“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 Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).This case arises from an OSHA inspection of a construction worksite inPittsburgh, Pennsylvania, where Adams Steel Erection, Inc. was the steelerection subcontractor. Before us on review are three items of twocitations. Former Administrative Law Judge Henry F. McQuade affirmedall three items.Adams Steel objects to the disposition of these three items, to thejudge’s denial of a motion to suppress the evidence on the ground thatthe underlying inspection was illegal, and to the judge’s ruling on itschallenges to the constitutionality of the Act. We affirm the judge inall but one respect; we reverse his disposition of one of the threeitems, 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 HealthAct of 1970 is unconstitutional, violating the Fourth, Fifth and SixthAmendments to the Constitution and since the inspection which resultedin the Citations was unconstitutional and void, being an inspectionwithout a warrant.In his decision, Judge McQuade noted Adams Steel’s contention that theAct is unconstitutional. In response, he held that the Commissionlacked jurisdiction to question the constitutionality of the Act.Adams Steel has not particularized its arguments under the Fifth andSixth Amendments, and therefore we affirm the judge’s decision not torule on them. As the judge correctly stated, under longstandingCommission precedent, the Commission lacks authority to rule onquestions of the constitutionality of provisions of the Act on which nocourt has yet ruled; the Commission can do no more than apply judicialprecedent concerning the constitutionality of the Act. _E.g_., _McGowenv. Marshall_, 604 F.2d 885, 892 (6th Cir. 1979); _Daniel InternationalCorp_.,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_, 683F.2d 361 (11th Cir. 1982); _Bomac Drilling_, 81 OSAHRC 45\/A2, 9 BNA OSHC1681, 1699, 1981 CCH OSHD ? 25,363, p.31,555 (No. 76-2131, 1981). Seealso the cases cited by Judge McQuade. Because Adams Steel has notparticularized its arguments, they cannot be addressed in any fashion,even to such extent as might be permissible. We therefore reject AdamsSteel’s Fifth and Sixth Amendment challenges.We reject Adams Steel’s challenge under the Fourth Amendment, but fordifferent reasons. The Supreme Court’s decision in _Marshall v.Barlow’s, Inc_., 436 U.S. 307, 98 S.Ct. 1816 (1978), sustains AdamsSteel’s contention that the Act violates the Fourth Amendment to theextent that it purports to authorize warrantless searches. The_Barlow’s_ decision nevertheless made clear that it was not invalidatingall inspections conducted under the authority of section 8(a) of theAct, 29 U.S.C. ? 651(a). On the contrary, the Court suggested that onlyan inspection conducted without an inspection warrant or itsconstitutional \”equivalent,\” e.g., the voluntary consent of theinspected 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 thiscase\”). Adams Steel is therefore entitled to relief only if OSHA’sinspection of Adams Steel’s workplace violated the Fourth Amendment.Adams Steel claims that OSHA’s inspection violated the Fourth Amendmentbecause OSHA lacked a warrant and consent. In support of a renewedmotion to dismiss at the end of the hearing, it alleged that \”anypermission . . . granted for entry at the time . . . [was] permissionfrom the general contractor in possession of the premises and certainlynot . . . [from Adams Steel].\” When an employer seeks to suppressevidence obtained in a warrantless inspection, the Secretary bears theburden of proving that the inspection was lawful. _Sarasota ConcreteCo_., 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 thereforedetermine whether there was consent.When the compliance officer arrived at the Prudential Realty Buildingconstruction project, the representative of the general contractorinvited Adams Steel’s foreman, Donald McClendon, as well asrepresentatives 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 atthe worksite in addition to Adams Steel’s operations.Adams Steel denies that it gave its own consent to the inspection. Itseems to concede, however, that the general contractor consented to theinspection; the only issue it raised before Judge McQuade was whether itwas bound by that consent. It is, however, clear from the record thatAdams Steel itself consented to a warrantless inspection since itsforeman joined the inspection party. There is also no evidence nor anyclaim that Adams Steel objected to the warrantless inspection orrequested OSHA to obtain an inspection warrant.[[1]] We therefore findthat the inspection was consensual.II.This case is one of three related cases in which Adams Steel raisedissues 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 CCHOSHD ? 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 movedto consolidate that case with the case now on review and with a thirdrelated case, OSHRC Docket No. 77-3773. Adams Steel sought thisconsolidation so that a joint hearing could be held on its motions inall three cases to suppress the evidence on the ground that theinspections were unlawful, violating both the Constitution and the Act. Judge McQuade denied the motions to consolidate and the motions tosuppress in all three cases. However, he granted Adams Steel’s motionsto incorporate relevant parts of the proceeding in Adams Steel I intothe records in the other two cases. Accordingly, the inspection issueswe now review in this section of our decision are based on the record inAdams Steel I.Adams Steel’s claim that the inspection violated the Act raises threequestions:(1) Is the Secretary’s authority to inspect in response to complaintslimited by section 8(f)(1) of the Act, 29 U.S.C. ? 657(f)(1)?(2) Did the Secretary comply with the \”reasonableness requirement\” ofsection 8(a)(2) of the Act, 29 U.S.C. ? 657(a)(2)?(3) Did the Secretary exceed his statutory authority in adopting theinspection 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 wasinvalid because it was in response to a complaint from a person otherthan an employee or employee representative. [Adams Steel] avers thatthe non-employee informer was engaged in intentional harassment of[Adams Steel].The issue implicitly raised by this defense is whether the Secretaryexceeded his authority under section 8(f)(1) by conducting an inspectionin response to a complaint of unsafe working conditions filed by someonenot an employee of Adams Steel nor a representative of its employees.[[2]]Judge McQuade rejected this argument on the basis of _Aluminum CoilAnodizing Corp_., 77 OSAHRC 70\/A2, 1 BNA OSHC 1508, 1973-74 CCH OSHD ?17,185 (No. 829, 1974) (\”_Aluminum Coil I_\”). That case involved aninspection conducted in response to a complaint of unsafe workingconditions. The complainant was neither an employee nor arepresentative of employees. Aluminum Coil moved to vacate thecitation on the ground that the inspection was therefore invalid undersection 8(f)(1) of the Act. The Commission disagreed, holding in effectthat, because the complaint had not been filed by an employee or anemployee representative, section 8(f)(1) was irrelevant in determiningthe validity of the inspection. Instead, the issue was whether theSecretary had properly exercised his general inspection authority undersection 8(a) of the Act.[[3]]Applying _Aluminum Coil I_ to this case, Judge McQuade held that thestatus of the complainant as an anonymous telephone caller did notrender the inspection invalid. He also rejected Adams Steel’s argumentthat the alleged motive of the complainant, i.e., the alleged intent toharass Adams Steel, invalidated the inspection. In essence, the judgefound that Adams Steel had failed to establish this allegation (\”Thefacts do not bear out the contention that anyone . . . was engaged in aprogram of intentional harassment of [Adams Steel]\”).The parties seem to agree that the complaint that precipitated theinspection came from neither an employee nor a representative ofemployees. This does not mean, however, that the Secretary could notact on it. In _Aluminum Coil I_, former Commissioner Van Namee reasonedas follows: (1) section 8(f)(1) is not a limitation on the Secretary’sauthority to conduct inspections in response to complaints of unsafeworking conditions but rather a \”specific duty\” to \”conduct a ‘specialinspection’ when certain conditions are met\”; (2) when complaints arefiled by individuals who are not employees or employee representatives,the source of the Secretary’s authority to conduct a responsiveinspection is section 8(a) of the Act; and (3) the validity of theseinspections is therefore determined under the \”reasonableness\” standardof section 8(a)(2) rather than by applying the \”formalityrequirements\”[[4]] of section 8(f)(1).The Commission has not departed from this view of the relationshipbetween sections 8(a) and 8(f)(1). _See_, _e.g_., _Quality Stamping__Products Co_., 79 OSAHRC sections 28\/F11, 7 BNA OSHC 1285, 1288, 1979CCH OSHD ? 23,520, p. 28,504 (No. 78-235, 1979); _Aluminum CoilAnodizing Corp_., 77 OSAHRC 70\/A2, 5 BNA OSHC 1381, 1977-78 CCH OSHD ?21,739 (No. 829, 1977) (_Aluminum Coil II_). In addition, in thosefederal court cases where the issue of the Secretary’s authority hasbeen expressly raised, the courts have consistently agreed that theSecretary can respond to complaints from persons who are neitheremployees nor employee representatives. _E.g_., _Marshall v. Horn SeedCo._, 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 thereforereject Adams Steel’s argument that \”[t]he inspection…was invalidbecause it was in response to a complaint from a person other than anemployee or employee representative.\”Adams Steel asserts, however, \”that the non-employee informer wasengaged in intentional harassment of [Adams Steel].\” At the hearing in_Adams Steel I_, the employer attempted to establish that it had beensubjected to a series of inspections that were interrelated. Theparties stipulated that, during a five-week period in September andOctober 1977, OSHA’s area office in Pittsburgh, Pennsylvania, inspectedsix different construction worksites where Adams Steel was performingwork as a steel erection subcontractor. The first five of theseinspections were conducted in response to anonymous telephone callcomplaints of unsafe working conditions. Two of these calls weredirected against the unnamed steel erection contractor (later identifiedas Adams Steel) on specified projects, while the other three expresslynamed Adams Steel as the employer involved. The sixth inspection wasconducted in response to a complaint that concerned a particular, namedsubcontractor that was not Adams Steel at a worksite where Adams Steelwas also a subcontractor. This last complaint apparently was notreceived in the form of an anonymous telephone call.This record does not identify the specific allegations of any of the sixcomplaints. We are therefore unable to determine the extent to whichthe safety complaints may have been meritorious. However, four of thesix inspections resulted in the issuance of citations to Adams Steel. There is also no direct evidence as to the identity and motivation ofthe complainant or complainants. Adams Steel has argued throughout thisproceeding that all six complaints were filed by one person whosepurpose was to harass Adams Steel.Nevertheless, after unsuccessfully attempting to establish its claimthrough a request for admissions, Adams Steel made no further attempt toestablish any of these allegations.[[5]]In sum, Adams Steel proved only that it was subjected to six complaintinspections at six different construction project worksites in a periodof five weeks and that five of those inspections resulted from anonymoustelephone calls that directly or indirectly alleged safety violations byAdams Steel. Adams Steel did not show that the telephone calls werenot motivated by a genuine concern with safety. We therefore agree withJudge McQuade that, particularly in light of the hazardous nature of thesteel erection industry, the evidence was insufficient to establish aclaim of intentional harassment. We further note that, under Commissionprecedent, improper motivation on the part of the complainant is not initself 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 issueraised by Adams Steel’s challenge to the underlying inspection \”isproperly framed as whether the inspections were reasonable under section8(a) of the Act….\” He held that the Secretary had complied with thereasonableness requirement of section 8(a)(2), which states that \”theSecretary…is authorized…to inspect and investigate…withinreasonable limits and in a reasonable manner….\” See note 3 _supra_(complete text of section 8 (a)). In its petition for discretionaryreview, Adams Steel expressly took exception to this conclusion. Yet,in its brief on review, it presents no argument in support of thisexception.We note initially that Adams Steel has neither alleged nor sought toprove any active misconduct or improper motivation on the part of OSHApersonnel. On the contrary, the employer expressly states in its reviewbrief that \”[i]t is not contended…that there was vindictiveenforcement of the statute by the Secretary against [Adams Steel].\” Weparticularly note that Adams Steel does not direct any of its criticismsto the manner in which the OSHA compliance officer conducted hisinspection. Adams Steel’s criticism refers instead to the proceduresfollowed by OSHA’s Pittsburgh area office in handling anonymoustelephone call complaints and, in particular, OSHA’s decision to conductworkplace 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 awarrant based on evidence of probable cause before he inspects withoutconsent. However, section 8(a) of the Act does not require theSecretary to obtain evidence of any particular sort to support hisdecision to seek a consensual inspection. Of course, section 8(a) doesrequire the Secretary to inspect \”within reasonable limits and in areasonable manner….\” But we can find no basis in the record before usto support a conclusion that the Secretary failed to do that.Adams Steel’s primary argument is that the inspection was conductedunder an inspection policy that circumvented the procedural protectionsfor employers in section 8(f)(1) of the Act. This policy, which wasembodied in FIM 76-20, was to inspect in response to complaints \”withoutregard to the formality requirements of Section 8(f).\” See note 4_supra_. Citing _Aluminum Coil I’s_ discussion of the legislativehistory 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 takeeffective measures to prevent misuse of section 8(f) procedures as aharassment device. In the employer’s view, FIM 76-20 not only failed tocomply with this Congressional expectation; it actually invited andencouraged harassment of employers by persons seeking to abuse thecomplaint inspection procedures. Specifically, Adams Steel contends,_this_ is \”a case wherein [OSHA’s] 8(f) procedure has obviously beenused as a harassment device.\”We have already held that the Secretary has the statutory authorityunder section 8(a) of the Act to conduct inspections in response to\”non-formal complaints.\” It necessarily follows that the Secretary hadthe authority to adopt FIM 76-20 and to inspect \”without regard to theformality requirements of Section 8(f).\”In any event, we are not convinced that FIM 76-20 unfairly affectedAdams Steel. We previously held that Adams Steel failed to establishits assertion that the complaint that led to the inspection was filed toharass Adams Steel. There is also no evidence supporting Adams Steel’sbroader allegation that FIM 76-20 invited and encouraged harassment ofemployers generally. FIM 76-20 contained provisions designed to preventsuch abuses of procedure. For example, paragraph 3(f) stated that \”allcomplaints, regardless of formality requirements, will be thoroughlyevaluated by the receiving Area Office and an inspection shall beconducted _in the event the existence of safety and health hazards isindicated_….\” (Emphasis added.) In addition, paragraph 3(g) statedthat, \”if there is compelling evidence to indicate that the complaintprocedure is abused groups or individuals for purposes other than safetyand health matters, the Area Director shall consult with the RegionalAdministrator to determine whether to investigate the matter, and if thedetermination 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 tosuppress 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 of1\/2-inch wire rope or equal shall be installed, approximately 42 incheshigh, around the periphery of all temporary planked or temporarymetal-decked floors of tier buildings and other multifloored structuresduring structural steel assembly.This citation item relates to the third floor of the Prudential RealtyBuilding. The building was triangular in shape and designed to have sixfloors and a roof. By the time of the inspection, structural steel hadbeen erected up to the fifth level while decking had been installed upto the third level. It is undisputed that no safety railing of anytype was in place around the perimeter of the third-floor decking. Three ironworkers employed by Adams Steel were working on the thirdfloor and were thereby exposed to the hazard of falling from itsunguarded edges.The primary issue with respect to this citation item is whether thestandard applied to the third floor. The standard requires a wire-ropesafety railing around \”temporary metal-decked floors . . . duringstructural steel assembly.\” The specific question is whether thestandard applies when a steel erection contractor is in the process ofreplacing temporary flooring or decking with permanent flooring ordecking. Adams Steel asserts that \”where, as here, the temporary deckhas been removed and the permanent deck is in the process ofconstruction, it must necessarily follow that the cited standard, by itsown terms, is inapplicable.\” We disagree.Adams Steel used the same sheets of metal in both its temporary deckingand its permanent decking. For example, when Adams Steel installedpermanent decking on the third floor, it used the same metal sheets thathad previously been installed as the temporary decking at that level. That the same decking was used for both purposes, however, does not meanthat 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 permanentflooring.Temporary decking, as described by the witnesses, was installed as asafety measure and for convenience in carrying out the work ofstructural steel assembly. It served three functions during steelerection work: (a) as a storage area and base of operations for thoseworking above the floor, (b) as a working surface for those working atfloor level, and (c) as a catch platform for employees and materialsthat might fall from upper levels. A temporary deck consisted of sheetsof metal that were haphazardly laid and uncut. Because the building wastriangular, this meant that the sheets overlapped the building’sperimeter. The temporary decking was held in place by wire or cable.Permanent decking, on the other hand, was a part of the building’sstructure it was cut to shape, fitting within the perimeter of thebuilding. It was welded into place, and it served as a foundation onwhich a concrete floor eventually would be poured. During steelerection work, the primary function of the permanent decking was tocontribute to the stability of the building.In replacing temporary decking with permanent decking, it appears theprocedure was essentially as follows: When Adams Steel was ready tocomplete construction of a floor, it \”uncovered\” the entire perimeter ofthe temporary floor by pulling back the metal decking from the edges. Plumb-up cables, which were used to align the building, were extendedbetween the floors. Once the building was properly aligned, the\”points\” were \”bolted\” (i.e., apparently, pre-existing bolting in theunderlying structural members was tightened, or reinforced withadditional bolting, or both). The decking was then cut by an employeeusing an acetylene torch, so that the sheets would fit within thebuilding’s perimeter. Access areas and other openings were cut into thedecking (also with an acetylene torch), and the decking was welded intoplace. Once welded, the floor could no longer move and the plumb-upcables could be removed. At a later stage in the construction process,concrete was poured onto the metal decking, thereby forming thecompleted floor.It is not clear on this record how far the installation of permanentdecking on the third floor had progressed by the time of theinspection. At various points in his testimony, ironworker RobertTierney stated that work on the permanent third floor had begun \”aboutthe same day\” as the OSHA inspection, the day before the inspection \”atleast\”, and \”perhaps\” two days before the inspection. At the time ofthe inspection, he asserted, the employees \”were laying the [permanent]deck down and starting to cut it.\” The compliance officer testified thatthe employees \”had lifted the temporary floor back down, tightened upthe bolts and were putting down a permanent decking to weld.\” AdamsSteel’s foreman McClendon testified that an employee photographed by thecompliance officer was at the time \”cutting everything to size aroundthe columns, around openings and welding it down.\”The record indicates that the key factor in determining whether flooringhas become \”permanent\” is whether the flooring has been integrated intothe structure so that it contributes to the stability of the building. As stated by foreman McClendon, it is the welding that \”holds thebuilding.\” Yet, there is no evidence in this record as to whatpercentage of the floor had been welded to the structural steel.In any event, both parties agree on the two fundamental facts concerningthe stage of construction. First, at the time of the inspection, AdamsSteel had disassembled the temporary decking on the third floor andbegun the process of installing the permanent decking. Second, AdamsSteel had not yet completed the process, for the decking was yet not anintegral part of the building’s structure, contributing to itsstability. The question posed here is therefore whether section1926.750(b)(1)(iii) requires a wire rope after the temporary decking isdisassembled 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 section1926.750(b)(1)(iii) applied because the building \”was still in the steelerection stage and installation of permanent flooring was not yetcompleted at the time of the inspection.\”We agree with Judge McQuade’s reading of Commission precedent. AdamsSteel contends that _Ashton_ is distinguishable because the employees in_Ashton_ were engaged in installing temporary decking rather thanpermanent decking. However, any ambiguity in _Ashton_ on that point wasresolved 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, 4BNA OSHC 2009, 2010, 1976-77 CCH OSHD ? 21,471, p. 25,777 (No. 7247,1977). Read together, Commission precedent holds that if the employeris still engaged in structural steel erection and the permanent floorhas not yet been completed, then the floor is a \”temporary-planked\” or\”temporary metal-decked\” floor within the meaning of section1926.750(b)(1)(iii).Our review of Subpart R in its entirety persuades us that Commissionprecedent is correct. Subpart R makes precisely the same distinctionbetween \”permanent flooring\” and \”temporary flooring\” and uses the termsin the same sense, as the witnesses in this case did. In particular,paragraphs (a) and (b) of section 1926.750 are captioned \”Permanentflooring–skeleton steel construction in tiered buildings\” and\”Temporary flooring–skeleton steel construction in tiered buildings,\”respectively. Separate requirements are established under Subpart R forthese two distinct types of flooring. Further, the text of thepermanent flooring requirements in section 1926.750(a), particularly thefinal clause of section 1926.750(a)(1), shows that the section’s purposeis to insure the stability of the building. _See_ _also_ section1926.750(a)(2) (\”permanently secured floor\” used as synonym for\”permanent flooring\”). Thus, section 1926.750(a) indicates that theprincipal distinguishing feature of \”permanent\” flooring is that theflooring has been made an integral part of the building’s structure andtherefore contributes to stabilizing the building. This is the samesense in which the witnesses used the term \”permanent flooring.\”The decking here was temporary rather than permanent flooring. Thedecking had not been welded to the structural steel, had not become anintegral part of the building’s structure, and therefore was notcontributing to the stability of the building. Thus, section1926.750(b)(1)(iii) was still applicable.IV.Item 2 of citation 1 alleges a violation of section 1926.500(b)(2). Thecited standard, which is contained in Part 1926, Subpart M–Floor andWall 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 standardrailings with standard toeboards on all exposed sides, except atentrance to opening, with the passage through the railing eitherprovided with a swinging gate or so offset that a person cannot walkdirectly into the opening.The primary issue with respect to this item is whether the citedstandard is preempted by more specifically applicable standards in Part1926, Subpart R–Steel Erection.The location of this alleged violation was the third floor of thePrudential Realty Holding Building, that is, the same floor that was thelocation of the violation alleged in item 1. The compliance officertestified that item 2 related to a 36-foot-long wooden ladder thatprovided access from the ground up to the third floor. At thethird-floor level, the ladder extended through a ladderway opening thatwas not guarded. The compliance officer further testified that AdamsSteel’s employees \”had to use\” the ladder because it \”was the onlyladder to the third floor.\”Adams Steel does not dispute its failure to guard the ladderway openingin accordance with section 1926.500(b)(2) or the exposure of itsemployees to the unguarded opening. Instead, it defends on the groundthat the cited standard was preempted by more specifically applicablesteel 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 itwas engaged in steel erection, Subpart R preempted section1926.500(b)(2). It noted that Subpart R specifically treats the subjectof access openings in floors in section 1926.750(b)(1)(i), which statesthat a derrick or erection floor shall be solidly planked except foraccess openings. It further noted that Subpart R deals with safetyrailings in section 1926.750(b)(1)(iii), which requires such railingsonly around the perimeter of the floor. Thus, Adams Steel concluded:Had the Secretary intended that the floor at access openings be guardedby safety railing, it must be presumed that the Secretary had the rightand the ability to so require by a specific regulation. Instead, bylimiting safety railings only to the floor periphery and by permittingaccess openings to exist in decked floors, it must be assumed that thesteel erection industry is not required to guard open ladderways.(Emphasis in the original.)In response, the Secretary contended that Subpart R \”does not speak toprotection of workers from the hazard of falling into unguarded accessopenings.\” Therefore, he concluded, reliance on the generallyapplicable standard at section 1926.500(b)(2) was appropriate.[[7]] Inhis decision, Judge McQuade essentially adopted the Secretary’sposition. Accordingly, he affirmed the citation item. On review, bothparties resubmit the arguments that they made before the judge.We agree with Adams Steel that the cited standard did not apply to theladderway 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 becompletely planked over or guarded in accordance with Subpart M of thispart.Section 1926.752(j) is a scope provision that limits the application ofthe floor opening standards in Subpart M during the steel erection phaseof construction to floor openings that are \”unused.\” In this case,since the opening in question was being actively used as the only meansof access to the third floor, guarding was not required. We thereforevacate item 2 of citation 1.V.Citation 2 as amended alleged a violation of section 1926.28(a) orsection 1926.105(a) in that employees were working on a structural beamat 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 thejudge affirmed, is still at issue. See note 8 _infra_. This generalconstruction standard provides:? 1926.105 _Safety nets_.(a) Safety nets shall be provided when workplaces are more than 25 feetabove the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, orsafety belts is impractical.Adams Steel defends against this charge on two grounds. First, itcontends that, under the terms of section 1926.105(a), it was notrequired to install safety nets because it had instead provided one ofthe other listed alternatives, \”temporary floors.\” In any event, itargues, section 1926.105(a) cannot be applied to steel erection workbecause it is preempted by more \”specifically applicable\” standards inSubpart R.The relevant facts in determining the preemption issue are not indispute. The compliance officer observed that two employees of AdamsSteel were working from a beam at the fifth-floor level while bolting upobjects identified as \”relief angles for the masonry\” or \”masonrylintels.\” The compliance officer testified that the two employees, whowere wearing safety belts that were not tied off, were exposed to thehazard of falling either 50 feet toward the outside of the building orapproximately 20 feet toward the inside of the building. On the outsideof the building, there was nothing between the fifth-level beam and theground 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 theCommission previously has ruled on the same preemption issue: _AdamsSteel I_, referred to above in connection with the employer’s motion todismiss; and _Williams Enterprises of Georgia, Inc_., 86 OSAHRC ____, 12BNA 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 Commissionconcluded that section 1926.105(a) cannot be applied to the hazard offalling from perimeter beams during steel erection work because it is ageneral construction standard and is therefore preempted by more\”specifically applicable\” standards in Subpart R. See note 6 supra. Onreview, the Court of Appeals for the Third Circuit reversed theCommission, holding that section 1926.105(a) can be applied to thehazard of exterior falls at issue because there are no \”particularstandards\” in Subpart R that apply to that hazard. See note 7 _supra_. In _Williams Enterprises_, the Commission, with Commissioner Walldissenting, respectfully disagreed with the position of the ThirdCircuit 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 Appealswith jurisdiction over the case, Chairman Buckley would adhere to theCommission’s position on the preemption issue as stated in _Adams SteelI_ and _Williams Enterprises_. Nevertheless, because this case arisesin the Third Circuit, i.e., both the inspected workplace and AdamsSteel’s principal place of business are located there, Chairman Buckleydefers to the appellate court for that circuit in rejecting thepreemption argument raised by Adams Steel. _See Babcock & Wilcox Co. v.OSHRC_, 622 F.2d 1160, 1166 (3d Cir. 1980) (binding effect of appellatecourt’s rulings on cases arising in the Third Circuit). _See also DavisMetal Stamping, Inc_., 85 OSAHRC _____, 12 BNA OSHC 1259, 1261, 1984-85CCH OSHD ? 27,236, p. 35,156 (No. 78-5775), _aff’d_, 800 F.2d 1351 (5thCir. 1986). Commissioner Wall rejects Adams Steel’s argument on itsmerits, concluding that section 1926.105(a) applies to the cited conditions.The facts relating to Adams Steel’s argument that it was in compliancewith the standard are also undisputed. Based on the complianceofficer’s uncontradicted testimony, Judge McQuade entered the followingfinding:It was not practical or of likely utility for Adams Steel employees atthe Prudential Building to use scaffolds, ladders, catch platforms, ortemporary floors as safety devices to protect against the dangers ofouter perimeter falls.Resolving a conflict in the testimony over the feasibility of personalprotective equipment, the judge also entered this finding:It was not practical or of likely utility for Adams Steel employees atthe 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 ofthese other forms of fall protection were impractical, the judgeconcluded that, under the terms of section 1926.105(a), Adams Steel wasrequired to provide perimeter safety nets. It is undisputed thatperimeter safety nets were not provided and that the temporary flooringat the third-floor level would not have broken an exterior fall from theperimeter beam at the fifth-floor level to the ground below.Adams Steel contends that, because it provided temporary flooringapproximately 20 feet below the two employees on the perimeter beam, itwas in compliance with section 1926.105(a), even though this flooringwould not have provided protection if either employee had fallen towardthe outside of the building. We conclude, however, that this argumentis contrary to the Third Circuit’s decision in _Adams Steel I_. Weinterpret the court’s decision as holding that, under the circumstancesthat existed both in that case and in this case, section 1926.105(a) notonly applies but also is violated. In the Third Circuit’s view, thehazard at issue in these cases is the hazard of falling from a perimeterbeam 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 requiresthe employer to protect employees against it. Since a temporary floorprovides no protection against exterior falls, _see_, _e.g_., 766 F.2dat 808, an employer who relies solely on temporary floors is not incompliance with section 1926.105(a), as it is interpreted by the ThirdCircuit. We therefore will affirm citation 2 as modified by the judge.Accordingly, we affirm item 1 of citation 1, vacate item 2 of citation1, and affirm citation 2 as modified by the judge.FOR THE COMMISSIONRay H. Darling Jr.Executive SecretaryDATED: 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 SolicitorU.S. Department of LaborPhiladelphia, Pennsylvaniafor the ComplainantRichard S. Crone, Esq.Crone and ZittrainPhiladelphia, Pennsylvaniafor the RespondentMcQuade, Judge:This proceeding was commenced pursuant to Section 10 of the OccupationalSafety 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 alsocharged with an other-than-serious violation of 29 C.F.R. 1926.100(a).Respondent, Adams Steel Erection, Inc., is a Pennsylvania corporationhaving its sites as a steel erection company in the Pittsburgh area andmaintaining its headquarters in Kittaning, Pennsylvania.The Pittsburgh office of the Occupational Safety and HealthAdministration (OSHA) conducted six inspections of the Respondent’sconstruction sites pursuant to anonymous telephone calls. Threeinspections resulted in issued citations, one inspection in anuncontested nonserious violation, and two inspections in findings ofcompliance (Tr. 321-322).This case resolves the citations which were issued from the September23, 1977, inspection of the Prudential Building worksite in Pittsburgh,Allegheny County, Pennsylvania. Adams Steel Erection, Inc., (AdamsSteel) was issued three citations on October 17, 1977.On November 7, 1977, Citation No. 1 was amended to reduce the proposedpenalties of the two items from $800 each to $420 each. The proposedpenalty for Citation No. 2, termed at that time as a \”RepeatedCitation,\” was reduced from $2,000 to $840. Respondent contested allcitations 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 themotion 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 railingaround the periphery of the third floor.The regulation requires:(iii) Floor periphery–safety railing. A safety railing of 1\/2-inchwire rope or equal shall be installed approximately 42 inches high,around the periphery of all temporary-planked or temporary metal-deckedfloors of tier buildings and other multifloored structures duringstructural steel assembly.The inspecting compliance officer, James Weyrauch, observed during thecourse of the inspection three Adams Steel employees working on thethird floor of the Prudential Building structure. The workers were inthe process of converting temporary decking into permanent flooring. Nowire rope or other safety railing was in place around the third-floorperimeter (Tr. 13, 22-23; Ex. C-1, C-2, C-3).Weyrauch testified that the employee shown kneeling in the background ofExhibit C-1 was 3 feet from the edge of an unprotected outsideperimeter, with nothing to break a 27-foot fall should he fall from theedge of the building (Tr. 16). Weyrauch described the surface uponwhich the employee could have fallen as either street, sidewalk, or\”excavated rocks and rubble from the trench.\” (Tr. 18). Weyrauchtestified that an employee falling 27 feet from the third floor wouldsuffer \”broken bones, possibly death.\” (Tr. 18-19).Respondent’s witness offered varying estimates of what percentage of thethird floor had already been converted to permanent flooring: 70, 80and 85 percent.Robert Tierney, Respondent’s employee, testified that all the flooringshown in Exhibits C-1, C-2, and C-3 had been temporary, but that by thetime of the inspection 70 percent of the third floor had been convertedto permanent flooring. (Tr. 116).Don McClendon, Respondent’s foreman, testified that the conversion fromtemporary deck to permanent decking was 80 percent completed (Tr. 133).Lloyd Leadbeter, Respondent’s supervisor, gave the highest estimate ofthe third-floor portion already converted to permanent, 85 percent (Tr.165-167). However, Complainant argues that Leadbeter’s estimate is theleast reliable since he was not at the worksite on the day of theinspection, nor had he been there for a week prior to the inspection(Tr. 180). He based his estimate only from examining the worksite theday after the inspection and from examining Weyrauch’s photographs.Respondent argues that (1) the standard is inapplicable under the factsof the case, and (2) compliance is impossible. This is asserted inRespondent’s Eighth Defense in its Answer and reiterated in motions forinvoluntary dismissal at the conclusion of the presentation of both theSecretary’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 ofpermanent flooring at the time of inspection (70 to 85 percent). Respondent thereby concludes that the standard in issue is inapplicableto the facts because 1926.750(b)(1)(iii) prescribes safety railings onlyfor temporary flooring, not permanent floors.Respondent contends that the standard in issue is vague as to time ofapplicability and denies the employer fair warning of the conduct itprohibits or requires.Respondent also argues that the Secretary has the burden of proving thatthe local custom in the steel erection industry requires use of arailing around the perimeter of the structure during conversion fromtemporary to permanent flooring. Respondent claims that the Secretaryhas failed this burden.However, the Secretary has no such burden of proof. Local custom andusage cannot control in the face of a Federal standard. There is norequirement that Federal law carry with it a showing that it does notcontradict local custom to be enforceable.Furthermore, Respondent’s contention is not sustained that the standardis too vague to be enforced and does not supply the fair notice to whichemployers are entitled. The standard is very precise as tospecifications for railing, its placement, its height, the type offloors and structures where it is to be placed, and the stage ofconstruction at which the safety railing is to be in place. Theemployer receives fair notice of what is required by the standard fromits language. The requirement of safety railings around temporaryfloors \”during structural steel assembly\” is a clear mandate for thissafety measure; the absence of exceptions or particular address to thestages of temporary flooring does not function as a loophole tocompliance. The standard is clear: A safety railing is required aroundthe perimeter of temporary floors of multi-floored steel erectionstructures.Complainant relies on _The Ashton Company, Inc_., 76 OSAHRC 6\/B11, 3 BNAOSHC 1968, 1975-76 CCH OSHD 20,351, OSHRC Docket No. 511 (1976), inwhich the Commission held 1926.750(b)(1)(iii) to apply to the workingconditions of a building \”still in the steel erection stage [where] theinstallation of permanent flooring had not completed.\” In the case atbar, the permanent flooring similarly had not been \”completed\” and theconstruction similarly was still in the steel erection stage. Therefore, by the reasoning of the Commission in _Ashton Company_, it isclear 1926.750(b)(1)(iii) applies to the Prudential Building inspectionfacts.The three elements of establishing a violation are: (1) applicabilityof the standard to the facts, (2) employer failure to comply with thestandard, and (3) employee access to the hazard resulting from theviolation. _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 steelerection stage and installation of permanent flooring was not yetcompleted, by the _Ashton Company_ standard, 1926.750(b)(1)(iii) appliesto the facts. Therefore, the first of the three elements of a violationis satisfied. It is also clear that Adams Steel did not provide anysafety railing and that employees working on the third floor wereexposed to the danger of falling 27 feet to the ground, therebysatisfying 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 beenlargely converted from temporary to permanent flooring, the standard isinapplicable, lacks support. During the conversion period, Respondentis still required to provide protection for its employees. Whether thepermanent floor safety railing requirement, 29 C.F.R. 1926.500(d)(1), orthe temporary floor safety railing requirement, 1926.750(b)(1)(iii), isapplicable, the prescription is clear: An employer must provide asafety railing around the building perimeter. The basic purpose is toprotect workers during all phases of the steel erection, regardless ofwhether 20 percent or 80 percent assembled. The standard applies andhas 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 openingunguarded by railings or toeboards.The applicable regulation requires:SUBPART M–FLOOR AND WALLOPENINGS, 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 standardrailings with standard toeboards on all exposed sides, except atentrance to opening, with the passage through the railing eitherprovided with a swinging gate or so offset that a person cannot walkdirectly into the opening.The inspecting compliance officer, Weyrauch, testified that entry ontothe third floor was provided by a 36-foot wooden ladder. The ladder wasthe sole means of access from the ground to the third floor forironworkers. The Iadderway opening was in use and was not protected bystandard railings, standard toeboards, or any perimeter guardingwhatsoever. Employees were exposed to a fall of 27 feet through thehole erected by the opening (Tr. 19-22; Ex. C-4). This evidence isundisputed.Weyrauch testified that the hazard workers were exposed to was apossible 27-foot fall to dirt, material and rubble from a trench, andsteel scaffolding, a hazard which would result in serious injury ordeath (Tr. 57-59).Respondent’s witnesses testified that the ladder had been in place oneweek (Tr. 102), but the opening was smaller, only 2-1\/2 feet wide, priorto the day of inspection when cutting for the permanent flooring hadbegun (Tr. 102-103, 131). Messrs, Tierney, McClendon, and Leadbeter,all Respondent witnesses with considerable industry experience, agreedthat they had never seen a steel erector install a handrail or cablearound an opening for an access way to a deck (Tr. 105, 134-136, 168). Supervisor Lloyd Leadbeter also stated that a reasonably prudentemployer in the steel erection industry in the Pittsburgh area would notrecognize the necessity of a steel erector to install standard railingsand toeboards (Tr.168).Respondent denies the applicability of the standard, claiming Subpart R,the steel erection standard, specifically treats the subject of accessopenings in floors. Subpart R only indirectly mentions access ways in1926.750(b), however, in requiring that floors be solidly planked exceptfor access openings. Respondent reasons that since Subpart R requirestightly planked floors except for access openings, and also requiressafety railings around the periphery of the floor, this excludes steelerectors from being required to place guardrails around openings. Respondent claims a reasonable employer would find in Subpart Rpermission to leave access ways unguarded.However, to assume that the steel erection industry is not required toguard open ladderways is taking liberty with the spirit of the Act andan application of loophole logic. The Subpart R standards do notaddress the issue of protection of workers from the hazard of fallinginto unguarded access openings. Complainant is correct in arguing thatsince 1926.750(b) does not deal with protection of employees from thishazard of falling through access openings, reference to the constructionstandards pertaining generally to openings is necessary.The Act provides in 1910.5(c)(2) that to the extent that a particularstandard does not apply (giving as an example Subpart R, the specificstandard in question in the case at bar), more general standards apply.The relevant provision, 29 C.F.R. 1910.5(c)(2), after requiring thepriority of on-point specific standards over general standards, states:On the other hand, any standard shall apply according to its terms toany employment and place of employment in any industry, even thoughparticular standards are also prescribed for the industry, as in SubpartB or Subpart R of this part, to the extent that none of such particularstandards applies. To illustrate, the general standard regarding noiseexposure in ? 1910.95 applies to employment and places of employment inpulp, paper, and paperboard mills covered by ? 1910.261.The rule of construction of 1910.5(c)(2) is that a general standard mayapply, even if a particular standard is also prescribed for theindustry, 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 erectionstandards were not intended to cover all situations related to steelerection. In other words, Subpart R contains some specific steelerection standards. It does not contain comprehensive rules for steelerection, or rules covering work incidental thereto. This is why therule of construction in 29 C.F.R. 1910.5(c)(2) should be applied.Respondent argues that the standard is ambiguous and, therefore, customand practice in the industry in the Pittsburgh area is most significantand a \”reasonable man\” test should be applied. However, 1926.500(b)(2)is clear in its language and applicability is in order. Federal lawtakes priority over local practice.Complainant reasons that since 1910.5(c)(2) and _Bristol Steel and IronWorks_, _supra_, support the applicability of the standard, the tworemaining elements for establishing a violation are: Employer failureto comply with the standard and employee access to the hazard resultingfrom the violation _Anning-Johnson Company_, _supra_. Since the factsthat the standard were not complied with and workers had access to thedanger of a 27-foot fall are undisputed, Respondent was in violation ofthe 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 structureon beam B-16 between columns C-7 and C-13 at the inspected worksite. Totheir left side was a deck 22 feet below; to their right side wasconcrete 50 feet below (Tr. 23, 86; Ex. C-5).Complainant alleges that these employees should have been tied off tobeams or to a static line to reduce the potential hazard of theseworkers falling. Adams Steel’s failure to provide lanyards and a staticline to tie off on is the basis of the alleged personal protectiveequipment 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 appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.In the alternative, if such protective equipment is deemed to beimpractical or to present a greater hazard, Complainant alleges 29C.F.R. 1926.105(a) noncompliance because Respondent did not supplysafety 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 feetabove the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, orsafety belts is impractical.Compliance Officer Weyrauch testified that an employee fall of 50 feetwould result in serious injury or death (Tr. 25-26). Although bothemployees observed (Ex. C-5) were wearing safety belts, there were nolanyards or static line and if a static line had been erected above thebeam, the employees could have tied off to the line as a protectionagainst falling. Weyrauch testified that the employees could have tiedoff to the beam they were working on, to the previous relief angles theyhad just put in, to the bolt hole (with a connector’s lanyard), or to astatic line (Tr. 26-27). Weyrauch also suggested that the fifth floorperimeter guardrail could have been used as a static line with an O-ringattached to the lanyard end for ease of movement (Tr. 77-79). Weyrauchalso admitted on cross-examination, however, that the fifth floor had nosafety railing and no flooring. Respondent’s counsel tried to establishthat since there was no flooring, no railing was required or supplied,and thus a perimeter safety railing could not practically be used as astatic line (Tr. 78-79).Weyrauch admitted scaffolds, ladders, catch platforms, and temporaryfloors were impractical as protection against injury from falls to theoutside of the building (Tr. 27-28). Weyrauch also testified that therewere no safety nets in use at the inspected worksite (Tr. 27).Respondent’s employee, Robert Tierney, claimed it would be more of aproblem to tie off to the relief angle than not to tie off. Because thebeam was 30 or 33 inches deep and 12 inches wide, 42-45 inches of the6-foot lanyard would be consumed by tying off itself. This wouldnecessitate the worker bending over several feet and would have beenneither practical nor feasible (Tr. 107-108).Tierney testified that the workers were bolting up either two or fourbolt holes, a process which took \”about a minute,\” followed by movement4 or 5 feet to the next position. Tierney said the only bolt holesavailable were the ones the workers were filling with bolts, so that itis 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, becausethe beam is 84 or 90 inches in circumference and the lanyards are only72 inches long (Tr. 110-111).Tierney also found Weyrauch’s suggestion of tying off to a static linefrom a perimeter railing impractical. Since there was no temporaryfloor, 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 temporarydecking on the fifth floor prior to the inspection day (Tr. 126-127).Foreman McClendon agreed with Tierney on several points: It was 4 or 5feet between work positions, the lanyards were too short to reach aroundthe beams, and tying off to the bolt holes was impossible since theworkers were engaged in the very act of filling those bolt holes withbolts (Tr. 137-139). McClendon said the bolting up process took 1 to 3minutes, which was less time than it would take to tie off (Tr.138-139). McClendon testified that he had never seen a perimeter safetyrailing used as a static line (Tr. 139).Respondent’s superintendent, Lloyd Leadbeter, said that tying off toeither the relief angle or the beam was more dangerous than simplystraddling it (Tr. 171, 173). He testified that the lanyard and a boltcould not both fit into a bolt hole (Tr. 172). Leadbeter also testifiedthat a perimeter wire static line would be impractical because workersas they stood up would have been \”into the cable\” (Tr. 176-177).Complainant counters that an employee bumping his head is not a greaterdanger than an employee working without protection from falling. Complainant maintains that the greater hazard defense fails since a knoton the head is a less serious injury than the injury resulting from afall of 50 or 22 feet.However, workers would be subjected to more serious harm than a bump onthe head; workers could be bumped, knocked down, or entangled by theconnecting, disconnecting, and wearing of the safety belt-lanyard-staticline-perimeter railing apparatus. The greater hazard claim of Respondenthas not been dispelled and the practicality of static lines isdoubtful. Complainant’s suggestion of a second perimeter railing beinginstalled above the normal railing (at a greater height) is alsoimpractical. Under any of the suggested means of tying off – to thebeam, 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 bedeemed impractical, 1926.105(a) has been violated because Respondent hasnot supplied safety nets.Respondent’s argument that both 1926.28(a) and 1926.105(a) are vague andimpossible to comply to, and therefore inapplicable, lacks merit. AdamsSteel claims the standards are ambiguous and imprecise, but thestandards’ language is clear and implicit in its prescription ofapplicability. Respondent claims that in the event of a citation underan ambiguous standard, custom and practice in the industry shouldprevail. However, local industry custom does not prevail as against aspecific Federal standard.Respondent also argues that 1926.105(a) is inapplicable because SubpartR, the more specific steel erection standards section, applies. AdamsSteel contends that 1926.750(b)(2)(i), in Subpart R, requires only atightly planked and substantial floor. Respondent argues that1926.105(a) is ambiguous because safety nets are required only wherealternate protection is impractical. In the case at bar, Respondentmaintains the employer had a floor within two stories or 25 feet ofemployees, as required by the steel erection standard, and this sufficesas a valid form of fall protection as required.However, Respondent’s reliance for this argument is on the criticallydistinguishable facts of _Southwestern Industrial Contractors_ _andRiggers, Inc_., 77 OSAHRC 95\/E9, 5 BNA OSHC 1631, 1977-78 CCH OSHD22,840, OSHRC Docket No. 14424 (1977). In _Southwestern_, the employerhad safety belts in use as a form of fall protection already, so thatsafety nets were not required. The safety belts in use protectedSouthwestern’s employees against harm from falls on the interior andexterior of the structure. In the case at bar, Respondent’s argumentthat temporary flooring is a valid substitute for the use of safety netsignores the hazard of falls on the outside of the structure.Although temporary flooring protects high steelworkers against falls tothe interior sides of the building structure, absolutely no protectionagainst falls on the outside perimeter of the building was provided byAdams Steel. As Complainant points out, an employee falling in the\”wrong\” direction, to the outside of the structure, would fall 50 feetto the ground below.Complainant relies on precedent to show that 1926.105(a) is applicablewhen 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 OSHD21,532, OSHRC Docket No. 9353 (1977). Particularly on point is the_Cornell_ holding that Respondent was \”required under the terms of Sec1926.105(a) to protect its employees by erecting safety netting on theoutside perimeter of the building.\”Other-than-Serious Citation No. 3 alleges a violation of the Act fornoncompliance with 29 C.F.R 1926.100(a) because an employee ofRespondent was not wearing a hard hat and was exposed to the potentialharm 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 headinjury from impact, or from falling or flying objects, or fromelectrical 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 theinspector (Tr. 35). The employee, foreman McClendon’s son, was employedas an apprentice and was carrying ice as part of his duties as a\”go-fer\” (Tr. 115). Respondent’s witnesses testified that the employeewas \”maybe five feet\” (Tr. 114) and \”about ten feet away from thebuilding\” (Tr. 140). The employee’s father, foreman McClendon,testified that his son had long hair, didn’t \”get along\” well with hishard hat, and \”would take it off every chance he could.\” (Tr. 140-141).Complainant argues that since this employee was directly under or nearthe perimeter of the building and was without a hard hat, Respondent wasin violation of the cited standard.Respondent argues that there is no violation because (1) the employeewas not working, and (2) he was not in a place where there was apossible danger of head injury from impact or from falling or flyingobjects.Respondent points out that the employee depicted in Exhibit C-7 wasmerely standing near the street smoking a cigarette. He was carryingice for a water bucket and looked as if he were calling up to people tosee if they wanted coffee, to which his father, the foreman, attests \”heis not doing much work…\” (Tr. 140). Respondent claims this leads tothe factual dispute — was the employee working?–since the standardonly applies to \”employees working\” in areas where danger exists.However, the presence of the employee in an area of exposure to hazardis enough; he doesn’t have to be actively working. We need not assumethat employees momentarily inactive are excluded from coverage of thestandard regardless of exposure to the hazard. The standard’s language,\”employees working,\” simply means \”on the job\” and if the employee is onthe worksite, it is spurious reasoning to rationalize exemption from thestandard because he is on \”break.\”Respondent also argues that the employee is not in a position of dangersince its witnesses testified that the employee was 5 or 10 feet awayfrom the building’s perimeter. Complainant’s witness, the inspectingofficer, testified that the employee was right under a beam being workedon, and Exhibit C-7 appears to bear this out.Regardless of the dispute as to distance of the employee from thebuilding’s, outside perimeter, whether 10 or 5 feet or less, he is stillan employee working on the worksite without wearing a hard hat. It isenough to be near the perimeter of the building, not directly under, tobe exposed to the hazard the standard seeks to rectify. The regulationcontemplates the entire worksite and it is Respondent’s duty to ensurethat the exposure to the hazard is minimized, especially for an employeewhom the foreman knows \”would take off (his hard hat) every chance hecould.\” (Tr. 141)._Harassment Issue_Respondent argues that the six inspections of Adams Steel constructionsites are invalid because they were in response to the complaints ofanonymous caller(s), and the informant(s) who, aided by OSHA, wereengaged in a program of intentional harassment of the Respondent.In the Ninth Defense in its Answer, Respondent contends that theinspection is invalid because (1) it was in response to a person otherthan an employee or his representative and (2) the non-employee informerwas engaged in intentional harassment. Respondent motioned to suppressall evidence (Tr. 4), and later motioned twice for involuntary dismissal(Tr. 89, 192).Adams Steel objected to the series of inspections and the administrativepolicy elucidated in Field Information Memorandum No. 76-20, whichrepresents an intent to inspect all but the clearly frivolouscomplaints, including anonymous complaints, and to give priority tosteel 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 thereforebeyond the reasonableness prescribed in Section 8(a) of the Act. Section 8(a) gives the Secretary inspection authority during reasonabletimes, within reasonable limits and in a reasonable manner.Section 8(a) of the Act provides that:Inspections, Investigations, and RecordkeepingSec. 8. (a) In order to carry out the purposes of this Act, theSecretary, 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 orenvironment where work as performed by an employee of an employer; and(2) to inspect and investigate during regular working hours and at otherreasonable times, and within reasonable limits and in a reasonablemanner, any such place of employment and all pertinent conditions,structures, machines, apparatus, devices, equipment, and materialstherein, and to question privately any such employer, owner, operator,agent or employee.Respondent maintains that the six inspections from September 23 toOctober 26, 1977, transcend this statutory authority and constituteharassment of the Respondent which Adams Steel alleges to be bothunwarranted and illegal. The schedule of anonymous telephone complaintsand subsequent OSHA inspections of Adams Steel’s plants totaling sixinspections within a five-week period is as follows:Plant \tDate of Anonymous Call \tDate of InspectionPrudential Building(the site at whichinspection is at bar) \tSeptember 21, 1977 \tSeptember 23, 1977L. B. Foster Project \tSeptember 19, 1977 \tSeptember 23, 1977U.S. Steel Supply \tOctober 6, 1977 \tOctober 11, 1977Bridgeville Bridge \tOctober 6, 1977 \tOctober 12,1977Robinson Township Project \tOctober 18, 1977 \tOctober 20, 1977Beaver County MedicalCenter \tGeneral schedule inspection* \tOctober 26, 1977*A sewer contractor on the job site was named in a complaint received byOSHA, and all contractors and subcontractors on the site, including theRespondent, were subsequently inspected.Respondent argues that Section 8(f),[[1\/]] unlike the general inspectionprovision Section 8(a), requires that the Secretary determine there arereasonable 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 thegeneral rule of the memorandum’s policy to conduct the inspectionwithout regard to source or adherence to Section 8(f) formality. One ofthese exceptions is \”if there is compelling evidence to indicate thatthe complaint procedure is abused by groups or individuals for purposesother than safety and health matters.\” Harassment certainly is not asafety or health matter and would be a proper reason for non-response tocomplaints if it was clearly determined that the purpose of suchcomplaints was harassment of an employer. However, it has not beenshown by Respondent that the series of six Adams Steel inspections,given the hazardous nature of the industry, constitutes \”compellingevidence\” that the complaint response process has been abused. Thefacts 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 steelerection industry is one of the \”highest hazard\” of all Americanindustries, citing the Bureau of Labor Statistics discussed at thehearings (Tr. 339-341) to bear this out. The Pittsburgh Area Office,like several other Region III offices, ranks complaints on a system ofthree 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 thecomplaint (Tr. 328-330).The Secretary points to the number and severity of worker injuries inthe steel erection industry as justification for the quick and thoroughresponse to complaints in this area and as strong policy againstignoring such complaints.Charles Straw, OSHA’s Pittsburgh Area Director, testified that \”(i)fsomebody reports an unsafe condition at a workplace, we cannot afford toignore that simply on the basis that it may or may not bevalid…(b)ecause somebody may suffer serious injury or death as aresult of our ignoring the complaint\” (Tr. 355).OSHA argues that public policy favors inspection over non-response sincelives are at stake. The possibility that too frequent or inconvenientinspections of a business’ worksite may occur is overbalanced by thehazardous nature of the industry. Because of these dangers, the needfor assured worker safety is greater, as is the compulsion to respond tocomplaints.Complainant’s further evidence is not only as to the need, but also asto 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 in1976 and all of them, excepting the clearly frivolous, lead toinspections (Tr. 358, 360-361). Charles Straw’s testimony that between20 and 25 percent of the complaints received at the Pittsburgh officeare anonymous phone calls (despite attempts to ascertain informant’snames) (Tr. 331-332) indicates that the Prudential Building inspection,which the Respondent alleges to be intentional harassment, is only oneof over 300 inspections a year which that office routinely conducts inresponse to anonymous complaints.Since all serious complaints are followed up, and all steel erectionfirms are inspected quickly after a complaint is received, the issue asto the source of the complaint is rendered moot. Regardless ofanonymity, each Adams Steel complaint would have been followed throughby an inspection.Straw also testified on behalf of Complainant as to the infeasibility ofrequiring informants to supply their names to OSHA before complaints areresponded to. He said that requiring names would reduce both the numberof complaints received and the effectiveness of OSHA’s safety program(Tr. 354).Complainant contends that informants call anonymously because of fear ofemployment discrimination despite advisement of their rights and theprotection of Section 11(c) of the Act[[3\/]], and efforts by OSHApersonnel to ascertain the identity of callers (Tr. 331-333).The proof does not establish harassment. Complainant’s proof leftunfettered the longstanding premise that anonymous calls are a validbasis for industrial searches under Section 8(a) of the Act. Section8(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’sfirst words are \”(t)o assure safe and healthful working conditions forworking men and women,\” the purposes of this Act are clear. Sincenearly all witnesses agreed that it is a high-hazard occupation, it isnot unreasonable for the Secretary to give priority to complaints, evenanonymous complaints, in this occupational field.OSHA is not only entitled to inspect, but in the case of highsafety-risk industries such as this, the statute demands timely andefficient response to complaints.Respondent complains that OSHA policy opens it to anonymous complaintsby competitors, estranged wives, and nonunion contractors (Tr. 344).Anonymous complaints are not the same as employee complaints and cannotbe assumed to be so. Therefore, Section 8(f), and any argumentspursuant thereto, are inoperable in this case. Employees are not knownto be the informants and logically can only be considered a subgroup ofthe callers.Regardless of the source of the complaint, Respondent, in a high workersafety-risk industry, was inspected and issued three citations, two ofthem serious.Respondent cites the Congressional Record as quoted in _Aluminum CoilAnodizing Corporation_, 77 OSAHRC 70\/A2, 5 BNA OSHC 1381, 1977-78 CCHOSHD ? 21,789, OSHRC Docket No. 829 (1977) as showing the Secretary isaware of the potential for harassment, including harassment bycompetitors. The passage notes \”we (Congress) have seen very few caseswherein it might conceivably be said there was a harassment factorinvolving either labor or business.\” However, contrary to Respondent’scontention, this supports the proposition that the Secretary iscomplying with Congress’ expectations, and abuse of the standard forharassment is uncommon.Since the identity of the caller(s) is unknown, the issue is properlyframed as whether the inspections were reasonable under Section 8(a) ofthe 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 atissue is whether the Prudential Building inspection in particular, andthe series of six inspections in general, are a reasonable and validexercise of OSHA authority to inspect.As to the Section 8(f) employee complaints provisions, the specificationof employee status renders this section inapplicable to the facts ofthis case. At no point was it shown that the complaints received werefrom employees of the Respondent and there is no reason to believe,absent such proof, that the anonymous caller(s) were necessarily eitheremployees or employee representatives. In discussing its contentionthat there is no evidence that a former employee made any of the calls,Respondent readily admits \”it appears agreed that anyone could have madethese complaints.\” Since Section 8(f) is inapplicable, the properstandard to use to measure the validity of the inspections is Section8(a). Like Section 8(f), FIM No. 76-20 and any purpose it may have orduty it may create is inappropriate as the measure of inspection validity.Complainant relies on _Aluminum Coil_, _supra_, in which the Commissionheld:The identity or purpose of the individual responsible for making thecomplaint does not alter the fact that the Secretary is broadlyauthorized by subsection 8(a) to conduct inspections.This holding was reaffirmed by the Commission In _Robberson SteelCompany_, 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, whichmay or may not be the case here. The Commission in _Aluminum Coil_barred subsequent Respondent’s evidence, proposed to show the informer’sintent was to harass, because \”(t)he purpose of the individual does notaffect the validity of the inspection.\” The Commission held that theSection 8(a) general authority to inspect \”is not limited by the specialinspection provision of subsection 8(f).\”Based on this recent, unanimous Commission policy, Complainant hereargues that the identity or purpose of a caller is irrelevant to anyinquiry as to the OSHA inspection’s legality. _Aluminum Coil_ supportsComplainant’s argument that the Secretary may exercise his authority torespond to complaints not meeting the Section 8(f) formalityrequirements. The inspection in this case was made pursuant to theSecretary’s general inspection authority.The record evidences Complainant’s good faith and does not bear outRespondent’s contention that the OSHA inspections reached an unbiasedlevel. The disagreement concerns whether six inspections in five weeksare reasonable under the circumstances. These circumstances favor thevalidity 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 SteelCompany_, _supra_; the high-hazard nature of the industry and prioritygiven by OSHA to complaints concerning steel erection; the prevalence ofboth anonymous complaints and subsequent inspections; and the publicpolicy heavily favoring the concerns of protecting worker safety andlives over employer convenience, accommodation, and freedom fromdetermination of compliance. The inspections were routinely authorizedand conducted within the requirements of Section 8(a)._Constitutional Issue_Adams Steel contends that the Occupational Safety and Health Act of 1970is unconstitutional because it violates the Fourth, Fifth, and SixthAmendments to the Constitution. Respondent argues that the citationsare invalid based on these constitutional grounds in the Third Defenseof its Answer and in motions for involuntary dismissal at the conclusionof evidence presented by both Complainant (Tr. 89) and Respondent (Tr.192-193).These arguments must be discounted, however, since the Commission is notan Article 3 court and, therefore, cannot decide constitutional issues.Precedent makes it clear the Review Commission lacks authority todetermine constitutional issues. The Commission has no jurisdictionover 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 ruleon issues which involve direct attacks upon the constitutionality ofprovisions of the Act.\” _Grebb Electric_ cites _Public UtilitiesCommission of California v. United States_, 335 U.S. 534, 78 S. Ct. 446(1958) and _Secretary_ _of Labor v. American Smelting and RefiningCompany_, 76 OSAHRC 5\/A2, 3 BNA OSHC 1992,1975-76 CCH OSHD ? 20,345,OSHRC Docket No. 10 (1975). The Court in _Public Utilities Commissionof California v. United States_, _supra_, held that not only directattacks on the Act’s constitutionality, but also indirect constitutionalquestions are not within the province of the Commission’s discretion. Only when \”an administrative proceeding might leave no remnant of theconstitutional question\” may it apply administrative remedy; otherwise,judicial relief should be sought.Substantial additional precedent states that the Review Commission lacksauthority to decide constitutional questions. _Secretary of_ _Labor v.Colorado Pipe Lines, Inc_.; 75 0SAHRC 23\/A2, 3 BNA OSHC 1865, 1975-76CCH OSHD ? 20,251, OSHRC Docket No. 2805 (1975); _Secretary v. GarlandCall Pole Company_; 75 OSAHRC 57\/E12, 3 BNA OSHC 1188, 1974-75 CCH OSHD? 19,603, OSHRC Docket No. 2028 (1975); _Secretary v. HeedeInternational Inc._, 75 OSAHRC 26\/C9, 2 BNA OSHC 1466, 1974-75 CCH OSHD? 19,182, OSHRC Docket No. 1889 (1975); _Secretary v. Marino DevelopmentCorporation_, 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 courtsupholding the constitutionality of the Occupational Safety and HealthAct of 1970 and holding that employers are not denied due processbecause the Secretary inspects, cites, and penalizes as a final orderabsent a challenge. _Atlas Roofing v. Occupational Safety and HealthReview Commission_, 97 S. Ct. 1261, 518 F.2d 990 (1977) and _Lake ButlerApparel Company v. Secretary of Labor_, 519 F.2d 84 (5th Cir., 1975). Civil penalties are not penal in nature and, therefore, are not invalidbecause the Act does not provide for the constitutional protectionsgiven criminal defendants by the Constitution. _Atlas Roofing_,_supra_; _Lake Butler Apparel Company_, _supra_. Although its fullimpact is yet to be seen, the Supreme Court’s holding in _Marshall v.Barlow’s, Inc_., 98 S. Ct. 1816 (1978) concerns only inspections wherethe employer refused consent to the search and denied entry, which didnot 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 notbeen shown. In the past, it should be noted, Adams Steel hasdemonstrated a safety program and significant concern for the safety ofits employees. Use of safety nets around building perimeters isuncommon in the industry. Therefore, Respondent should not suffer alarge penalty simply because it is one of the first employers to bedetermined 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 inKittaning, Pennsylvania which conducts its principal business activitiesin the Pittsburgh, Pennsylvania area.2. The inspection of the Prudential Building was in response to ananonymous complaint received at the Pittsburgh Occupational Safety andHealth Administration Office.3. The inspection was one of six inspections of Adams Steel worksitesconducted within a 5-week period. All six inspections were conductedpursuant to anonymous telephone call complaints.4. Of all American industries, the steel erection industry is one ofthe most hazardous to employees.5. The inspection took place at what Section 8(a)(1) of the Actdescribes as a \”construction site . . . where work is performed by anemployee of an employer.\” The physical inspection itself was within thelimits prescribed in Section 8(a)(2), having been conducted \”duringregular working hours\” and within reasonable limits and in a reasonablemanner.\”6. Employees working at an elevation of greater than 25 feet above theground are exposed to a substantial risk of harm from falling.7. No wire rope or other safety railing was in place around thethird-floor perimeter.8. Three employees were observed working on the third floor of thePrudential Building structure at a height of 27 feet above the ground.9. An employee falling over the outside perimeter of the building wouldhave suffered serious injury or death.10. The third floor was between 70 and 85 percent converted fromtemporary 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 givesemployers fair notice so as to be enforceable.12. The Prudential Building was still in the steel erection stage andinstallation of permanent flooring was not yet completed at the time ofinspection.13. The ladder in issue was in use at the time of inspection, was thesole means of access from the ground to the third floor, and ascendedthrough a third-floor opening unprotected by railings, toeboards or anysimilar safety guards.14. An employee falling 27 feet through the opening to the ground wouldhave suffered serious injury or death.15. Subpart R does not, by omission of addressing the subject, permitsteel erectors to leave access ways unguarded.16. General standards apply to the extent that particular standards areinapplicable.17. An employee falling 50 feet over the outside perimeter of thebuilding would have suffered serious injury or death.18. It was not practical or of likely utility for Adams Steel employeesat the Prudential building to tie off to beams, relief angles, boltholes, or static lines.19. It was not practical or of likely utility for Adams Steel employeesat the Prudential Building to use scaffolds, ladders, catch platforms,or temporary floors as safety devices to protect against the dangers ofouter perimeter falls.20. Both 29 C.F.R. 1926.28(a) and 1926.105(a) are sufficiently clearand precise, and give employers fair notice so as to be enforceable.21. Respondent did not provide safety nets or other protection againstoutside perimeter falls.22. Safety nets were practical and useful as safety device which couldhave been employed at the Prudential Building to protect workers againstthe dangers of falling.23. There was need for safety nets on the outside perimeter of thestructure since employees were working on or near the outside perimeterand were subject to outside perimeter falls of 50 feet.24. The employee depicted in Exhibit C-7 was in close enough proximityto the structure so as to be exposed to possible head injury from impactor from falling or flying objects.25. The employee depicted in Exhibit C-7 was \”working\” for the purposesof 29 C.F.R. 1926.100(a), even though he is momentarily inactive.26. The complaints were anonymous and, therefore, it is unknown whetherthe complaints were made by employees, non-employees, or both.27. Both anonymous complaints and subsequent inspections are routineand common.28. The Secretary has broad authority to inspect under Section 8(a) ofthe Act.29. Respondent has an excellent safety record in the past and isparticipating in employee safety protection._CONCLUSIONS OF LAW_1. Adams Steel Erection, Inc., comes within the jurisdiction of Section10(c) of the Occupational Safety and Health Act of 1970.2. Citation No. 1 was amended to reduce the proposed penalty of the twoitems 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 underSection 8(a)(2) \”to inspect and investigate during regular workinghours. . . and within reasonable limits and in a reasonable manner …\”places of employment. Inspections of the Adams Steel construction sitesare authorized by the Act and were reasonable and valid as performedthereunder.6. The Commission is not an Article 3 court and cannot rule onconstitutional issues.7. Section 8(f) of the Act is inapplicable to the facts of this casesince it is unknown who made the complaints and an employee provisioncannot be applied based on an unfounded assumption. Section 8(a)’sgeneral inspection authority is the applicable statute governing theinspections.8. Local custom and practice in an industry or trade does not prevailas against a specific Federal standard.9. Adams Steel has violated 29 C.F.R. 1926.750 (b)(1)(iii) by failingto supply a safety railing around the periphery of the third floor. Thestandard 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 toprotect workers from the dangers of an open ladderway by supplyingstandard railings and standard toeboards. Employees had access to thehazard and Respondent failed to comply with the standard which isapplicable under the facts of this case.11. Adams Steel is not in violation of 29 C.F.R. 1926.28(a) requiringpersonal protective equipment where there is exposure to hazardousworking conditions because the installation and use of static lines orlanyards are rendered infeasible by the dangers to which installationand use would subject workers. Tying off not only was impractical, itwould have created a greater hazard than the risks involved in nonuse. Under the facts, tying off to a beam, relief angle, bolt hole, or staticline are all infeasible.12. Adams Steel has violated 29 C.F.R. 1926.105(a) by failing toinstall safety nets which is Respondent’s duty in view of theinfeasibility of the use of personal protective equipment. Section1926.105(a) requires safety nets to be provided when work places aremore than 25 feet above the ground and Adams Steel has clearly failed tomeet this requirement, subjecting its workers to possible unprotectedfalls of 50 feet.13. Adams Steel has violated 29 C.F.R. 1926.100(a) because an employeeof Respondent while working was observed not wearing a hard hat and wasexposed 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; thealternative 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-Seriousviolation of 29 C.F.R. 1926.100(a).HENRY F. McQUADEJudge, OSHRCDated: April 25, 1979Hyattsville, MarylandFOOTNOTES:[[1]] Commissioner Wall would additionally find that the generalcontractor consented to the inspection and that its consent was bindingon Adams Steel. The compliance officer informed the general contractorof the purpose of his inspection; he presented his credentials and acopy of the transcribed safety complaint. The response of the generalcontractor was to gather together the inspection party. CommissionerWall therefore infers that the general contractor gave its voluntaryconsent 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 hadno intent to object to entry at time of inspection and OSHA did notmisrepresent itself or coerce the employer). That consent bound AdamsSteel. The relationship between these two employers was the typicalgeneral contractor\/subcontractor relationship common to nearly all ofthe multiple-employer, construction-worksite cases the Commission hasadjudicated. Adams Steel’s work area was not a discrete or privatearea. Instead, it was an open area consisting of the third-floordecking and structural steel above the third floor. Commissioner Walltherefore finds that the general contractor shared authority with AdamsSteel over the area in question so that it could give effective consentto an inspection of this area. _See_ _Donovan v. A.A. BeiroConstruction Co_., 746 F.2d 894 (D.C. Cir. 1984) (general contractor’sconsent binding on subcontractor.)[[2]] Section 8(f)(1) of the Act, 29 U.S.C. ? 657(f)(1), provides asfollows:(f)(1) Any employees or representative of employees who believe that aviolation of a safety or health standard exists that threatens physicalharm, or that an imminent danger exists, may request an inspection bygiving notice to the Secretary or his authorized representative of suchviolation or danger. Any such notice shall be reduced to writing, shallset forth with reasonable particularity the grounds for the notice, andshall be signed by the employees or representative of employees, and acopy shall be provided the employer or his agent no later than at thetime of inspection, except that, upon the request of the person givingsuch notice, his name and the names of individual employees referred totherein shall not appear in such copy or on any record published,released, or made available pursuant to section (g) of this section. Ifupon receipt of such notification the Secretary determines there arereasonable grounds to believe that such violation or danger exists, heshall make a special inspection in accordance with the provision, ofthis section as soon as practicable, to determine if such violation ordanger exists. If the Secretary determines there are no reasonablegrounds to believe that a violation or danger exists he shall notify theemployees or representative of the employees in writing of suchdetermination.[[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, uponpresenting appropriate credentials to the owner, operator, or agent incharge, is authorized–(1) to enter without delay and at reasonable times any factory, plant,establishment, construction site, or other area, workplace orenvironment where work is performed by an employee of an employer; and(2) to inspect and investigate during regular working hours and at otherreasonable times, and within reasonable limits and in a reasonablemanner, any such place of employment and all pertinent conditions,structures, machines, apparatus, devices, equipment, and materialstherein, and to question privately any such employer, owner, operator,agent or employee.[[4]] OSHA uses the term \”non-formal complaints\” to refer to safety andhealth complaints that do not meet the \”formality requirements\” of ?8(f)(1), note 2 _supra_. At the hearing in _Adams Steel I_, OSHARegional Administrator Rhone identified the following \”formalityrequirements\” for a ? 8(f)(1) complaint: (a) it must be submitted by anemployee or an employee representative, (b) it must describe itsallegations with sufficient particularity, and (c) it must be signed. Paragraph 3(f) of FIM 76 20 lists the following examples of \”non-formalcomplaints\”: complaints that do not state with reasonable particularitythe nature of the violation, unsigned complaints, anonymous complaints,complaints received by telephone, and complaints filed by anyone otherthan an employee or an employee representative.[[5]] Specifically, Adams Steel requested admissions that the complaintin this case had been made by Donald Gardner, who was neither anemployee of Adams Steel nor a representative of its employees, and thatthis same person had also made an earlier complaint that led to theinspection of the L.B. Foster Building project. The Secretary admittedthat the complainant in this case was neither an employee nor anemployee representative. However, he further asserted that he did notknow the identity of the complainant and that he therefore could neitheradmit nor deny that this complainant had filed other complaints or thatthis complainant was Donald Gardner. The record contains no otherreferences to Donald Gardner.[[6]] The Secretary’s regulation at ? 1910.5 is captioned \”Applicabilityof standards.\” It instructs employers as to which standards they mustcomply with when a situation appears to be governed by more than onestandard. The provision relied upon by Adams Steel states:(c)(1) If a particular standard is specifically applicable to acondition, practice, means, method, operation, or process, it shallprevail over any different general standard which might otherwise beapplicable to the same condition, practice, means, method, operation, orprocess . . . .[[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 termsto any employment and place of employment in any industry, even thoughparticular standards are also prescribed for the industry…to theextent 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 safetybelts under ? 1926.28(a) or that they should have been protected byperimeter safety nets under ? 1926.105(a). The judge upheld only thecharge under ? 1926.105(a). He vacated the ? 1926.28(a) charge on thebasis of his finding that it would have been impractical for the twoemployees to tie off. The Secretary has not taken exception to thejudge’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 aviolation of a safety or health standard exists that threatens physicalharm, or that an imminent danger exists, may request an inspection bygiving notice to the Secretary or his authorized representative of suchviolation or danger. Any such notice shall be reduced to writing, shallset forth with reasonable particularity the grounds for the notice, andshall be signed by the employees or representative of employees, and acopy shall be provided the employer or his agent no later than at thetime of inspection, except that, upon the request of the person givingsuch notice, his name and the names of individual employees referred totherein 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 arereasonable grounds to believe that such violation or danger exists, heshall make a special inspection in accordance with the provisions ofthis section as soon as practicable, to determine if such violation ordanger exists. If the Secretary determines there are no reasonablegrounds to believe that a violation or danger exists he shall notify theemployees or representative of the employees in writing of suchdetermination.[[2\/]] Paragraph 3(c) of the Field Information Memorandum No. 76-20,superceded December 1, 1977, requires \”(w)henever information comes tothe attention of the Area Director without regard to its source andwithout regard to whether it meets the formality requirements of Section8(f), an inspection shall be conducted . . . .\”[[3\/]] Section 11(c) of the Act provides that employees may not bedischarged or discriminated against because they have \”instituted orcaused to be instituted any proceeding\” under the Act. \”Any proceeding\”includes inspections the \”cause\” of which may be anonymous complaints byemployees.Section 11(c) of the Act reads:(c)(1) No person shall discharge or in any manner discriminate againstany employee because such employee has filed any complaint or institutedor caused to be instituted any proceeding under or related to this Actor has testified or is about to testify in any such proceeding orbecause of the exercise by such employee on behalf of himself or othersof any right afforded by this Act.”