“Docket No. 77-3804 SECRETARY OF LABOR, Complainant, v. ADAMS STEEL ERECTION, INC., Respondent.OSHRC Docket No. 77-3804DECISIONBefore:\u00a0 BUCKLEY, Chairman, and WALL,Commissioner. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).This case arises from an OSHA inspection of aconstruction worksite in Pittsburgh, Pennsylvania, where Adams Steel Erection, Inc. wasthe steel erection subcontractor.\u00a0 Before us on review are three items of twocitations.\u00a0 Former Administrative Law Judge Henry F. McQuade affirmed all threeitems.Adams Steel objects to the disposition of these three items, to the judge’s denial of amotion to suppress the evidence on the ground that the underlying inspection was illegal,and to the judge’s ruling on its challenges to the constitutionality of the Act.\u00a0 Weaffirm the judge in all 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 theOccupational Safety and Health Act of 1970 is unconstitutional, violating the Fourth,Fifth and Sixth Amendments to the Constitution and since the inspection which resulted inthe Citations was unconstitutional and void, being an inspection without a warrant.In his decision, Judge McQuade noted Adams Steel’scontention that the Act is unconstitutional.\u00a0 In response, he held that theCommission lacked jurisdiction to question the constitutionality of the Act.Adams Steel has not particularized its argumentsunder the Fifth and Sixth Amendments, and therefore we affirm the judge’s decision not torule on them.\u00a0 As the judge correctly stated, under longstanding Commissionprecedent, the Commission lacks authority to rule on questions of the constitutionality ofprovisions of the Act on which no court has yet ruled; the Commission can do no more thanapply judicial precedent concerning the constitutionality of the Act.\u00a0 E.g., McGowenv. Marshall, 604 F.2d 885, 892 (6th Cir. 1979); Daniel International Corp.,81OSAHRC 57\/A2, 9 BNA OSHC 1980, 1985, 1981 CCH OSHD ? 25,492, p. 31,792 (No. 15690, 1981),order set aside on other grounds, 683 F.2d 361 (11th Cir. 1982); Bomac Drilling,81 OSAHRC 45\/A2, 9 BNA OSHC 1681, 1699, 1981 CCH OSHD ? 25,363, p.31,555 (No. 76-2131,1981).\u00a0 See also the cases cited by Judge McQuade.\u00a0 Because Adams Steel has notparticularized its arguments, they cannot be addressed in any fashion, even to such extentas might be permissible.\u00a0 We therefore reject Adams Steel’s Fifth and Sixth Amendmentchallenges.We reject Adams Steel’s challenge under the FourthAmendment, but for different reasons.\u00a0 The Supreme Court’s decision in Marshall v.Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816 (1978), sustains Adams Steel’s contentionthat the Act violates the Fourth Amendment to the extent that it purports to authorizewarrantless searches.\u00a0 The Barlow’s decision nevertheless made clear that itwas not invalidating all inspections conducted under the authority of section 8(a) of theAct, 29 U.S.C. ? 651(a).\u00a0 On the contrary, the Court suggested that only aninspection conducted without an inspection warrant or its constitutional\”equivalent,\” e.g., the voluntary consent of the inspected employer, would beinvalid.\u00a0 See, e.g., 436 U.S. at 316, 325, 98 S. Ct. at 1822, 1827.\u00a0 See also 436 U.S. at 314, 98 S.Ct. at 1821 (objection to warrantlessentry is \”[t]he critical fact in this case\”).\u00a0 Adams Steel is thereforeentitled to relief only if OSHA’s inspection of Adams Steel’s workplace violated theFourth Amendment.Adams Steel claims that OSHA’s inspection violatedthe Fourth Amendment because OSHA lacked a warrant and consent.\u00a0 In support of arenewed motion to dismiss at the end of the hearing, it alleged that \”any permission. . . granted for entry at the time . . . [was] permission from the general contractor inpossession of the premises and certainly not . . . [from Adams Steel].\” \u00a0 Whenan employer seeks to suppress evidence obtained in a warrantless inspection, the Secretarybears the burden of proving that the inspection was lawful.\u00a0 Sarasota Concrete Co.,81 OSAHRC 48\/A2, 9 BNA OSHC 1608, 1612, 1981 CCH OSHD ? 25,360, p. 31,531 (No. 78-5264,1981), aff’d, 693 F.2d 1061 (11th Cir. 1982).\u00a0 The inspection here wasevidently warrantless.\u00a0 We must therefore determine whether there was consent.When the compliance officer arrived at the PrudentialRealty Building construction project, the representative of the general contractor invitedAdams Steel’s foreman, Donald McClendon, as well as representatives of othersubcontractors, to join the inspection party.\u00a0 Mr. McClendon accompanied thecompliance officer during the inspection.\u00a0 The compliance officer inspected theoperations of other employers at the worksite in addition to Adams Steel’s operations.Adams Steel denies that it gave its own consent tothe inspection.\u00a0 It seems to concede, however, that the general contractor consentedto the inspection; the only issue it raised before Judge McQuade was whether it was boundby that consent.\u00a0 It is, however, clear from the record that Adams Steel itselfconsented to a warrantless inspection since its foreman joined the inspection party.\u00a0There is also no evidence nor any claim that Adams Steel objected to the warrantlessinspection or requested OSHA to obtain an inspection warrant.[[1]]\u00a0 We therefore findthat the inspection was consensual.II.This case is one of three related cases in whichAdams Steel raised issues concerning the Secretary’s inspection policies and procedures.\u00a0 The first in the series was a case we will refer to as Adams Steel I:\u00a0 AdamsSteel Erection, Inc., 84 OSAHRC, 11 BNA OSHC 2073, 1984-85 CCH OSHD ? 26,976 (No.77-4238, 1984), rev’d, 766 F.2d 804 (3d Cir. 1985).At the beginning of the hearing in Adams Steel I,the employer moved to consolidate that case with the case now on review and with a thirdrelated case, OSHRC Docket No. 77-3773.\u00a0 Adams Steel sought this consolidation sothat a joint hearing could be held on its motions in all three cases to suppress theevidence on the ground that the inspections were unlawful, violating both the Constitutionand the Act.\u00a0 Judge McQuade denied the motions to consolidate and the motions tosuppress in all three cases. However, he granted Adams Steel’s motions to incorporaterelevant parts of the proceeding in Adams Steel I into the records in the other twocases.\u00a0 Accordingly, the inspection issues we now review in this section of ourdecision are based on the record in Adams Steel I.Adams Steel’s claim that the inspection violated theAct raises three questions:(1) Is the Secretary’s authority to inspect inresponse to complaints limited by section 8(f)(1) of the Act, 29 U.S.C. ? 657(f)(1)?(2) Did the Secretary comply with the\”reasonableness requirement\” of section 8(a)(2) of the Act, 29 U.S.C. ?657(a)(2)?(3) Did the Secretary exceed his statutory authorityin adopting the inspection policy set forth in OSHA Field Information Memorandum #76-20(July 2, 1976)(\”FIM 76-20\”)?Adams Steel’s original formulation of its defense under section 8(f)(1) was set forth inits answer, as follows:The inspection of [Adams Steel’s] work place onSeptember 23, 1977 was invalid because it was in response to a complaint from a personother than an employee or employee representative.\u00a0 [Adams Steel] avers that thenon-employee informer was engaged in intentional harassment of [Adams Steel].The issue implicitly raised by this defense iswhether the Secretary exceeded his authority under section 8(f)(1) by conducting aninspection in response to a complaint of unsafe working conditions filed by someone not anemployee of Adams Steel nor a representative of its employees.[[2]]Judge McQuade rejected this argument on the basis of AluminumCoil Anodizing Corp., 77 OSAHRC 70\/A2, 1 BNA OSHC 1508, 1973-74 CCH OSHD ? 17,185(No. 829, 1974) (\”Aluminum Coil I\”).\u00a0 That case involved aninspection conducted in response to a complaint of unsafe working conditions. \u00a0 Thecomplainant was neither an employee nor a representative of employees. \u00a0 AluminumCoil moved to vacate the citation on the ground that the inspection was therefore invalidunder section 8(f)(1) of the Act.\u00a0 The Commission disagreed, holding in effect that,because the complaint had not been filed by an employee or an employee representative,section 8(f)(1) was irrelevant in determining the validity of the inspection.\u00a0Instead, the issue was whether the Secretary had properly exercised his general inspectionauthority under section 8(a) of the Act.[[3]]Applying Aluminum Coil I to this case, JudgeMcQuade held that the status of the complainant as an anonymous telephone caller did notrender the inspection invalid.\u00a0 He also rejected Adams Steel’s argument that thealleged motive of the complainant, i.e., the alleged intent to harass Adams Steel,invalidated the inspection.\u00a0 In essence, the judge found that Adams Steel had failedto establish this allegation (\”The facts do not bear out the contention that anyone .. . was engaged in a program of intentional harassment of [Adams Steel]\”). The parties seem to agree that the complaint that precipitated the inspection came fromneither an employee nor a representative of employees.\u00a0 This does not mean, however,that the Secretary could not act on it.\u00a0 In Aluminum Coil I, formerCommissioner Van Namee reasoned as follows:\u00a0 (1) section 8(f)(1) is not a limitationon the Secretary’s authority 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 are filed byindividuals who are not employees or employee representatives, the source of theSecretary’s authority to conduct a responsive inspection is section 8(a) of the Act; and(3) the validity of these inspections is therefore determined under the\”reasonableness\” standard of section 8(a)(2) rather than by applying the\”formality requirements\”[[4]] of section 8(f)(1).The Commission has not departed from this view of therelationship between sections 8(a) and 8(f)(1).\u00a0 See, e.g., QualityStamping Products Co., 79 OSAHRC sections 28\/F11, 7 BNA OSHC 1285, 1288, 1979CCH OSHD ? 23,520, p. 28,504 (No. 78-235, 1979); Aluminum Coil Anodizing Corp., 77OSAHRC 70\/A2, 5 BNA OSHC 1381, 1977-78 CCH OSHD ? 21,739 (No. 829, 1977) (AluminumCoil II).\u00a0 In addition, in those federal court cases where the issue of theSecretary’s authority has been expressly raised, the courts have consistently agreed thatthe Secretary can respond to complaints from persons who are neither employees noremployee representatives.\u00a0 E.g., Marshall v. Horn Seed Co., 647 F.2d96, 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 ofAmerica, Inc., 516 F. Supp. 674, 678 (E.D. Pa. 1981) (anonymous telephone callcomplaints).\u00a0 We therefore reject Adams Steel’s argument that \”[t]heinspection…was invalid because it was in response to a complaint from a person otherthan an employee or employee representative.\”Adams Steel asserts, however, \”that thenon-employee informer was engaged in intentional harassment of [Adams Steel].\” \u00a0At the hearing in Adams Steel I, the employer attempted to establish that it hadbeen subjected to a series of inspections that were interrelated.\u00a0 The partiesstipulated that, during a five-week period in September and October 1977, OSHA’s areaoffice in Pittsburgh, Pennsylvania, inspected six different construction worksites whereAdams Steel was performing work as a steel erection subcontractor.\u00a0 The first five ofthese inspections were conducted in response to anonymous telephone call complaints ofunsafe working conditions.\u00a0 Two of these calls were directed against the unnamedsteel erection contractor (later identified as Adams Steel) on specified projects, whilethe other three expressly named Adams Steel as the employer involved.\u00a0 The sixthinspection was conducted in response to a complaint that concerned a particular, namedsubcontractor that was not Adams Steel at a worksite where Adams Steel was also asubcontractor.\u00a0 This last complaint apparently was not received in the form of ananonymous telephone call.This record does not identify the specificallegations of any of the six complaints.\u00a0 We are therefore unable to determine theextent to which the safety complaints may have been meritorious.\u00a0 However, four ofthe six inspections resulted in the issuance of citations to Adams Steel.\u00a0 There isalso no direct evidence as to the identity and motivation of the complainant orcomplainants.\u00a0 Adams Steel has argued throughout this proceeding that all sixcomplaints were filed by one person whose purpose was to harass Adams Steel.Nevertheless, after unsuccessfully attempting toestablish its claim through a request for admissions, Adams Steel made no further attemptto establish any of these allegations.[[5]] In sum, Adams Steel proved only that it was subjectedto six complaint inspections at six different construction project worksites in a periodof five weeks and that five of those inspections resulted from anonymous telephone callsthat directly or indirectly alleged safety violations by Adams Steel. \u00a0 Adams Steeldid not show that the telephone calls were not motivated by a genuine concern withsafety.\u00a0 We therefore agree with Judge McQuade that, particularly in light of thehazardous nature of the steel erection industry, the evidence was insufficient toestablish a claim of intentional harassment.\u00a0 We further note that, under Commissionprecedent, improper motivation on the part of the complainant is not in itself sufficientgrounds for declaring an inspection invalid.\u00a0 E.g., Quality StampingProducts Co., 7 BNA OSHC at 1289, 1979 CCH OSHD at, p. 28,505; Aluminum Coil II.Consistent with Aluminum Coil I, Judge McQuadeheld that the issue raised by Adams Steel’s challenge to the underlying inspection\”is properly framed as whether the inspections were reasonable under section 8(a) ofthe Act….\” He held that the Secretary had complied with the reasonablenessrequirement of section 8(a)(2), which states that \”the Secretary…is authorized…toinspect and investigate…within reasonable limits and in a reasonable manner….\”See note 3 supra (complete text of section 8 (a)).\u00a0 In its petition fordiscretionary review, Adams Steel expressly took exception to this conclusion.\u00a0 Yet,in its brief on review, it presents no argument in support of this exception. We note initially that Adams Steel has neitheralleged nor sought to prove any active misconduct or improper motivation on the part ofOSHA personnel.\u00a0 On the contrary, the employer expressly states in its review briefthat \”[i]t is not contended…that there was vindictive enforcement of the statute bythe Secretary against [Adams Steel].\”\u00a0 We particularly note that Adams Steeldoes not direct any of its criticisms to the manner in which the OSHA compliance officerconducted his inspection.\u00a0 Adams Steel’s criticism refers instead to the proceduresfollowed by OSHA’s Pittsburgh area office in handling anonymous telephone call complaintsand, in particular, OSHA’s decision to conduct workplace inspections in response to thisseries of complaints.Adams Steel has not established a violation ofsection 8(a) of the Act.\u00a0 The Secretary may be required by the Fourth Amendment toobtain a warrant based on evidence of probable cause before he inspects without consent.\u00a0 However, section 8(a) of the Act does not require the Secretary to obtain evidenceof any particular sort to support his decision to seek a consensual inspection.\u00a0 Ofcourse, section 8(a) does require the Secretary to inspect \”within reasonable limitsand in a reasonable manner….\” But we can find no basis in the record before us tosupport a conclusion that the Secretary failed to do that.Adams Steel’s primary argument is that the inspection was conducted under an inspectionpolicy that circumvented the procedural protections for employers in section 8(f)(1) ofthe Act.\u00a0 This policy, which was embodied in FIM 76-20, was to inspect in response tocomplaints \”without regard to the formality requirements of Section 8(f).\”\u00a0 See note 4 supra.\u00a0 Citing Aluminum Coil I’s discussion of thelegislative history of the Act, 1 BNA OSHC at 1509, 1973-74 CCH OSHD at p. 21,797, AdamsSteel asserts that Congress intended for the Secretary to take effective measures toprevent misuse of section 8(f) procedures as a harassment device. In the employer’s view,FIM 76-20 not only failed to comply with this Congressional expectation; it actuallyinvited and encouraged harassment of employers by persons seeking to abuse the complaintinspection procedures.\u00a0 Specifically, Adams Steel contends, this is \”acase wherein [OSHA’s] 8(f) procedure has obviously been used as a harassment device.\”We have already held that the Secretary has thestatutory authority under section 8(a) of the Act to conduct inspections in response to\”non-formal complaints.\”\u00a0 It necessarily follows that the Secretary had theauthority to adopt FIM 76-20 and to inspect \”without regard to the formalityrequirements of Section 8(f).\”In any event, we are not convinced that FIM 76-20unfairly affected Adams Steel.\u00a0 We previously held that Adams Steel failed toestablish its assertion that the complaint that led to the inspection was filed to harassAdams Steel.\u00a0 There is also no evidence supporting Adams Steel’s broader allegationthat FIM 76-20 invited and encouraged harassment of employers generally.\u00a0 FIM 76-20contained provisions designed to prevent such abuses of procedure.\u00a0 For example,paragraph 3(f) stated that \”all complaints, regardless of formality requirements,will be thoroughly evaluated by the receiving Area Office and an inspection shall beconducted in the event the existence of safety and health hazards is indicated….\”(Emphasis added.)\u00a0 In addition, paragraph 3(g) stated that, \”if there iscompelling evidence to indicate that the complaint procedure is abused groups orindividuals for purposes other than safety and health matters, the Area Director shallconsult with the Regional Administrator to determine whether to investigate the matter,and if the determination is reached that conducting an inspection is not warranted, shallso indicate in the complaint log.\” We therefore affirm Judge McQuade’s denial of AdamsSteel’s motion to suppress the evidence.III.Item 1 of citation 1 alleges a violation of section1926.750(b)(1)(iii), which provides:? 1926.750 Flooring requirements.(b) Temporary flooring–skeleton steel constructionin tiered buildings.(1)…(iii) Floor periphery–safety railing.\u00a0 A safety railing of 1\/2-inch wire rope or equal shall be installed, approximately42 inches high, around the periphery of all temporary planked or temporary metal-deckedfloors of tier buildings and other multifloored structures during structural steelassembly.This citation item relates to the third floor of thePrudential Realty Building.\u00a0 The building was triangular in shape and designed tohave six floors and a roof.\u00a0 By the time of the inspection, structural steel had beenerected up to the fifth level while decking had been installed up to the third level.\u00a0 It is undisputed that no safety railing of any type was in place around theperimeter of the third-floor decking.\u00a0 Three ironworkers employed by Adams Steel wereworking on the third floor and were thereby exposed to the hazard of falling from itsunguarded edges.The primary issue with respect to this citation item is whether the standard applied tothe third floor.\u00a0 The standard requires a wire-rope safety railing around\”temporary metal-decked floors . . . during structural steel assembly.\”\u00a0The specific question is whether the standard applies when a steel erectioncontractor is in the process of replacing temporary flooring or decking with permanentflooring or decking.\u00a0 Adams Steel asserts that \”where, as here, the temporarydeck has been removed and the permanent deck is in the process of construction, it mustnecessarily follow that the cited standard, by its own terms, is inapplicable.\”\u00a0 We disagree.Adams Steel used the same sheets of metal in both itstemporary decking and its permanent decking.\u00a0 For example, when Adams Steel installedpermanent decking on the third floor, it used the same metal sheets that had previouslybeen installed as the temporary decking at that level.\u00a0 That the same decking wasused for both purposes, however, does not mean that there is no difference betweentemporary and permanent flooring.\u00a0 All of the witnesses, the Secretary’s as well asAdams Steel’s, acknowledged that there were differences between temporary and permanentflooring.Temporary decking, as described by the witnesses, wasinstalled as a safety measure and for convenience in carrying out the work of structuralsteel assembly.\u00a0 It served three functions during steel erection work: \u00a0 (a) asa storage area and base of operations for those working above the floor, (b) as a workingsurface for those working at floor level, and (c) as a catch platform for employees andmaterials that might fall from upper levels.\u00a0 A temporary deck consisted of sheets ofmetal that were haphazardly laid and uncut.\u00a0 Because the building was triangular,this meant that the sheets overlapped the building’s perimeter. \u00a0The temporarydecking was held in place by wire or cable.Permanent decking, on the other hand, was a part of the building’s structure it was cut toshape, fitting within the perimeter of the building.\u00a0 It was welded into place, andit served as a foundation on which a concrete floor eventually would be poured. \u00a0During steel erection work, the primary function of the permanent decking was tocontribute to the stability of the building.In replacing temporary decking with permanentdecking, it appears the procedure was essentially as follows:\u00a0 When Adams Steel wasready to complete construction of a floor, it \”uncovered\” the entire perimeterof the temporary floor by pulling back the metal decking from the edges.\u00a0 Plumb-upcables, which were used to align the building, were extended between the floors.\u00a0Once the building was properly aligned, the \”points\” were\”bolted\” (i.e., apparently, pre-existing bolting in the underlying structuralmembers was tightened, or reinforced with additional bolting, or both).\u00a0 The deckingwas then cut by an employee using an acetylene torch, so that the sheets would fit withinthe building’s perimeter.\u00a0 Access areas and other openings were cut into the decking(also with an acetylene torch), and the decking was welded into place.\u00a0 Once welded,the floor could no longer move and the plumb-up cables could be removed.\u00a0 At a laterstage in the construction process, concrete was poured onto the metal decking, therebyforming the completed floor.It is not clear on this record how far theinstallation of permanent decking on the third floor had progressed by the time of theinspection.\u00a0 At various points in his testimony, ironworker Robert Tierney statedthat work on the permanent third floor had begun \”about the same day\” as theOSHA inspection, the day before the inspection \”at least\”, and\”perhaps\” two days before the inspection.\u00a0 At the time of the inspection,he asserted, the employees \”were laying the [permanent] deck down and starting to cutit.\” The compliance officer testified that the employees \”had lifted thetemporary floor back down, tightened up the bolts and were putting down a permanentdecking to weld.\”\u00a0 Adams Steel’s foreman McClendon testified that an employeephotographed by the compliance officer was at the time \”cutting everything to sizearound the columns, around openings and welding it down.\”The record indicates that the key factor indetermining whether flooring has become \”permanent\” is whether the flooring hasbeen integrated into the structure so that it contributes to the stability of thebuilding.\u00a0 As stated by foreman McClendon, it is the welding that \”holds thebuilding.\”\u00a0 Yet, there is no evidence in this record as to what percentage ofthe floor had been welded to the structural steel.In any event, both parties agree on the twofundamental facts concerning the stage of construction.\u00a0 First, at the time of theinspection, Adams Steel had disassembled the temporary decking on the third floor andbegun the process of installing the permanent decking.\u00a0 Second, Adams Steel had notyet completed the process, for the decking was yet not an integral part of the building’sstructure, contributing to its stability.\u00a0 The question posed here is thereforewhether section 1926.750(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, 3BNA 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 steel erectionstage and installation of permanent flooring was not yet completed at the time of theinspection.\”We agree with Judge McQuade’s reading of Commissionprecedent.\u00a0 Adams Steel contends that Ashton is distinguishable because theemployees in Ashton were engaged in installing temporary decking rather thanpermanent decking.\u00a0 However, any ambiguity in Ashton on that point wasresolved by the later Commission decisions in Pima Construction Co., 76 OSAHRC106\/D3, 4 BNA OSHC 1620, 1622, 1976-77 CCH OSHD ? 20,998, p. 25,229 (No. 5221, 1976), andCarr Erectors, Inc.,77 OSAHRC 14\/C9, 4 BNA OSHC 2009, 2010, 1976-77 CCH OSHD ?21,471, p. 25,777 (No. 7247, 1977).\u00a0 Read together, Commission precedent holds thatif the employer is still engaged in structural steel erection and the permanent floor hasnot 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 usthat Commission precedent is correct.\u00a0 Subpart R makes precisely the same distinctionbetween \”permanent flooring\” and \”temporary flooring\” and uses theterms in the same sense, as the witnesses in this case did.\u00a0 In particular,paragraphs (a) and (b) of section 1926.750 are captioned \”Permanentflooring–skeleton steel construction in tiered buildings\” and \”Temporaryflooring–skeleton steel construction in tiered buildings,\” respectively.\u00a0Separate requirements are established under Subpart R for these two distinct typesof flooring.\u00a0 Further, the text of the permanent flooring requirements in section1926.750(a), particularly the final clause of section 1926.750(a)(1), shows that thesection’s purpose is to insure the stability of the building.\u00a0 See alsosection 1926.750(a)(2) (\”permanently secured floor\” used as synonym for\”permanent flooring\”).\u00a0 Thus, section 1926.750(a) indicates that theprincipal distinguishing feature of \”permanent\” flooring is that the flooringhas been made an integral part of the building’s structure and therefore contributes tostabilizing the building.\u00a0 This is the same sense in which the witnesses used theterm \”permanent flooring.\”The decking here was temporary rather than permanentflooring.\u00a0 The decking had not been welded to the structural steel, had not become anintegral part of the building’s structure, and therefore was not contributing to thestability of the building.\u00a0 Thus, section 1926.750(b)(1)(iii) was still applicable.IV.Item 2 of citation 1 alleges a violation of section1926.500(b)(2).\u00a0 The cited standard, which is contained in Part 1926, SubpartM–Floor and Wall Openings, and Stairways, provides as follows:? 1926.500 Guardrails, handrails and covers.(b) Guarding of floor openings and floor holes.(2) Ladderway floor openings or platforms shall beguarded by standard railings with standard toeboards on all exposed sides, except atentrance to opening, with the passage through the railing either provided with a swinginggate or so offset that a person cannot walk directly into the opening.The primary issue with respect to this item iswhether the cited standard is preempted by more specifically applicable standards in Part1926, Subpart R–Steel Erection.The location of this alleged violation was the thirdfloor of the Prudential Realty Holding Building, that is, the same floor that was thelocation of the violation alleged in item 1.\u00a0 The compliance officer testified thatitem 2 related to a 36-foot-long wooden ladder that provided access from the ground up tothe third floor.\u00a0 At the third-floor level, the ladder extended through a ladderwayopening that was not guarded.\u00a0 The compliance officer further testified that AdamsSteel’s employees \”had to use\” the ladder because it \”was the only ladderto the third floor.\”Adams Steel does not dispute its failure to guard theladderway opening in accordance with section 1926.500(b)(2) or the exposure of itsemployees to the unguarded opening.\u00a0 Instead, it defends on the ground that the citedstandard was preempted by more specifically applicable steel erection standards. \u00a0Its argument is based on 29 C.F.R. ? 1910.5(c)(1).[[6]]In its arguments before the judge, Adams Steelreasoned that, because it was engaged in steel erection, Subpart R preempted section1926.500(b)(2).\u00a0 It noted that Subpart R specifically treats the subject of accessopenings in floors in section 1926.750(b)(1)(i), which states that a derrick or erectionfloor shall be solidly planked except for access openings.\u00a0 It further noted thatSubpart R deals with safety railings in section 1926.750(b)(1)(iii), which requires suchrailings only around the perimeter of the floor.\u00a0 Thus, Adams Steel concluded:Had the Secretary intended that the floor at accessopenings be guarded by safety railing, it must be presumed that the Secretary had theright and the ability to so require by a specific regulation.\u00a0 Instead, by limitingsafety railings only to the floor periphery and by permitting access openings to exist indecked floors, it must be assumed that the steel erection industry is not required toguard open ladderways. (Emphasis in the original.)In response, the Secretary contended that Subpart R\”does not speak to protection of workers from the hazard of falling into unguardedaccess openings.\”\u00a0 Therefore, he concluded, reliance on the generally applicablestandard at section 1926.500(b)(2) was appropriate.[[7]]\u00a0 In his decision, JudgeMcQuade essentially adopted the Secretary’s position.\u00a0 Accordingly, he affirmed thecitation item.\u00a0 On review, both parties resubmit the arguments that they made beforethe judge.We agree with Adams Steel that the cited standard didnot apply to the ladderway opening in the third floor at the time of OSHA’sinspection.\u00a0 However, our reasoning is based on another standard in Subpart R,section 1926.752(j), which provides:? 1926.752\u00a0 Bolting, riveting, fitting-up,and plumbing-up.(j) All unused openings in floors, temporary orpermanent, shall be completely planked over or guarded in accordance with Subpart M ofthis part.Section 1926.752(j) is a scope provision that limitsthe application of the floor opening standards in Subpart M during the steel erectionphase of construction to floor openings that are \”unused.\”\u00a0 In this case,since the opening in question was being actively used as the only means of access to thethird floor, guarding was not required.\u00a0 We therefore vacate item 2 of citation 1.V.Citation 2 as amended alleged a violation of section1926.28(a) or section 1926.105(a) in that employees were working on a structural beam atthe fifth-floor level, approximately 50 feet above the ground, and \”[s]afety nets,ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts werenot used\” to protect them.On review, only the alleged violation of Section1926.105(a), which the judge affirmed, is still at issue.\u00a0 See note 8 infra.\u00a0This general construction standard provides:? 1926.105 Safety nets.(a) Safety nets shall be provided when workplaces aremore than 25 feet above the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts isimpractical.Adams Steel defends against this charge on twogrounds.\u00a0 First, it contends that, under the terms of section 1926.105(a), it was notrequired to install safety nets because it had instead provided one of the other listedalternatives, \”temporary floors.\”\u00a0 In any event, it argues, section1926.105(a) cannot be applied to steel erection work because it is preempted by more\”specifically applicable\” standards in Subpart R.The relevant facts in determining the preemptionissue are not in dispute.\u00a0 The compliance officer observed that two employees ofAdams Steel were working from a beam at the fifth-floor level while bolting up objectsidentified as \”relief angles for the masonry\” or \”masonry lintels.\”\u00a0 The compliance officer testified that the two employees, who were wearing safetybelts that were not tied off, were exposed to the hazard of falling either 50 feet towardthe outside of the building or approximately 20 feet toward the inside of the building.\u00a0On the outside of the building, there was nothing between the fifth-level beam andthe ground below.\u00a0 If either employee had fallen to the inside of the beam, he wouldhave fallen to the third-floor decking.This case is indistinguishable from two other casesin which the Commission previously has ruled on the same preemption issue: Adams SteelI, referred to above in connection with the employer’s motion to dismiss; and WilliamsEnterprises of Georgia, Inc., 86 OSAHRC ____, 12 BNA OSHC 2097, 1986 CCH OSHD ?27,692 (No. 79-4618, 1986), appeal filed, No. 86-8825 (11th Cir. Nov. 10, 1986).\u00a0 InAdams Steel I, the Commission concluded that section 1926.105(a) cannot be applied to thehazard of falling from perimeter beams during steel erection work because it is a generalconstruction standard and is therefore preempted by more \”specificallyapplicable\” standards in Subpart R. See note 6 supra.\u00a0 On review, the Court ofAppeals for the Third Circuit reversed the Commission, holding that section 1926.105(a)can be applied to the hazard of exterior falls at issue because there are no\”particular standards\” in Subpart R that apply to that hazard.\u00a0 See note 7 supra.\u00a0 In Williams Enterprises, the Commission, with Commissioner Wall dissenting,respectfully disagreed with the position of the Third Circuit and reaffirmed the positionit had taken in Adams Steel I.In the absence of a ruling from the Supreme Court ora Court of Appeals with jurisdiction over the case, Chairman Buckley would adhere to theCommission’s position on the preemption issue as stated in Adams Steel I and WilliamsEnterprises.\u00a0 Nevertheless, because this case arises in the Third Circuit, i.e.,both the inspected workplace and Adams Steel’s principal place of business are locatedthere, Chairman Buckley defers to the appellate court for that circuit in rejecting thepreemption argument raised by Adams Steel.\u00a0 See Babcock & Wilcox Co. v. OSHRC,622 F.2d 1160, 1166 (3d Cir. 1980) (binding effect of appellate court’s rulings on casesarising in the Third Circuit).\u00a0 See also Davis Metal Stamping, Inc., 85 OSAHRC_____, 12 BNA OSHC 1259, 1261, 1984-85 CCH OSHD ? 27,236, p. 35,156 (No. 78-5775), aff’d,800 F.2d 1351 (5th Cir. 1986).\u00a0 Commissioner Wall rejects Adams Steel’s argument onits merits, concluding that section 1926.105(a) applies to the cited conditions.The facts relating to Adams Steel’s argument that itwas in compliance with the standard are also undisputed.\u00a0 Based on the complianceofficer’s uncontradicted testimony, Judge McQuade entered the following finding:It was not practical or of likely utility for AdamsSteel employees at the Prudential Building to use scaffolds, ladders, catch platforms, ortemporary floors as safety devices to protect against the dangers of outer perimeterfalls.Resolving a conflict in the testimony over thefeasibility of personal protective equipment, the judge also entered this finding:It was not practical or of likely utility for AdamsSteel employees at the Prudential Building to tie off to beams, relief angles, bolt holes,or static lines.This latter finding is not challenged onreview.[[8]]\u00a0 Because all of these other forms of fall protection were impractical,the judge concluded that, under the terms of section 1926.105(a), Adams Steel was requiredto provide perimeter safety nets.\u00a0 It is undisputed that perimeter safety nets werenot provided and that the temporary flooring at the third-floor level would not havebroken an exterior fall from the perimeter beam at the fifth-floor level to the groundbelow.Adams Steel contends that, because it providedtemporary flooring approximately 20 feet below the two employees on the perimeter beam, itwas in compliance with section 1926.105(a), even though this flooring would not haveprovided protection if either employee had fallen toward the outside of the building.\u00a0We conclude, however, that this argument is contrary to the Third Circuit’s decisionin Adams Steel I.\u00a0 We interpret the court’s decision as holding that, underthe circumstances that existed both in that case and in this case, section 1926.105(a) notonly applies but also is violated.\u00a0 In the Third Circuit’s view, the hazard at issuein these cases is the hazard of falling from a perimeter beam to the outside of abuilding.\u00a0 See, e.g., 766 F.2d at 808.\u00a0 Section 1926.105(a)applies to this hazard as thus defined and requires the employer to protect employeesagainst it.\u00a0 Since a temporary floor provides no protection against exterior falls, see,e.g., 766 F.2d at 808, an employer who relies solely on temporary floors is not incompliance with section 1926.105(a), as it is interpreted by the Third Circuit.\u00a0 Wetherefore will affirm citation 2 as modified by the judge.Accordingly, we affirm item 1 of citation 1, vacateitem 2 of citation 1, and affirm citation 2 as modified by the judge.FOR THE COMMISSIONRay H. Darling Jr.Executive Secretary DATED: February 2, 1987SECRETARY OF LABOR, Complainant, v. ADAMS STEEL ERECTION, INC., Respondent.OSHRC Docket No. 77-3804DECISION AND ORDERAppearances:David F. Street, Esq.Office of the Regional SolicitorU.S. Department of Labor Philadelphia, Pennsylvaniafor the ComplainantRichard S. Crone, Esq. Crone and Zittrain Philadelphia, Pennsylvaniafor the RespondentMcQuade, Judge:This proceeding was commenced pursuant to Section 10of the Occupational Safety and Health Act of 1970, 29 U.S.C. ? 651, et seq.,(the Act).\u00a0 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).\u00a0 Respondent is also charged with an other-than-serious violation of29 C.F.R. 1926.100(a).Respondent, Adams Steel Erection, Inc., is a Pennsylvania corporation having its sites asa steel erection company in the Pittsburgh area and maintaining its headquarters inKittaning, Pennsylvania.The Pittsburgh office of the Occupational Safety andHealth Administration (OSHA) conducted six inspections of the Respondent’s constructionsites pursuant to anonymous telephone calls.\u00a0 Three inspections resulted in issuedcitations, one inspection in an uncontested nonserious violation, and two inspections infindings of compliance (Tr. 321-322).This case resolves the citations which were issuedfrom the September 23, 1977, inspection of the Prudential Building worksite in Pittsburgh,Allegheny County, Pennsylvania.\u00a0 Adams Steel Erection, Inc., (Adams Steel) was issuedthree citations on October 17, 1977.On November 7, 1977, Citation No. 1 was amended toreduce the proposed penalties of the two items from $800 each to $420 each.\u00a0 Theproposed penalty for Citation No. 2, termed at that time as a \”RepeatedCitation,\” was reduced from $2,000 to $840. Respondent contested all citations onNovember 7, 1977, and a hearing was, conducted on March 27, 1978.Complainant moved to amend Citation No. 2’sclassification from \”Repeated\” to \”Serious.\”\u00a0 Without objectionfrom the Respondent the motion was granted (Tr. 8).Serious Citation No. 1, Item 1, alleges noncompliancewith 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.\u00a0 A safetyrailing of 1\/2-inch wire rope or equal shall be installed approximately 42 inches high,around the periphery of all temporary-planked or temporary metal-decked floors of tierbuildings and other multifloored structures during structural steel assembly.The inspecting compliance officer, James Weyrauch,observed during the course of the inspection three Adams Steel employees working on thethird floor of the Prudential Building structure.\u00a0 The workers were in the process ofconverting temporary decking into permanent flooring.\u00a0 No wire rope or other safetyrailing was in place around the third-floor perimeter (Tr. 13, 22-23; Ex. C-1, C-2, C-3).Weyrauch testified that the employee shown kneelingin the background of Exhibit C-1 was 3 feet from the edge of an unprotected outsideperimeter, with nothing to break a 27-foot fall should he fall from the edge of thebuilding (Tr. 16).\u00a0 Weyrauch described the surface upon which the employee could havefallen as either street, sidewalk, or \”excavated rocks and rubble from thetrench.\” (Tr. 18).\u00a0 Weyrauch testified that an employee falling 27 feet from thethird floor would suffer \”broken bones, possibly death.\” (Tr. 18-19).Respondent’s witness offered varying estimates ofwhat percentage of the third floor had already been converted to permanent flooring:\u00a0 70, 80 and 85 percent.Robert Tierney, Respondent’s employee, testified thatall the flooring shown 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 converted to permanentflooring. (Tr. 116).Don McClendon, Respondent’s foreman, testified that the conversion from temporary deck topermanent decking was 80 percent completed (Tr. 133).Lloyd Leadbeter, Respondent’s supervisor, gave thehighest estimate of the third-floor portion already converted to permanent, 85 percent(Tr. 165-167).\u00a0 However, Complainant argues that Leadbeter’s estimate is the leastreliable since he was not at the worksite on the day of the inspection, nor had he beenthere for a week prior to the inspection (Tr. 180).\u00a0 He based his estimate only fromexamining the worksite the day after the inspection and from examining Weyrauch’sphotographs.Respondent argues that (1) the standard isinapplicable under the facts of the case, and (2) compliance is impossible.\u00a0 This isasserted in Respondent’s Eighth Defense in its Answer and reiterated in motions forinvoluntary dismissal at the conclusion of the presentation of both the Secretary’s case(Tr. 89-90) and all evidence (Tr. 193).Adams Steel points to the testimony of its witnessesTierney, McClendon, and Leadbeter to show that the third floor consisted primarily ofpermanent flooring at the time of inspection (70 to 85 percent). \u00a0Respondent therebyconcludes that the standard in issue is inapplicable to the facts because1926.750(b)(1)(iii) prescribes safety railings only for temporary flooring, not permanentfloors.Respondent contends that the standard in issue isvague as to time of applicability and denies the employer fair warning of the conduct itprohibits or requires.Respondent also argues that the Secretary has theburden of proving that the local custom in the steel erection industry requires use of arailing around the perimeter of the structure during conversion from temporary topermanent flooring.\u00a0 Respondent claims that the Secretary has failed this burden. However, the Secretary has no such burden ofproof.\u00a0 Local custom and usage cannot control in the face of a Federal standard.There is no requirement that Federal law carry with it a showing that it does notcontradict local custom to be enforceable.Furthermore, Respondent’s contention is not sustainedthat the standard is too vague to be enforced and does not supply the fair notice to whichemployers are entitled.\u00a0 The standard is very precise as to specifications forrailing, its placement, its height, the type of floors and structures where it is to beplaced, and the stage of construction at which the safety railing is to be in place.\u00a0The employer receives fair notice of what is required by the standard from itslanguage.\u00a0 The requirement of safety railings around temporary floors \”duringstructural steel assembly\” is a clear mandate for this safety measure; the absence ofexceptions or particular address to the stages of temporary flooring does not function asa loophole to compliance.\u00a0 The standard is clear:\u00a0 A safety railing is requiredaround the perimeter of temporary floors of multi-floored steel erection structures.Complainant relies on The Ashton Company, Inc.,76 OSAHRC 6\/B11, 3 BNA OSHC 1968, 1975-76 CCH OSHD 20,351, OSHRC Docket No. 511 (1976), inwhich the Commission held 1926.750(b)(1)(iii) to apply to the working conditions of abuilding \”still in the steel erection stage [where] the installation of permanentflooring had not completed.\”\u00a0 In the case at bar, the permanent flooringsimilarly had not been \”completed\” and the construction similarly was still inthe steel erection stage.\u00a0 Therefore, by the reasoning of the Commission in AshtonCompany, it is clear 1926.750(b)(1)(iii) applies to the Prudential Building inspectionfacts. The three elements of establishing a violationare:\u00a0 (1) applicability of the standard to the facts, (2) employer failure to complywith the standard, and (3) employee access to the hazard resulting from the violation.\u00a0 Anning-Johnson Company, 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD20,690, OSHRC Docket Nos. 3694 and 4409 (1976).Since it is clear that the Prudential Building wasstill in the steel erection stage and installation of permanent flooring was not yetcompleted, by the Ashton Company standard, 1926.750(b)(1)(iii) applies to thefacts. \u00a0Therefore, the first of the three elements of a violation is satisfied.\u00a0It is also clear that Adams Steel did not provide any safety railing and that employeesworking on the third floor were exposed to the danger of falling 27 feet to the ground,thereby satisfying the second and third elements of establishing a violation. \u00a0Complainant has thereby proven the violation.Respondent’s argument that because the floor inquestion had been largely converted from temporary to permanent flooring, the standard isinapplicable, lacks support.\u00a0 During the conversion period, Respondent is stillrequired to provide protection for its employees.\u00a0 Whether the permanent floor safetyrailing requirement, 29 C.F.R. 1926.500(d)(1), or the temporary floor safety railingrequirement, 1926.750(b)(1)(iii), is applicable, the prescription is clear:\u00a0 Anemployer must provide a safety railing around the building perimeter.\u00a0 The basicpurpose is to protect workers during all phases of the steel erection, regardless ofwhether 20 percent or 80 percent assembled.\u00a0 The standard applies and has beenviolated.Serious Citation No. 1, Item 2, alleges noncompliancewith 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 WALL OPENINGS, AND STAlRWAYS? 1926.500 Guardrails, handrails, and covers. (b) Guarding of floor openings and floor holes. (2) Ladderway floor openings or platforms shall beguarded by standard railings with standard toeboards on all exposed sides, except atentrance to opening, with the passage through the railing either provided with a swinginggate or so offset that a person cannot walk directly into the opening.The inspecting compliance officer, Weyrauch,testified that entry onto the third floor was provided by a 36-foot wooden ladder. Theladder was the sole means of access from the ground to the third floor for ironworkers.\u00a0The Iadderway opening was in use and was not protected by standard railings,standard toeboards, or any perimeter guarding whatsoever.\u00a0 Employees were exposed toa fall of 27 feet through the hole erected by the opening (Tr. 19-22; Ex. C-4).\u00a0 Thisevidence is undisputed.Weyrauch testified that the hazard workers wereexposed to was a possible 27-foot fall to dirt, material and rubble from a trench, andsteel scaffolding, a hazard which would result in serious injury or death (Tr. 57-59).Respondent’s witnesses testified that the ladder hadbeen in place one week (Tr. 102), but the opening was smaller, only 2-1\/2 feet wide, priorto the day of inspection when cutting for the permanent flooring had begun (Tr. 102-103,131).\u00a0 Messrs,\u00a0Tierney, McClendon, and Leadbeter, all Respondent witnesses withconsiderable industry experience, agreed that they had never seen a steel erector installa handrail or cable around an opening for an access way to a deck (Tr. 105, 134-136,168).\u00a0 Supervisor Lloyd Leadbeter also stated that a reasonably prudent employer inthe steel erection industry in the Pittsburgh area would not recognize the necessity of asteel erector to install standard railings and toeboards (Tr.168).Respondent denies the applicability of the standard,claiming Subpart R, the steel erection standard, specifically treats the subject of accessopenings in floors.\u00a0 Subpart R only indirectly mentions access ways in 1926.750(b),however, in requiring that floors be solidly planked except for access openings.\u00a0Respondent reasons that since Subpart R requires tightly planked floors except for accessopenings, and also requires safety railings around the periphery of the floor, thisexcludes steel erectors from being required to place guardrails around openings.\u00a0Respondent claims a reasonable employer would find in Subpart R permission to leave accessways unguarded.However, to assume that the steel erection industryis not required to guard open ladderways is taking liberty with the spirit of the Act andan application of loophole logic.\u00a0 The Subpart R standards do not address the issueof protection of workers from the hazard of falling into unguarded access openings. \u00a0Complainant is correct in arguing that since 1926.750(b) does not deal with protection ofemployees from this hazard of falling through access openings, reference to theconstruction standards pertaining generally to openings is necessary.The Act provides in 1910.5(c)(2) that to the extentthat a particular standard 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), afterrequiring the priority of on-point specific standards over general standards, states:On the other hand, any standard shall apply accordingto its terms to any employment and place of employment in any industry, even thoughparticular standards are also prescribed for the industry, as in Subpart B or Subpart R ofthis part, to the extent that none of such particular standards applies. \u00a0Toillustrate, the general standard regarding noise exposure in ? 1910.95 applies toemployment and places of employment in pulp, paper, and paperboard mills covered by ?1910.261.The rule of construction of 1910.5(c)(2) is that ageneral standard may apply, even if a particular standard is also prescribed for theindustry, to the extent that the particular standard is inapplicable.\u00a0 BristolSteel & Iron Works, Inc., 77 OSAHRC 181\/D6, 5 BNA OSHC 1940, 1977-78 CCH OSHD22,240, OSHRC Docket No. 14537 (1977).\u00a0 In Bristol, Commissioner Cleary held:I agree with the Administrative Law Judge that thesteel erection standards were not intended to cover all situations related to steelerection.\u00a0 In other words, Subpart R contains some specific steel erection standards.\u00a0It does not contain comprehensive rules for steel erection, or rules covering workincidental thereto.\u00a0 This is why the rule of construction in 29 C.F.R. 1910.5(c)(2)should be applied.Respondent argues that the standard is ambiguous and,therefore, custom and practice in the industry in the Pittsburgh area is most significantand a \”reasonable man\” test should be applied.\u00a0 However, 1926.500(b)(2) isclear in its language and applicability is in order.\u00a0 Federal law takes priority overlocal practice.Complainant reasons that since 1910.5(c)(2) and BristolSteel and Iron Works, supra, support the applicability of the standard, the tworemaining elements for establishing a violation are:\u00a0 Employer failure to comply withthe standard and employee access to the hazard resulting from the violation Anning-JohnsonCompany, supra.\u00a0 Since the facts that the standard were not complied withand workers had access to the danger of a 27-foot fall are undisputed, Respondent was inviolation of the cited standard.Serious Citation No. 2 alleges a violation of 29C.F.R. 1926.28(a) or, in the alternative, 1926.105(a).\u00a0 The inspecting complianceofficer, James Weyrauch, observed two employees tightening bolts on the structure on beamB-16 between columns C-7 and C-13 at the inspected worksite.\u00a0 To their left side wasa deck 22 feet below; to their right side was concrete 50 feet below (Tr. 23, 86; Ex.C-5).Complainant alleges that these employees should havebeen tied off to beams or to a static line to reduce the potential hazard of these workersfalling.\u00a0 Adams Steel’s failure to provide lanyards and a static line to tie off onis the basis of the alleged personal protective equipment violation, 29 C.F.R. 1926.28(a),which reads:1926.28 Personal protective equipment.(a) The employer is responsible for requiring thewearing of appropriate personal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the need for using suchequipment to reduce the hazards to the employees.In the alternative, if such protective equipment is deemed to be impractical or to presenta greater hazard, Complainant alleges 29 C.F.R. 1926.105(a) noncompliance becauseRespondent did not supply safety netting as an alternative safety precaution.The safety nets regulation requires: \u00a0?1926.105Safety nets.(a) Safety nets shall be provided when workplaces aremore than 25 feet above the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts isimpractical.Compliance Officer Weyrauch testified that anemployee fall of 50 feet would result in serious injury or death (Tr. 25-26). Althoughboth employees observed (Ex. C-5) were wearing safety belts, there were no lanyards orstatic line and if a static line had been erected above the beam, the employees could havetied off to the line as a protection against falling.\u00a0 Weyrauch testified that theemployees could have tied off to the beam they were working on, to the previous reliefangles they had just put in, to the bolt hole (with a connector’s lanyard), or to a staticline (Tr. 26-27).\u00a0 Weyrauch also suggested that the fifth floor perimeter guardrailcould have been used as a static line with an O-ring attached to the lanyard end for easeof movement (Tr. 77-79).\u00a0 Weyrauch also admitted on cross-examination, however, thatthe fifth floor had no safety railing and no flooring.\u00a0 Respondent’s counsel tried toestablish that since there was no flooring, no railing was required or supplied, and thusa perimeter safety railing could not practically be used as a static line (Tr. 78-79).Weyrauch admitted scaffolds, ladders, catchplatforms, and temporary floors were impractical as protection against injury from fallsto the outside of the building (Tr. 27-28).\u00a0 Weyrauch also testified that there wereno safety nets in use at the inspected worksite (Tr. 27).Respondent’s employee, Robert Tierney, claimed itwould be more of a problem 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 the 6-foot lanyard wouldbe consumed by tying off itself.\u00a0 This would necessitate the worker bending overseveral feet and would have been neither practical nor feasible (Tr. 107-108).Tierney testified that the workers were bolting upeither two or four bolt holes, a process which took \”about a minute,\” followedby movement 4 or 5 feet to the next position.\u00a0 Tierney said the only bolt holesavailable were the ones the workers were filling with bolts, so that it is obvious youcannot tie off to the same bolt holes you are bolting up (Tr. 109-110).Tying off to the beam is also impractical, accordingto Tierney, because the 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 offto a static line from a perimeter railing impractical.\u00a0 Since there was no temporaryfloor, there was no perimeter railing around the temporary floor.\u00a0 Tierney testifiedhe had never seen a railing where there was no floor (Tr. 111).Tierney did admit, however, that there had beenscattered temporary decking on the fifth floor prior to the inspection day (Tr. 126-127).Foreman McClendon agreed with Tierney on severalpoints:\u00a0 It was 4 or 5 feet between work positions, the lanyards were too short toreach around the beams, and tying off to the bolt holes was impossible since the workerswere engaged in the very act of filling those bolt holes with bolts (Tr. 137-139).\u00a0McClendon said the bolting up process took 1 to 3 minutes, which was less time thanit would take to tie off (Tr. 138-139).\u00a0 McClendon testified that he had never seen aperimeter safety railing used as a static line (Tr. 139).Respondent’s superintendent, Lloyd Leadbeter, saidthat tying off to either the relief angle or the beam was more dangerous than simplystraddling it (Tr. 171, 173).\u00a0 He testified that the lanyard and a bolt could notboth fit into a bolt hole (Tr. 172).\u00a0 Leadbeter also testified that a perimeter wirestatic line would be impractical because workers as they stood up would have been\”into the cable\” (Tr. 176-177).Complainant counters that an employee bumping hishead is not a greater danger than an employee working without protection from falling.\u00a0 Complainant maintains that the greater hazard defense fails since a knot on thehead is a less serious injury than the injury resulting from a fall of 50 or 22 feet.However, workers would be subjected to more seriousharm than a bump on the head; workers could be bumped, knocked down, or entangled by theconnecting, disconnecting, and wearing of the safety belt-lanyard-static line-perimeterrailing apparatus.\u00a0The greater hazard claim of Respondent has not been dispelled andthe practicality of static lines is doubtful.\u00a0 Complainant’s suggestion of a secondperimeter railing being installed above the normal railing (at a greater height) is alsoimpractical.\u00a0 Under any of the suggested means of tying off – to the beam, reliefangle, bolt hole, or static line from perimeter railing – tying off is impractical.Complainant maintains that in the event 1926.28(a) safety measures be deemed impractical,1926.105(a) has been violated because Respondent has not supplied safety nets.Respondent’s argument that both 1926.28(a) and1926.105(a) are vague and impossible to comply to, and therefore inapplicable, lacksmerit.\u00a0 Adams Steel claims the standards are ambiguous and imprecise, but thestandards’ language is clear and implicit in its prescription of applicability.\u00a0Respondent claims that in the event of a citation under an ambiguous standard,custom and practice in the industry should prevail.\u00a0 However, local industry customdoes not prevail as against a specific Federal standard.Respondent also argues that 1926.105(a) isinapplicable because Subpart R, the more specific steel erection standards section,applies.\u00a0 Adams Steel contends that 1926.750(b)(2)(i), in Subpart R, requires only atightly planked and substantial floor. Respondent argues that 1926.105(a) is ambiguousbecause safety nets are required only where alternate protection is impractical.\u00a0 Inthe case at bar, Respondent maintains the employer had a floor within two stories or 25feet of employees, as required by the steel erection standard, and this suffices as avalid form of fall protection as required.However, Respondent’s reliance for this argument ison the critically distinguishable facts of Southwestern Industrial Contractors andRiggers, Inc., 77 OSAHRC 95\/E9, 5 BNA OSHC 1631, 1977-78 CCH OSHD 22,840, OSHRC DocketNo. 14424 (1977).\u00a0 In Southwestern, the employer had safety belts in use as aform of fall protection already, so that safety nets were not required.\u00a0 The safetybelts in use protected Southwestern’s employees against harm from falls on the interiorand exterior of the structure.\u00a0 In the case at bar, Respondent’s argument thattemporary flooring is a valid substitute for the use of safety nets ignores the hazard offalls on the outside of the structure.Although temporary flooring protects highsteelworkers against falls to the interior sides of the building structure, absolutely noprotection against falls on the outside perimeter of the building was provided by AdamsSteel.\u00a0 As Complainant points out, an employee falling in the \”wrong\”direction, to the outside of the structure, would fall 50 feet to the ground below.Complainant relies on precedent to show that1926.105(a) is applicable when personal protective equipment is impractical under1926.28(a).\u00a0 Roanoke Iron & Bridge Works, Inc., 77 OSAHRC 74\/C9, 5 BNAOSHC 1391, 1977-78 CCH OSHD 22,522, OSHRC Docket No. 10411 (1977), Cornell &Company, Inc., 77 OSAHRC 18\/D10, 5 BNA OSHC 1018, 1977-78 CCH OSHD 21,532, OSHRCDocket No. 9353 (1977). \u00a0Particularly on point is the Cornell holding thatRespondent was \”required under the terms of Sec 1926.105(a) to protect its employeesby erecting safety netting on the outside perimeter of the building.\”Other-than-Serious Citation No. 3 alleges a violationof the Act for noncompliance with 29 C.F.R 1926.100(a) because an employee of Respondentwas not wearing a hard hat and was exposed to the potential harm which would result frombeing struck by falling materials.The relevant statute requires:? 1926.100\u00a0\u00a0 Head protection.(a) Employees working in areas where there is apossible danger of head injury 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 ahard hat and is \”standing directly beneath the man working on beam-16,\”according to the inspector (Tr. 35).\u00a0 The employee, foreman McClendon’s son, wasemployed as an apprentice and was carrying ice as part of his duties as a\”go-fer\” (Tr. 115).\u00a0 Respondent’s witnesses testified that the employee was\”maybe five feet\” (Tr. 114) and \”about ten feet away from thebuilding\” (Tr. 140).\u00a0 The employee’s father, foreman McClendon, testified thathis son had long hair, didn’t \”get along\” well with his hard hat, and\”would take it off every chance he could.\” (Tr. 140-141).Complainant argues that since this employee wasdirectly under or near the perimeter of the building and was without a hard hat,Respondent was in violation of the cited standard.Respondent argues that there is no violation because(1) the employee was not working, and (2) he was not in a place where there was a possibledanger of head injury from impact or from falling or flying objects.Respondent points out that the employee depicted inExhibit C-7 was merely standing near the street smoking a cigarette.\u00a0 He was carryingice for a water bucket and looked as if he were calling up to people to see if they wantedcoffee, to which his father, the foreman, attests \”he is not doing much work…\”(Tr. 140).\u00a0 Respondent claims this leads to the factual dispute — was the employeeworking?–since the standard only applies to \”employees working\” in areas wheredanger exists.However, the presence of the employee in an area ofexposure to hazard is enough; he doesn’t have to be actively working.\u00a0 We need notassume that employees momentarily inactive are excluded from coverage of the standardregardless of exposure to the hazard.\u00a0 The standard’s language, \”employeesworking,\” simply means \”on the job\” and if the employee is on the worksite,it is spurious reasoning to rationalize exemption from the standard because he is on\”break.\”Respondent also argues that the employee is not in aposition of danger since its witnesses testified that the employee was 5 or 10 feet awayfrom the building’s perimeter.\u00a0 Complainant’s witness, the inspecting officer,testified that the employee was right under a beam being worked on, and Exhibit C-7appears to bear this out.Regardless of the dispute as to distance of theemployee from the building’s, outside perimeter, whether 10 or 5 feet or less, he is stillan employee working on the worksite without wearing a hard hat.\u00a0 It is enough to benear the perimeter of the building, not directly under, to be exposed to the hazard thestandard seeks to rectify.\u00a0 The regulation contemplates the entire worksite and it isRespondent’s duty to ensure that the exposure to the hazard is minimized, especially foran employee whom the foreman knows \”would take off (his hard hat) every chance hecould.\” (Tr. 141).Harassment IssueRespondent argues that the six inspections of AdamsSteel construction sites are invalid because they were in response to the complaints ofanonymous caller(s), and the informant(s) who, aided by OSHA, were engaged in a program ofintentional harassment of the Respondent.In the Ninth Defense in its Answer, Respondentcontends that the inspection is invalid because (1) it was in response to a person otherthan an employee or his representative and (2) the non-employee informer was engaged inintentional harassment.\u00a0 Respondent motioned to suppress all evidence (Tr. 4), andlater motioned twice for involuntary dismissal (Tr. 89, 192).Adams Steel objected to the series of inspections andthe administrative policy elucidated in Field Information Memorandum No. 76-20, whichrepresents an intent to inspect all but the clearly frivolous complaints, includinganonymous complaints, and to give priority to steel erection site complaints because ofthe high hazard of this work.Respondent considers the series of Adams Steelworksite inspections, totaling six inspections within 33 days, unreasonable and thereforebeyond the reasonableness prescribed in Section 8(a) of the Act.\u00a0 Section 8(a) givesthe Secretary inspection authority during reasonable times, within reasonable limits andin a reasonable manner.Section 8(a) of the Act provides that:Inspections, Investigations, and RecordkeepingSec. 8. (a) In order to carry out the purposes ofthis Act, the Secretary, upon presenting appropriate credentials to the owner, operator,or agent in charge, is authorized–(1) to enter without delay and at reasonable timesany 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 workinghours and at other reasonable times, and within reasonable limits and in a reasonablemanner, any such place of employment and all pertinent conditions, structures, machines,apparatus, devices, equipment, and materials therein, and to question privately any suchemployer, owner, operator, agent or employee.Respondent maintains that the six inspections fromSeptember 23 to October 26, 1977, transcend this statutory authority and constituteharassment of the Respondent which Adams Steel alleges to be both unwarranted and illegal.\u00a0The schedule of anonymous telephone complaints and subsequent OSHA inspections ofAdams Steel’s plants totaling six inspections within a five-week period is as follows: Plant Date of Anonymous Call Date of Inspection Prudential Building (the site at which inspection is at bar) September 21, 1977 September 23, 1977 L. B. Foster Project September 19, 1977 September 23, 1977 U.S. Steel Supply October 6, 1977 October 11, 1977 Bridgeville Bridge October 6, 1977 October 12,1977 Robinson Township Project October 18, 1977 October 20, 1977 Beaver County Medical Center General schedule inspection* October 26, 1977 *A sewer contractor on the job site was named in a complaint received by OSHA, and allcontractors and subcontractors on the site, including the Respondent, were subsequentlyinspected.Respondent argues that Section 8(f),[[1\/]] unlike thegeneral inspection provision Section 8(a), requires that the Secretary determine there arereasonable grounds to believe such a violation or danger exists. \u00a0 Respondent furtherpoints to Field Information Memorandum (FIM) No. 76-20[[2\/]] and its consideration of thehandling of Section 8(f) complaints.\u00a0 Paragraph 3(g) of FIM No.76-20 lists someexceptions to the general rule of the memorandum’s policy to conduct the inspectionwithout regard to source or adherence to Section 8(f) formality.\u00a0 One of theseexceptions is \”if there is compelling evidence to indicate that the complaintprocedure is abused by groups or individuals for purposes other than safety and healthmatters.\”\u00a0 Harassment certainly is not a safety or health matter and would be aproper reason for non-response to complaints if it was clearly determined that the purposeof such complaints was harassment of an employer.\u00a0 However, it has not been shown byRespondent that the series of six Adams Steel inspections, given the hazardous nature ofthe industry, constitutes \”compelling evidence\” that the complaint responseprocess has been abused.\u00a0 The facts do not bear out the contention that anyone, letalone an employee, was engaged in a program of intentional harassment of the Respondent.The Complainant maintains that in relation to workersafety, the steel erection industry is one of the \”highest hazard\” of allAmerican industries, citing the Bureau of Labor Statistics discussed at the hearings (Tr.339-341) to bear this out.\u00a0 The Pittsburgh Area Office, like several other Region IIIoffices, ranks complaints on a system of three priorities with \”serious\” beingthe highest priority assigned.\u00a0 Complaints dealing with Steel erecting contractorsare always given a \”serious\” designation with the intention to inspect within 3days of the complaint (Tr. 328-330).The Secretary points to the number and severity ofworker injuries in the steel erection industry as justification for the quick and thoroughresponse to complaints in this area and as strong policy against ignoring such complaints.Charles Straw, OSHA’s Pittsburgh Area Director,testified that \”(i)f somebody reports an unsafe condition at a workplace, we cannotafford to ignore that simply on the basis that it may or may not be valid…(b)ecausesomebody may suffer serious injury or death as a result of our ignoring thecomplaint\” (Tr. 355).OSHA argues that public policy favors inspection overnon-response since lives are at stake.\u00a0 The possibility that too frequent orinconvenient inspections of a business’ worksite may occur is overbalanced by thehazardous nature of the industry.\u00a0 Because of these dangers, the need for assuredworker safety is greater, as is the compulsion to respond to complaints.Complainant’s further evidence is not only as to theneed, but also as to the routineness of response to anonymous complaints.OSHA’s operations officer for the Pittsburgh area, William Mason, testified that hisoffice received 1,400 safety and health complaints in 1976 and all of them, excepting theclearly frivolous, lead to inspections (Tr. 358, 360-361).\u00a0 Charles Straw’s testimonythat between 20 and 25 percent of the complaints received at the Pittsburgh office areanonymous phone calls (despite attempts to ascertain informant’s names) (Tr. 331-332)indicates that the Prudential Building inspection, which the Respondent alleges to beintentional harassment, is only one of over 300 inspections a year which that officeroutinely conducts in response to anonymous complaints.Since all serious complaints are followed up, and allsteel erection firms are inspected quickly after a complaint is received, the issue as tothe source of the complaint is rendered moot.\u00a0 Regardless of anonymity, each AdamsSteel complaint would have been followed through by an inspection.Straw also testified on behalf of Complainant as tothe infeasibility of requiring informants to supply their names to OSHA before complaintsare responded to.\u00a0 He said that requiring names would reduce both the number ofcomplaints received and the effectiveness of OSHA’s safety program (Tr. 354).Complainant contends that informants call anonymouslybecause of fear of employment discrimination despite advisement of their rights and theprotection of Section 11(c) of the Act[[3\/]], and efforts by OSHA personnel to ascertainthe identity of callers (Tr. 331-333).The proof does not establish harassment.\u00a0Complainant’s proof left unfettered the longstanding premise that anonymous callsare a valid basis for industrial searches under Section 8(a) of the Act.\u00a0 Section8(a) gives the Secretary the right to inspect.\u00a0 This section begins \”(i)n orderto carry out the provisions of this Act.\”\u00a0 Since the Act’s first words are\”(t)o assure safe and healthful working conditions for working men and women,\”the purposes of this Act are clear.\u00a0 Since nearly all witnesses agreed that it is ahigh-hazard occupation, it is not unreasonable for the Secretary to give priority tocomplaints, even anonymous complaints, in this occupational field.OSHA is not only entitled to inspect, but in the caseof high safety-risk industries such as this, the statute demands timely and efficientresponse to complaints.Respondent complains that OSHA policy opens it toanonymous complaints by competitors, estranged wives, and nonunion contractors (Tr. 344).Anonymous complaints are not the same as employeecomplaints and cannot be assumed to be so.\u00a0 Therefore, Section 8(f), and anyarguments pursuant thereto, are inoperable in this case.\u00a0 Employees are not known tobe the informants and logically can only be considered a subgroup of the callers.Regardless of the source of the complaint,Respondent, in a high worker safety-risk industry, was inspected and issued threecitations, two of them serious.Respondent cites the Congressional Record as quotedin Aluminum Coil Anodizing Corporation, 77 OSAHRC 70\/A2, 5 BNA OSHC 1381, 1977-78CCH OSHD ? 21,789, OSHRC Docket No. 829 (1977) as showing the Secretary is aware of thepotential for harassment, including harassment by competitors.\u00a0 The passage notes\”we (Congress) have seen very few cases wherein it might conceivably be said therewas a harassment factor involving either labor or business.\”\u00a0 However, contraryto Respondent’s contention, this supports the proposition that the Secretary is complyingwith Congress’ expectations, and abuse of the standard for harassment is uncommon.Since the identity of the caller(s) is unknown, theissue is properly framed as whether the inspections were reasonable under Section 8(a) ofthe Act, not Section 8(f).\u00a0 The formality requirements of Section 8(f) or thejudiciousness of FIM No. 76-20 are not at issue.\u00a0 What is at issue is whether thePrudential Building inspection in particular, and the series of six inspections ingeneral, are a reasonable and valid exercise of OSHA authority to inspect.As to the Section 8(f) employee complaintsprovisions, the specification of employee status renders this section inapplicable to thefacts of this case.\u00a0 At no point was it shown that the complaints received were fromemployees of the Respondent and there is no reason to believe, absent such proof, that theanonymous caller(s) were necessarily either employees or employee representatives. \u00a0In discussing its contention that there is no evidence that a former employee made any ofthe calls, Respondent readily admits \”it appears agreed that anyone could have madethese complaints.\”\u00a0 Since Section 8(f) is inapplicable, the proper standard touse to measure the validity of the inspections is Section 8(a).\u00a0 Like Section 8(f),FIM No. 76-20 and any purpose it may have or duty it may create is inappropriate as themeasure of inspection validity.Complainant relies on Aluminum Coil, supra,in which the Commission held:The identity or purpose of the individual responsiblefor making the complaint does not alter the fact that the Secretary is broadly authorizedby subsection 8(a) to conduct inspections.This holding was reaffirmed by the Commission In RobbersonSteel Company, 78 OSAHRC 21\/C14, 6 BNA OSHC 1430, 1977-78 CCH OSHD 22,603, OSHRCDocket Nos. 76-4636 and 76-4637 (1978).In Aluminum Coil the complaint received wasfrom a non-employee, which may or may not be the case here.\u00a0 The Commission in AluminumCoil barred subsequent Respondent’s evidence, proposed to show the informer’s intentwas to harass, because \”(t)he purpose of the individual does not affect the validityof the inspection.\”\u00a0 The Commission held that the Section 8(a) general authorityto inspect \”is not limited by the special inspection provision of subsection8(f).\”Based on this recent, unanimous Commission policy, Complainant here argues that theidentity or purpose of a caller is irrelevant to any inquiry as to the OSHA inspection’slegality.\u00a0 Aluminum Coil supports Complainant’s argument that the Secretarymay exercise his authority to respond to complaints not meeting the Section 8(f) formalityrequirements.\u00a0 The inspection in this case was made pursuant to the Secretary’sgeneral inspection authority.The record evidences Complainant’s good faith anddoes not bear out Respondent’s contention that the OSHA inspections reached an unbiasedlevel.\u00a0 The disagreement concerns whether six inspections in five weeks arereasonable under the circumstances.\u00a0 These circumstances favor the validity of theinspection:\u00a0 OSHA’s broad authority under Section 8(a) to conduct inspections, reliedupon by Complainant with reference to Aluminum Coil Anodizing Corporation, supra,and Robberson Steel Company, supra; the high-hazard nature of the industryand priority given by OSHA to complaints concerning steel erection; the prevalence of bothanonymous complaints and subsequent inspections; and the public policy heavily favoringthe concerns of protecting worker safety and lives over employer convenience,accommodation, and freedom from determination of compliance.\u00a0 The inspections wereroutinely authorized and conducted within the requirements of Section 8(a).Constitutional IssueAdams Steel contends that the Occupational Safety andHealth Act of 1970 is unconstitutional because it violates the Fourth, Fifth, and SixthAmendments to the Constitution.\u00a0 Respondent argues that the citations are invalidbased on these constitutional grounds in the Third Defense of its Answer and in motionsfor involuntary dismissal at the conclusion of evidence presented by both Complainant (Tr.89) and Respondent (Tr. 192-193).These arguments must be discounted, however, sincethe Commission is not an Article 3 court and, therefore, cannot decide constitutionalissues.Precedent makes it clear the Review Commission lacksauthority to determine constitutional issues.\u00a0 The Commission has no jurisdictionover issues which question the constitutionality of the Act itself.\u00a0 This wasannounced 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 thisCommission have no authority to rule on issues which involve direct attacks upon theconstitutionality of provisions of the Act.\” Grebb Electric cites PublicUtilities Commission of California v. United States, 335 U.S. 534, 78 S. Ct. 446(1958) and Secretary of Labor v. American Smelting and Refining Company, 76OSAHRC 5\/A2, 3 BNA OSHC 1992,1975-76 CCH OSHD ? 20,345, OSHRC Docket No. 10 (1975).\u00a0The Court in Public Utilities Commission of California v. United States, supra,held that not only direct attacks on the Act’s constitutionality, but also indirectconstitutional questions are not within the province of the Commission’s discretion.\u00a0 Only when \”an administrative proceeding might leave no remnant of theconstitutional question\” may it apply administrative remedy; otherwise, judicialrelief should be sought.Substantial additional precedent states that theReview Commission lacks authority to decide constitutional questions.\u00a0 Secretaryof Labor v. Colorado Pipe Lines, Inc.; 75 0SAHRC 23\/A2, 3 BNA OSHC 1865,1975-76 CCH OSHD ? 20,251, OSHRC Docket No. 2805 (1975); Secretary v. Garland CallPole Company; 75 OSAHRC 57\/E12, 3 BNA OSHC 1188, 1974-75 CCH OSHD ? 19,603, OSHRCDocket No. 2028 (1975); Secretary v. Heede International Inc., 75 OSAHRC 26\/C9, 2BNA OSHC 1466, 1974-75 CCH OSHD ? 19,182, OSHRC Docket No. 1889 (1975); Secretary v.Marino Development Corporation, 74 OSAHRC 73\/B12, 2 BNA OSHC 1260, 1974-75 CCH OSHD ?18,825, OSHRC Docket No. 1040 (1974).Furthermore, there is sufficient precedent in theFederal courts upholding the constitutionality of the Occupational Safety and Health Actof 1970 and holding that employers are not denied due process because the Secretaryinspects, cites, and penalizes as a final order absent a challenge.\u00a0 Atlas Roofingv. Occupational Safety and Health Review Commission, 97 S. Ct. 1261, 518 F.2d 990(1977) and Lake Butler Apparel Company v. Secretary of Labor, 519 F.2d 84 (5thCir., 1975). \u00a0Civil penalties are not penal in nature and, therefore, are not invalidbecause the Act does not provide for the constitutional protections given criminaldefendants by the Constitution.\u00a0 Atlas Roofing, supra; Lake ButlerApparel Company, supra.\u00a0 Although its full impact is yet to be seen, theSupreme Court’s holding in Marshall v. Barlow’s, Inc., 98 S. Ct. 1816 (1978)concerns only inspections where the employer refused consent to the search and deniedentry, which did not occur in this case.Nonetheless, it is clear that this proceeding has nojurisdiction over, and cannot determine, constitutional issues.Respondent is a relatively large steel erector in the Pittsburgh, Pennsylvania area.\u00a0Previous violations or employee injuries have not been shown.\u00a0 In the past, itshould be noted, Adams Steel has demonstrated a safety program and significant concern forthe safety of its employees.\u00a0 Use of safety nets around building perimeters isuncommon in the industry.\u00a0 Therefore, Respondent should not suffer a large penaltysimply because it is one of the first employers to be determined in violation of thegeneral standard 29 C.F.R. 1926.105(a).FINDINGS OF FACT1.\u00a0 Adams Steel Erection, Inc., is a corporationheadquartered in Kittaning, Pennsylvania which conducts its principal business activitiesin the Pittsburgh, Pennsylvania area.2.\u00a0 The inspection of the Prudential Buildingwas in response to an anonymous complaint received at the Pittsburgh Occupational Safetyand Health Administration Office.3.\u00a0 The inspection was one of six inspections ofAdams Steel worksites conducted within a 5-week period.\u00a0 All six inspections wereconducted pursuant to anonymous telephone call complaints.4.\u00a0 Of all American industries, the steelerection industry is one of the most hazardous to employees.5.\u00a0 The inspection took place at what Section8(a)(1) of the Act describes as a \”construction site . . . where work is performed byan employee of an employer.\”\u00a0 The physical inspection itself was within thelimits prescribed in Section 8(a)(2), having been conducted \”during regular workinghours\” and within reasonable limits and in a reasonable manner.\”6.\u00a0 Employees working at an elevation of greaterthan 25 feet above the ground are exposed to a substantial risk of harm from falling.7.\u00a0 No wire rope or other safety railing was inplace around the third-floor perimeter.8.\u00a0 Three employees were observed working on thethird floor of the Prudential Building structure at a height of 27 feet above the ground.9.\u00a0 An employee falling over the outsideperimeter of the building would have suffered serious injury or death.10.\u00a0 The third floor was between 70 and 85percent converted from temporary to permanent flooring.11.\u00a0 The safety railing around temporaryflooring statute, 29 C.F.R. 1926.750(b)(1)(iii), is sufficiently clear and precise, andgives employers fair notice so as to be enforceable.12.\u00a0 The Prudential Building was still in thesteel erection stage and installation of permanent flooring was not yet completed at thetime of inspection.13.\u00a0 The ladder in issue was in use at the timeof inspection, was the sole means of access from the ground to the third floor, andascended through a third-floor opening unprotected by railings, toeboards or any similarsafety guards.14.\u00a0 An employee falling 27 feet through theopening to the ground would have suffered serious injury or death.15.\u00a0 Subpart R does not, by omission ofaddressing the subject, permit steel erectors to leave access ways unguarded.16.\u00a0 General standards apply to the extent thatparticular standards are inapplicable.17.\u00a0 An employee falling 50 feet over theoutside perimeter of the building would have suffered serious injury or death.18.\u00a0 It was not practical or of likely utilityfor Adams Steel employees at the Prudential building to tie off to beams, relief angles,bolt holes, or static lines.19.\u00a0 It was not practical or of likely utilityfor Adams Steel employees at the Prudential Building to use scaffolds, ladders, catchplatforms, or temporary floors as safety devices to protect against the dangers of outerperimeter falls.20.\u00a0 Both 29 C.F.R. 1926.28(a) and 1926.105(a)are sufficiently clear and precise, and give employers fair notice so as to beenforceable.21.\u00a0 Respondent did not provide safety nets orother protection against outside perimeter falls.22.\u00a0 Safety nets were practical and useful assafety device which could have been employed at the Prudential Building to protect workersagainst the dangers of falling.23.\u00a0 There was need for safety nets on theoutside perimeter of the structure since employees were working on or near the outsideperimeter and were subject to outside perimeter falls of 50 feet.24.\u00a0 The employee depicted in Exhibit C-7 was inclose enough proximity to the structure so as to be exposed to possible head injury fromimpact or from falling or flying objects.25.\u00a0 The employee depicted in Exhibit C-7 was\”working\” for the purposes of 29 C.F.R. 1926.100(a), even though he ismomentarily inactive.26.\u00a0 The complaints were anonymous and,therefore, it is unknown whether the complaints were made by employees, non-employees, orboth. 27.\u00a0 Both anonymous complaints and subsequentinspections are routine and common.28.\u00a0 The Secretary has broad authority toinspect under Section 8(a) of the Act.29.\u00a0 Respondent has an excellent safety recordin the past and is participating in employee safety protection.CONCLUSIONS OF LAW1.\u00a0 Adams Steel Erection, Inc., comes within thejurisdiction of Section 10(c) of the Occupational Safety and Health Act of 1970.2.\u00a0 Citation No. 1 was amended to reduce theproposed penalty of the two items from $800 to $420 each.3.\u00a0 Citation No. 2 was amended to reduce theproposed penalty from $2,000 to $840.4.\u00a0 Citation No. 2 was amended to be classifiedas \”Serious\” instead of \”Repeated.\” 5.\u00a0 The Secretary of Labor has validly exercised his authority under Section 8(a)(2)\”to inspect and investigate during regular working hours. . . and within reasonablelimits and in a reasonable manner …\” places of employment.\u00a0 Inspections of theAdams Steel construction sites are authorized by the Act and were reasonable and valid asperformed thereunder.6.\u00a0 The Commission is not an Article 3 court andcannot rule on constitutional issues.7.\u00a0 Section 8(f) of the Act is inapplicable tothe facts of this case since it is unknown who made the complaints and an employeeprovision cannot be applied based on an unfounded assumption.\u00a0 Section 8(a)’s generalinspection authority is the applicable statute governing the inspections.8.\u00a0 Local custom and practice in an industry ortrade does not prevail as against a specific Federal standard.9.\u00a0 Adams Steel has violated 29 C.F.R. 1926.750(b)(1)(iii) by failing to supply a safety railing around the periphery of the thirdfloor.\u00a0 The standard is applicable to the facts of this case and compliance isfeasible.10.\u00a0 Adams Steel has violated 29 C.F.R.1926.500(b)(2) by failing to protect workers from the dangers of an open ladderway bysupplying standard railings and standard toeboards.\u00a0 Employees had access to thehazard and Respondent failed to comply with the standard which is applicable under thefacts of this case.11.\u00a0 Adams Steel is not in violation of 29C.F.R. 1926.28(a) requiring personal protective equipment where there is exposure tohazardous working conditions because the installation and use of static lines or lanyardsare rendered infeasible by the dangers to which installation and use would subjectworkers.\u00a0 Tying off not only was impractical, it would have created a greater hazardthan the risks involved in nonuse.\u00a0 Under the facts, tying off to a beam, reliefangle, bolt hole, or static line are all infeasible.12.\u00a0 Adams Steel has violated 29 C.F.R.1926.105(a) by failing to install safety nets which is Respondent’s duty in view of theinfeasibility of the use of personal protective equipment.\u00a0 Section 1926.105(a)requires safety nets to be provided when work places are more than 25 feet above theground and Adams Steel has clearly failed to meet this requirement, subjecting its workersto possible unprotected falls of 50 feet.13.\u00a0 Adams Steel has violated 29 C.F.R.1926.100(a) because an employee of Respondent while working was observed not wearing ahard hat and was exposed to danger from being struck by falling materials.ORDER1.\u00a0 Serious Citation No. 1, Item 1, alleging a29 C.F.R. 1926.750(b)(1)(iii) violation, is affirmed.2.\u00a0 Respondent is assessed a penalty of $420 forthe 29 C.F.R. 1926.750(b)(1)(iii) violation.3.\u00a0 Serious Citation No. 1, Item 2, alleging a29 C.F.R. 1926.500(b)(2) violation, is affirmed.4.\u00a0 Respondent is assessed a penalty of $420 forthe 29 C.F.R. 1926.500(b)(2) violation. 5.\u00a0 Serious Citation No. 2 is partially vacatedand partially affirmed.\u00a0 The serious violation of 29 C.F.R. 1926.28(a) is vacated;the alternative serious violation of 29 C.F.R. 1926.105(a) is affirmed.6.\u00a0 Respondent is assessed a penalty of $50 forthe 29 C.F.R. 1926.105(a) violation.7.\u00a0 Other-than-Serious Citation No. 3, alleginga 29 C.F.R. 1926.100(a) violation, is affirmed.8.\u00a0 Respondent is not assessed a penalty for the Other-than-Serious violation of 29C.F.R. 1926.100(a).HENRY F. McQUADEJudge, OSHRCDated:\u00a0 April 25, 1979Hyattsville, MarylandFOOTNOTES: [[1]] Commissioner Wall would additionally find that the general contractor consented tothe inspection and that its consent was binding on Adams Steel.\u00a0 The complianceofficer informed the general contractor of the purpose of his inspection; he presented hiscredentials and a copy of the transcribed safety complaint.\u00a0 The response of thegeneral contractor was to gather together the inspection party.\u00a0 Commissioner Walltherefore infers that the general contractor gave its voluntary consent to the inspection.\u00a0 See Daniel Construction Co. of Alabama, 81 OSAHRC 71\/A2, 9 BNA OSHC2002, 2004 n.3, 1981 CCH OSHD ? 25,553, p. 31,861 n.3 (No. 13874, 1981)(voluntary consentfound where employer had no intent to object to entry at time of inspection and OSHA didnot misrepresent itself or coerce the employer).\u00a0 That consent bound Adams Steel.\u00a0The relationship between these two employers was the typical generalcontractor\/subcontractor relationship common to nearly all of the multiple-employer,construction-worksite cases the Commission has adjudicated.\u00a0 Adams Steel’s work areawas not a discrete or private area.\u00a0 Instead, it was an open area consisting of thethird-floor decking and structural steel above the third floor.\u00a0 Commissioner Walltherefore finds that the general contractor shared authority with Adams Steel over thearea in question so that it could give effective consent to an inspection of this area.\u00a0See Donovan v. A.A. Beiro Construction Co., 746 F.2d 894 (D.C. Cir.1984) (general contractor’s consent binding on subcontractor.)[[2]] Section 8(f)(1) of the Act, 29 U.S.C. ?657(f)(1), provides as follows:(f)(1) Any employees or representative of employeeswho believe that a violation of a safety or health standard exists that threatens physicalharm, or that an imminent danger exists, may request an inspection by giving notice to theSecretary or his authorized representative of such violation or danger.\u00a0 Any suchnotice shall be reduced to writing, shall set forth with reasonable particularity thegrounds for the notice, and shall be signed by the employees or representative ofemployees, and a copy shall be provided the employer or his agent no later than at thetime of inspection, except that, upon the request of the person giving such notice, hisname and the names of individual employees referred to therein shall not appear in suchcopy or on any record published, released, or made available pursuant to section (g) ofthis section.\u00a0 If upon receipt of such notification the Secretary determines thereare reasonable grounds to believe that such violation or danger exists, he shall make aspecial inspection in accordance with the provision, of this section as soon aspracticable, to determine if such violation or danger exists.\u00a0 If the Secretarydetermines there are no reasonable grounds to believe that a violation or danger exists heshall notify the employees 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, upon presenting 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 or environment where work is performed by anemployee of an employer; and(2) to inspect and investigate during regular working hours and at other reasonable times,and within reasonable limits and in a reasonable manner, any such place of employment andall pertinent conditions, structures, machines, apparatus, devices, equipment, andmaterials therein, and to question privately any such employer, owner, operator, agent oremployee.[[4]] OSHA uses the term \”non-formalcomplaints\” to refer to safety and health complaints that do not meet the\”formality requirements\” of ? 8(f)(1), note 2 supra.\u00a0 At thehearing in Adams Steel I, OSHA Regional Administrator Rhone identified thefollowing \”formality requirements\” for a ? 8(f)(1) complaint:\u00a0 (a) it mustbe submitted by an employee or an employee representative, (b) it must describe itsallegations with sufficient particularity, and (c) it must be signed.\u00a0 Paragraph 3(f)of FIM 76 20 lists the following examples of \”non-formal complaints\”:\u00a0complaints that do not state with reasonable particularity the nature of the violation,unsigned complaints, anonymous complaints, complaints received by telephone, andcomplaints filed by anyone other than an employee or an employee representative.[[5]] Specifically, Adams Steel requested admissionsthat the complaint in this case had been made by Donald Gardner, who was neither anemployee of Adams Steel nor a representative of its employees, and that this same personhad also made an earlier complaint that led to the inspection of the L.B. Foster Buildingproject.\u00a0 The Secretary admitted that the complainant in this case was neither anemployee nor an employee representative.\u00a0 However, he further asserted that he didnot know the identity of the complainant and that he therefore could neither admit nordeny that this complainant had filed other complaints or that this complainant was DonaldGardner.\u00a0 The record contains no other references to Donald Gardner.[[6]] The Secretary’s regulation at ? 1910.5 iscaptioned \”Applicability of standards.\”\u00a0 It instructs employers as to whichstandards they must comply with when a situation appears to be governed by more than onestandard.\u00a0 The provision relied upon by Adams Steel states:(c)(1) If a particular standard is specificallyapplicable to a condition, practice, means, method, operation, or process, it shallprevail over any different general standard which might otherwise be applicable to thesame condition, practice, means, method, operation, or process . . . .[[7]] The Secretary cites to the following provisionof his regulations, which is also found in ? 1910.5(c):(2) On the other hand, any standard shall applyaccording to its terms to any employment and place of employment in any industry, eventhough particular standards are also prescribed for the industry…to the extent that noneof such particular standards applies….[[8]] The case was tried before the judge onalternative theories, i.e., that the two employees should have been protected by tied-offsafety belts under ? 1926.28(a) or that they should have been protected by perimetersafety nets under ? 1926.105(a).\u00a0 The judge upheld only the charge under ?1926.105(a).\u00a0 He vacated the ? 1926.28(a) charge on the basis of his finding that itwould have been impractical for the two employees to tie off.\u00a0 The Secretary has nottaken exception to the judge’s disposition of the ? 1926.28(a) charge.\u00a0[[1\/]] That section is set forth for referencepurposes:(f)(1) Any employees or representative of employeeswho believe that a violation of a safety or health standard exists that threatens physicalharm, or that an imminent danger exists, may request an inspection by giving notice to theSecretary or his authorized representative of such violation or danger.\u00a0 Any suchnotice shall be reduced to writing, shall set forth with reasonable particularity thegrounds for the notice, and shall be signed by the employees or representative ofemployees, and a copy shall be provided the employer or his agent no later than at thetime of inspection, except that, upon the request of the person giving such notice, hisname and the names of individual employees referred to therein shall not appear in suchcopy or on any record published, released, or made available pursuant to subsection (g) ofthis section.\u00a0 If upon receipt of such notification the Secretary determines thereare reasonable grounds to believe that such violation or danger exists, he shall make aspecial inspection in accordance with the provisions of this section as soon aspracticable, to determine if such violation or danger exists.\u00a0 If the Secretarydetermines there are no reasonable grounds to believe that a violation or danger exists heshall notify the employees or representative of the employees in writing of suchdetermination.[[2\/]] Paragraph 3(c) of the Field InformationMemorandum No. 76-20, superceded December 1, 1977, requires \”(w)henever informationcomes to the attention of the Area Director without regard to its source and withoutregard to whether it meets the formality requirements of Section 8(f), an inspection shallbe conducted . . . .\”[[3\/]] Section 11(c) of the Act provides thatemployees may not be discharged or discriminated against because they have\”instituted or caused to be instituted any proceeding\” under the Act.\u00a0\”Any proceeding\” includes inspections the \”cause\” of which maybe anonymous complaints by employees.Section 11(c) of the Act reads:(c)(1) No person shall discharge or in any mannerdiscriminate against any employee because such employee has filed any complaint orinstituted or caused to be instituted any proceeding under or related to this Act or hastestified or is about to testify in any such proceeding or because of the exercise by suchemployee on behalf of himself or others of any right afforded by this Act.”