“Docket No. 83-0132 SECRETARY OF LABOR,Complainant,v.BRATTON CORPORATION,Respondent.OSHRC Docket No. 83-0132DECISION BEFORE: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:Administrative Law Judge Paul E. Dixon affirmed the citationissued to Bratton Corporation alleging a serious violation of 29 C.F.R. ?1926.28(a)[[1\/]] for failing to require its employees performing steel erection work touse safety belts and lanyards where they were exposed to fall hazards while welding barjoists. He assessed a penalty of $150. The key issue on review is whether the judge erredin concluding that section 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 erred in determining thatBratton had fair notice that section 1926.28(a) applied, and in concluding that Brattonhad committed a violation of that standard.Bratton Corporation is a steel erection contractor with itsprincipal office in Kansas City, Missouri. As a result of an inspection of its worksite inOverland Park, Kansas, the Secretary issued a citation to Bratton alleging a seriousviolation of section 1926.28(a) in that \”[e]mployees were welding bar joists to theroof section without the use of safety belts & lanyards or equivalent fall protectionto prevent fall to ground approximately 33′ below.\” The photographic exhibitsintroduced by the Secretary and admitted at the hearing show Bratton’s employees workingon perimeter beams at the outside edge of the building. At the hearing, Compliance OfficerRobert Lathrop testified that the construction plans that he was shown during theinspection indicated that the employees he observed were exposed to a fall of about 33feet to the outside of the structure and a fall of approximately 28 feet to the interior.Harold Oberweather, Bratton’s foreman, testified that shortlyafter the inspection he measured a distance of 28 feet, 7 inches from where one employeewas sitting while welding a bar joist to the unfinished grade below. He also testifiedthat, based on the construction plans, the employees were 32 feet above the ground whenthey worked at the southwest corner of the building.The judge found that the height at which Bratton’s employeeswere working \”ranged from 28 to 33 feet.\”I. Whether Section 1926.750(b)(2)(i) Preempts Section1926.28(a) Bratton contends that section 1926.28(a) does not apply in thiscase because it is preempted by the specific steel erection standard at section1926.750(b) (2) (i). The test to determine which of two or more OSHA standards applies ina 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 a condition, practice,means, method, operation, or process, it shall prevail over any different general standardwhich might otherwise be applicable to the same condition, practice, means, method,operation, or process. . . .(2) On the other hand, any standard shall apply according to its terms to any employment .. . in any industry, even though particular standards are also prescribed for theindustry, as in Subpart B or Subpart R of this part, to the extent that none of suchparticular standards applies. . . .The question presented is whether section 1926.750(b)(2)(i) is \”specificallyapplicable\” to the cited condition. Bratton contends that the standard is\”specifically applicable\” because its employees were performing steel erectionwork at locations that were less than 30 feet above the ground.[[3\/]] We disagree withBratton on this point. Bratton relies on the height at which employees were working asbeing determinative of the steel erection standard’s applicability in this particularcase. Its reliance is misplaced. Even if the height were determinative, the judge foundthat employees were working at heights that ranged up to 33 feet above the ground.More determinative than the fall distance is the type of fallhazard addressed by section 1926.750(b)(2)(i). Several circuit courts have concluded thatthe standard addresses only falls to the interior, because the abatement requiredis temporary flooring, which does not protect against exterior falls. E.g., Brockv. Williams Enterprises of Georgia, 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 SteelErection, 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 at issue here. Eventhough the Secretary’s post-hearing brief and the judge’s decision both addressed (but didnot distinguish between) exterior and interior fall hazards, the Secretary on reviewdiscusses only exterior falls. Applying section 1910.5(c), quoted above, in her brief onreview, the Secretary states that she \”determined that no standard in Subpart R was’specifically applicable’ to exterior falls from perimeter beams, and therefore[s]he issued a citation for exposing employees to that [hazard] under the generalconstruction safety standard, ? 1926.28(a).\” (emphasis added) . The Secretary alsoasserts on review that the temporary flooring requirement of section 1926.750 (b)(2) (i)\”is not specifically applicable to the hazards at issue because, although temporaryflooring may protect against interior falls, it obviously provides no protection against exteriorfalls from perimeter beams.\”[[4\/]] (emphasis added).Based on the Secretary’s clear expression in her brief onreview that in this case she is only addressing the exterior fall hazards, we concludethat the Secretary has abandoned any claim that the section 1926.28(a) citation concernsinterior falls.[[5\/]] Therefore, we vacate the citation insofar as it may allege aviolation of section 1926.28(a) with regard to interior falls. See Williams Enterprisesof 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) (Commissionconcluded Secretary \”in effect abandons\” section 1926.28(a) citation item, soitem vacated).Because section 1926.750(b)(2)(i) addresses only interior fallhazards, it is not specifically applicable to the exterior fall hazard at issue here andtherefore does not preempt section 1926.28(a). Accordingly, we conclude that section1926.28(a) applies to the exterior falls cited in this case.We recognize that this conclusion does not comport with currentCommission precedent, which holds that steel erection work is governed exclusively bySubpart R. However, we note that where that precedent has been appealed, the circuitcourts have unanimously rejected it. See Williams Enterprises of Georgia, Inc., 12BNA OSHC 2097, 1986-87 CCH OSHD ? 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 Steel Erection, Inc, 11 BNA OSHC 2073, 1984-85CCH 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 steel erection workis governed exclusively by Subpart R, the Commission relied on Daniel InternationalCorporation 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 preemptionissue in light of the more recent appellate court decisions set forth above, we nowconclude that the court decisions in Daniel International and Builders Steel areinapposite to this case. See Brock v. Williams Enterprises of Georgia, Inc., 832F.2d at 571 n. 6; Brock v. L.R. Willson & Sons, Inc., 773 F.2d at 1382 n.5; Donovanv. Adams Steel Erection, Inc., 766 F.2d at 809; Donovan v. Daniel Marr & SonCo., 763 F.2d at 483. In Daniel, the issue was whether a power plant underconstruction was a tiered building within the meaning of section 1926.750. The courtconcluded that it was, thereby eliminating any need to discuss Daniel’s argument that thegeneral construction standards applied (the converse of Bratton’s argument here). 705 F.2dat 386. In Builders, at issue were only interior fall hazards, while only exterior fallsare at issue here. See Builders Steel Co. v. Marshall, 575 F.2d 663, 665 (8th Cir.1978) (prior decision in case, noting potential fall to concrete floor).We agree with the various appellate court decisions cited abovethat have drawn a distinction between interior and exterior fall hazards and hold that thesteel erection standards in Subpart R do not preempt application of the generalconstruction standards to steel erection work \”where general standards providemeaningful protection to employees beyond the protection afforded by the steel erectionstandards . . . .\” Williams Enterprises Inc., 11 BNA OSHC 1410, 1416, 1983-84CCH 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 are overruled in thatrespect, and we find that section 1926.28(a) applies in this case.II. Whether Bratton Had Fair NoticeAn employer lacking fair notice of a standard cannot be foundin violation 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. Secretaryv. East Penn Manufacturing Co., 894 F.2d 640 (3d Cir. 1990), rev’g in pertinentpart 13 BNA OSHC 2224, 1989 CCH OSHD ? 28,517 (No. 87-537, 1989) (employer’s relianceon Commission decision that was being appealed to a circuit court was unreasonable underparticular circumstances and should not have been used as basis for vacating citation forlack of fair notice).Bratton contends that it was denied due process, in that itlacked fair notice that fall protection was necessary for the employees at issue, becausethe steel erection standard at section 1926.750(b)(2)(i) requires fall protection only atheights exceeding 30 feet. However, as noted above, Bratton’s foreman Oberweathertestified that, based on the construction plans, the employees were 32 feet above theground at the southwest corner. Foreman Oberweather in that testimony eliminated the basisfor Bratton’s argument, because he admitted that the workers were, at some time, over 30feet above the ground.Moreover, Bratton had received notice of the applicability ofsection 1926.28(a) to its type of work (steel erection) through an OSHA citation that theSecretary had issued to it in 1980, alleging one serious violation of 29 C.F.R. ??1926.28(a) and 1926.105(a) [[7\/]] Bratton did not contest that citation, which chargedthat two of its employees working on an I-beam on the roof of a building \”were notprotected against falls of more than 25 feet by the use of safety nets, ladders,scaffolds, catch platforms, temporary floors, safety lines, safety belts, or otherappropriate personal protective equipment.\” (emphasis added).As another basis for its lack of fair notice argument, Brattonnotes the long-standing confusion among Commission members, judges, and complianceofficers, as to whether the steel erection standards preempt a general constructionstandard. At the time of the inspection of the Bratton worksite, Commission precedentconcerning this issue consisted of one decision in which the Commission’s only two membersdisagreed, resulting in affirmance of the judge’s decision below that section 1926.28(a)was applicable 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 (4th Cir. 1979).While Commission precedent may have been less than clear, bythe time of the inspection at least two circuit courts had plainly held that section1926.28(a) was not preempted by the steel erection standards where the steel erectionstandards provided no protection. See L.R. Willson & Sons, Inc. v. Donovan, 698F.2d 507 (D.C. Cir. 1983) (issued less than a month before inspection of Bratton’sworksite); L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664 (D.C. Cir. 1982);Bristol Steel & Iron Works, Inc. v. Marshall, 601 F.2d 717 (4th Cir. 1979).Those decisions provided notice to employers that section 1926.28(a) could apply to steelerection work.Based on the factors discussed above, we conclude that Brattonhad fair notice that section 1926.28(a) applied to the cited condition. Therefore, Brattonwas not denied due process.III. Whether Bratton Violated the StandardTo prove a violation of section 1926.28(a) the Secretary mustestablish that: (1) employees were exposed to a hazardous condition warranting the use ofpersonal protective equipment; (2) some other section of Part 1926 indicates a need forthe use of the particular protective equipment in the circumstances presented; and (3) theemployer failed to require the use of the equipment. L.E. Myers Company, 12 BNAOSHC 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 also must prove thatit was feasible for Bratton’s employees to use safety belts and lanyards. See GraniteCity Terminals Corporation, 12 BNA OSHC 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 thatthe use of safety belts was feasible, and Bratton does not challenge that conclusion onreview.To establish the first element the Secretary must prove that areasonable person familiar with the circumstances surrounding the allegedly hazardouscondition, including any facts unique to a particular industry, would recognize a hazardwarranting the use of personal protective equipment. E.g., Williams Enterprises, Inc.11 BNA OSHC 1410, 1416, 1983-84 CCH OSHD ? 26,542 (No. 79-843, 1983), aff’d on othergrounds, 744 F.2d 170 (D.C. Cir. 1984); Daniel Construction Co., 10 BNA OSHC1549, 1550, 1982 CCH OSHD ? 26,027 p. 32,671 (No. 16265, 1982); Bethlehem SteelCorporation, 10 BNA OSHC 1264, 1266, 1982 CCH OSHD ? 25,839 p. 32,324 (No. 16067,1981); S & H Riggers and Erectors, 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.2d1273 (5th Cir. 1981), Bratton argues that section 1926.28(a) is vague as applied and thatto cure this vagueness the Secretary must prove that industry custom or practice requiredthe use of safety belts under the circumstances cited in this case. However, no federalcircuit court other than the Fifth Circuit has found evidence of industry custom to bedispositive. Rather, the vast majority of the circuit courts have concluded that the sametest applied by the Commission in the decisions cited above–what a reasonable personfamiliar with the circumstances surrounding the cited condition and with industry practicewould have done–is sufficient to meet the requirements of due process. E.g., SpancreteNortheast, 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 falldistance considerably less than the one here presented an obvious fall hazard, which madeit unnecessary for the Secretary to establish that the hazard was recognized by theindustry. Austin Building Co. v. OSHRC, 647 F.2d 1063, 1067 (10th Cir. 1981)(welder approximately 19 feet above ground balancing with his feet on railings); seealso Jensen Construction Company of Oklahoma, Inc. v. OSHRC, 597 F.2d 246, 249 (10thCir. 1979) (standard not vague when applied to employees astride structural beams 17 to 23feet above expressway).The evidence is undisputed that, when observed by ComplianceOfficer Lathrop; the employees working on the perimeter beams were not tied off, and theywere sitting bent over and wearing welding hoods while exposed to a fall of up to 33 feetto the outside. According to Compliance Officer John Wiseman, who gave opinion testimonybased on his many years of experience in ironworking and construction safety, the sittingemployees welding bar joists could have slipped and fallen as a result of pulling on awrench or by having only limited vision through their welding masks. He also testifiedthat he had seen \”lots\” of ironworkers tied off to steel beams while they werewelding.We conclude that, based on the evidence establishing theconditions at Bratton’s worksite, the opinion testimony elicited by the Secretary, and theobviousness of the hazard, a reasonable person familiar with the cited conditions wouldhave recognized a hazard warranting the use of safety belts. Therefore, we conclude thatthe Secretary demonstrated that Bratton’s employees were exposed to a hazardous conditionthat warranted the use of safety belts.With regard to the second element of proof, whether some othersection of 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 feetabove the ground. See L.E. Myers Co., 12 BNA OSHC at 1614, 1986-87 CCH OSHD at p.35,605. Bratton contends that the judge was incorrect in concluding that the fall distance\”ranged from 28 to 33 feet\” because foreman Oberweather’s measurement of 28feet, 7 inches was the most reliable evidence on that point. That argument ignores thefact that so long as the fall distance exceeds 25 feet, the exact measurement isirrelevant. As even the shortest outside fall distance in the record–foremanOberweather’s measurement of 28 feet, 7 inches–exceeded 25 feet, the second element of asection 1926.28(a) violation has been proven. Cf. Central Wisconsin SteelBuilding Erectors, 13 BNA OSHC 1119, 1986-87 CCH OSHD ? 27,827 (No. 84-119, 1987)(maximum fall distance was only 21 feet, so Secretary was not proven violation of section1926.28(a)).Concerning the third element of proof, whether the employerfailed to require the use of the equipment, the evidence establishes that Bratton did notrequire its employees to use safety belts and lanyards when working at heights above 25feet. Bratton’s foreman Oberweather testified that, on the day of the inspection,Bratton’s employees working more than 25 feet above the ground wore safety belts, but theywere not tied off. Neither Oberweather nor Don Wilson, Bratton’s field superintendent,indicated that this failure to tie off was contrary to any Bratton workrule. Oberweatherand Wilson testified that they left it to the discretion of Bratton’s employees to decidewhen to tie off their safety belts. In their opinion, it was necessary to tie off only inthe presence of a hazard like a forceful wind or a nearby crane that could swing and hitworkers.[[9\/]]Based on the evidence discussed above, we conclude that the Secretary has proven aviolation of section 1926.28(a), and Bratton has failed to establish any defense to suchviolation.IV. Seriousness and PenaltyIt is obvious that an employee falling a distance of 25 feet ormore could suffer serious bodily harm. Therefore, based on the record in this case, wefind the violation to be serious under section 17(k) of the Act, 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 take particular note ofBratton’s good faith efforts to immediately abate the hazardous condition in this case. Weconclude that a penalty of $150 is appropriate and assess that amount.V. OrderWe hereby affirm the decision of the judge and conclude thatBratton committed a serious violation of section 1926.28(a), for which we assess a penaltyof $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 ofthe SolicitorAPPEARING ON BEHALF OF RESPONDENT:CHARLES A. RILEY, Vice President\/General Superintendent, The Bratton Corporation, prose, Hearing held November 15, 1983, Judge Paul E. Dixon presiding.STATEMENT OF THE CASEThis is an action arising under the provisions of section 10(c)of the Occupational 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 promulgated under the Act,along with a proposed penalty of $150. Respondent duly filed its notice of contest, andafter the complaint and answer the cause came on for hearing.The respondent, by citation issued February 17, 1983, wascharged with serious violation of the standard at 29 CFR 1926.28(a) and assessed aproposed penalty of $150.The CitationCitation 1 for Serious Violation Item 1\”29 CFR 1926.28(a): Appropriate personal protectiveequipment was not worn by employee(s) in all operations where there was exposure tohazardous conditions:(a) Employees were welding bar joists to the roof sectionwithout the use of safety belts and lanyards or equivalent fall protection to prevent fallto ground approximately 33′ below.\”The Standard\”?1926.28 Personal protective equipment. (a) The employer is responsible for requiring the wearing ofappropriate personal protective equipment in all operations where there is an exposure tohazardous conditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.\”THE EVIDENCEOn February 10, 1983, compliance officer Robert Lathropobserved persons atop 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, whoadvised that the persons were employees of respondent Bratton and another contractor.Respondent’s representative Oberweather was summoned and accompanied Lathrop on hisinspection.Lathrop observed respondent’s employees welding bar joists onthe west wall. Construction was at the beginning stage of skeletal steel erection. Thebuilding was to be a two-story office building. Employees were working the roof section.Lathrop did not recall observing any flooring or platformsbeing 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 Miller and Joseph Welch.The employees had come down during the opening conference.By the time Lathrop spoke to the employees they had belts withlanyards on. Lathrop was advised by Oberweather that respondent had belts and lanyards inits trailers.It was Lathrop’s impression that the employees had donned beltsand lanyards and started back up to the roof when he left the jobsite to inspect anothercontractor.Before leaving the area Lathrop observed that the employees hadtied off and were sitting.In his discussions, he was advised that it took three to fiveminutes to complete it weld and then move to the next bar joist.Lathrop took Complainant’s Exhibit C-3, which he identified asa photograph representing Bratton employees, with one walking and one sitting.Lathrop identified Complainant’s Exhibit C-4 as beingrespondent’s employees and Exhibit C-5 demonstrating respondent’s employees welding barjoists.Lathrop identified an employee as sitting on the west beam.Lathrop determined from the construction plans that if one of the employees would fall hewould fall 28 feet to the inside and 33 feet to the outside of the structure.In assessing the situation, Lathrop took into account theweather, in that in walking to and from the supply trailer the employees walked in mud,which in turn would be tracked to the beam making for a slippery condition.He also noticed some snow on the ground, both muddy ground andmelting snow, and it was Lathrop’s opinion that the beams would present a slipping hazardfrom the employees tracking material to the beam.Lathrop was of the opinion that a fall from the distancesinvolved would be productive of internal injuries, fractures or death. It was Lathrop’simpression that respondent had approximately 21 employees, with five working at thejobsite.Lathrop noted that respondent had been cited in 1980 forviolation of 29 CFR 1926.28(a).In discussing the standard, Lathrop conceded that the standarddoes not have a height requirement, and that his regional offices use a 26-foot heightbased on the international manual.At a later date, Lathrop went to the roof of the building afterit was completed and measured from the second floor to verify the height involved.Lathrop testified that he did not cite the respondent for itsemployees walking to their work position, but rather cited the respondent for itsemployees sitting and working bent over with welding hoods without protection for periodsof three to five minutes.It was Lathrop’s testimony that if the employees had been tiedoff to the beam respondent would not have been cited, or if respondent had used catchplatforms or worked off of elevator work platforms with cages, it would not have beencited.Lathrop did not, at the time of the inspection, inspect theroof level for mud or snow, but based his judgment of the hazard of tracking debris to thebeams upon his observation of the employees walking to the supply shed with mud and rockson their shoes; and the further observation of seeing no employee change shoes beforegoing up to the iron.Complainant called senior compliance officer John R. Wiseman, acard holding journeyman ironworker since 1950, with broad experience in constructionsafety who has been employed as an apprenticed and journeyman ironworker foreman, taughtconstruction in the Army, worked as a safety inspector for the District of Columbia,taught safety courses at community colleges to construction people, and who was taught asan ironworker in the use of personal protective equipment like safety belts and Ianyardsfor fall protection.Wiseman has lectured the International Association ofIronworkers, along with the International Association of Bridge, Structural and OrnamentalWorkers.Based upon his broad experience, training and work activities,compliance officer Wiseman rendered actual and opinion testimony pertaining to fallprotection. It was his opinion that an employee bolting or welding at astation or stationary or sitting could pull on a wrench, slip and fall; or a simple bodymalfunction, such as a heart attack, could percipitate a fall, along with wearing awelding mask where the employee is blind to what is around him. Wiseman described welding bar joists as a standard technique.Both sides of the joists are welded, unless the architect requires extra large weld acrossthe front. The normal weld is 1 1\/2 to 2 inches and takes around two minutes or longer toaccomplish. Wiseman was advised by the respondent that both sides of the bar joists werewelded.He described bar joist welding as an employee at a givenstation welding as many bar joists as he can reach, which may be up to as many as four barjoists.He further described the operation as the employee having toget to his work station, pulling a welding lead, and it was his opinion that if there wereany fall distances involved the employee should be tied off. Wiseman measured the finishedbuilding elevation and determined a fall distance of 31 feet, 2 inches.Wiseman was of the opinion that the employees sitting andwelding bar joists were exposed to the hazard of falling to the ground, and of the furtheropinion that the employees should have been protected by being tied off while weldingwhere the employee has to travel from point to point. If there is no flooring protection,the employee should be protected 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 thatone investigation of a 10-foot fall resulted in a fatality; the other falls injuries,broken arms, legs and necks. It was Wiseman’s opinion that any distance from 10 feet orgreater the employees should be tied off, and further that the use of a belt and lanyardwould not prevent the work from being done.Wiseman’s description of the use of the belt and lanyard onwelding bar joists would be to sit on the beam, reach to the bolt bag, obtain the lanyard,flip it around the beam, attach the lanyard to the belt so it would hold the employee fromfalling.It was Wiseman’s opinion that neither 29 CFR 1926.750 nor1926.28 anticipate that an ironworker should be allowed to fall 30 feet.Harold Oberweather, an ironworker since 1969 and respondent’swork foreman at the jobsite, testified on behalf of respondent.It was his testimony that all the employees were wearing safetybelts and lanyards, in that it is the respondent’s policy for the employees working theiron to wear belts.He further testified that there is no mud or snow on the ironwhere the employees 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 workactivities involved welding bar joists, and where the employees were not tied off 12 to 15feet above ground, and has never been cited.It was his testimony that it takes longer to tie off than toweld a bar joist.It was Oberweather’s observation that welding a bar joist takesless than 45 seconds. Oberweather measured where the employee was sitting on the day ofthe inspection from the iron to the ground and came up with the measurement of 28 feet, 7inches.The practice of looping the lanyard around the beam wascriticized by Oberweather, in that the employee has to reach under to exchange the hook,or if he swings the lanyard beneath the beam the hook could hit the employee in the head.In Oberweather’s opinion, such a practice is a greater hazard than tying off to the beam.Oberweather did the walkaround with the compliance officer, and was told by the complianceofficer that he was being cited for the lanyard not being in use or attached to the beam.Oberweather described the lanyard as being an integral part ofthe safety belt.Oberweather had been on the beam that day. He observed thatrespondent had planks and gravel leading from the worksite to the supply shack. Oberweather did not caution the men not to walk the beam withmuddy feet. Oberweather could only imagine that the outside ground was muddy; however, hetestified that respondent had 10 inches of gravel on the jobsite.Oberweather computed the height of the beam to the ground forthe compliance officer from the job plans. Without measuring, he came up with the heightof 32 feet at the southwest corner and 6 feet less, or 26 feet, at the inside elevation.The employees were working on an 18-inch deep beam.In his training as an apprentice, Oberweather took safetycourses. He testified that he was taught to take all safety measures and use then at hisown discretion if he felt uncomfortable.Oberweather would tie off if told to while he was eitherstationary or welding; however, he would not tie off welding bar joists even if 30 storiesin the air.Oberweather was in some disagreement with compliance officer Lathrop, in that he testifiedthey had seven men working at the jobsite, with two on the iron welding joist, with therest of the men laying deck. It was his recollection that the first floor was about 75percent decked. Oberweather conceded that there were possible areas beneath the weldingoperations which were not decked. It was his opinion that the utilization of safety beltsand lanyards would have doubled the welding time, but he further conceded that it wouldnot have prevented the welding.Don Wilson, respondent’s field superintendent, with 22 years asan iron-worker, testified on behalf of respondent.He has been in charge of jobs which were OSHA inspected, andwhere no citations were issued for men sitting welding bar joists to heights 30 feet abovethe ground.As part of Wilson’s job duties, he is responsible for fieldsafety. He described respondent’s safety efforts as scheduling safety meetings, giving outsafety pamphlets along with Monday jobsite meetings. Wilson also screens all erectionprocedures, cranes, riggings and stairways.Wilson has welded bar joists, and it was his estimation that ittakes a minute and-a-half to two minutes to weld a bar joist. Further, that it would bemore of a hazard to be tied off, as it is difficult to tie off on a 36-inch deep beam.He described the beams at respondent’s jobsites as 18-inchbeams, with the men sitting on a 7-inch flange with their feet on the bottom flange. Itwas his opinion that it would be difficult to reach down 18 inches or forward or to theside to get a hold on a line.Wilson testified that the respondent averages 20 to 25 fieldemployees, 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 joistscould not have been welded in one day. A crew usually aligns the bar joists before thewelders arrive to weld. If the bar joists are out of line, the welder can nudge the barjoist with either a spud wrench or with his knees at the work station.Wilson testified that it was common practice for respondent’semployees to wear structural belts with lanyards. The employee usually buys his own beltwith respondent providing additional belts on the job.It was Wilson’s position that the decision as to tying offshould be left to the employees’ discretion; as for example, where there is involved aswinging scaffold, but not welding bar joists while sitting wearing welding hoods.DISCUSSION The issue involved in this case is whether or not respondentshould be found in violation of 29 CFR 1926.28(a) for having its employees involved inwelding bar joists at heights of 28 feet, 7 inches, to 33 feet without requiring the useof appropriate personal protective equipment; namely, safety belt and lanyard.The principal factual and evidentiary input was supplied byrespondent’s foreman Oberweather and that of complainant’s expert witness Wiseman; bothmen with long experience in the steel erection process.There was no substantial dispute that two of respondent’semployees were walking to their job positions, positioning and sitting and welding barjoists at heights ranging from 28 feet to 30 feet. There is some evidentiary dispute as towhether or not the employees actually were wearing safety belts, but giving the benefit ofdoubt to respondent that the employees were so equipped they were not tied off in theperformance of their duties.The surrounding circumstances of the operation consisted of theobservation of compliance officer Lathrop that the employees were walking through mud androck, ascending a ladder and then on to the beam to their work position, which was notclearly refuted by the respondent except for the testimony of its foreman that the beamswere washed on the ground before placement and his testimony that he had been upon thebeam during the process of erection; but no direct testimony as to his observation of thecondition of the beam.The testimony of compliance officer Wiseman was that in orderto perform the work it was necessary for the employees to drag a welding lead to the workposition, and while straddling the beam employ the use of a welding hood, noting theopinion of compliance officer Lathrop that the hood obliterated surrounding events fromthe employee’s view, along with the further circumstance of the employee having to nudge ajoist into position with his knees should it be off mark and reaching to weld as many barjoists as possible from his one position before moving to his next work position. Further,the testimony of Wiseman that an employee, in utilizing his wrench in lining up a joistcould slip and fall.The suggested abatement methods were that of tying off to thebeam by reaching or swinging the lanyard around the beam, which was some 18 inches deep,or attaching a static line for attachment of the lanyard by the employee as he performshis job operations.There was little at issue in the testimony concerning theresults of a fall precipitating serious bodily injury or death by either party.While much dichotomy is made between the expert witnesses as tothe period of time it took to constitute a weld from 45 seconds to two to three to fiveminutes, it is felt that actually this issue is irrelevant.It is readily apparent that respondent’s employees were exposedto a hazardous condition which could result in serious bodily harm or death should theyfall.Further, respondent had by concession at trial and by priorcitation, full knowledge of the requirements of the standard.In measuring the credibility of the witnesses, account is takenof the testimony of respondent’s foreman Oberweather, who in his apprentice training as asteelworker took a variety of safety courses, and whose principal justification for nottying off was that it \”takes longer\” to tie off than not in welding a bar joist,and that looping a lanyard around a beam could result in the hook hitting the employee inthe head, although as an experienced ironworker he had never had this problem, and thatdespite his concern for the safety of his men at the job in question, he, Oberweather,would not tie off even if welding bar joists \”30 stories in the air\”. Thistestimony, in contrast of that of witness Wiseman, who in his entire career has beenconcerned with steel safety, is found to be less credible, and the testimony of witnessWiseman is given the greater weight in the evaluation of the various factual and opinionassessments 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 statedthat neither standard 29 CFR 1926.750 nor 1926.28(a) anticipated that an ironworker shouldbe allowed to fall 30 feet.It is specifically found that the employees were exposed tohazardous conditions and were not provided or required to wear appropriate personalprotective equipment, and that the need for using such equipment was known to respondent.Respondent makes various legal arguments which also fail.Respondent argues that the standard is vague, in that it does not give a specific heightrequirement for the utilization of personal protective equipment.The Review Commission has held that the language of thestandard gives a respondent 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, 75 OSHRC 32\/D13, 15 OSAHRC400, 2 BNA OSHC 1544, CCH OSHD ?16,429, 19,252 (21 feet above ground level); and holdingsfollowing the amendment of the standard, Jensen Construction of Oklahoma, Inc. v.OSHRC, Docket 12940, 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 feet above a traveledexpressway).Respondent’s job operations took place in Overland Park,Kansas, the site being within the jurisdiction of the U.S. 10th Circuit Court of Appeals,which is therefore the controlling circuit for this Kansas employer. Hillhouse v.Harris, Docket 82-2148,____ OSHRC____, slip opinion, 8th Cir., August 31, 1983, andcases cited therein.Respondent’s allegation of vagueness argues critically ofassessments made by compliance officer Lathrop that a 26-foot fall would be productive ofbodily injury and therefore hazardous, and compliance officer Wiseman’s assessment of a10-foot fall being productive of bodily injury and therefore a hazard. However,it does not address his job foreman’s assessment that he would not tie off at the 30-storylevel while welding bar joists.It was specifically found that the testimony of both thecompliance officers was entirely credible, in that compliance officer Lathrop explainedhis assessment as being based on the enforcement policy of his office establishing anenforcement height of over 26 feet, and compliance officer Wiseman’s rationale based uponhis many many years in steel safety and investigations of fatalities occurring at the10-foot level.As stated, the 10th circuit has followed the precedent and hasheld in cases involving fall protection for ironworkers that section 1926.28(a) is notimpermissibly vague and requires fall protection when a reasonable person familiar withthe circumstances would recognize a hazard requiring protective equipment. AustinBuilding Co. v. OSHRC & Secretary, Docket 78-11, 79 OSHRC 3\/D3, CCH OSHD ?23,289, 647 F.2d 1063 (10th Cir., 1981); Jensen Construction Co. of Oklahoma, Inc. v.OSHRC, supra.Respondent also argues strenuously that section 1926.28(a) ispreempted by the skeletal steel standards contained in 29 CFR 1926.750(b)(2)(i), citing BuildersSteel Co. v. Secretary & OSHRC, Docket 77-1589, __OSHRC_, CCH OSHD ? 22,739,24,487, concerning the applicability of 29 CFR 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 the subpart (r)’s specific standards dealing with steel erection. BristolSteel & Iron Works, Inc. v. OSHRC and Secretary, Docket 14537, 77 OSHRC 181\/D6, 79OSHRC 105\/A2, 80 OSHRC 108\/F7, 5 BNA OSHC 1940, CCH OSHD ? 20,437, 22,240, 24,097, 601F.2d 717 (4th Cir., 1979)It is specifically found that the complainant has met the\”reasonable person test\” laid down by the Commission in S & H Riggers& Erectors, Inc. v. OSHRC & Secretary, Docket 15855, 79 OSHRC 23\/A2, 7 BNA1260, CCH OSHD ? 21,261, 23,480, reversed 659 F.2d 1273 (5th Cir., 1981). The Commissionheld that in order to establish a 1926.28(a) violation, the complainant must prove amongother things that:\”…a reasonable person familiar with the factualcircumstances surrounding the allegedly hazardous condition, including any facts unique toa particular industry would recognize a hazard warranting the use of personal protectiveequipment.\”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 Secretary bears the burden of proving either that the employer failed to providepersonal protective equipment to its employees under circumstances in which it is thegeneral practice in the industry to do so or that the employer had clear actual knowledgethat personal protective equipment was necessary under the circumstances.\” [659 F.2d1285]The Commission, in S & H Riggers & Erectors, Inc. v.OSHRC Secretary, supra., did not limit its rationale strictly to industrialcustom and practice, but to the contrary stated that industry, custom and practice is notcontrolling because of the failure of industry to deal adequately with abatable hazardswould not excuse the employer’s failure to exercise that degree of care which the lawrequires. Secretary v. Daniel Construction Co., Docket 16265, 82 OSHRC 23\/A2, 10BNA OSHC 1549, CCH OSHD ? 21,327, 26,027.Respondent also suggests a greater hazard defense, in that thetestimony of its supervisory employees was to the effect that the wrapping of a lanyardaround a beam would involve greater hazard in reaching over or being struck by the clip atthe end of the lanyard, while at the same time the same witness gave testimony essentiallyto the fact that that was the method used by them in tying off to a beam. No great weightis given to this testimony. To the contrary, a simple abatement procedure was suggested bythe compliance officers; namely, tying off to the beam or the erection of a static linefor attachment of the lanyards.The greater hazard defense is narrowly construed and the burdenof proof lies with the employer. Greyhound Lines-West & Greyhound Lines, Inc v.Secretary & OSHRC, Docket 3120, 76 OSHRC 59\/B2, 4 BNA OSHC 1266, 6 BNA OSHC 1336,CCH OSHD ? 18,109, 20,736, 22,814, 575 F.2d 759, 762 (9th Cir., 1978). The ReviewCommission has placed a three-fold burden on employers seeking to invoke this affirmativedefense; namely, the employer must demonstrate, 1) that the hazards of compliance aregreater than the hazard of noncompliance; 2) that alternative means of protectingemployees are unavailable; and, 3) the unavailability or any inappropriateness inobtaining a variance. Noblecraft Industries, Inc., et al v. Secretary, OSHRC, 614F.2d 199 (9th Cir., 1980) The respondent proffered no evidence of any attempt to seek avariance.In light of the evidence, it is specifically found thatrespondent has failed to establish a greater hazard defense.The complainant, having established feasibility in specificmeasures to abate the fall hazard, and having established respondent’s failure to complywith the stated regulation, and respondent’s knowledge of the requirements of theregulation, has sustained his burden of proof in establishing a violation of 29 CFR1926.28(a), and further that it was a serious violation in that serious bodily harm ordeath would be sustained by an employee in the event of a fall.FINDINGS OF FACTBased upon the foregoing and the preponderance of the credibleevidence, the following findings of fact are made:1. Respondent, Bratton Corporation, Inc., is a corporation withits principal office and place of business at 2815 E. 85th Street, Kansas City, Missouri,and at the time of the issuance of the citation maintained a workplace at 7900 College,Overland Park, Kansas, where it was performing structural steel erection.2. Respondent employs at least 22 employees in its variousactivities, including at least eight at its worksite, with two of the employees performingwork activities atop the second floor level.3. Respondent utilizes goods, equipment and materials shippedfrom outside the State of Kansas and is engaged in a business affecting commerce, and isan employer within the meaning of the Act.4. Respondent was inspected by a compliance officer for OSHA onFebruary 10, 1983, at which time the compliance officer observed and photographed twoemployees atop a beam of a two-story office building under construction performing workactivities without an attached safety belt.5. The height of the beam upon which the employees were workingranged from 28 to 33 feet, and while partial decking had been established there were areasover which the employees worked which were not decked.6. The employees were engaged in work activities consisting ofthe alignment and welding of both sides of bar joists attached to the beam.7. At ground level, the interior of the structure was coveredwith a gravel bed, and to the exterior of the structure was snow and mud and gravel. Theemployees were at each position welding bar joists from three to five minutes. 8. In the performance of their duties in welding bar joists, itwas necessary for the employee to pull a welding cable to position himself and at times tonudge the bar joist into position, lower a welding hood about his face and perform two ormore welds, depending on the number of bar joists within his reach.9. It was necessary for the employee to sit on an 18-inch beam,and if necessary to adjust a bar joist would do so with a spud wrench or a nudging of hisknee, and then make a 1 1\/2-inch weld on both sides to the beam.10. At the time of the observation by the compliance officer,the employee was not tied off while performing his work activities.11. The employees could have protected themselves from fallingby tying off to the beam upon which they were performing their duties in welding the barjoist, and at one point in time during the course of the inspection did in fact tie off.12. The employees did not use fall protection while they walkedthe beam from one point to another, when they could have been protected at all times bythe installation of static lines to which they could have attached their lanyard. 13. A fall hazard existed on the date of the inspection.14. The employees welding bar joist on the steel beams of theroof section under construction without the use of fall protection were exposed to suchhazard, in that had they fallen they would have fallen from a height of 28 to 32 feet,which would have resulted in serious physical injury or death.15. The respondent, through its representative, foreman HaroldOberweather, had knowledge of the respondent’s employees not being tied off while weldingbar joists and not having the use of any fall protection.16. The respondent had knowledge of the requirements of thestandard, having been cited previously in 1980 for failing to utilize fall protection.17. The gravity of the violations, the good faith, the size andprevious history of inspections by OSHA, were considered in arriving at the proposedpenalty of $150.18. The penalty is appropriate for the nature of the violation.CONCLUSIONS OF LAW1. Respondent is and at all times material hereto was anemployer within the meaning of section 3 of the Occupational Safety and Health Act of1970.2. Jurisdiction of this action is conferred upon theOccupational Safety and Health Review Commission by section 10(c) of the Act.3. Respondent violated section 5(a)(2) of the Act by failing tocomply with the occupational safety and health standard promulgated under the Act asalleged in the amended complaint, in that respondent failed to require the use of personalprotective equipment as required by 29 CFR 1926.28(a).4. The use of safety belts and lanyards by respondent’semployees while welding bar joist would not present a greater hazard to respondent’semployees.5. Compliance with 29 CFR 1926.28(a) through the use of safetybelts and lanyards while welding bar joist was possible.6. There is substantial probability that death or seriousphysical harm would occur as a result of respondent’s violation of 29 CFR 1926.28(a).7. Respondent had knowledge of the existence of said conditionsgiving rise to the issuance of the citation.8. The proposed penalty of $150 for this violation isappropriate within the meaning of section 17(j) of the Act.DECISION AND ORDERBased on the above findings of fact and conclusions of law, itis hereby ordered that the citation for serious violation of 29 CFR 1926.28(a) and theproposed 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 appropriate personalprotective equipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for using such equipment to reduce the hazards tothe 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 planked and substantialfloor shall be maintained within two stories or 30 feet, whichever is less, below anddirectly under that portion of each tier of beams on which any work is being performed . .. Where such a floor is not practicable, paragraph (b)(1)(ii) [requiring safety nets wherestructure not adaptable to temporary floors and scaffolds not used] of this sectionapplies.[[3\/]] Bratton takes issue with the judge’s finding that thefall distance was 28 to 33 feet. However, Bratton’s foreman Oberweather testified thatwhen he looked at the plans with the compliance officer to determine the fall distance, heconcluded that the employees were working at a height of 32 feet above the ground at theoutside of the southwest corner of the building. Oberweather stated that the plans showedthe finished grade, but he did not discuss what, if any, difference there was between thefinished grade and the grade at the time of the inspection.[[4\/]] The Secretary also explained that no other standard inSubpart R addresses exterior fall hazards from perimeter beams.[[5\/]] Because the issue is not before us, we express no viewon the question of whether section 1926.28(a) may apply where employees are exposed tointerior falls during steel erection work.[[6\/]] Those circuit court decisions are in accord with earliercircuit court 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 & Iron Works, Inc, v.OSHRC, 601 F.2d 717 (4th Cir. 1979)(appeal of one-one split Commission decision).[[7\/]] Section 1926.105(a) provides:Safety nets shall be provided when workplaces are more than 25 feet above the ground orwater surface, or other surfaces where the use of ladders, scaffolds, catch platforms,temporary floors, safety lines, or safety belts is impractical.[[8\/]] In its brief on review, filed prior to the Commission’sdecision in L.E. Myers Company, Bratton argues that to prove a violation of section1926.28(a), the Secretary must show that some other section of Part 1926 indicates a needfor the use of the specific protective equipment. As noted above, such a showing isrequired in the second element of proof set forth in the Commission’s decision in L.E.Myers Company.[[9\/]] Bratton takes exception to the judge’s attribution ofcertain testimony to foreman Oberweather that was actually the testimony of fieldsuperintendent Wilson. The judge’s misstatement in this matter does not affect ourdecision in this case. First of all, the testimony is not essential to the case. Secondly,the judge, in his decision, correctly attributed other testimony to Oberweather that heused to evaluate the foreman’s credibility.”