere with the steel erectionprocess, it would negatively affect the stability of the building, it was unnecessary orit would lead to some other undesirable consequences.\u00a0 As the Commission observed inDaniel Construction, 9 BNA OSHC at 1858, 1981 CCH OSHD at p. 31,624, interpreting thesestandards as cumulative produces the \”illogical\” result that steel erection maybe \”governed by more general standards not drafted with steel erection specificallyin mind.\”\u00a0 Moreover, the underlying assumption that less protection is affordedby standards in subpart R is an unfounded generalization.\u00a0 Id. at 1858, n.8(\”compliance with ? 1926.750 may provide superior fall protection to steel workersthan more general fall protection standards\”) (citations omitted).\u00a0 Accordingly,it seems evident that \”filling in\” supposed \”gaps\” or\”interstices\” in a comprehensive regulatory scheme with general standards thatwere not developed for application to a particular work situation can and often willresult in reversing a deliberate decision not to require certain protective measures inresponse to that particular situation.This potential for adverse effects is illustrated by the circumstances of this case.\u00a0 In adopting sections 1926.750(b)(1)(ii) and (b)(2)(i) the Secretary established ahierarchy of fall protection measures to be implemented during the steel erection process.\u00a0 The preferred precautions are either the installation of temporary floors or theuse of scaffolds.\u00a0 Installation of safety nets is an acceptable, although lessdesirable, alternative to the preferred measures.\u00a0 Nevertheless, in the case onreview, the Secretary seeks to superimpose the general industry standard at section1926.105(a) on top of the regulatory scheme in section 1926.750(b) so that Adams Steelwould be required to provide perimeter safety nets in addition to the temporary floors ithad already provided.There is no question as to the authority of the Secretary to vary or alterthe kind and level of protection to be required for employees in a particular industry,including a relaxation of the requirements.\u00a0 Indeed, the Secretary revised section1926.750(b)(2) in 1974 to allow temporary floors to be placed 30 feet below employeesperforming steel erection work instead of the existing 25 feet.\u00a0 As the comments ofthe Assistant Secretary of Labor make clear, a relaxation of a safety requirement can bebased on practical considerations peculiar to the steel erection industry.\u00a0 39 Fed.Reg. 24,361 (1974) (The amendment serves \”to bring a present standard in line withcurrent designs in steel construction which involve the use of a greater depth ofstructural beam members.\”)\u00a0 The Secretary was aware that the revised standardexposed employees to a greater fall distance than the original 25 feet set forth in1926.750(b)(2) and more than the 25 foot fall specified in section 1926.105(a).\u00a0 See39 Fed. Reg. 24,361; Builders Steel, 622 F.2d at 369-70.\u00a0 Such differences arejustified by differences in the workplace.\u00a0 Cf. S & H Riggers & Erectors,Inc. v. OSAHRC, 659 F.2d 1273, 1283 (5th Cir. 1981) (An unguarded perimeter is an\”obvious danger of which roofers and concrete erectors are highly conscious.\”)Such workers, unlike general construction workers, would not \”mistakenly expect theedge to be guarded or perform their work in a manner creating a significant possibility ofa fall.\” Id.These reasons led the Eighth Circuit to hold that an employer could not becited for failing to provide safety nets under section 1926.105(a) where the employer wasin compliance with the floor requirements of section 1926.750(b)(2).\u00a0 Builders Steel,622 F.2d at 370.\u00a0 The court observed that the Secretary can amend his regulations torequire both temporary floors and safety nets \”if he believes that employee safety sorequires, [but] we do not believe that existing regulations compel the use of nets in suchcircumstances.\”\u00a0 Id.\u00a0 I agree with the decision in Builders Steel that theSecretary’s regulation at section 1926.750(b) preempts application of section 1926.105(a)and that Adams Steel cannot be required to use both safety nets and temporary floors.\u00a0 Having fully considered this matter, I conclude that section 1926.750(b) is morespecifically applicable to the hazard of falling in steel erection work and that section1926.105(a) may not be applied to require additional fall protection measures beyond thoserequired under Subpart R.\u00a0 To the extent that Williams Enterprises or any otherCommission decisions conflict with this conclusion, Chairman Rowland and I agree thatthose decisions are overruled.On review, the Secretary also presents an alternative argument to be resolvedin the event the Commission determines that citation to section 1926.105(a) is preemptedby section 1926.750(b)(2)(i).\u00a0 If the steel erection standard applies, the Secretaryargues, then Adams Steel failed to comply with it.\u00a0 Because the three employees couldhave fallen distances greater than \”two stories\” (here, distances greater thantwenty feet), the temporary floor erected at the second level was not, according to theSecretary, \”maintainedwithin two stories . . . below and directly under\” the perimeter beams on which theemployees were working, within the meaning of section 1926.750(b)(2)(i). \u00a0Furthermore, because Adams Steel argued before the judge that it had complied with thissteel erection standard, the Secretary contends that his allegation of noncompliance wastried with the implied consent of the parties.\u00a0 Accordingly, the Secretary concludes,amendment of the pleadings is warranted under Rule 15(b) of the Federal Rules of CivilProcedure and the Commission should affirm a modified citation charging noncompliance withsection 1926.750(b)(2)(i).[[7]]Chairman Rowland and I deny the Secretary’s belated motion to amend, made forthe first time in his brief on review, on the ground that the parties did not try theissue of whether Adams Steel complied with section 1926.750(b)(2)(i).\u00a0 The issuestried and argued before the judge were (1) whether the three employees could and shouldhave been required to use personal protective equipment in accordance with section1926.28(a) and (2) whether the three employees could and should have been protected byperimeter safety nets in accordance with section 1926.105(a).\u00a0 At no point in theproceedings before the judge did the Secretary argue that the temporary flooring installedby Adams Steel was not in compliance with section 1926.750(b)(2)(i).\u00a0 Nor did theSecretary introduce any evidence that the employees could or should have been protected byextending or relocating the temporary flooring at the second level.\u00a0 Instead, theSecretary elicited opinion testimony to the effect that additional temporary flooringwould have been impractical, and he remained silent in the face of Adams Steel’s repeatedassertions before the judge that it had complied with section 1926.750(b)(2)(i).\u00a0 Inaddition, the Secretary’s contention in his brief on review that Adams Steel was not incompliance with the steel erection flooring standard raises factual and legal issues thatAdams Steel had no opportunity to address and did not address.\u00a0 We conclude that theissue of failure to comply with section 1926.750(b)(2)(i) was not tried below, and thatamendment would not be appropriate.Based on our conclusions that section 1926.105(a) cannot be applied to the citedconditions and that the Secretary’s motion to amend must be denied, we vacate item 1 ofcitation 1.IIThe second item on review involves five ironworkers who were not wearing hard hats at thetime of the OSHA inspection.\u00a0 It is undisputed that none of these five employees waswearing a hard hat during the time he was observed by the compliance officer. However, theparties disagree as to whether the employees were required to use head protection underthe terms of the cited standard, 29 C.F.R. ? 1926.100(a), which provides:? 1926.100 Head protection.(a) Employees working in areas where there is a possible danger of head injury fromimpact, or from falling or flying objects, or from electrical shock and burns, shall beprotected by protective helmets.Chairman Rowland and I agree with Adams Steel that the Secretary failed to prove that thefive employees were \”working in areas where there [was] a possible danger of headinjury\” within the meaning of the standard.\u00a0 We therefore reverse the judge’sdecision to affirm this citation item.Two employees were working at the fourth level when the compliance officer observed them.\u00a0 Apparently these are the same two fourth-level employees involved in the citationitem discussed in Part I of this opinion.\u00a0 As indicated, these two employees wereworking near the perimeter of the building, where they were installing small (six-inch)beams or braces.\u00a0 With regard to these two employees, the record is devoid of anyevidence indicating that it was even theoretically possible for them to be injured byfalling objects.[[8]] The fourth level was the building’s highest level. \u00a0Accordingly, no other employees could have worked above these two employees. \u00a0Moreover, there is no evidence that cranes were in use at the worksite so that materialscould have been elevated above the employees.\u00a0 So far as this record indicates, thetwo employees at the fourth level could not have been injured by falling objects. Nor wasthere any effort by the Secretary to prove that these two employees worked at any otherlevel of the building or that they could have been injured in the course of ascending toor descending from the fourth level.Two other employees were working at the third level of the building.\u00a0 An employeenamed Chuck Keenan, who was also involved in the citation item discussed in Part I, wasworking near the perimeter of the third level, where he was spreading bar joists. \u00a0Another employee, a welder, was engaged in tack welding bar joists somewhere on the thirdlevel.\u00a0 With respect to these two employees, the Secretary established that work wasbeing performed at a higher elevation.\u00a0 The two employees at the fourth level wereworking with tools and materials that could have fallen to the third level. \u00a0 Inaddition, the Secretary established that there was a materials storage area at the fourthlevel, where a large 50-to 52-gallon barrel and several smaller barrels were placed onsections of temporary decking that were 24 to 36 inches wide.\u00a0 These barrelscontained materials ranging in size from bolts to masonry angles. Because the evidenceestablishes that the two employees at the fourth level obtained materials from thesebarrels for use at their work stations, we conclude that materials also could have fallenfrom the storage area to the third level.Nevertheless, the Secretary failed to prove that either employee Keenan or the welderworked \”in areas where there [was] a possible danger of head injury.\”\u00a0 TheSecretary made no effort to show where either Keenan or the welder was working in relationto the work area on the fourth level or the storage area on the fourth level.\u00a0 Norare we able to independently determine these facts based on our review of the record.\u00a0 While Keenan and the two fourth-level employees were all working near the perimeterof the building, the photographic exhibits indicate that Keenan was working on a differentside of the building.\u00a0 As for the welder, the only thing that can be said about hiswork station is that it was somewhere on the third level.\u00a0 In addition, thecompliance officer testified that, at the time he observed the welder, no one was workingdirectly above the welder.\u00a0 Certainly we cannot find on this record that eitherKeenan or the welder at any time walked or worked below the fourth-level work area, thefourth-level storage area or any other area that could have been the source of fallingtools or materials.\u00a0 Similarly, we cannot find that the two employees at the fourthlevel at any time worked or walked above Keenan or the welder.Finally, Adams Steel’s foreman allegedly was exposed to a hazard while accompanying thecompliance officer on the walkaround inspection.\u00a0 Under Commission precedent, theSecretary cannot issue a citation due to the exposure of an employer’s walkaroundrepresentative during an inspection.\u00a0 Bechtel Power Corp., 79 OSAHRC 34\/A2, 7 BNAOSHC 1361, 1365 n.7, 1979 CCH OSHD ? 23,575, p. 28,576 n.7 (No. 13832, 1979). \u00a0Accordingly, we vacate the citation concerning the foreman.\u00a0 We also conclude that,in any event, the allegation must be vacated because the Secretary failed to establishthat the foreman was exposed to the possibility of a head injury.[[9]]On review, the Secretary argues that his burden of proof was merely to show that employeeshad access to a zone of danger.\u00a0 He asserts, on the basis of the record, that it wasreasonably predictable that each of the five employees at issue would enter an area whereoverhead work was being performed during the normal course of his workday. \u00a0Accordingly, he concludes, exposure to a hazard was established under the test set forthin Gilles & Cotting, Inc., 76 OSAHRC 30\/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD ?20,448 (No. 504, 1976).The Secretary’s argument and the test adopted in that decision are inapposite.\u00a0 Inthis case, the Secretary’s burden of proof with reference to employee exposure to a hazardis governed by the express language of the cited standard.\u00a0 In order to prove that anemployer had a duty under section 1926.100(a) to require the wearing of hard hats, theSecretary must prove that its employees worked \”in areas where there [was] a possibledanger of head injury from impact, or from falling or flying objects, or from electricalshocks and burns.\”\u00a0 This burden, which is part of the Secretary’s burden ofproving noncompliance with the cited standard, is independent of and separate from theburden discussed in Commission precedent, such as Gilles & Cotting, supra, that dealswith the Secretary’s burden of proving employee exposure under the Act.\u00a0 Moreover,even if we were to apply the Gilles & Cotting test, we would conclude that theevidence fails to show that with reasonable predictability employees would be in a zone ofdanger.\u00a0 Accordingly, item 1 of citation 2 is also vacated.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 JUL 20 1984ROWLAND, Chairman, concurring:For the reasons stated in the lead opinion, I agree that the administrative law judgeerred in affirming the citation item alleging a violation of 29 C.F.R. ? 1926.100(a) foremployees not wearing head protection and that the Secretary’s motion to amend to theapplicable provision of section 1926.750 must be denied.I also agree that 29 C.F.R. ? 1926.105(a) is not applicable to the conditions at issue.\u00a0 In my concurring and dissenting opinion in Williams Enterprises, Inc., 83 OSAHRC26\/A2, 11 BNA OSHC 1410, 1983 CCH OSHD ? 26,542 ( No. 79-843, 1983), I stated my viewthat the standards in Subpart R are exclusively applicable to fall hazards for employeesengaged in steel erection and that these provisions preempt other fall protectionstandards outside Subpart R.\u00a0 I concluded that the Secretary recognized thatconditions in the steel erection industry were significantly different from those in theconstruction industry generally and that these differences warranted different fallprotection requirements as well.\u00a0 As I further explained in Williams, provisions ofSubpart R dealing with protection of employees from falls from the perimeter of deckedsurfaces and from the exterior of other work surfaces demonstrate that the Secretary inSubpart R did address the matter of protecting steel erection employees from exteriorfalls.[[1]] For the reasons I stated in Williams, it is therefore inappropriate for theSecretary to seek to apply section 1926.105(a), a standard outside Subpart R, simplybecause the protections afforded against an exterior fall for steel erectors by Subpart Rmay not be as stringent.I therefore agree with Commissioner Buckley to overrule Williams and any other Commissiondecision to the extent that they hold that section 1926.750(b) is not specificallyapplicable to the hazard of falling in steel erection work and they hold that section1926.105(a) may be applied to require additional fall protection measures beyond theserequired under Subpart R.\u00a0 I also join in reversing the judge’s decision and invacating the citation item alleging violation of 29 C.F.R. ? 1926.105(a).CLEARLY, Commissioner, Dissenting:In vacating the two citation items on review, the majority disregards thecanon of statutory and regulatory construction that should be considered foremost ininterpreting remedial social legislation, which the Occupational Safety and Health Actclearly was intended to be.\u00a0 This fundamental rule is the principle that the Act andthe regulations promulgated under the Act should be construed in a manner that effectuatesthe Congressional purpose — \”to assure so far as possible every working man andwoman in the Nation safe and healthful working conditions and to preserve our humanresources.\”\u00a0 Section 2(b) of the Act, 29 U.S.C. ? 651(b).\u00a0 The federalappellate courts have endorsed this basic principle in interpreting and applying theSecretary’s standards and regulations.[[1]]\u00a0 Moreover, the Commission has recognized,at least in some of its decisions, that it too has a responsibility to follow thisessential guideline.[[2]]\u00a0 Unfortunately, on other occasions, the Commission hasignored the effect of its rulings on employee safety and adopted narrow constructions ofthe Secretary’s standards and regulations that \”eviscerate[d] the import of theregulation[s] and flout[ed] the purposes of the enabling legislation.\”\u00a0 Brennanv. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir. 1974).\u00a0 In my opinion,that is exactly what the majority has done in this case.\u00a0 Accordingly, I respectfullydissent.IAUnder the Commission precedent prior to the Commission’s decision in this case, a generalstandard such as 29 C.F.R. ? 1926.105(a) could be applied to steel erection work ifapplication of the standard would \”provide meaningful protection to employees beyondthe protection afforded by the steel erection standards.\”\u00a0 Williams Enterprises,Inc., 83 OSAHRC 26\/A2, 11 BNA OSHC 1410, 1416, 1983 CCH OSHD ? 26,542 at p. 33,877 (No.79-843, 1983), petitions for review filed, Nos. 83-1687 & 83-1690 (D.C. Cir. June 23& 24, 1983).\u00a0 The fact that the general standard was a fall protection standardlocated in a subpart of Part 1926 other than Subpart R did not act as an absolute bar tothe application of that standard to steel erection work.\u00a0 Instead, the critical issuewas the determination of whether an ironworker would be exposed to a significant fallinghazard even if his employer was in compliance with the relevant standards in Subpart R.\u00a0 Thus, where compliance with Subpart R would not eliminate or at least substantiallyreduce a significant falling hazard, while compliance with the general fall protectionrequirements of Part 1926 would provide that needed protection, the Commission held thatcompliance with the general standard was required in accordance with 29 C.F.R. ?1910.5(c)(2).[[3]]Accordingly, application of the Williams test to this case requires a morethorough examination of the facts than the summary set forth in the lead opinion.\u00a0 Atthe outset, it is necessary to clearly state that this citation item concerns threeemployees who were working on beams at the perimeter of the building and who weretherefore exposed to the hazard of falling from the perimeter. Adams Steel disagrees withthe judge and the Secretary over (1) the distances the employees could have fallen, (2)the surfaces to which the employees could have fallen, and (3) whether a fall would havecaused death or serious physical harm.\u00a0 At no time, however, has it disputed theSecretary’s contention that its employees were exposed to the hazard of falling fromperimeter beams.[[4]]The principal factual dispute is over the distances that the employees couldhave fallen.\u00a0 Two of the employees were working together on parallel perimeter beamsat the 40-foot level, the highest level of the building.\u00a0 The third employee wasworking on a different side of the building at the 30-foot level.\u00a0 Temporary flooringwas installed throughout the entire second floor at the 20-foot level.\u00a0 In addition,scaffolding extended partially around the outside of the building’s perimeter.\u00a0 Thisscaffolding had a materials platform at a height of 6 feet above the ground and anoutrigger platform at a height of 2 feet.\u00a0 Since none of these heights or elevationsis disputed, the calculation of the relevant fall distances is an easy matter.\u00a0 Theonly difficulty lies in the preliminary determination of which surface each employee wouldfall to — the temporary flooring, the materials platform, the outrigger platform, or theground.In his decision, Judge McQuade accepted Adams Steel’s contention that the three employeeswere protected against a fall to the interior of the building by the temporary flooring atthe 20-foot level.\u00a0 However, he also accepted the Secretary’s assertion that AdamsSteel provided absolutely no protection against falls to the exterior of the building.\u00a0 In particular, the judge rejected Adams Steel’s claim that an employee falling tothe outside of the perimeter would have fallen only to the scaffolding rather than to theground.\u00a0 The judge expressly noted that there was opinion testimony by the complianceofficer that the employee working at the 30-foot level would have fallen to the materialsplatform 24 feet below him.\u00a0 Nevertheless, the judge entered Findings of Fact 8 and 9as follows:8.\u00a0 Falls on the outside perimeter of the structure would noteffectively be stopped by frame scaffolding.\u00a0 Such scaffolding is not as protectiveas interior decks and platforms since it is neither sizeable enough, nor secure enough,and does not extend out far enough to offer a viable safeguard for falling workers.9.\u00a0 An employee falling on the outside perimeter of the building wouldhave suffered a serious injury or death.On review, Adams Steel takes exception to these two findings. It argues thatthe judge should have found, on the basis of the compliance officer’s testimony, that anemployee falling to the outside perimeter would have fallen to the materials platform ofthe scaffolding.\u00a0 It reasons that the judge erred in finding that an employee couldfall further than the materials platform because the compliance officer’s testimony was\”the only testimony on this particular issue.\”Before I turn to the merits of this exception, I note that severalconclusions are justified simply on the basis of Adam Steel’s arguments.\u00a0 First, Iconclude that Adams Steel has conceded the inadequacy of the existing temporary flooringas a fall protection measure.\u00a0 In arguing that the record compels a finding that, inthe event of a fall to the outside of the building, an employee would have fallen to thematerials platform of the scaffolding, Adams Steel has conceded the fact that the employeewould have fallen right past the temporary flooring.\u00a0 Thus, while the employer hasargued that the temporary flooring satisfied its legal obligation to provide fallprotection, it has presented no argument that the flooring was in fact adequate torestrict falls to two stories (here, 20 feet) or less.\u00a0 See note 3 of the leadopinion.\u00a0 Second, I further conclude that, at least with respect to the two employeesat the 40-foot level, Adams Steel has in effect conceded that it was not in compliancewith section 1926.105(a).[[5]]\u00a0 Finally, it is obvious that Adams Steel’s exceptionto Finding of Fact 9, supra, is frivolous.\u00a0 Even if I accepted Adams Steel’scontention that a falling employee would have fallen only 24 or 34 feet, respectively, tothe materials platform, I nevertheless would have no difficulty in sustaining the judge’sfinding that such a fall would probably have led to death or serious injury.In any event, I conclude that the judge did not err in finding that thescaffolding was not \”a viable safeguard for falling workers.\”\u00a0 Iacknowledge, as did the judge, that the compliance officer gave opinion testimony, inreference to the employee working at the 30-foot level, that supports Adams Steel’s viewthat that employee would have fallen to the materials platform 24 feet below him if he hadfallen away from the perimeter.\u00a0 However, the compliance officer later modified histestimony to state that the employee alternatively could have fallen to the scaffolding’soutrigger platform, which was 28 feet below him.\u00a0 In addition, even though thecompliance officer did not mention the third possibility in his testimony, I conclude thatthe judge properly drew an inference based on the record evidence that the employee couldhave missed the scaffolding entirely and fallen all of the way to the ground.With respect to the two employees working at the 40-foot level, Adams Steel’s exception tothe judge’s finding has even less merit. The compliance officer testified that these twoemployees were working on an \”overhang\” that extended 2 to 3 feet out from therest of the building.\u00a0 He further testified that, if either of these two employeeshad fallen, he would have fallen the full 40 feet to the ground.\u00a0 The photographicexhibits support this testimony and there is no evidence to contradict it.\u00a0 Specifically, there is no evidence that these two employees were working above anyscaffolding, and there is no reason to believe that they could have fallen to thetemporary flooring, which was set back from the overhanging fourth-level perimeter beams.In summation, I would affirm the judge’s findings that two employees working at a heightof 40 feet and a third employee working at a height of 30 feet could have fallen from theperimeter of the building the full distance to the ground below and that such a fall wouldprobably have caused death or serious injury.\u00a0 In addition, I accept Adams Steel’sargument that it was in compliance with the steel erection standards, includingspecifically 29 C.F.R. ? 1926.750(b)(2)(i), see lead opinion at note 3, because I believethat those standards deal solely with the hazard of falls to the interior of a buildingunder construction and not with the hazard of falls from a perimeter beam to the exteriorof a building.\u00a0 L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664, 670-673 (D.C.Cir. 1982).\u00a0 See also Williams Enterprises, Inc., supra, 11 BNA OSHC at 1416 &1421, 1983 CCH OSHD at pp. 33,877 & 33,881.\u00a0 However, I also find that thetemporary flooring required under the steel erection standard provided no protection atall to the two employees at the 40-foot level and only partial protection to the employeeat the 30-foot level, that is, the floor could have protected the employee only if he hadfallen toward the interior of the building.Based on these findings, I conclude that application of 29 C.F.R. ?1926.105(a) to the cited fall hazards, so as to require the installation of perimetersafety nets, clearly would have \”provide[d] meaningful protection to [all three]employees beyond the protection afforded by the steel erection standards.\”\u00a0 Under the test set forth in Williams Enterprises, Inc., supra, the citation itemshould have been affirmed.\u00a0 Tragically, however, Williams Enterprises, Inc. is nolonger followed as Commission precedent.BAs seen from the discussion above, the Commission precedent that is being overruled by themajority in this case law that construed 29 C.F.R. ? 1910.5(c) in light of the Act’sobjectives and in favor of the Act’s beneficiaries.\u00a0 The majority overrules thisprecedent in order to adopt an interpretation of the regulation that leaves employeesinadequately protected or sometimestotally unprotected from obvious falling hazards.[[6]]\u00a0 In my opinion, there is nojustification for an interpretation of section 1910.5(c) that so disregards employeesafety.Initially, I wish to point out that the specter raised by the majority thatthe Williams test will cause a severe disruption of the Secretary’s regulatory scheme isillusory.\u00a0 Adams Steel defended in this case against the use of perimeter safety netssolely on legal grounds.\u00a0 Specifically, it argued that it had no legal obligation toprovide such equipment.\u00a0 It made no claim at any point in the proceeding thatinstallation of perimeter safety nets would have been impossible, impractical or evendifficult.\u00a0 Nor did it seek to establish that installation of perimeter safety netswould have interfered in any way with the steel erection process, destabilized thebuilding or led to any other adverse consequences.[[7]]Furthermore, there was no genuine problem of duplication or of conflict amongthe standards under the Williams test. Compliance with general fall protection standardswas required only when it would \”provide meaningful protection to employees beyondthe protection afforded by the steel erection standards.\”\u00a0 Conversely, thegeneral fall protection standards were not applied to situations that were adequatelycovered by the steel erection standards.\u00a0 For example, the perimeter safety netssought by the Secretary in this case were not duplicative of the temporary flooring thatwas provided by Adams Steel.\u00a0 The temporary flooring protected employees from fallsto the interior of the building but provided no protection against any fall toward theexterior of the building. The perimeter safety nets sought by the Secretary would haveprovided protection where there was no protection.\u00a0 Accordingly, section 1926.105(a)as applied in this case under the Williams test would have complemented section1926.750(b)(2)(i).\u00a0 It would not have conflicted with or duplicated the specificstandard.I also do not agree with the majority’s conclusion that application ofsection 1926.105(a) to the facts of this case would reverse through adjudication adecision made in the rulemaking process.\u00a0 I can find no convincing evidence that theSecretary ever intended to leave the hazard of exterior falls from perimeter beams totallyunregulated.\u00a0 The majority points to a standard in Subpart R that addresses thehazard of falls from interior beams but was obviously not intended to address the hazardof exterior falls from perimeter beams.\u00a0 It points to a second standard that coversthe hazard of falling from a perimeter at a level where temporary flooring has beeninstalled but does not apply to the hazard of falling from the perimeter at a level thatcontains only a structural steel framework.\u00a0 Finally, it points to a third standardthat sets forth a requirement for interior safety nets but does not require perimetersafety nets.\u00a0 Although it apparently concedes that none of these three standardsapplies to the cited hazards, the majority concludes, on the basis of these threeinapplicable standards, that the Secretary in adopting Subpart R deliberated over thehazard of falls from perimeter beams to the exterior of the building and reached a decision not torequire any form of fall protection for employees exposed to this hazard.\u00a0 I can onlysay in response that it would take a lot more evidence than that cited by the majority toconvince me that the Secretary made a reasoned and deliberate decision that steel erectioncontractors need not protect their employees against the hazards at issue in thiscase.[[8]]On the contrary, I find more convincing the indications that the Secretary intendedinstead to rely on the general fall protection requirements of Part 1926 as a supplementto the specific requirements of Subpart R.\u00a0 I begin with the assumption that theSecretary acted in accordance with his statutory mandate and that he therefore did notadopt Subpart R with the intent of diminishing the level of protection steel erectionemployees were guaranteed under the general fall protection standards.[[9]]\u00a0 I turnnext to the Secretary’s guidelines for applying his standards, which are set forth in 29C.F.R. ? 1910.5(c).\u00a0 See note 3 supra. Subsection (c)(1) states that a generalstandard like 29 C.F.R. ? 1926.105(a) is preempted \”[i]f a particular standard isspecifically applicable\” to the cited conditions.\u00a0 Here, however, there is nostandard in Subpart R that is \”specifically applicable\” to the hazard of fallingfrom a perimeter beam to the exterior of the building.\u00a0 Accordingly, the situation atissue in this case is not governed by subsection (c)(1) but rather by subsection (c)(2),which states that a general standard like 29 C.F.R. ? 1926.105(a) \”shall applyaccording to its terms … to the extent that none of such particular standards [here,those prescribed in Subpart R] applies.\”In addition, I find confirmation of the Secretary’s intent in the Secretary’sattempts, over the course of many years, to enforce general fall protection standards, andparticularly sections 1926.28(a) and 1926.105(a), as a supplement to the standards inSubpart R.\u00a0 These enforcement actions have clearly been a major part of theSecretary’s effort to eliminate the grave hazard of falls during the steel erectionprocess.\u00a0 See, for example, the cases cited in the lead opinion.\u00a0 Finally, Inote that the Secretary’s official statement of his enforcement policy is fully consistentwith his enforcement action in this case.[[10]]For all of these reasons, I conclude that the Commission’s interpretation of 29 C.F.R. ?1910.5(c)(1) conflicts with the Secretary’s intent in adopting those guidelines as well asthe Congressional purposes underlying passage of the Act.\u00a0 In addition, as themajority concedes, their holding conflicts with the views of both circuit courts that haveconsidered the particular issue of applying general fall protection standards to hazardsnot covered by the steel erection standards.\u00a0 I therefore adhere to the Commission’sdecision in Williams Enterprises, Inc. because that case was correctly decided.\u00a0 Applying the Williams test to the facts of this case, I would affirm the citation’salternative allegation that Adams Steel committed a serious violation of the Act byfailing to comply with 29 C.F.R. ? 1926.105(a).III also dissent from the majority’s decision to vacate the citation item allegingnoncompliance with 29 C.F.R. ? 1926.100(a) on the ground that the employees at issue werenot \”[e]mployees working in areas where there is a possible danger of headinjury…from falling…objects\” within the meaning of the standard.\u00a0 Themajority states that its decision is based on deficiencies it sees in the Secretary’sevidence.\u00a0 In its view, this is simply a case where the Secretary has failed tosustain his burden of proof.\u00a0 I conclude, however, that the approach taken in thelead opinion obscures the real issue, which is the proper interpretation of the citedstandard. Specifically, the majority interprets the standard at section 1926.100(a) asrequiring construction workers to wear their hard hats only at those precise moments whenthey pass beneath overhead work or overhead workers pass above them.\u00a0 Unless anduntil an employee is directly beneath overhead work, there is, according to the majority,no need for him to wear a hard hat.\u00a0 Moreover, the majority adopts this restrictiveinterpretation on the ground that it is merely applying the standard as written by theSecretary.\u00a0 Once again, I cannot join the majority in adopting an interpretation of astandard or regulation that so totally disregards employee safety. In particular, I cannotagree with the majority that its interpretation merely effectuates the Secretary’s intent.I begin my analysis with a review of the vast body of case law that has developed on theissue of employee exposure to a hazard.[[11]]\u00a0 Specifically, I start with one of theearliest Commission decisions to deal with the exposure issue, J.E. Roupp & Co. &Denver Dry Wall Co., 74 OSAHRC 20\/C1, 1 BNA OSHC 1680, 1973-74 CCH OSHD ? 17,660 (Nos.146 & 147, 1974).\u00a0 In that case, another Commission majority took the sameposition that is now being taken in this case, i.e., that a violation of the Act cannot befound unless and until an employee is actually exposed to a safety or health hazard.\u00a0 In my separate opinion, I disagreed, setting forth the position that I havefollowed over the past decade:The purpose of the Act is to prevent accidents, not to fix the blame for anaccident after it has occurred.\u00a0 Accordingly, it is incumbent upon the Commission todesignate as a violation and to order the abatement of any hazard to which employees maypotentially be exposed.[[8]]\u00a0 To await the actual exposure of employees is too late.\u00a0 1 BNA OSHC at 1682, 1973-74 CCH OSHD at p. 22,069.[[12]]The following year, a significant appellate court decision was issued.\u00a0 In Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 1039 (2d Cir.1975), the court soundly rejected the employer’s contention that a citation requiringperimeter guarding must be vacated because employees weren’t exposed to a falling hazard:One takes it that Dic-Underhill would have us hold that for a citationproperly to issue, an employee… must be seen by an inspector teetering on the edge ofthe floor 150 feet or so up from the ground.\u00a0 No such interpretation of the standardswould be reasonable. No such interpretation is consistent with, let alone called for by,the Act.Partly in response to Underhill Construction Corp. and other appellate courtdecisions, the Commission re-examined the employee exposure issue in Gilles & Cotting,Inc., 76 OSAHRC 30\/D9, 3 BNA OSHC 2002, 1975-76 CCH OSHD ? 20,448 (No. 504, 1976).\u00a0 Although we were unable to agree completely on what the Secretary must show inorder to establish employee access to a hazard, former Commissioner Barnako and I did forma clear majority in support of two central holdings:\u00a0 (a) access is the ultimate testfor determining when protective measures must be taken and (b) actual exposure is not anappropriate test because an actual exposure rule does not \”further the purposes ofthe Act.\”The next important step in the development of the case law was theCommission’s decision in Otis Elevator Co., 78 OSAHRC 88\/E5, 6 BNA OSHC 2048, 1978 CCHOSHD ? 23,135 (No. 16057, 1978).\u00a0 In that case, the Commission adopted a simplifiedaccess test as the rule for determining when employees are exposed to a hazard.\u00a0 Since Otis Elevator Co., the Commission has consistently applied this simplifiedaccess test.\u00a0 See, e.g., F.L. Heughes & Co., 83 OSAHRC 31\/A2, 11 BNA OSHC 1391,1394-95, 1983 CCH OSHD ? 26,520 at p. 33,767 (No. 14519, 1983).\u00a0 Two statements fromsubsequent decisions clarify the Commission’s reasoning behind the Otis Elevator Co. ruleand the guidelines that have been followed by the Commission in applying it.\u00a0 TheCommission described its rationale as follows:The Commission’s access test is predicated on the recognition that employeesmay not be restricted to specific paths or movements about their workplace.\u00a0 Giventhe random nature of employee movement, it is inappropriate to rely on employees to avoida hazardous condition as the primary means of protecting employees from that condition.Special Metals Corp., 80 OSAHRC 122\/B8, 9 BNA OSHC 1132, 1134, 1981 CCH OSHD? 25,018 at p. 30,908 (No. 76-4940, 1980).\u00a0 More recently, the Commission stated:We emphasize that our case law, which requires that the Secretary showaccess, does not require that the Secretary precisely track the movements of employees toshow that they will be or have been in a zone of danger.\u00a0 We have rejected such abrinksmanship approach to employee safety and health.Farthing & Weidman, Inc., 82 OSAHRC 75\/A2, 11 BNA OSHC 1069, 1071, 1983CCH OSHD ? 26,389 at p. 33,491 (No. 78-5366, 1982).That the majority’s decision in this case directly and squarely conflictswith the teachings of this case law is so clear to me that I do not believe this pointrequires a lengthy discussion.\u00a0 I will merely illustrate this conflict by focusing onone of the five employees at issue under this citation item.[[13]]\u00a0 An employee namedChuck Keenan was working at the perimeter of the third level \”spreading,\”\”shaking out,\” or \”scattering\” bar joists.\u00a0 This job involvedspacing the bar joists at regular intervals along the perimeter.\u00a0 As each bar joistwas placed in its proper position, Keenan would secure it, at least partially.\u00a0 Thenhe would return along the perimeter beam to the area where the bar joists were stacked toobtain another joist, which he placed in turn.\u00a0 Witnesses emphasized that Keenan wasconstantly in motion, standing still only for those brief intervals when he was engaged ininstalling a single bar joist. Indeed, Adams Steel successfully argued to the judge belowthat Keenan’s need for mobility was so great that he could not have been protected againstfalling hazards by the use of safety belts, lanyards and lifelines.Two employees at the fourth level, the level 10 feet above Keenan, were engaged in similarwork.\u00a0 Accordingly, Adams Steel was also successful in asserting that these twoemployees could not have tied off because their work required them to be on the moveconstantly.\u00a0 Like Keenan, these employees moved back and forth along the perimeterbeams, spacing and placing small beams or braces between the two parallel structural beamsthat formed the overhanging perimeter at the fourth level.\u00a0 In addition, theseemployees moved back and forth between the perimeter and an area in the interior of thebuilding where the materials they used were stored.\u00a0 Adams Steel even sought toprove, in defending against still another charge involving this storage area, that itwould not have been feasible to tie down several 5-gallon materials buckets so as tosecure them against accidental displacement.\u00a0 Thus, according to Adams Steel’sforeman, the level of mobility in these operations was so great that the employees ineffect moved the storage area itself, or at least the 5-gallon buckets, every 30 to 45minutes.In sum, Adams Steel sought before the judge to depict a typical construction worksite –an ever-changing scene of a highly-mobile work force engaged in separate but concurrentwork projects.\u00a0 Ironically, after successfully persuading the judge that the need formobility prevented it from taking many the Secretary’s suggested precautions, Adams Steelhas turned around and persuaded the majority on review to ignore all of the evidence itintroduced.\u00a0 In agreement, the majority analyzes this item as if it were looking at astill photograph.\u00a0 When the compliance officer observed Keenan, that employee wasworking on a different side of the building from the two fourth-level employees.\u00a0 Or,stated in another way, the compliance officer failed to catch either of the twofourth-level employees directly above Keenan, on the verge of dropping a tool or somebuilding materials onto his head.\u00a0 Therefore, according to the majority, there was noneed for Keenan to wear hard hat because there was no \”possible danger of headinjury\” to him due to falling objects.\u00a0 In so holding, the majority effectivelyerases ten years of development in the case law.\”It is axiomatic that standards should be interpreted to effectuate rather thanfrustrate their underlying intent.\”\u00a0 Gerard Leone & Sons, Inc., 81 OSAHRC46\/A2, 9 BNA OSHC 1819, 1821, 1981 CCH OSHD ? 25,368 at p. 31,568 (No. 76-4105, 1981).\u00a0 In addition, standards \”should be interpreted in light of the conduct to whichthey are addressed.\”\u00a0 Julius Nasso Concrete Corp., 77 OSAHRC 45\/C6, 5 BNA OSHC1235, 1236, 1977-78 CCH OSHD ? 21,720 at pp. 26,101-102 (No. 7542, 1977), appealdismissed, No. 77-4107 (2d Cir. Aug. 16, 1977).\u00a0 Applying these rules of constructionto the standard at issue here, it seems apparent that a far greater margin of safety iscalled for than would exist under the majority’s interpretation.\u00a0 For example, the\”reality of the workplace\” suggests that an employee, like Chuck Keenan, who isnot wearing a hard hat when he goes up onto a structural steel beam is not suddenly goingto interrupt his work to put on a hard hat when he sees someone approaching overhead,assuming he even sees the other employee approaching.\u00a0 Nor is the worker likely tomake a reasoned determination as to whether his own route of travel will take him beneathoverhead work so that he can put on his hard hat before he passes beneath that work.Therefore, the clear intent of the standard, the underlying purpose of the Act, and therealities of employee behavior on a construction worksite require a much broaderinterpretation of the standard than that adopted by the majority.\u00a0 These factorscompel an interpretation that would require the employee to wear his hard hat before thereis actual exposure to the hazard of falling objects.\u00a0 As I stated many years ago:[To await, actual] exposure to a hazard simply means that…employees mustrisk injury and possibly death before the Secretary can require abatement of hazardousconditions…. [However,] Congress did not intend to endorse such game-playing with thehealth and safety of employees….Gilles & Cotting, Inc., supra (concurring opinion), 3 BNA OSHC at 2005,1975-76 CCH OSHD at p. 24,426.Furthermore, contrary to the majority, I conclude that the specific languageof the standard does not lead to a different result.\u00a0 I find it significant that thekey phrase in the standard is not \”danger of head injury\” or even \”apossibility of head injury.\”\u00a0 Instead, the standard emphasizes the element ofpotential risk by using both terms together so that employees must be protected by hardhats whenever there is a \”possible danger\” of head injury.\u00a0 This broadwording supports my view that the intent of the Secretary was to require hard hatprotection whenever there is potential exposure to head injury.\u00a0 See note 12 supra.\u00a0 The language certainly does not support the interpretation of the standard adoptedby the majority.The Secretary properly interpreted the cited standard and applied it to theconditions at issue in this case.\u00a0 The alleged violation of section 1926.100(a)therefore should be affirmed.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1]] Section 1926.105(a) is contained in subpart E — Personal Protectiveand Life Saving Equipment, of 29 C.F.R. Part 1926 — Safety and Health Regulations forConstruction.\u00a0 It provides:? 1926.105 Safety nets.(a) Safety nets shall be provided when workplaces are more than 25 feet above the groundor water surface, or other surfaces where the use of ladders, scaffolds, catch platforms,temporary floors, safety lines, or safety belts is impractical.[[2]] Section 1910.5(c)(1) is a regulation intended to prevent overlaps amongthe Secretary’s safety and health standards.\u00a0 It provides:? 1910.5 Applicability of Standards.* * *(c)(1) If a particular standard is specifically applicable to a condition, practice,means, method, operation, or process, it shall prevail over any different general standardwhich might otherwise be applicable to the same condition, practice, means, method,operation, or process. . . .[[3]] Section 1926.750(b)(2)(i), provides: ? 1926.750 Flooring requirements.* * *(b) Temporary flooring — skeleton steel construction in tiered buildings.* * *(2)(i) Where skeleton steel erection is being done, a tightly planked and substantialfloor shall be maintained within two stories or 30 feet, whichever is less, below anddirectly under that portion of each tier of beams on which any work is being performed,except when gathering and stacking temporary floor planks on a lower floor, in preparationfor transferring such planks for use on an upper floor.\u00a0 Where such a floor is notpracticable, paragraph (b)(1)(ii) of this section applies.[[4]] In a second case involving L. R. Willson a different panel of the D.C.Circuit noted that Builders Steel held that \”[s]ection 1926.750(b)(2)(i) requiring [atemporary] floor within two stories or 30 feet of workplace . . . preempts application ofgeneral regulation, 29 C.F.R. 1926.105(a)(1981), requiring use of safety nets. . . .\”L. R. Willson & Sons Inc. v. OSHRC, 698 F.2d 507, 512 n.15 (D.C. Cir. 1983)(\”Willson II\”).\u00a0 Willson II involved the question of preemption of ageneral duty standard (29 C.F.R. ? 1926.28(a)) by the specific standards applicable tofalls in the steel erection industry, 29 C.F.R. ? 1926.750(b).\u00a0 The Willson IIcourt, citing a Fourth Circuit decision in Bristol Steel & Iron Works, Inc. v. OSHRC,601 F.2d 717 (4th Cir. 1979), held that ? 1926.750(b) did not preempt ?1926.28(a).\u00a0 But see McLean-Behm Steel Erectors, Inc. v. OSHRC, 608 F.2d 580 (5th Cir. 1979)rev’g on other grounds, 78 OSAHRC 93\/A9, 6 BNA OSHC 2081, 1978 CCH OSHD ? 23,139 (No.15582, 1978) (section 1926.750(b) is more specifically applicable standard preemptingsection 1926.28(a) with respect to steel erection employees installing window framing).\u00a0 Both courts reasoned that the general safety standard at section 1926.28(a) wassimilar to section 5(a)(1) of the Act and was \”designed to fill those intersticesnecessarily remaining after the promulgation of specific safety standards.\”\u00a0 Id.at 512, quoting Bristol Steel at 721.\u00a0 In contrast, the Commission, consistent withthe Fifth Circuit, has ruled in McLean-Behm, supra, that section 1926.750(b) requiringsafety nets when temporary floors are not practical is specifically applicable to steelerection employees working at the edge of a building preempting section 1926.28(a).\u00a0 But cf. Tippens Steel Erection Co. Inc., 83 OSAHRC 20\/D14, 11 OSHC BNA 1428, 1430,1983 CCH OSHD ? 26,593 (No. 76-3682, 1983) (section 1926.28(a) not preempted by subpartR) (dicta)).\u00a0 Unlike section 1926.28(a), section 1926.105(a) cannot be described as ageneral standard designed to fill interstices left by promulgation of specific standards.\u00a0 As is section 1926.750(b), section 1926.105(a) is a specific standard addressingfall hazards.\u00a0 Moreover, the Commission has previously rejected the approach used bythe two courts in another analogous preemption case.\u00a0 See Dillingham Tug & BargeCorp., 82 OSAHRC 40\/D6, 10 BNA OSHC 1859, 1982 CCH OSHD ? 26,166 (No. 77-4143, 1982),appeal dismissed, No. 82-7552 (9th Cir. Nov. 4, 1982).[[5]] Chairman Rowland and Commissioner Cleary voted to vacate a citation toa general construction guardrail standard, section 1926.500(d)(1), because section1926.750(b)(1)(iii) was applicable, although the general standard provided greater fallprotection. Similarly, Chairman Rowland and Commissioner Cleary voted to vacate threeitems alleging violations of section 1926.105(a) for interior falls.\u00a0 ChairmanRowland did so on the ground that section 1926.105(a) was preempted.\u00a0 CommissionerCleary did so because the means of fall protection provided by the two standards was\”duplicative,\” although the general standard provided more protection since itapplied to falls of twenty-five feet or less, while the steel erection standard applied tofalls of thirty feet or less. Commissioner Cottine, who was in the majority withCommissioner Cleary in holding that section 1926.105(a) was not preempted with respect toexterior falls, dissented on the basis that the general construction standards providedgreater protection and were therefore applicable as well.[[7]] Federal Rule 15(b) provides:(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consentof the parties, they shall be treated in all respects as if they had been raised in thepleadings. Such amendment of the pleadings as may be necessary to cause them to conform tothe evidence and to raise these issues may be made upon motion of any party at any time,even after judgment. . . .[[8]] Both the Secretary’s case and the judge’s decision were based on thetheory that employees were working in areas where overhead work was occurring and thatthey therefore could have been injured by falling tools or materials.\u00a0 This is theonly source of a potential head injury that is suggested in this record.\u00a0 Thus, thereis no evidence or argument in this case that employees were exposed to any of the otherhazards referred to in section 1926.100(a), i.e., possible injury from \”impact,\”\”flying objects,\” or from \”electrical shock and burns.\”[[9]] The foreman admitted at the hearing that he had been present on thesecond floor at the same time that the employees discussed previously had been working onthe beams at higher elevations.\u00a0 However, the foreman testified that none of theseemployees was working directly above him or \”in such a fashion that there was achance of objects falling on [him].\”\u00a0 The Secretary made no effort to rebut thattestimony.\u00a0 Indeed, the two other members of the walkaround party, i.e., thecompliance officer and the union steward, both corroborated the foreman’s testimony.\u00a0 Thus, we would find that the foreman was not exposed to a possible danger of headinjury from falling objects during the time he accompanied the inspection party on thesecond floor.[[1]] See ?? 1926.750(b)(1)(iii), 1926.750(b)(2)(iii), and 1926.752(k);Williams, supra, 11 BNA OSHC 1425-26 & n.9, 1983 CCH OSHD at pp. 33,885-86 & n.9.[[1]] See, e.g., Bristol Steel & Iron Works, Inc. v. OSHRC, 601 F.2d 717,721 (4th Cir. 1979) (\”Being remedial and preventative in nature the Act must ‘beconstrued liberally in favor of the workers whom it was designed to protect….’\”);Southern Colorado Prestress Co. v. OSHRC, 586 F.2d 1342, 1350 (10th Cir. 1978); Floyd S.Pike Electrical Contractor, Inc. v. OSHRC, 576 F.2d 72, 76 (5th Cir. 1978); Marshall v.Western Electric, Inc., 565 F.2d 240, 245 (2d Cir. 1977) (court adopts the interpretationof a standard that is \”better calculated. . .to achieve the congressional goal ofaccident prevention and protection against potential danger,\” stating that\”[t]he reasonableness of any construction of the. . .standard must be considered inthe light of the broad, remedial purpose of the Act….\”); GAF Corp. v. OSHRC, 561F.2d 913, 915 (D.C. Cir. 1977) (\”[T]he standards must be construed. . .to protect theemployees.\”); Irvington Moore, Div. of U.S. Natural Resources, Inc. v. OSHRC, 556F.2d 431, 435 (9th Cir. 1977); Brennan v. OSHRC (Gerosa, Inc.), 491 F.2d 1340, 1343 (2dCir. 1974) (\”[I]t is especially important that these regulations be construed toeffectuate congressional objectives.\”)[[2]] See, e.g., Borton, Inc., 82 OSAHRC 17\/E13, 10 BNA OSHC 1462, 1982 CCH OSHD ? 25,983(No. 77-2115, 1982), appeal filed, No. 82-1661 (10th Cir. May 26, 1982); Salah & PecciConstr. Co., 78 OSAHRC 50\/A13, 6 BNA OSHC 1688, 1978 CCH OSHD ? 22,807 (No. 15769, 1978);Whitcomb Logging Co., 74 OSAHRC 89\/F7, 2 BNA OSHC 1419, 1974-75 CCH OSHD ? 19,128 (No.1323, 1974).[[3]] This regulation states:? 1910.5 Applicability of standards.* * *(c)(1) [Quoted in note 2 of the lead opinion]* * *(2) On the other hand, any standard shall apply according to its terms to any employmentand place of employment in any industry, even though particular standards are alsoprescribed for the industry, … to the extent that none of such particular standardsapplies….[[4]] All of the record evidence is consistent in indicating that the threeemployees were required to work at the perimeter of the building for extended periods oftime and that their work required almost constant motion along the perimeter beams withshort periods when the employees, although stationary, would lean over the beams to attachsmall braces or bar joists.\u00a0 Accordingly, the record supports the judge’sunchallenged finding that the three employees were \”exposed to a substantial risk ofharm from falling.\”[[5]] Adams Steel’s argument on review that it provided \”scaffolds\”and \”temporary floors\” as required by the standard is defeated by its admissionthat these two employees could nevertheless have fallen 34 feet from the fourth-levelperimeter beams to the materials platform.\u00a0 See, e.g., National IndustrialConstructors, Inc., 81 OSAHRC 46\/C2, 9 BNA OSHC 1871, 1872, 1981 CCH OSHD ? 25,404 at p.31,657 (Nos. 76-891 & 76-1535, 1981) [\”(S)ection 1926.105(a) is not satisfiedsimply by the use of one of the devices listed in that section without regard to whethersuch use provides adequate fall protection to employees.\”][[6]] Situations even more dangerous than those involved in this case appearto be within the scope of the majority’s ruling.\u00a0 For example, employees could havebeen working at a height of 100 feet on an overhang that extended 10 feet beyond the lowerstories; yet, the majority’s ruling still would have been that the employer was under noobligation to provide any fall protection whatsoever.[[7]] If the employer in fact had any objections of this nature, it could andpresumably would have raised an affirmative defense such as impossibility or the greaterhazard defense.\u00a0 In this regard, I note that Adams Steel was successful in raisingand proving these same affirmative defenses in this proceeding when it defeated theSecretary’s alternative charge that it should have required the use of personal protectiveequipment under 29 C.F.R. ? 1926.28(a).\u00a0 In any event, the fact that theimpossibility and greater hazard defenses are recognized in Commission case law precludesany possibility of the dire consequences to safety hypothesized by the majority.[[8]] If the Secretary had made a deliberate decision to exempt the citedconditions from Subpart R, then this case would be analogous to the situation at issue inIrvington Moore, Div. of U.S. Natural Resources, Inc. v. OSHRC, note 1 supra.\u00a0 There,the Ninth Circuit held that a general machine guarding standard could be applied to apress brake, rejecting the contention that the general standard was preempted by aspecific machine guarding standard that expressly excluded press brakes from its coverage.Quoting ? 1910.5(c)(1), the court stated, 556 F.2d at 435:The rule that a specific standard prevails over a general standard can hardlymean that a section from which press brakes are entirely excluded should preempt a sectionunder which press brakes are clearly covered.\u00a0 Moreover, if … [the inapplicablespecific standard] were somehow to prevail over … [the applicable general standard],this would clearly violate 29 U.S.C.? 655(a) which mandates application of the standardthat assures the greatest protection for employees.\u00a0 Such a reading of the regulationwould also do violence to the general canon of statutory construction that remedialstatutes are to be liberally construed in favor of their beneficiaries….By analogy, the fact that the Secretary deliberately exempted the conditionsin this case from Subpart R, assuming that were true, would not preclude the applicationof general standards that otherwise apply to the situation, such as ? 1926.105(a).[[9]] Both the specific steel erection standards and the general fallprotection standards were adopted pursuant to the Secretary’s authority under ? 6(a) ofthe Act, 29 U.S.C. ? 655(a).\u00a0 That section gave the Secretary the power, during thefirst two years after the Act’s effective date, to adopt as OSHA standards \”anyestablished Federal standard,\” a category that included all of the standardsdiscussed in this case, \”unless he determines that the promulgation of such astandard would not result in improved safety or health for specifically designatedemployees.\”\u00a0 Section 6(a) also instructed the Secretary to resolve any conflictamong established Federal standards by promulgating \”the standard which assures thegreatest protection of the safety or health of the affected employee.\”[[10]] \”For all types of construction, including steel erection, exterior fallinghazards shall be cited…under 1926.105(a) when the potential falling distance is greaterthan 25 feet.\”\u00a0 OSHA Instruction STD 3-3.1 (July 18, 1983), paragraph G.3.b,reported at CCH ESHG, 1982-1983 Developments, ? 12,855 at p. 17,166.[[11]] The majority summarily dismisses the Secretary’s arguments on review,which are based on this precedent, because the cases he cites did not involve theinterpretation and application of the particular standard at issue here, section1926.100(a).\u00a0 However, the problem of determining when an employee is exposed to ahazard so that mandated protective measures not be taken is a fundamental andall-pervasive question that constantly arises in cases under the Occupational Safety andHealth Act.\u00a0 Although the context in which this issue arises admittedly differs fromcase to case, it does not follow that the principles announced in other cases are totallyinapplicable to the case now on review.\u00a0 On the contrary, I believe that Commissionand appellate court precedent on the employee exposure issue has a great deal to say aboutwhen an employee should be \”protected by protective helmets\” as required undersection 1926.100(a).[[12]] The footnote referred to in the passage above, footnote 8, states:Where a hazard exists on a worksite and employees have access to the situs ofthe hazard, there is potential exposure, regardless of whether there is any evidence of anemployee coming into immediate proximity of the hazard.[[13]] The facts concerning this employee demonstrate vividly that themajority has adopted a restrictive \”actual exposure test\” within the meaning ofthe case law that I have outlined above.\u00a0 In contrast, I believe that the proper testfor determining when an employee must wear a hard hat is whether that employee has\”access\” to the \”zone of danger\” created by overhead work or by theother conditions identified in the standard.\u00a0 These key terms also have establishedmeanings in the case law, so I need not elaborate on them here.I agree with the majority that the Secretary cannot issue a citation due to the exposureof an employer’s walkaround representative during an inspection.\u00a0 Therefore, I do notbase the affirmance of this item on the asserted exposure of Adams Steel’s foreman.However, because I apply an \”access test\” and because I identify the \”zoneof danger\” in this case as an area that included the entire second floor and theentire third level of the building, I would affirm the citation’s allegation with respectto all four of the remaining employees.”