“Docket No. 80-5866 SECRETARY OF LABOR,Complainant,v.L. R. WILLSON & SONS, INC.,Respondent.OSHRC Docket No. 80-5866DECISION Before:\u00a0 ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29U.S.C. ? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is an adjudicatory agency,independent of the Department of Labor and the Occupational Safety and HealthAdministration (\”OSHA\”).\u00a0 It was established to resolve disputes arisingout of enforcement actions brought by the Secretary of Labor under the Act and has noregulatory functions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).The citation item on review [[1]] resulted from a 1980 OSHA inspection of aWashington, D.C. construction worksite.\u00a0 L. R. Willson & Sons, Inc.(\”Willson\”) was engaged in structural steel erection work on the building underconstruction.\u00a0 The administrative law judge vacated the citation item on the basisthat employers in the structural steel erection industry lacked notice that the citedconstruction standards generally requiring safety nets were applicable to the steelerection industry because OSHA had adopted particular standards applicable to steelerection requiring safety nets in certain circumstances.\u00a0 For the reasons thatfollow, we affirm the judge’s decision.The general industry safety net standards which OSHA cited are at 29 C.F.R. ??1926.105(a) and (c).\u00a0 These standards are contained in Subpart E–Personal Protectiveand Life Saving Equipment–of 29 C.F.R. Part 1926–Safety and Health Regulations forConstruction.\u00a0 They provide:? 1926.105 Safety nets.(a) Safety nets shall be provided when workplaces are more than 25 feet above theground or water surface, or other surfaces where the use of ladders, scaffolds, catchplatforms, temporary floors, safety lines, or safety belts is impractical.* * *(c)(1) Nets shall extend 8 feet beyond the edge of the work surface where employees areexposed and shall be installed as close under the work surface as practical but in no casemore than 25 feet below such work surface. . . .During the inspection of Willson’s work areas at the construction worksite, theOSHA compliance officer observed two Willson employees standing on steel beams whichformed the perimeter of the upper floors of a building under construction.\u00a0 Theemployees were respectively eleven and twenty-two feet above a temporary deck thatextended to the perimeter of the floors below. The Secretary does not contend that thetemporary floor did not comply with the requirements for such floors in steel erection.\u00a0 See 29 C.F.R. ? 1926.750(b)(2)(i), infra.\u00a0 Nor has theSecretary alleged that safety belts were a feasible means of fall protection and shouldhave been used.\u00a0 Instead, the Secretary contends that Willson was required undersections 1926.105(a) and (c) to install safety nets extending eight feet beyond the edgeof the building.\u00a0 The OSHA area director for the Washington, D.C. office testifiedthat perimeter nets are not required by the safety net provision in the steel erectionstandard, 29 C.F.R. ? 1926.750(b)(1)(ii), infra.Willson argues that the cited standards did not apply to its steel erection workin view of particular standards pertaining to structural steel erection and specificallyrequiring safety nets only where the building under construction is \”not adaptable totemporary floors.\”\u00a0 These standards are contained in Subpart R–SteelErection–of part 1926.\u00a0 They provide:? 1926.750 Flooring requirements.(b) Temporary flooring–skeleton steel construction in tiered buildings.(1) . . . .(ii) On buildings or structures not adaptable to temporary floors, and wherescaffolds are not used, safety nets shall be installed and maintained whenever thepotential fall distance exceeds two stories or 25 feet.(2)(i) Where skeleton steel erection is being done, a tightly planked andsubstantial floor shall be maintained within two stories or 30 feet, whichever is less,below and directly under that portion of each tier of beams on which any work is beingperformed, except when gathering and stacking temporary floor planks on a lower floor, inpreparation for transferring such planks for use on an upper floor.\u00a0 Where such afloor is not practicable, paragraph (b)(1)(ii) of this section applies.In Adams Steel Erection, Inc., OSHRC Docket No. 77-4238 (July 20, 1984), weheld that section 1926.750(b) is specifically applicable to the hazard of falling in thesteel erection industry, and that section 1926.105(a) may not be applied to require fallprotection methods different than that specified in section 1926.750(b).\u00a0 Thecitation in this case to section 1926.105(c) as well as section 1926.105(a) does not alterour conclusion.\u00a0 That section provides that nets shall extend eight feet beyond theedge of a work surface where employees are exposed, and shall be placed as close under thework surface as practical, but no more than 25 feet away, with sufficient clearance toprevent contact with surfaces below the net.\u00a0 Section 1926.105(c) simply sets forthspecifications to be met when safety nets are required by section 1926.105(a).\u00a0 It issection 1926.105(a) which states the circumstances under which safety nets are required.\u00a0Thus, the requirement of section 1926.105(c) does not come into force unless netsare required under section 1926.105(a), and since section 1926.105(a) is not applicable,the citation to 1926.105(c) must also be vacated.[[2]]We note that the Court of Appeals for the District of Columbia Circuit, the placewhere this violation occurred, has concluded that the general industry safety net standardis not preempted in its application by the particular standards for steel erection.\u00a0 L.R. Willson & Sons, Inc. v. Donovan, 685 F.2d 664 (D.C. Cir. 1982)(\”Willson\”).[[3]]\u00a0However, applying the holding of the D.C. Circuit to this case, as the Secretary urges,does not alter our conclusion.By its terms, section 1926.105(a) requires safety nets only where the use of theother listed fall protection devices or measures, including temporary floors, is\”impractical.\”\u00a0 Where, as here, a temporary floor was in place beneath theemployees, the question is whether the temporary floor was \”impractical\” as thatterm is used in section 1926.105(a).\u00a0 In Willson, the D.C. Circuit consideredand rejected the Secretary’s argument that safety nets must be used whenever one of thepreferred, alternative fall protection methods in section 1926.105(a) \”cannot providefall protection at all times.\”\u00a0 685 F.2d at 674 (emphasisin original). \u00a0 Although the Secretary may have intended to require safety nets inaddition to other protective devices, \”[t]his is not, however, what the regulationsays.\”\u00a0 Id. at 675.\u00a0 Accord Brennan v. OSHRC (Ron Fiegen, Inc.),513 F.2d 713 (8th Cir. 1975); Brennan v. OSHRC (J.W. Bounds), 488 F.2d 337(5th Cir. 1973).Safety nets are required only if other methods of fall protection, includingtemporary floors and safety belts, are \”impractical.\”\u00a0 The Willsoncourt concluded that it would be unreasonable to interpret the standard to mean that afall protection device is impractical because it does not provide comprehensive,continuous protection.\u00a0 The court held that the Secretary must prove that a safetydevice did not provide protection during a \”significant period\” or\”substantial portion\” of the work day before the device can be consideredimpractical and safety nets can be required.\u00a0 685 F.2d at 675.\u00a0 SeeSouthwestern Industrial Contractors, 576 F.2d 42 (5th Cir. 1978); Brennan v. OSHRC(Ron Fiegen, Inc.), supra; Brennan v. OSHRC (J. W. Bounds), supra.The Secretary has not met that burden in this case.\u00a0 When the OSHA complianceofficer first arrived at the worksite, he observed two employees standing on steel beamswhich were part of the \”outside\” perimeter of the building.\u00a0 He observedthis for only about five minutes, while he was parking and getting his materials ready forthe inspection.\u00a0 The compliance officer did not know whether the employees \”wereconnecting or bolting or what.\”\u00a0 Later, when the compliance officer photographedthe worksite, the employees were not on the outside perimeter but were standing on\”the leading edge,\” a location where there was a temporary floor directly belowthem.\u00a0 The photographs introduced into evidence show that the structure wasconstructed with columns and beams throughout the interior as well as around the exterior.\u00a0The compliance officer indicated, based on the photographs, that logically theemployees would continue to work near the leading edge but not near the outside perimeterof the building.\u00a0 Aside from this testimony by the compliance officer, there was noevidence which would indicate the amount of time during the work day that the employeeswould work on the outside perimeter.In sum, the record does not show that Willson’s employees were unprotected by atemporary floor or other fall protection during a \”significant period\” or\”substantial portion\” of the work day.\u00a0 Accordingly, even if we apply therationale of the Willson case, we conclude that the Secretary has not established aviolation of sections 1926.105(a) and (c).For the above reasons, we affirm the judge in vacating the citation item. FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 JUL 20 1984CLEARY, Commissioner, dissenting:The majority purports to apply the law of the circuit to this case, but theinterpretation placed on the D.C. Circuit’s decision is imaginative to say the least.\u00a0 I disagree.At the outset, I would note that in L. R. Willson & Sons, Inc. v. Donovan,685 F.2d 664 (D.C. Cir. 1982), the D.C. Circuit held that[t]he general standards apply to all hazards native to the steel erection industryunless a specific standard in Subpart R sets forth a different mandatory or preferredmethod for protecting against the particular hazard in question.685 F.2d at 669.Noting that ? 1926.750(b)(1)(ii) provides only for interior fall protection, theD.C. Circuit held that ? 1926.105 is applicable to protect against exterior falls.\u00a0As indicated in my dissent in Adams Steel Erection, Inc., OSHRC Docket No.77-4238 (July 20, 1984), I adhere to that view and would apply that rationale in allinstances, regardless of the circuit in which the case arises.The D.C. Circuit, in L. R. Willson & Sons, Inc. v. Donovan, supra,also held that ? 1926.105(a) requires the use of safety nets when the other listeddevices are \”impractical.\”\u00a0 The court held that these other devices wouldbe deemed impractical when they would fail to provide protection for a substantial portionof the workday or a significant portion of the employees’ work activities. 685 F.2d at675.In adopting this language, the majority concludes that Respondent’s employeesperformed a substantial amount of work in the interior of the building during which timethey were protected by temporary floors, and that while working upon the beams and columnsalong the perimeter, the temporary floor provided some protection.\u00a0 Accordingly, thedecision holds that these temporary floors, which provided protection against interiorfalls during a significant portion of the workday, require vacating the citation forfailure to provide fall protection against exterior falls.\u00a0 In essence, the decisionfinds that a safety device geared almost exclusively as protection against interior fallswas \”practical\” for purposes of ? 1926.105 for protection against exteriorfalls.Implicit in the discussion of whether ? 1926.105 or ? 1926.750(b)(1)(ii) appliesto exterior falls is the understanding that we are concerned with two separate hazards,exterior falls and interior falls.\u00a0 The majority decision concludes, however, thatbecause exposure to exterior falls constituted a lesser portion of employee time, whileexposure to interior falls (against which they are protected by temporary floors) occupiedthe majority of their time, the temporary floors were sufficiently practical within themeaning of ? 1926.105(a), to obviate the need for safety nets.I do not agree that this represents the D.C. Circuit’s definition of\”practical.\”\u00a0 First, temporary floors are a form of interior fallprotection and, by their very nature, are impractical as a safety device against exteriorfalls.\u00a0 Moreover, there is nothing in the D.C. Circuit’s decision to indicate thatemployees would have to be exposed to the hazard of an exterior fall for a substantialportion of the workday before fall protection is required.\u00a0 Yet, such aninterpretation would be required to support the majority’s holding. Rather, the courtconsidered a safety device impractical if it could not be used for a sufficient percentageof the time employees were exposed to the fall hazard.In the instant case, two employees were exposed to exterior falls of 88 and 99feet while engaged in setting steel.\u00a0 The employees were not wearing safety belts,and there was no perimeter protection.\u00a0 Although temporary floors were provided toprotect against interior falls, they were not effective as exterior fall protection.\u00a0 Moreover, the compliance officer testified that the need of employees to maintainmobility to allow them to dodge steel beams being swung by cranes rendered safety beltsimpractical. Accordingly, safety nets should have been provided, and Respondent’s failureto do so constituted a violation.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES: [[1]] OSHA issued four citations.\u00a0 Before the judge the parties reached asettlement as to all citation items except three contained in one citation.\u00a0 Thejudge affirmed two of these items.\u00a0 The parties have not asked for review of thejudge’s decision concerning these items and review has not been directed concerning them.\u00a0The judge vacated the one remaining item, and this item is before us upon formerCommissioner Cottine’s direction for review.\u00a0 Our review is thus limited to this oneitem of the one citation.[[2]] Chairman Rowland would hold that the standards in subpart R are exclusivelyapplicable to fall hazards for employees engaged in steel erection and that theseprovisions preempt other fall protection standards outside subpart R.\u00a0 Adams SteelErection, OSHRC Docket No. 77-4238 (July 20, 1984) (concurring opinion); WilliamsEnterprises, Inc., 83 OSAHRC 26\/A2, 11 BNA OSHC 1410, 1983 CCH OSHD ? 26,542 (No.79-843, 1983) (Rowland, concurring and dissenting opinion).\u00a0 Therefore, in ChairmanRowland’s view since section 1910.105(c) is outside subpart R, this is an additionalground for vacating the citation.[[3]] Section 11(b) of the Act provides that the Secretary may obtain review of afinal Commission order \”in the United States court of appeals for the circuit inwhich the alleged violation occurred or in which the employer has its principaloffice….\””