“SECRETARY OF LABOR,Complainant,v.F.L. HEUGHES & COMPANY, INC.,Respondent.OSHRC Docket No. 14519_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:Administrative Law Judge Seymour Fier affirmed two citations issued bythe Secretary of Labor (\”the Secretary\”) to F.L. Heughes & Co., Inc.(\”Heughes\”). The citations alleged that Heughes had committed seriousviolations of the Occupational Safety and Health Act of 1970, 29 U.S.C.?? 651-678 (\”the Act\”),by failing to comply with the construction safetystandards at 29 C.F.R. ? 1926.750 (b)(1)(iii), which requires a safetyrailing around the periphery of temporary floors during structural steelassembly, and 29 C.F.R. ? 1926.28(a), which requires that appropriatepersonal protective equipment be worn when an employee is exposed to ahazardous condition. Heughes petitioned for review of Judge Fier’sdecision, and Commissioner Cleary granted the petition under Section12(j) of the Act, 29 U.S.C. ? 661(i). We affirm the judge’s disposition.I. _THE ALLEGED VIOLATION OF 29 C.F.R. ? 1926.750(b)(1)(iii)_Heughes was a subcontractor on a multi-employer construction site,responsible for the erection of structural steel and form deck flooringon a tiered office building in Rochester, New York. Citation 3 allegedthat employees on the 17th floor were exposed to a fall of about 150feet because the rope used near the edge of the floor did not provideprotection equivalent to that required by section1926.750(b)(1)(iii).[[1\/]] Specifically, the citation alleged that the3\/4-inch manila rope strung around the periphery of the floor hung downto 31 inches above the floor and could be depressed 18 inches verticallyand 12 inches laterally. Although the citation had alleged thatironworkers on the west side of the building were working near the edge,the complaint deleted the reference to the west side of the building,alleging that the railing was not installed approximately 42 inches higharound the periphery of the floor.Heughes had installed decking on the 17th floor and had installed a3\/4-inch manila rope railing around the perimeter. The rope was woundaround the inside of columns spaced 20 feet apart. The rope was slackall around the perimeter and sagged to a height of about 31 inchesbetween columns. An OSHA compliance officer testified that when heapplied downward pressure on the rope but \”without stressing it,\” therope deflected to a height of 18 inches from the floor. When he appliedoutward pressure, it deflected to the edge of the building. Thecompliance officer estimated that the exteriors of the columns werebetween 12 and 20 inches from the edge of the floor and that the columnsthemselves were approximately 12 inches deep, putting the rope between24 and 32 inches from the edge. Relying on the engineering drawings fromwhich the building was constructed, Heughes’ president testified thatthe interiors of the columns were 42 inches from the edge of the floor.Judge Fier affirmed the citation and assessed a $600 penalty. He foundthat the 3\/4-inch manila rope had approximately the same test strengthas a 1\/2-inch wire rope, but because of the lack of tautness, it did notmaintain the necessary tension and therefore did not \”meet the purposesfor which it was intended.\” The judge rejected Heughes’ arguments thatthe purpose of the rope was to warn employees that they were gettingclose to the edge and that a rope 31 inches high is just as effectivefor that purpose as one 42 inches high. He therefore found that thestandard was not complied with. He found that four employees at the eastside of the floor were exposed to the violative condition. Inasmuch aswe find that Heughes’ objections to the judge’s decision lack merit, weaffirm the decision.Heughes takes exception to the judge’s finding that the railing violatedthe standard. Section 1926.750(b)(1)(iii) requires that safety railingshe \”approximately 42 inches high….\” As noted above, the manila ropesagged to a height of 31 inches and could be depressed to 18 inchesabove the floor. Heughes maintains that the rope should nevertheless hefound to be \”approximately 42 inches high\” because \”a height of 31inches is arguably in the range contemplated by the OSHA standards whichare not exact, but should be flexibly applied to the circumstances ofeach particular case.\” Heughes apparently is arguing that the word\”approximately\” should be construed in light of the purpose of thestandard, which, it argues, is to warn employees that they are close tothe edge, rather than to restrain them from falling off the edge.Heughes therefore asserts that it was in compliance because under thecircumstances here the rope served this function as well as, or betterthan, a rope 42 inches high.We agree with Judge Fier’s holding that the purpose of the standard isto restrain an employee from falling. Inasmuch as the standard refers toone-half inch diameter wire rope–a material of substantialstrength–and speaks of it as a \”railing,\” it was obviously intended toserve as a restraint rather than as a warning. Moreover, the 42-inchheight requirement of the standard mirrors the requirement of section1926.100(f)(1) that standard guardrails have a vertical height of\”approximately 42 inches from the upper surface of the top rail to thefloor. \” Compare section 1926.500(g)(3)(warning lines to havehigh-visibility flags, to be no lower than 34 inches and no higher than39 inches). We therefore hold that deviations from a 42-inch height mustbe judged in light of the standard’s purpose of providing a physicalbarrier to prevent a fall.Although the word \”approximately\” does allow for some deviation from the42-inch height, the deviation cannot be so great as to defeat thepurpose of the railing. Cf. Dick Corp., 79 OSAHRC 101\/E8, 7 BNA OSHC1951, 1979 CCH OSHD ? 24,078 (No. 16193, 1979) (horizontal bar 4 to 5feet high not equivalent to rail \”approximately 42 inches high\” asrequired by 29 C.F.R. ? 1926.451(d)(10)); Otis Elevator Co., 78 OSAHRC88\/E5, 6 BNA OSHC 2048, 1978 CCH OSHD ?23,135 (No. 16057, 1978) (ropesagging within 8 inches to 2 feet of the floor does not provide fallprotection even though it may serve as \”guide\” to warn employees). JudgeFier found that the rope did not meet that purpose. Again, we agree withthe judge. The compliance officer testified without contradiction that arailing 31 inches high would not restrain an employee from falling.Furthermore, the testimony of the two compliance officers that the ropesagged around the entire periphery was substantiated by Heughes’assistant erection superintendent. We therefore adopt the judge’sconclusion that the standard was not complied with.Heughes also takes exception to the judge’s finding that Heughesemployees on the east side of the building were exposed to the violativecondition. Heughes argues that the citation was limited to the west sideof the building, that it was prejudiced at the hearing when evidence wasintroduced to show the exposure of Heughes employees on the east sidebecause it was not prepared to try that issue, and that the evidence ofsuch exposure was insufficient in any event. [[2\/]] Heughes cites anumber of Commission decisions for the proposition that one’s ownemployees must have been exposed; [[3\/]] it therefore argues that aphotograph of a person working at the edge of the west side wasinsufficient because the person was not credibly identified as a Heughesemployee. [[4\/]] These arguments lack merit.We first reject Heughes’ claim that the judge erred in finding aviolation on the east side when the citation alleged a violation on thewest side. Although the citation had alleged that there was a violationon the west side, the complaint amended the citation by deletingreference to the west side and by alleging that there was not anadequate safety railing around the entire periphery. Since the issue wasraised by the pleadings, Heughes had fair notice that the condition ofthe rope around the entire floor was in issue.Heughes’ argument that the evidence does not show that its employeeswere exposed to the cited hazard is without merit. The early Commissioncases cited by Heughes required proof of access or exposure of one’s ownemployees. However, this rule was later modified to reflect the problemsencountered on a construction site where many employers may be operatingat one time. The rule now followed is that the employer who creates orcontrols a violative condition does not avoid liability solely becausethe only employees exposed are those of another employer. H.B. ZacharyCo., 80 OSAHRC 69\/A2, 8 BNA OSHC 1669, 1671, 1980 CCH OSHD ? 24,588, p.30,163 (No. 76-2617, 1980); Grossman Steel & Aluminum Corp., 76 OSAHRC54\/D9, 4 BNA OSHC 1185, 1188, 1975-76 CCH OSHD ? 20,691, p. 24,791 (No.13775, 1976); Anning Johnson Co., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193,1199, 1975-76 CCH OSHD ? 20,690, p. 24,784 (Nos. 3694 & 4409, 1976).Moreover, it is not necessary for \”an employee of the particularemployer creating the perimeter hazard [to] be seen by an inspectorteetering on the edge of the floor 150 feet or so up from the ground. Nosuch interpretation of the standards would be reasonable. No suchinterpretation is consistent with, let alone called for by the Act.\”Brennan v. OSHRC (Underhill Construction Corp.), 513 F.2d 1032, 1039 (2dCir. 1975). Access to the violative condition, not actual exposure, isthe test. See Otis Elevator Co., 6 BNA OSHC at 2050, 1978 CCH OSHD at p.27,952.Heughes had installed the rope and maintained it. Inasmuch as it therebycreated and controlled the violative condition, a violation would beestablished if it is shown that any employee on the site had access tothat condition. The compliance officers testified that employees wereworking within two feet of the edge of the east side. Whether they wereHeughes’ employees or not, they had at least access, if not directexposure, to the violative condition. A violation is thereforeestablished. The same may be said with regard to the employeephotographed working at the edge of the west side. The judge’sdisposition of this item is therefore affirmed. [[5\/]]II._THE ALLEGED VIOLATION OF 29 C.F.R. ? 1926.28(a)_Citation 2 alleged that a Heughes employee on the 18th floor standing onthe structural steel beams using an oxy-acetylene torch to cut a metaldeck plate was exposed to an exterior fall of 150 feet and an interiorfall of 12 feet. It alleged that the employee was not wearing a safetybelt to prevent him from falling and that this was a violation of 29C.F.R. ? 1926.28(a).[[6\/]]The compliance officer observed a Heughes employee on the 18th levelworking at the edge of the building without fall protection. Theemployee was standing on the flanges of two horizontal structural steelbeams at the point where they joined an upright steel beam. The exteriorhorizontal beam was 24 inches high and 9 inches wide. The otherhorizontal beam, which was perpendicular to the exterior beam, was 18inches high and 12 1\/2 inches wide. The tops of the two horizontal beamswere the same height, approximately 12 feet above the decking on the17th floor below, so that one of the flanges on which the employee wasstanding was six inches higher than the other.The employee was using an oxy-acetylene torch to cut a piece out of ametal deck plate so that the plate would fit where it was to be laid.This was the first plate to be laid on the 18th floor, so there was noother decking for the employee to stand on to do the job. Because of theconfiguration of the I- shaped beams, the employee had slightly lessthan half the width of the beam on which to stand. He was thereforestanding with one foot on the approximately 3 1\/2 to 4-inch flange ofthe exterior beam and the other foot six inches higher on the 5 1\/2 to6-inch flange of the interior beam. The compliance officer testifiedthat the employee could have fallen forward or backward. A backward fallor a forward fall over the interior beam would result in his failing tothe deck on the 17th floor, approximately 10 feet below where he wasstanding. A forward fall over the exterior beam would cause him to fall150 feet to the ground.The compliance officer testified that the employee could be distracted,become dizzy, be hit by sparks from the burning metal, or otherwise losehis balance, and that the employee should have been protected fromfalling. He suggested that a safety belt could have been used with thelanyard tied around the vertical column nearby.Heughes’ witnesses testified that it was impossible for the employee tofall when he was working in this position because his legs were bracedagainst the horizontal beams and his shoulder was braced against thevertical beam. One witness testified that the only way he could fallforward from that position would be for someone to pick him up and throwhim off. Heughes also presented testimony that an interior fall would bemore dangerous for the employee if he wore a tied-off safety beltbecause he could be jerked and wrench his back or could swing into thevertical column. The witnesses gave their opinion that it was safer forthe ironworker to fall to the \”energy-absorbing\” corrugated metaldecking below. Heughes presented testimony that the job being performedat the time the compliance officer observed the ironworker took only aminute or two and that it was done from this position only once on eachfloor, during the laying of the first deck plate. After that, the workis done from the plates already laid. It may therefore be weeks or evenmonths before an ironworker must work from that position again.There was no evidence as to how the ironworker got to this location, howhe would leave, or how he got his torch and other equipment to his workstation, although a representative of the union testifying on behalf ofHeughes stated that the employees sometimes do walk on top of the beams.Judge Fier affirmed the citation. He found that \”While [Heughes] is ofthe opinion that the worker is more secure by bracing himself againstthe beams, the testimony shows otherwise.\” He found that a safety beltcould have been used. The judge also stated that the employee must useboth hands to carry his equipment out on the beams and that he couldfall during that time.On review, Heughes makes three arguments: [[7\/]] 1) the employee did notneed a safety belt because he was not exposed to a fall; 2) it was notrequired to provide safety belts because there was no structural steelmember or anchorage above the work station to which the line could besecured; [[8\/]] 3) it was proved that the use of safety belts was morehazardous than an interior fall of 10 feet to the corrugated metal deckon the 17th floor.[[9\/]] In support of its argument that the employeewas not exposed to a fall, Heughes argues that the judge misinterpretedHeughes’ argument that the employee was not exposed to a fall hazard anderroneously considered it to be an argument that belts were not neededbecause the duration of his exposure was brief. Heughes also argues thatthe judge misinterpreted and misused its evidence that belts were notdesirable under the circumstance cited here to find that Heughes safetyprogram was lax because Heughes did not required belts under theseconditions.[[10\/]]Heughes’ arguments lack merit. The employee in question was working withhis feet on narrow surfaces, with one foot higher than the other and hislegs spread apart. From the employee’s position on the beam, we concludethat he could have fallen outward. We also note that Judge Fier creditedthe testimony of the compliance officer on this point rather than thatof Heughes’ witnesses. Inasmuch as the employee was exposed to thehazard of an exterior fall of 150 feet, Heughes’ argument that the useof belts posed a greater danger than a 10-foot interior fall is notpersuasive.We are also unpersuaded by Heughes’ assertion that it was not requiredto comply with section 1926.28(a) because there was no anchorage orstructural steel member above the employee to which he could secure hislifeline. An employer’s inability to comply with the requirements ofsection 1926.104 does not eliminate his obligation to provide protectionunder section 1926.28(a). J.W. Conway, Inc., 79 OSAHRC 75\/F3, 7 BNA OSHC1718, 1979 CCH OSHD ? 23,867 (No. 15942, 1979); Valley Roofing Corp., 78OSAHRC 27\/C14, 6 BNA OSHC 1513, 1973 CCH OSHD ? 22,633 (No. 15800,1978); F.H. Sparks of Maryland, Inc., 78 OSAHRC 13\/C13, 6 BNA OSHC 1356,1978 CCH OSHD ? 22,543 (No. 15472 1978). Furthermore, Heughes does notclaim that the employee could not have tied off at or below his level,and the compliance officer testified that the employee could have puthis lanyard around the column. \”Even where an employer cannot fullycomply with all standards, it must still provide such protection as ispossible.\” Marion Power Shovel Co., 80 OSAHRC 110\/A2, 8 BNA OSHC 2244,2248, 1980 CCH OSHD ? 24,915, p. 30,731 (No. 76-4114, 1980).Judge Fier assessed a penalty of $600 for each of these violations. Onreview, neither party has asserted that these penalties are inappropriate.Accordingly, the decision of the administrative law judge, and citations2 and 3, are affirmed.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983 ————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office By e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]]Section 1926.750(b)(1)(iii) provides:? 1926.750 Flooring requirements.(b) Temporary flooring–skeleton steel construction in tiered buildings. (1)(iii) Floor periphery–safety railing. A safety railing of 1\/2-inch wirerope or equal shall be installed, approximately 42 inches high, aroundthe periphery of all temporary-planked or temporary metal-decked floorsof tier buildings and other multi-floored structures during structuralsteel assembly.[[2\/]] The compliance officers testified that they saw Heughes employeeson the east side of the building within two feet of the edge. Heughes’foreman testified that, during the inspection, steel was being hoistedto the 17th floor by a crane, and the compliance officers stated thatthe Heughes employees were guiding it onto the floor and attempting toreduce its swing. One of the employees, identified by a complianceofficer as the shop steward and a Heughes employee, was said to beleaning over the edge signaling the crane operator. Heughes’ witnessestestified that its employees who were on the 17th floor at the time ofthe inspection were assigned to lay decking in the core of the buildingand that the steel was being landed near the center, where it would be used.[[3\/]] Frank C. Gibson, 78 OSAHRC 32\/E7. 6 BNA OSHC 1557, 1978 CCH 0SHD? 22,686 (No. 13925,1978); Wilmorite, Inc., 75 OSAHRC 51\/FI2, 3 BNA OSHC1112, 1974-75 CCH OSHD ? 19,547 (No. 4679, 1975); Hawkins ConstructionCo., 74 OSAHRC 31\/C1, 1 BNA OSHC 1761, 1973-74 CCH OSHD ? 17,851 (No.949, 1974). Heughes also cites three unreviewed decisions by Commissionadministrative law judges. Capa Iron Works, 75 OSAHRC 72\/D11, 3 BNA OSHC1439, 1974-75 CCH OSHD ? 19,750 (No. 10659, 1975); South CentralPlumbing & Heating Co., 75 0SAHRC 33\/E2, 2 BNA OSHC 3286, 1974-75 CCHOSHD ?. 19,207 (No. 6303 et al., 1975); Mel Edwards Co., 74 OSAHRC87\/B14, 2 BNA OSHC 3232, 1974-75 CCH OSHD ? 18, 900 (No. 4141 et al. ,1974). We note, however, that unreviewed judge’s decisions are notprecedent binding on the Commission. Leone Constr. Co., 76 OSAHRC 12\/E6,3 BNA OSHC 1979, 1975-76 CCH OSHD ? 20,387 (No.. 4090, 1976), appealwithdrawn, No. 76-4070 (2d Cir. May 17, 1976).[[4\/]] The compliance officer testified that both Heughes’ foreman andthe shop steward told him that the individual shown was a Heughesemployee. A second compliance officer trainee corroborated thistestimony. Heughes presented witnesses, however, who identified theworker in the photograph as the employee of another contractor on the site.[[5\/]] Heughes has also argued that the standard is unenforceably vaguebecause it does not define the term \”temporary.\” However, Heughes hasnever stated in this case that it did not know the standard applied.Indeed, Heughes’ president testified that he considered the metaldecking to be temporary flooring, and Heughes’ foreman testified that hestrung the rope. Accordingly, we reject the argument.[[6\/]] That standard provides:? 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.[[7\/]] Heughes has not argued here that the steel erection standards at29 C.F.R. ?? 1926.750-752 are the exclusive standards governing steelerection. Because the issue was not raised before the judge, in thepetition for review, or directed for review, and there are noextraordinary circumstances that would warrant our confronting thatquestion here, we need not do so. See Rules 92(c) and 92(d) of theCommission’s Rules of Procedure, 29 C.F.R. ?? 2200.92(c) & (d).Furthermore, the Commission has held that general construction industrystandards apply even during steel erection unless they are specificallypreempted by a more specifically applicable steel erection standard. SeeWilliams Enterprises, Inc., OSHRC No. 79-0843 (Apr. 27, 1983); HavensSteel Co., 78 OSAHRC 33\/E6, 6 BNA 0SHC 1564, 1978 CCH OSHD ? 22,689 (No.13463, 1978), aff’d, 607 F.2d 493 (D.C. Cir. 1979); see also BristolSteel & Iron Works,_ Inc., 601 F.2d 717 (4th Cir. 1979). In addition,the United States Court of Appeals for the District of Columbia Circuithas recently held that section 1926.28(a) applies to hazards encounteredduring structural steel erection unless it is preempted by a morespecific standard directed at the particular hazard in question. SeeL.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664 (D.C. Cir. 1982)(applies at least to exterior falls); see also L.R. Willson & Sons,Inc.,v. Donovan. No. 81-2101 (D.C. Cir. Jan. 18, 1983). Because we baseour decision on the employee’s exposure to a 150- feet exterior fall, weneed not determine whether section 1926.28(a) also applies to employeesexposed to interior falls during structural steel erection.[[8\/]]Heughes relies on the standard at 29 C.F.R. ? 1926.104(b), whichprovides:? 1926.104 Safety belts, lifelines, and lanyards.(b) Lifelines shall be secured above the point of operation to ananchorage or structural member capable of supporting a minimum deadweight of 5,400 pounds.[[9\/]] Heughes also argues that it would be inappropriate for itsemployees to wear safety belts while laying temporary flooring in theinterior of the structure. Heughes was not cited for violating thestandard under such circumstances, however, and the Secretary does notargue that a violation should be found on this basis. The Secretaryargues that the testimony of Heughes’ witnesses concerning the problemscaused by safety belts during this type of operation was not relevant tothe issue here. We agree. Whether safety belts must be worn by employeeslaying temporary decking is not presented in this case.[[10\/]] Heughes also argues that the use of a safety net wasimpractical. The Secretary sought to amend the citation to allege that,if safety belts were impractical, Heughes violated 29 C.F.R. ?1926.105(a) by not providing a safety net to protect the employee on thebeam. Having found a safety belt violation, the judge made no findingsregarding safety net, and the Secretary does not pursue the safety netallegation on review. Accordingly, we do not address the questionwhether Heughes was required to provide a safety net.”