“SECRETARY OF LABOR,Complainant,v.BRATTON CORPORATION,Respondent.OSHRC Docket No. 83-0132_DECISION _BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:Administrative Law Judge Paul E. Dixon affirmed the citation issued toBratton Corporation alleging a serious violation of 29 C.F.R. ?1926.28(a)[[1\/]] for failing to require its employees performing steelerection work to use safety belts and lanyards where they were exposedto fall hazards while welding bar joists. He assessed a penalty of $150.The key issue on review is whether the judge erred in concluding thatsection 1926.28(a), a general construction industry standard, wasapplicable and not preempted by the steel erection standard at 29 C.F.R.? 1926.750(b)(2)(i).[[2\/]] Additional issues are whether the judge erredin determining that Bratton had fair notice that section 1926.28(a)applied, and in concluding that Bratton had committed a violation ofthat standard.Bratton Corporation is a steel erection contractor with its principaloffice in Kansas City, Missouri. As a result of an inspection of itsworksite in Overland Park, Kansas, the Secretary issued a citation toBratton alleging a serious violation of section 1926.28(a) in that\”[e]mployees were welding bar joists to the roof section without the useof safety belts & lanyards or equivalent fall protection to prevent fallto ground approximately 33′ below.\” The photographic exhibits introducedby the Secretary and admitted at the hearing show Bratton’s employeesworking on perimeter beams at the outside edge of the building. At thehearing, Compliance Officer Robert Lathrop testified that theconstruction plans that he was shown during the inspection indicatedthat the employees he observed were exposed to a fall of about 33 feetto the outside of the structure and a fall of approximately 28 feet tothe interior.Harold Oberweather, Bratton’s foreman, testified that shortly after theinspection he measured a distance of 28 feet, 7 inches from where oneemployee was sitting while welding a bar joist to the unfinished gradebelow. He also testified that, based on the construction plans, theemployees were 32 feet above the ground when they worked at thesouthwest corner of the building.The judge found that the height at which Bratton’s employees wereworking \”ranged from 28 to 33 feet.\”I. Whether Section 1926.750(b)(2)(i) Preempts Section 1926.28(a)Bratton contends that section 1926.28(a) does not apply in this casebecause it is preempted by the specific steel erection standard atsection 1926.750(b) (2) (i). The test to determine which of two or moreOSHA standards applies in a particular case is set forth in 29 C.F.R. ?1910.5(c), which provides:? 1910.5 Applicability of standards.* * *(c)(1) If a particular standard is specifically applicable to acondition, practice, means, method, operation, or process, it shallprevail over any different general standard which might otherwise beapplicable to the same condition, practice, means, method, operation, orprocess. . . .(2) On the other hand, any standard shall apply according to its termsto any employment . . . in any industry, even though particularstandards are also prescribed for the industry, as in Subpart B orSubpart R of this part, to the extent that none of such particularstandards applies. . . .The question presented is whether section 1926.750(b)(2)(i) is\”specifically applicable\” to the cited condition. Bratton contends thatthe standard is \”specifically applicable\” because its employees wereperforming steel erection work at locations that were less than 30 feetabove the ground.[[3\/]] We disagree with Bratton on this point. Brattonrelies on the height at which employees were working as beingdeterminative of the steel erection standard’s applicability in thisparticular case. Its reliance is misplaced. Even if the height weredeterminative, the judge found that employees were working at heightsthat ranged up to 33 feet above the ground.More determinative than the fall distance is the type of fall hazardaddressed by section 1926.750(b)(2)(i). Several circuit courts haveconcluded that the standard addresses _only_ falls to the interior,because the abatement required is temporary flooring, which does notprotect against exterior falls._E.g._, _Brock v. Williams Enterprises ofGeorgia, Inc.,_ 832 F.2d 567 (11th Cir. 1987); _Brock v. L.R. Willson &Sons,_ 773 F.2d 1377 (D.C. Cir. 1985); _Donovan v. Adams Steel Erection,Inc, _766 F.2d 804 (3d Cir. 1985); _Donovan v. Daniel Marr & Son Co.,_763 F.2d 477 (1st Cir. 1985). However, only _exterior_ falls are atissue here. Even though the Secretary’s post-hearing brief and thejudge’s decision both addressed (but did not distinguish between)exterior and interior fall hazards, the Secretary on review discussesonly exterior falls. Applying section 1910.5(c), quoted above, in herbrief on review, the Secretary states that she \”determined that nostandard in Subpart R was ‘specifically applicable’ to _exterior_ fallsfrom perimeter beams, and therefore [s]he issued a citation for exposingemployees to that [hazard] under the general construction safetystandard, ? 1926.28(a).\” (emphasis added) . The Secretary also assertson review that the temporary flooring requirement of section 1926.750(b)(2) (i) \”is not specifically applicable to the hazards at issuebecause, although temporary flooring may protect against interior falls,it obviously provides no protection against _exterior_ falls fromperimeter beams.\”[[4\/]] (emphasis added).Based on the Secretary’s clear expression in her brief on review that inthis case she is only addressing the exterior fall hazards, we concludethat the Secretary has abandoned any claim that the section 1926.28(a)citation concerns interior falls.[[5\/]] Therefore, we vacate thecitation insofar as it may allege a violation of section 1926.28(a) withregard to interior falls. _See Williams Enterprises of Georgia, Inc.,_12 BNA OSHC 2097, 2101, 1986-87 CCH OSHD ? 27,692 p. 36,151 (No.79-4618, 1986),_rev’d on other grounds_, 832 F.2d 567 (11th Cir. 1987)(Commission concluded Secretary \”in effect abandons\” section 1926.28(a)citation item, so item vacated).Because section 1926.750(b)(2)(i) addresses only interior fall hazards,it is not specifically applicable to the exterior fall hazard at issuehere and therefore does not preempt section 1926.28(a). Accordingly, weconclude that section 1926.28(a) applies to the exterior falls cited inthis case.We recognize that this conclusion does not comport with currentCommission precedent, which holds that steel erection work is governedexclusively by Subpart R. However, we note that where that precedent hasbeen appealed, the circuit courts have unanimously rejected it. _SeeWilliams Enterprises of Georgia, Inc., _12 BNA OSHC 2097, 1986-87 CCHOSHD ? 27,692 (No. 79-4618, 1986), _rev’d,_ 832 F.2d 567 (11th Cir.1987); _L.R. Willson & Sons, Inc.,_ 11 BNA OSHC 2182, 1984-85 CCH OSHD ?26,978 (No. 80-5866, 1984), _rev’d,_ 773 F.2d 1377 (D.C.Cir. 1985);_Daniel Marr & Son Co.,_ 11 BNA OSHC 2088, 1984-85 CCH OSHD ? 26,980(No. 82-612, 1984), _rev’d,_ 763 F.2d 477 (1st Cir. 1985) _Adams SteelErection, Inc, _11 BNA OSHC 2073, 1984-85 CCH OSHD ? 26,976 (No.77-4238, 1984), _rev’d_, 766 F.2d 804 (3d Cir. 1985).[[6\/]]In the Commission decision in _Adams Steel,_ which announced that steelerection work is governed exclusively by Subpart R, the Commissionrelied on _Daniel International Corporation v. Donovan,_ 705 F.2d 382(10th Cir. 1983), and _Builders Steel Co. v. Marshall,_ 622 F.2d 367(8th Cir. 1980). However, having reconsidered the preemption issue inlight of the more recent appellate court decisions set forth above, wenow conclude that the court decisions in _Daniel International_ and_Builders Steel _are inapposite to this case. _See Brock v. WilliamsEnterprises of Georgia, Inc.,_ 832 F.2d at 571 n. 6;_Brock v. L.R.Willson & Sons, Inc.,_ 773 F.2d at 1382 n.5; _Donovan v. Adams SteelErection, Inc.,_ 766 F.2d at 809; _Donovan v. Daniel Marr & Son Co.,_763 F.2d at 483. In _Daniel,_ the issue was whether a power plant underconstruction was a tiered building within the meaning of section1926.750. The court concluded that it was, thereby eliminating any needto discuss Daniel’s argument that the general construction standardsapplied (the converse of Bratton’s argument here). 705 F.2d at 386. InBuilders, at issue were only interior fall hazards, while only exteriorfalls are at issue here. _See Builders Steel Co. v. Marshall,_ 575 F.2d663, 665 (8th Cir. 1978) (prior decision in case, noting potential fallto concrete floor).We agree with the various appellate court decisions cited above thathave drawn a distinction between interior and exterior fall hazards andhold that the steel erection standards in Subpart R do not preemptapplication of the general construction standards to steel erection work\”where general standards provide meaningful protection to employeesbeyond the protection afforded by the steel erection standards . . . .\”_Williams Enterprises Inc.,_ 11 BNA OSHC 1410, 1416, 1983-84 CCH OSHD ?26,542 p. 33,877 (No. 79-843, 1983), _aff’d in pertinent part,_ 744 F.2d170 (D.C. Cir. 1984). All Commission decisions to the contrary areoverruled in that respect, and we find that section 1926.28(a) appliesin this case.II. _Whether Bratton Had Fair Notice_An employer lacking fair notice of a standard cannot be found inviolation of the Act for failure to comply with that standard. _E.g._,_Diebold, Inc. v. Marshall,_ 585 F.2d 1327, 1335-1339 (6th Cir.1978);_Cardinal Industries,_ 14 BNA OSHC 1008, 1011, 1989 CCH OSHD ?28,510 (No. 82-427, 1989)._Cf._ _Secretary v. East Penn ManufacturingCo.,_ 894 F.2d 640 (3d Cir. 1990), _rev’g in pertinent part _13 BNA OSHC2224, 1989 CCH OSHD ? 28,517 (No. 87-537, 1989) (employer’s reliance onCommission decision that was being appealed to a circuit court wasunreasonable under particular circumstances and should not have beenused as basis for vacating citation for lack of fair notice).Bratton contends that it was denied due process, in that it lacked fairnotice that fall protection was necessary for the employees at issue,because the steel erection standard at section 1926.750(b)(2)(i)requires fall protection only at heights exceeding 30 feet. However, asnoted above, Bratton’s foreman Oberweather testified that, based on theconstruction plans, the employees were 32 feet above the ground at thesouthwest corner. Foreman Oberweather in that testimony eliminated thebasis for Bratton’s argument, because he admitted that the workers were,at some time, over 30 feet above the ground.Moreover, Bratton had received notice of the applicability of section1926.28(a) to its type of work (steel erection) through an OSHA citationthat the Secretary had issued to it in 1980, alleging one seriousviolation of 29 C.F.R. ?? 1926.28(a) and 1926.105(a) [[7\/]] Bratton didnot contest that citation, which charged that two of its employeesworking on an I-beam on the roof of a building \”were not protectedagainst falls _of more than 25 feet_ by the use of safety nets, ladders,scaffolds, catch platforms, temporary floors, safety lines, safetybelts, or other appropriate personal protective equipment.\” (emphasisadded).As another basis for its lack of fair notice argument, Bratton notes thelong-standing confusion among Commission members, judges, and complianceofficers, as to whether the steel erection standards preempt a generalconstruction standard. At the time of the inspection of the Brattonworksite, Commission precedent concerning this issue consisted of onedecision in which the Commission’s only two members disagreed, resultingin affirmance of the judge’s decision below that section 1926.28(a) wasapplicable to steel erection work and was not preempted by Subpart R._Bristol Steel & Iron Works, Inc., _5 BNA OSHC 1940, 1977-78 CCH OSHD ?22,240 (No. 14537, 1977) , _rev’d on other grounds,_ 601 F.2d 717 (4thCir. 1979).While Commission precedent may have been less than clear, by the time ofthe inspection at least two circuit courts had plainly held that section1926.28(a) was not preempted by the steel erection standards where thesteel erection standards provided no protection. _See L.R. Willson &Sons, Inc. v. Donovan,_ 698 F.2d 507 (D.C. Cir. 1983) (issued less thana month before inspection of Bratton’s worksite); _L.R. Willson & Sons,Inc. v. Donovan, _685 F.2d 664 (D.C. Cir. 1982); _Bristol Steel & IronWorks, Inc. v. Marshall,_ 601 F.2d 717 (4th Cir. 1979). Those decisionsprovided notice to employers that section 1926.28(a) could apply tosteel erection work.Based on the factors discussed above, we conclude that Bratton had fairnotice that section 1926.28(a) applied to the cited condition.Therefore, Bratton was not denied due process.III. _Whether Bratton Violated the Standard_To prove a violation of section 1926.28(a) the Secretary must establishthat: (1) employees were exposed to a hazardous condition warranting theuse of personal protective equipment; (2) some other section of Part1926 indicates a need for the use of the particular protective equipmentin the circumstances presented; and (3) the employer failed to requirethe use of the equipment. _L.E. Myers Company,_ 12 BNA OSHC 1609, 1614,1986-87 CCH OSHD ? 27,476 at p. 35,604 (No. 82-1137, 1986),_rev’d onother grounds,_ 818 F.2d 1270 (6th Cir. 1987) [[8\/]] The Secretary alsomust prove that it was feasible for Bratton’s employees to use safetybelts and lanyards. _See Granite City Terminals Corporation,_ 12 BNAOSHC 1741, 1746 & n. 11, 1986-87 CCH OSHD ? 27,547 at pp. 35,774-75 &n.11 (No. 83-882-S, 1986). Here, the judge concluded that the use ofsafety belts was feasible, and Bratton does not challenge thatconclusion on review.To establish the first element the Secretary must prove that areasonable person familiar with the circumstances surrounding theallegedly hazardous condition, including any facts unique to aparticular industry, would recognize a hazard warranting the use ofpersonal protective equipment. _E.g., Williams Enterprises, Inc._ 11 BNAOSHC 1410, 1416, 1983-84 CCH OSHD ? 26,542 (No. 79-843, 1983), _aff’d onother grounds,_ 744 F.2d 170 (D.C. Cir. 1984); _Daniel ConstructionCo.,_ 10 BNA OSHC 1549, 1550, 1982 CCH OSHD ? 26,027 p. 32,671 (No.16265, 1982); _Bethlehem Steel Corporation,_ 10 BNA OSHC 1264, 1266,1982 CCH OSHD ? 25,839 p. 32,324 (No. 16067, 1981); _S & H Riggers andErectors, Inc.,_ 7 BNA OSHC 1260, 1263, 1979 CCH OSHD ? 23,480 p. 28,436(No. 15855, 1979), _rev’d,_ 659 F.2d 1273 (5th Cir. 1981).Citing _S & H Riggers and Erectors, Inc. ,_ 659 F.2d 1273 (5th Cir.1981), Bratton argues that section 1926.28(a) is vague as applied andthat to cure this vagueness the Secretary must prove that industrycustom or practice required the use of safety belts under thecircumstances cited in this case. However, no federal circuit courtother than the Fifth Circuit has found evidence of industry custom to bedispositive. Rather, the vast majority of the circuit courts haveconcluded that the same test applied by the Commission in the decisionscited above–what a reasonable person familiar with the circumstancessurrounding the cited condition and with industry practice would havedone–is sufficient to meet the requirements of due process. _E.g.,Spancrete Northeast, Inc. v. OSHRC,_ 905 F.2d 589, 593 (2d Cir. 1990);_Voegele Company, Inc. v. OSHRC,_ 625 F.2d 1075, 1078 (3d Cir. 1980);_Ray Evers Welding Company v. OSHRC,_ 625 F.2d 726, 731-32 (6th Cir.1980); _Bristol Steel & Iron Works, Inc. v. OSHRC,_ 601 F.2d 717, 722-23(4th Cir. 1979).Moreover, at least one circuit court has concluded that a fall distanceconsiderably less than the one here presented an obvious fall hazard,which made it unnecessary for the Secretary to establish that the hazardwas recognized by the industry. _Austin Building Co. v. OSHRC,_ 647 F.2d1063, 1067 (10th Cir. 1981) (welder approximately 19 feet above groundbalancing with his feet on railings); _see also Jensen ConstructionCompany of Oklahoma, Inc. v. OSHRC, _597 F.2d 246, 249 (10th Cir. 1979)(standard not vague when applied to employees astride structural beams17 to 23 feet above expressway).The evidence is undisputed that, when observed by Compliance OfficerLathrop; the employees working on the perimeter beams were not tied off,and they were sitting bent over and wearing welding hoods while exposedto a fall of up to 33 feet to the outside. According to ComplianceOfficer John Wiseman, who gave opinion testimony based on his many yearsof experience in ironworking and construction safety, the sittingemployees welding bar joists could have slipped and fallen as a resultof pulling on a wrench or by having only limited vision through theirwelding masks. He also testified that he had seen \”lots\” of ironworkerstied off to steel beams while they were welding.We conclude that, based on the evidence establishing the conditions atBratton’s worksite, the opinion testimony elicited by the Secretary, andthe obviousness of the hazard, a reasonable person familiar with thecited conditions would have recognized a hazard warranting the use ofsafety belts. Therefore, we conclude that the Secretary demonstratedthat Bratton’s employees were exposed to a hazardous condition thatwarranted the use of safety belts.With regard to the second element of proof, whether some other sectionof Part 1926 \”indicates a need\” for the use of the particular protectiveequipment, we note that the Commission has concluded that 29 C.F.R. ?1926.105(a) \”indicates a need\” for safety belts where the worksite is_more than 25 feet_ above the ground._See L.E. Myers Co.,_ 12 BNA OSHCat 1614, 1986-87 CCH OSHD at p. 35,605. Bratton contends that the judgewas incorrect in concluding that the fall distance \”ranged from 28 to 33feet\” because foreman Oberweather’s measurement of 28 feet, 7 inches wasthe most reliable evidence on that point. That argument ignores the factthat so long as the fall distance exceeds 25 feet, the exact measurementis irrelevant. As even the shortest outside fall distance in therecord–foreman Oberweather’s measurement of 28 feet, 7 inches–exceeded25 feet, the second element of a section 1926.28(a) violation has beenproven. _Cf_. _Central Wisconsin Steel Building Erectors,_ 13 BNA OSHC1119, 1986-87 CCH OSHD ? 27,827 (No. 84-119, 1987) (maximum falldistance was only 21 feet, so Secretary was not proven violation ofsection 1926.28(a)).Concerning the third element of proof, whether the employer failed torequire the use of the equipment, the evidence establishes that Brattondid not require its employees to use safety belts and lanyards whenworking at heights above 25 feet. Bratton’s foreman Oberweathertestified that, on the day of the inspection, Bratton’s employeesworking more than 25 feet above the ground wore safety belts, but theywere not tied off. Neither Oberweather nor Don Wilson, Bratton’s fieldsuperintendent, indicated that this failure to tie off was contrary toany Bratton workrule. Oberweather and Wilson testified that they left itto the discretion of Bratton’s employees to decide when to tie off theirsafety belts. In their opinion, it was necessary to tie off only in thepresence of a hazard like a forceful wind or a nearby crane that couldswing and hit workers.[[9\/]]Based on the evidence discussed above, we conclude that the Secretaryhas proven a violation of section 1926.28(a), and Bratton has failed toestablish any defense to such violation.IV._Seriousness and Penalty_It is obvious that an employee falling a distance of 25 feet or morecould suffer serious bodily harm. Therefore, based on the record in thiscase, we find the violation to be serious under section 17(k) of theAct, 29 U.S.C. ? 666(k).Giving consideration to the appropriateness of the penalty, inaccordance with section 17(j), of the Act, 29 U.S.C. ? 666(j), we takeparticular note of Bratton’s good faith efforts to immediately abate thehazardous condition in this case. We conclude that a penalty of $150 isappropriate and assess that amount.V. _Order_We hereby affirm the decision of the judge and conclude that Brattoncommitted a serious violation of section 1926.28(a), for which we assessa penalty of $150.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: November 21, 1990————————————————————————SECRETARY OF LABOR,Complainantv.BRATTON CORPORATION,RespondentOSHRC DOCKET 83-0132APPEARING ON BEHALF OF COMPLAINANT:MALINDA B. SCHOEB, ESQ., U.S. Department of Labor, Office of the SolicitorAPPEARING ON BEHALF OF RESPONDENT:CHARLES A. RILEY, Vice President\/General Superintendent, The BrattonCorporation,_pro_ _se_,Hearing held November 15, 1983, Judge Paul E. Dixon presiding._STATEMENT OF THE CASE_This is an action arising under the provisions of section 10(c) of theOccupational Safety and Health Act of 1970, 84 stat., 1950, _et_ _seq._(29 USC 651 _et_ _seq._) (hereinafter referred to as the Act), whereinrespondent was charged with serious violation of a standard promulgatedunder the Act, along with a proposed penalty of $150. Respondent dulyfiled its notice of contest, and after the complaint and answer thecause came on for hearing.The respondent, by citation issued February 17, 1983, was charged withserious violation of the standard at 29 CFR 1926.28(a) and assessed aproposed penalty of $150._The Citation__Citation 1 for Serious Violation __Item 1_\”29 CFR 1926.28(a): Appropriate personal protective equipment was notworn by employee(s) in all operations where there was exposure tohazardous conditions:(a) Employees were welding bar joists to the roof section without theuse of safety belts and lanyards or equivalent fall protection toprevent fall to ground approximately 33′ below.\”_The Standard_\”?1926.28 Personal protective equipment.(a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.\”_THE EVIDENCE_On February 10, 1983, compliance officer Robert Lathrop observed personsatop a roof section, both walking and sitting and welding, who did notappear to be wearing fall protection.Upon entering the worksite he spoke to the superintendent, who advisedthat the persons were employees of respondent Bratton and anothercontractor. Respondent’s representative Oberweather was summoned andaccompanied Lathrop on his inspection.Lathrop observed respondent’s employees welding bar joists on the westwall. Construction was at the beginning stage of skeletal steelerection. The building was to be a two-story office building. Employeeswere working the roof section.Lathrop did not recall observing any flooring or platforms being in,noting that the inside area was gravel, the outside area snow and mud.Lathrop obtained the names of two of the employees involved, Bob Millerand Joseph Welch.The employees had come down during the opening conference.By the time Lathrop spoke to the employees they had belts with lanyardson. Lathrop was advised by Oberweather that respondent had belts andlanyards in its trailers.It was Lathrop’s impression that the employees had donned belts andlanyards and started back up to the roof when he left the jobsite toinspect another contractor.Before leaving the area Lathrop observed that the employees had tied offand were sitting.In his discussions, he was advised that it took three to five minutes tocomplete it weld and then move to the next bar joist.Lathrop took Complainant’s Exhibit C-3, which he identified as aphotograph representing Bratton employees, with one walking and one sitting.Lathrop identified Complainant’s Exhibit C-4 as being respondent’semployees and Exhibit C-5 demonstrating respondent’s employees weldingbar joists.Lathrop identified an employee as sitting on the west beam. Lathropdetermined from the construction plans that if one of the employeeswould fall he would fall 28 feet to the inside and 33 feet to theoutside of the structure.In assessing the situation, Lathrop took into account the weather, inthat in walking to and from the supply trailer the employees walked inmud, which in turn would be tracked to the beam making for a slipperycondition.He also noticed some snow on the ground, both muddy ground and meltingsnow, and it was Lathrop’s opinion that the beams would present aslipping hazard from the employees tracking material to the beam.Lathrop was of the opinion that a fall from the distances involved wouldbe productive of internal injuries, fractures or death. It was Lathrop’simpression that respondent had approximately 21 employees, with fiveworking at the jobsite.Lathrop noted that respondent had been cited in 1980 for violation of 29CFR 1926.28(a).In discussing the standard, Lathrop conceded that the standard does nothave a height requirement, and that his regional offices use a 26-footheight based on the international manual.At a later date, Lathrop went to the roof of the building after it wascompleted and measured from the second floor to verify the height involved.Lathrop testified that he did not cite the respondent for its employeeswalking to their work position, but rather cited the respondent for itsemployees sitting and working bent over with welding hoods withoutprotection for periods of three to five minutes.It was Lathrop’s testimony that if the employees had been tied off tothe beam respondent would not have been cited, or if respondent had usedcatch platforms or worked off of elevator work platforms with cages, itwould not have been cited.Lathrop did not, at the time of the inspection, inspect the roof levelfor mud or snow, but based his judgment of the hazard of tracking debristo the beams upon his observation of the employees walking to the supplyshed with mud and rocks on their shoes; and the further observation ofseeing no employee change shoes before going up to the iron.Complainant called senior compliance officer John R. Wiseman, a cardholding journeyman ironworker since 1950, with broad experience inconstruction safety who has been employed as an apprenticed andjourneyman ironworker foreman, taught construction in the Army, workedas a safety inspector for the District of Columbia, taught safetycourses at community colleges to construction people, and who was taughtas an ironworker in the use of personal protective equipment like safetybelts and Ianyards for fall protection.Wiseman has lectured the International Association of Ironworkers, alongwith the International Association of Bridge, Structural and OrnamentalWorkers.Based upon his broad experience, training and work activities,compliance officer Wiseman rendered actual and opinion testimonypertaining to fall protection.It was his opinion that an employee bolting or welding at a station orstationary or sitting could pull on a wrench, slip and fall; or a simplebody malfunction, such as a heart attack, could percipitate a fall,along with wearing a welding mask where the employee is blind to what isaround him.Wiseman described welding bar joists as a standard technique. Both sidesof the joists are welded, unless the architect requires extra large weldacross the front. The normal weld is 1 1\/2 to 2 inches and takes aroundtwo minutes or longer to accomplish. Wiseman was advised by therespondent that both sides of the bar joists were welded.He described bar joist welding as an employee at a given station weldingas many bar joists as he can reach, which may be up to as many as fourbar joists.He further described the operation as the employee having to get to hiswork station, pulling a welding lead, and it was his opinion that ifthere were any fall distances involved the employee should be tied off.Wiseman measured the finished building elevation and determined a falldistance of 31 feet, 2 inches.Wiseman was of the opinion that the employees sitting and welding barjoists were exposed to the hazard of falling to the ground, and of thefurther opinion that the employees should have been protected by beingtied off while welding where the employee has to travel from point topoint. If there is no flooring protection, the employee should beprotected by stringing a static line, and if no line is strung theemployee should tie off to the beam.Wiseman has investigated falls from 28 to 33 feet, noting that oneinvestigation of a 10-foot fall resulted in a fatality; the other fallsinjuries, broken arms, legs and necks. It was Wiseman’s opinion that anydistance from 10 feet or greater the employees should be tied off, andfurther that the use of a belt and lanyard would not prevent the workfrom being done.Wiseman’s description of the use of the belt and lanyard on welding barjoists would be to sit on the beam, reach to the bolt bag, obtain thelanyard, flip it around the beam, attach the lanyard to the belt so itwould hold the employee from falling.It was Wiseman’s opinion that neither 29 CFR 1926.750 nor 1926.28anticipate that an ironworker should be allowed to fall 30 feet.Harold Oberweather, an ironworker since 1969 and respondent’s workforeman at the jobsite, testified on behalf of respondent.It was his testimony that all the employees were wearing safety beltsand lanyards, in that it is the respondent’s policy for the employeesworking the iron to wear belts.He further testified that there is no mud or snow on the iron where theemployees were working, in that the iron was cleaned before it went up.Oberweather would not send a man up if there was ice or mud on the iron.Oberweather has been inspected on other jobs where the work activitiesinvolved welding bar joists, and where the employees were not tied off12 to 15 feet above ground, and has never been cited.It was his testimony that it takes longer to tie off than to weld a barjoist.It was Oberweather’s observation that welding a bar joist takes lessthan 45 seconds. Oberweather measured where the employee was sitting onthe day of the inspection from the iron to the ground and came up withthe measurement of 28 feet, 7 inches.The practice of looping the lanyard around the beam was criticized byOberweather, in that the employee has to reach under to exchange thehook, or if he swings the lanyard beneath the beam the hook could hitthe employee in the head. In Oberweather’s opinion, such a practice is agreater hazard than tying off to the beam. Oberweather did thewalkaround with the compliance officer, and was told by the complianceofficer that he was being cited for the lanyard not being in use orattached to the beam.Oberweather described the lanyard as being an integral part of thesafety belt.Oberweather had been on the beam that day. He observed that respondenthad planks and gravel leading from the worksite to the supply shack.Oberweather did not caution the men not to walk the beam with muddyfeet. Oberweather could only imagine that the outside ground was muddy;however, he testified that respondent had 10 inches of gravel on thejobsite.Oberweather computed the height of the beam to the ground for thecompliance officer from the job plans. Without measuring, he came upwith the height of 32 feet at the southwest corner and 6 feet less, or26 feet, at the inside elevation.The employees were working on an 18-inch deep beam.In his training as an apprentice, Oberweather took safety courses. Hetestified that he was taught to take all safety measures and use then athis own discretion if he felt uncomfortable.Oberweather would tie off if told to while he was either stationary orwelding; however, he would not tie off welding bar joists even if 30stories in the air.Oberweather was in some disagreement with compliance officer Lathrop, inthat he testified they had seven men working at the jobsite, with two onthe iron welding joist, with the rest of the men laying deck. It was hisrecollection that the first floor was about 75 percent decked.Oberweather conceded that there were possible areas beneath the weldingoperations which were not decked. It was his opinion that theutilization of safety belts and lanyards would have doubled the weldingtime, but he further conceded that it would not have prevented the welding.Don Wilson, respondent’s field superintendent, with 22 years as aniron-worker, testified on behalf of respondent.He has been in charge of jobs which were OSHA inspected, and where nocitations were issued for men sitting welding bar joists to heights 30feet above the ground.As part of Wilson’s job duties, he is responsible for field safety. Hedescribed respondent’s safety efforts as scheduling safety meetings,giving out safety pamphlets along with Monday jobsite meetings. Wilsonalso screens all erection procedures, cranes, riggings and stairways.Wilson has welded bar joists, and it was his estimation that it takes aminute and-a-half to two minutes to weld a bar joist. Further, that itwould be more of a hazard to be tied off, as it is difficult to tie offon a 36-inch deep beam.He described the beams at respondent’s jobsites as 18-inch beams, withthe men sitting on a 7-inch flange with their feet on the bottom flange.It was his opinion that it would be difficult to reach down 18 inches orforward or to the side to get a hold on a line.Wilson testified that the respondent averages 20 to 25 field employees,with eight field crews from two men to 20 men on a particular job.Wilson was of the opinion that at the jobsite the bar joists could nothave been welded in one day. A crew usually aligns the bar joists beforethe welders arrive to weld. If the bar joists are out of line, thewelder can nudge the bar joist with either a spud wrench or with hisknees at the work station.Wilson testified that it was common practice for respondent’s employeesto wear structural belts with lanyards. The employee usually buys hisown belt with respondent providing additional belts on the job.It was Wilson’s position that the decision as to tying off should beleft to the employees’ discretion; as for example, where there isinvolved a swinging scaffold, but not welding bar joists while sittingwearing welding hoods._DISCUSSION _The issue involved in this case is whether or not respondent should befound in violation of 29 CFR 1926.28(a) for having its employeesinvolved in welding bar joists at heights of 28 feet, 7 inches, to 33feet without requiring the use of appropriate personal protectiveequipment; namely, safety belt and lanyard.The principal factual and evidentiary input was supplied by respondent’sforeman Oberweather and that of complainant’s expert witness Wiseman;both men with long experience in the steel erection process.There was no substantial dispute that two of respondent’s employees werewalking to their job positions, positioning and sitting and welding barjoists at heights ranging from 28 feet to 30 feet. There is someevidentiary dispute as to whether or not the employees actually werewearing safety belts, but giving the benefit of doubt to respondent thatthe employees were so equipped they were not tied off in the performanceof their duties.The surrounding circumstances of the operation consisted of theobservation of compliance officer Lathrop that the employees werewalking through mud and rock, ascending a ladder and then on to the beamto their work position, which was not clearly refuted by the respondentexcept for the testimony of its foreman that the beams were washed onthe ground before placement and his testimony that he had been upon thebeam during the process of erection; but no direct testimony as to hisobservation of the condition of the beam.The testimony of compliance officer Wiseman was that in order to performthe work it was necessary for the employees to drag a welding lead tothe work position, and while straddling the beam employ the use of awelding hood, noting the opinion of compliance officer Lathrop that thehood obliterated surrounding events from the employee’s view, along withthe further circumstance of the employee having to nudge a joist intoposition with his knees should it be off mark and reaching to weld asmany bar joists as possible from his one position before moving to hisnext work position. Further, the testimony of Wiseman that an employee,in utilizing his wrench in lining up a joist could slip and fall.The suggested abatement methods were that of tying off to the beam byreaching or swinging the lanyard around the beam, which was some 18inches deep, or attaching a static line for attachment of the lanyard bythe employee as he performs his job operations.There was little at issue in the testimony concerning the results of afall precipitating serious bodily injury or death by either party.While much dichotomy is made between the expert witnesses as to theperiod of time it took to constitute a weld from 45 seconds to two tothree to five minutes, it is felt that actually this issue is irrelevant.It is readily apparent that respondent’s employees were exposed to ahazardous condition which could result in serious bodily harm or deathshould they fall.Further, respondent had by concession at trial and by prior citation,full knowledge of the requirements of the standard.In measuring the credibility of the witnesses, account is taken of thetestimony of respondent’s foreman Oberweather, who in his apprenticetraining as a steelworker took a variety of safety courses, and whoseprincipal justification for not tying off was that it \”takes longer\” totie off than not in welding a bar joist, and that looping a lanyardaround a beam could result in the hook hitting the employee in the head,although as an experienced ironworker he had never had this problem, andthat despite his concern for the safety of his men at the job inquestion, he, Oberweather, would not tie off even if welding bar joists\”30 stories in the air\”. This testimony, in contrast of that of witnessWiseman, who in his entire career has been concerned with steel safety,is found to be less credible, and the testimony of witness Wiseman isgiven the greater weight in the evaluation of the various factual andopinion assessments made by the witnesses.It is felt that the core of the matter was succinctly stated bycompliance officer Wiseman in his testimony under cross-examination,wherein he stated that neither standard 29 CFR 1926.750 nor 1926.28(a)anticipated that an ironworker should be allowed to fall 30 feet.It is specifically found that the employees were exposed to hazardousconditions and were not provided or required to wear appropriatepersonal protective equipment, and that the need for using suchequipment was known to respondent.Respondent makes various legal arguments which also fail. Respondentargues that the standard is vague, in that it does not give a specificheight requirement for the utilization of personal protective equipment.The Review Commission has held that the language of the standard gives arespondent reasonable notice that the use of personal protectiveequipment was required whenever employees are exposed to a hazard._Secretary v. Carpenter Rigging & Contracting Corp.,_ Docket 1399, 75OSHRC 32\/D13, 15 OSAHRC 400, 2 BNA OSHC 1544, CCH OSHD ?16,429, 19,252(21 feet above ground level); and holdings following the amendment ofthe standard, _Jensen Construction of Oklahoma, Inc. v. OSHRC,_ Docket12940, 77 OSHRC 118\/B14, 77 OSHRC 180\/B1, 5 BNA OSHC 1781, 1906, CCHOSHD ? 20,569, 22,215, 597 F.2d 246 (10th Cir., 1979) (17 to 23 feetabove a traveled expressway).Respondent’s job operations took place in Overland Park, Kansas, thesite being within the jurisdiction of the U.S. 10th Circuit Court ofAppeals, which is therefore the controlling circuit for this Kansasemployer. _Hillhouse v. Harris,_ Docket 82-2148,____ OSHRC____, slipopinion, 8th Cir., August 31, 1983, and cases cited therein.Respondent’s allegation of vagueness argues critically of assessmentsmade by compliance officer Lathrop that a 26-foot fall would beproductive of bodily injury and therefore hazardous, and complianceofficer Wiseman’s assessment of a 10-foot fall being productive ofbodily injury and therefore a hazard. However, it does not address hisjob foreman’s assessment that he would not tie off at the 30-story levelwhile welding bar joists.It was specifically found that the testimony of both the complianceofficers was entirely credible, in that compliance officer Lathropexplained his assessment as being based on the enforcement policy of hisoffice establishing an enforcement height of over 26 feet, andcompliance officer Wiseman’s rationale based upon his many many years insteel safety and investigations of fatalities occurring at the 10-footlevel.As stated, the 10th circuit has followed the precedent and has held incases involving fall protection for ironworkers that section 1926.28(a)is not impermissibly vague and requires fall protection when areasonable person familiar with the circumstances would recognize ahazard requiring protective equipment. _Austin Building Co. v. OSHRC &Secretary,_ Docket 78-11, 79 OSHRC 3\/D3, CCH OSHD ? 23,289, 647 F.2d1063 (10th Cir., 1981); _Jensen Construction Co. of Oklahoma, Inc. v.OSHRC,_ _supra._Respondent also argues strenuously that section 1926.28(a) is preemptedby the skeletal steel standards contained in 29 CFR 1926.750(b)(2)(i),citing _Builders Steel Co. v. Secretary & OSHRC, _Docket 77-1589,__OSHRC_, CCH OSHD ? 22,739, 24,487, concerning the applicability of 29CFR 1926.105 v. 1926.750(b)(2)(i).This argument has been previously considered and rejected.It has been specifically found that 29 CFR 1926.28(a) complimented thesubpart (r)’s specific standards dealing with steel erection. _BristolSteel & Iron Works, Inc. v. OSHRC and Secretary,_ Docket 14537, 77 OSHRC181\/D6, 79 OSHRC 105\/A2, 80 OSHRC 108\/F7, 5 BNA OSHC 1940, CCH OSHD ?20,437, 22,240, 24,097, 601 F.2d 717 (4th Cir., 1979)It is specifically found that the complainant has met the \”reasonableperson test\” laid down by the Commission in _S & H Riggers & Erectors,Inc. v. OSHRC & Secretary, _Docket 15855, 79 OSHRC 23\/A2, 7 BNA 1260,CCH OSHD ? 21,261, 23,480, reversed 659 F.2d 1273 (5th Cir., 1981). TheCommission held that in order to establish a 1926.28(a) violation, thecomplainant must prove among other things that:\”…a reasonable person familiar with the factual circumstancessurrounding the allegedly hazardous condition, including any factsunique to a particular industry would recognize a hazard warranting theuse of personal protective equipment.\”In reversing the Commission in _S & H Riggers & Erectors, Inc. v. OSHRC& Secretary,_ _supra.,_ the 5th Circuit said:\”…in order to sustain a citation under this regulation, the Secretarybears the burden of proving either that the employer failed to providepersonal protective equipment to its employees under circumstances inwhich it is the general practice in the industry to do so or that theemployer had clear actual knowledge that personal protective equipmentwas necessary under the circumstances.\” [659 F.2d 1285]The Commission, in _S & H Riggers & Erectors, Inc. v. OSHRC Secretary,__supra.,_ did not limit its rationale strictly to industrial custom andpractice, but to the contrary stated that industry, custom and practiceis not controlling because of the failure of industry to deal adequatelywith abatable hazards would not excuse the employer’s failure toexercise that degree of care which the law requires. _Secretary v.Daniel Construction Co.,_ Docket 16265, 82 OSHRC 23\/A2, 10 BNA OSHC1549, CCH OSHD ? 21,327, 26,027.Respondent also suggests a greater hazard defense, in that the testimonyof its supervisory employees was to the effect that the wrapping of alanyard around a beam would involve greater hazard in reaching over orbeing struck by the clip at the end of the lanyard, while at the sametime the same witness gave testimony essentially to the fact that thatwas the method used by them in tying off to a beam. No great weight isgiven to this testimony. To the contrary, a simple abatement procedurewas suggested by the compliance officers; namely, tying off to the beamor the erection of a static line for attachment of the lanyards.The greater hazard defense is narrowly construed and the burden of prooflies with the employer. _Greyhound Lines-West & Greyhound Lines, Inc v.Secretary & OSHRC, _Docket 3120, 76 OSHRC 59\/B2, 4 BNA OSHC 1266, 6 BNAOSHC 1336, CCH OSHD ? 18,109, 20,736, 22,814, 575 F.2d 759, 762 (9thCir., 1978). The Review Commission has placed a three-fold burden onemployers seeking to invoke this affirmative defense; namely, theemployer must demonstrate, 1) that the hazards of compliance are greaterthan the hazard of noncompliance; 2) that alternative means ofprotecting employees are unavailable; and, 3) the unavailability or anyinappropriateness in obtaining a variance. _Noblecraft Industries, Inc.,et al v. Secretary,_ OSHRC, 614 F.2d 199 (9th Cir., 1980) The respondentproffered no evidence of any attempt to seek a variance.In light of the evidence, it is specifically found that respondent hasfailed to establish a greater hazard defense.The complainant, having established feasibility in specific measures toabate the fall hazard, and having established respondent’s failure tocomply with the stated regulation, and respondent’s knowledge of therequirements of the regulation, has sustained his burden of proof inestablishing a violation of 29 CFR 1926.28(a), and further that it was aserious violation in that serious bodily harm or death would besustained by an employee in the event of a fall._FINDINGS OF FACT_Based upon the foregoing and the preponderance of the credible evidence,the following findings of fact are made:1. Respondent, Bratton Corporation, Inc., is a corporation with itsprincipal office and place of business at 2815 E. 85th Street, KansasCity, Missouri, and at the time of the issuance of the citationmaintained a workplace at 7900 College, Overland Park, Kansas, where itwas performing structural steel erection.2. Respondent employs at least 22 employees in its various activities,including at least eight at its worksite, with two of the employeesperforming work activities atop the second floor level.3. Respondent utilizes goods, equipment and materials shipped fromoutside the State of Kansas and is engaged in a business affectingcommerce, and is an employer within the meaning of the Act.4. Respondent was inspected by a compliance officer for OSHA on February10, 1983, at which time the compliance officer observed and photographedtwo employees atop a beam of a two-story office building underconstruction performing work activities without an attached safety belt.5. The height of the beam upon which the employees were working rangedfrom 28 to 33 feet, and while partial decking had been established therewere areas over which the employees worked which were not decked.6. The employees were engaged in work activities consisting of thealignment and welding of both sides of bar joists attached to the beam.7. At ground level, the interior of the structure was covered with agravel bed, and to the exterior of the structure was snow and mud andgravel. The employees were at each position welding bar joists fromthree to five minutes.8. In the performance of their duties in welding bar joists, it wasnecessary for the employee to pull a welding cable to position himselfand at times to nudge the bar joist into position, lower a welding hoodabout his face and perform two or more welds, depending on the number ofbar joists within his reach.9. It was necessary for the employee to sit on an 18-inch beam, and ifnecessary to adjust a bar joist would do so with a spud wrench or anudging of his knee, and then make a 1 1\/2-inch weld on both sides tothe beam.10. At the time of the observation by the compliance officer, theemployee was not tied off while performing his work activities.11. The employees could have protected themselves from falling by tyingoff to the beam upon which they were performing their duties in weldingthe bar joist, and at one point in time during the course of theinspection did in fact tie off.12. The employees did not use fall protection while they walked the beamfrom one point to another, when they could have been protected at alltimes by the installation of static lines to which they could haveattached their lanyard.13. A fall hazard existed on the date of the inspection.14. The employees welding bar joist on the steel beams of the roofsection under construction without the use of fall protection wereexposed to such hazard, in that had they fallen they would have fallenfrom a height of 28 to 32 feet, which would have resulted in seriousphysical injury or death.15. The respondent, through its representative, foreman HaroldOberweather, had knowledge of the respondent’s employees not being tiedoff while welding bar joists and not having the use of any fall protection.16. The respondent had knowledge of the requirements of the standard,having been cited previously in 1980 for failing to utilize fall protection.17. The gravity of the violations, the good faith, the size and previoushistory of inspections by OSHA, were considered in arriving at theproposed penalty of $150.18. The penalty is appropriate for the nature of the violation._CONCLUSIONS OF LAW_1. Respondent is and at all times material hereto was an employer withinthe meaning of section 3 of the Occupational Safety and Health Act of 1970.2. Jurisdiction of this action is conferred upon the Occupational Safetyand Health Review Commission by section 10(c) of the Act.3. Respondent violated section 5(a)(2) of the Act by failing to complywith the occupational safety and health standard promulgated under theAct as alleged in the amended complaint, in that respondent failed torequire the use of personal protective equipment as required by 29 CFR1926.28(a).4. The use of safety belts and lanyards by respondent’s employees whilewelding bar joist would not present a greater hazard to respondent’semployees.5. Compliance with 29 CFR 1926.28(a) through the use of safety belts andlanyards while welding bar joist was possible.6. There is substantial probability that death or serious physical harmwould occur as a result of respondent’s violation of 29 CFR 1926.28(a).7. Respondent had knowledge of the existence of said conditions givingrise to the issuance of the citation.8. The proposed penalty of $150 for this violation is appropriate withinthe meaning of section 17(j) of the Act._DECISION AND ORDER_Based on the above findings of fact and conclusions of law, it is herebyordered that the citation for serious violation of 29 CFR 1926.28(a) andthe proposed penalty in the amount of $150 are affirmed.Paul E. Dixon,Judge, OSHRCDATE:March 7, 1984FOOTNOTES:[[1\/]] The standard provides:_Subpart C–General Safety and Health Provisions_* * *? 1926.28 Personal protective equipment.(a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.[[2\/]] That subsection reads in part:_Subpart R–Steel Erection_? 1926.750 Flooring requirements.* * *(b) _Temporary flooring–skeleton steel construction in tiered buildings._* * *(2)(i) Where skeleton steel erection is being done, a tightly plankedand substantial floor shall be maintained within two stories or 30 feet,whichever is less, below and directly under that portion of each tier ofbeams on which any work is being performed . . . Where such a floor isnot practicable, paragraph (b)(1)(ii) [requiring safety nets wherestructure not adaptable to temporary floors and scaffolds not used] ofthis section applies.[[3\/]] Bratton takes issue with the judge’s finding that the falldistance was 28 to 33 feet. However, Bratton’s foreman Oberweathertestified that when he looked at the plans with the compliance officerto determine the fall distance, he concluded that the employees wereworking at a height of 32 feet above the ground at the outside of thesouthwest corner of the building. Oberweather stated that the plansshowed the finished grade, but he did not discuss what, if any,difference there was between the finished grade and the grade at thetime of the inspection.[[4\/]] The Secretary also explained that no other standard in Subpart Raddresses exterior fall hazards from perimeter beams.[[5\/]] Because the issue is not before us, we express no view on thequestion of whether section 1926.28(a) may apply where employees areexposed to interior falls during steel erection work.[[6\/]] Those circuit court decisions are in accord with earlier circuitcourt decisions that rejected arguments that Subpart R preempts section1926.28(a). _See L.R. Willson & Sons. Inc. v. OSHRC,_ 698 F.2d 507 (D.C.Cir. 1983)(appeal of unreviewed judge’s decision); _Bristol Steel & IronWorks, Inc, v. OSHRC,_ 601 F.2d 717 (4th Cir. 1979)(appeal of one-onesplit Commission decision).[[7\/]] Section 1926.105(a) provides:Safety nets shall be provided when workplaces are more than 25 feetabove the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, orsafety belts is impractical.[[8\/]] In its brief on review, filed prior to the Commission’s decisionin _L.E. Myers Company,_ Bratton argues that to prove a violation ofsection 1926.28(a), the Secretary must show that some other section ofPart 1926 indicates a need for the use of the specific protectiveequipment. As noted above, such a showing is required in the secondelement of proof set forth in the Commission’s decision in _L.E. MyersCompany._[[9\/]] Bratton takes exception to the judge’s attribution of certaintestimony to foreman Oberweather that was actually the testimony offield superintendent Wilson. The judge’s misstatement in this matterdoes not affect our decision in this case. First of all, the testimonyis not essential to the case. Secondly, the judge, in his decision,correctly attributed other testimony to Oberweather that he used toevaluate the foreman’s credibility.”