“Docket No. 80-1622 SECRETARY OF LABOR, Complainant, v.SKYLINE CRANE SERVICE, INC., Respondent.OSHRC Docket No. 80-1622ORDER VACATING DIRECTION FOR REVIEWBefore:\u00a0 BUCKLEY, Chairman; WALL, Commissioner.BY THE COMMISSION:On May 26, 1981, Administrative Law Judge Joseph L. Chalk vacated a citation alleging thatSkyline Crane Service failed to provide adequate fall protection for its employees engagedin structural steel erection on a project in Fairfax, Virginia.The central issue on review is whether, at the timeof the inspection in 1980, Skyline had fair notice that it was obligated to provideperimeter nets under the general construction industry standard at 29 C.F.R. ? 1926.105.\u00a0 Skyline contends that it lacked such notice because the construction standardsspecifically applicable to steel erection under Subpart R of Part 1926 do not require suchprotection, and because the Secretary generally was not issuing citations to steelerection employers for lack of perimeter nets.The Fourth Circuit, where this case arose, has held that Subpart R does not preempt thegeneral standard requiring personal protective equipment to guard against hazards whichare not covered by that subpart.\u00a0 Bristol Steel & Iron Works, Inc. v. OSHRC,601 F.2d 717 (4th Cir. 1979).\u00a0 Bristol did not, however, address whether thefall protection requirements in the steel erection standards preempt any obligation ofsteel erectors to provide perimeter nets under section 1926.105.\u00a0 After the issuanceof the citation here, there have been several decisions in other circuits that haveelaborated upon the reasoning in Bristol and specifically concluded that steelerection standards do not preempt any requirement in section 1926.105 to use perimeternets in circumstances similar to those here.[[1]]\u00a0 The Secretary has also issued aninstruction explicitly stating that during structural steel erection, perimeter fallprotection, including perimeter nets, is required under section 1926.105.\u00a0 Thedocument directs OSHA field personnel to issue citations accordingly.\u00a0 OSHAInstruction STD 3-3.1 (July 18, 1983), reprinted in 1 BNA OSH Rep. Ref. File ? 21:9118 and in 1982-83 CCH Employ.\u00a0 S. & H. Guide New Developments ? 12,855.In view of these developments in the case law and inthe Secretary’s enforcement policy, the issue of whether a steel erection employer in theFourth Circuit has fair notice of an obligation to provide perimeter nets for fallprotection is in a completely different posture now than it was in 1980.\u00a0 A decisionon whether Skyline had notice of such a requirement when this case arose would notestablish whether Skyline, or other steel erection employers, have notice of a need forperimeter nets under the current state of the law.\u00a0 Since Skyline’s constructionproject has been completed, abatement of the alleged fall hazards is not in controversy.\u00a0 Under these circumstances, we conclude that review is no longer provident.\u00a0 SeePaschen\/Morrison- Knudsen\/Kenny, a Joint Venture, 86 OSAHRC , 12 BNA OSHC 1827,1986 CCH OSHD ? 27,571 (No. 80-6448, 1986); P & Z Co., 82 OSAHRC 8\/C8, 10 BNAOSHC 1427, 1982 CCH OSHD ? 25,937 (No. 76-431, 1982); A. C. & S., Inc., 76OSAHRC 93\/A2, 4 BNA OSHC 1529, 1976-77 CCH OSHD ? 20,955 (No. 2229, 1976).Accordingly, the direction for review is vacated; thejudge’s decision is the final order of the Commission.FOR THE COMMISSIONRay H. Darling, Jr.Executive Secretary DATED:\u00a0 April 16, 1987SECRETARY OF LABOR, Complainant,v.SKYLINE CRANE SERVICE, INC., Respondent.OSHRC DOCKET NO. 80-1622 & 80-3694 (consolidated)APPEARANCES Arthur J. Amchan, Esq.For Complainant James Brent Clark, Jr., Esq. David R. Clarke, Esq.For Respondent DECISION AND ORDER Chalk, Judge:These charges emanated from an inspection ofRespondent’s worksite in Fairfax, Virginia, conducted between January 22, 1980 and March6, 1980, in Docket Number 80-1622, and between May 15, 1980 and May 21, 1980, in DocketNumber 80-3694.In Docket Number 80-1622, Complainant withdrew items1 and 3 and Subitem 7(b) of Citation number 1 for serious violations at the beginning ofthe hearing.\u00a0 He also withdrew item 1 of Citation number 3 for other than seriousviolations in the same docket. Accordingly, remaining in issue in this docket at thehearing were the remaining items of Citation number 1 for serious violations, Citationnumber 2 for willful violation, and the remaining items of Citation number 3 for otherthan serious violations, all alleging violations of 29 U.S.C. 654(a)(2) as follows:Citation number 1 (Serious)Item 2 – 29 CFR 1926.302(b)(7)[[1\/]]Hose(s) exceeding 1\/2-inch inside diameter, supplying pneumatic power tools, did not havea safety device at the source of supply or branch line to reduce pressure in case of hosefailure:(a) Tower level phase #2 near K Column, line 3&4- a Sullair Air Compressor, Serial #35794JGG, was supplying air through a 3\/4 inch insidediameter hose to a torque wrench, on 1\/24\/80 to 2\/19\/80.Item 4 – 29 CFR 1926.550(a)(16)[[2\/]]Modifications or additions which affected the capacity or safe operation of the equipmentwere made without the manufacturer’s written approval: (a) Fairfax Detention parking lot – P & H Mobile Truck Crane, Model #565ATC, Serial#22664, was operating with an extra counter weight installed on it, on 1\/29\/80.Item 5 – 29 CFR 1926.550(b)(2)[[3\/]]Section 5-1.9.1(c)\u00a0 American National Standards Institute, B30.5- 1968, Safety Codefor Crawler, Locomotive and Truck Cranes as adopted by 29 CFR 1926.550(b)(2): \u00a0Automatic means were not provided to stop the boom drum motion when the maximumpermissible boom angle is reached:(a) Fairfax Detention parking lot – a 40 ton P &H Mobile Truck Crane, Model #565ATC, Serial #22664, was raising steel eye beams intoplace, on 1\/29\/80.Item 6 – 29 CFR 1926.700(b)(2)[[4\/]]Employee(s) were permitted to work above vertically protruding reinforcing steel which hadnot been protected to eliminate the hazard of impalement: (a) 5th floor, south end of the east side of the building – employees were setting steeldirectly over the unprotected steel rod ends that were protruding 18 inches above theconcrete beam at 7 line between M&L, on 2\/5\/80.(b) 6th floor, south end of the east side of the building – employees were setting steeldirectly over the unprotected steel rod ends that were protruding 18 inches above theconcrete beam at 7 line between M&L, on 2\/13\/80.Item 7(a) – 29 CFR 1926.750(b)(1)(ii)[[5\/]]On tiered buildings or structures not adaptable to temporary flooring and where scaffoldswere not used, safety nets were not installed and maintained where the fall distanceexceeded two stories or 25 feet:(a) At the 5th floor, sequence #10 – employees were exposed to falling approximately 73feet while welding on a beam over an area where there were no nets, on 2\/12\/80.Citation Number 2 (Willful)Item 1 – 29 CFR 1926.105(c)(1)[[6\/]] and 105(a)[[7\/]]29 CFR 1926.105(c)(1) Nets did not extend 8 feet beyond the edge of the work surface whereemployees were exposed to falls and were not installed as close under the work surfaces aspractical, but in no case more than 25 feet below such surfaces, at the followinglocations:OR IN THE ALTERNATIVE29 CFR 1926.105(a):\u00a0 Employee(s) were notprotected against falls over the edge of the work surface of more than 25 feet by the useof safety nets, ladders, scaffolds, catch platforms, temporary floors, safety lines,safety belts, or other appropriate personal protective equipment:(a) 3rd floor, southeast corner of the building -employees were exposed to falling approximately 45 feet, on 1\/29\/80.(b) Plaza #2, 4th Floor, Column M -employees exposed to falling approximately 63 feet 6inches, on 2\/5\/80.(c) Between 4th and 5th floors, southwest end of the building – employees were exposed tofalling approximately 80 feet, on 2\/13\/80.(d) 6th floor, Judges Tower – employees were exposed to falling approximately 80 to 90feet, on 2\/13\/80.(e) 6th floor, Judges Tower – employees were exposed to falling approximately 95 feet, on2\/19\/80.(f) Judges Tower, second level, north side – employees were exposed to fallingapproximately 35 feet to the ground, on 2\/23\/80.Citation Number 3 (Nonserious) Item 2a – 29 CFR 1926.550(b)(2)[[8\/]]Section 5-1.8.2.(b)\u00a0 American National Standards Institute, B30.5-1968, Safety Codefor Crawler, Locomotives, and Truck Cranes, as adopted by 29 CFR 1926.550(b)(2): \u00a0Where platforms were too narrow to use guardrails, hand holds were not provided atconvenient points above the platform:(a) Fairfax Detention parking lot – a P&H Mobile Truck Crane, Model #565ATC, Serial#22664, was operating with a 12 inch wide platform, while raising steel eye beams, on1\/29\/80.Item 2b – 29 CFR 1926.550(a)(13)(iii)[[9\/]]Platforms and walkways on crane(s) didnot have anti-skid surfaces:(a) Fairfax Detention parking lot -a P&H MobileTruck Crane, Model #565ATC, Serial #22664, had a 2 inch by 10 inch plain woodboard walkwayinstalled on it, on 1\/29\/80.In his post-hearing brief, however, Complainant now moves for leave to withdraw these twosubitems based upon his judgment that the evidence is insufficient.\u00a0 Complainant’smotion is hereby granted.Penalties of $720 each were proposed for theforegoing items of Citation number 1, except that a single penalty of $640 was proposedfor Item 7a and b and 7b has been withdrawn.\u00a0 A penalty of $6,400 was proposed forCitation number 2.In Docket Number 80-3694, Respondent was charged witha serious violation of 29 U.S.C.654(a) (2) by not complying with 29 CFR 1926.100(a)[[10\/]]in the following manner:Employee(s) working where there was a possible danger of head injuries were not protectedby protective helmets(a) Second floor of the Steel Erection Area – Head protection was not provided forwelders, on 5\/15\/80.A penalty of $300 was proposed for this charge.IDocket Number 80-1622ACitation Number 1 (Serious) Item 2During the course of his inspection of the worksite between January 22, 1980 and February29, 1980, the compliance officer, James R. Sullivan,[[11\/]] frequently observed one ofRespondent’s employees, assisted by another, on various levels of the structure using apneumatic torque wrench powered by about 125 pounds of compressed air supplied by an aircompressor through a series of connected hoses three-quarters of an inch in diameter.\u00a0 The other employee was standing about six or seven feet behind the operator eitherholding or dragging the hose, as the situation required.Upon first observing this operation on January 24,1980, and after noting that the compressor did not have a safety valve on the dischargeend \”where the hose and the compressor come together\” that would automaticallyshut off the compressed air in the event of a break in a hose or hose connection, Sullivaninformed Respondent’s foreman of the condition (Tr.115).\u00a0 The foreman promised tocheck into it; however, the employee continued to use the equipment on subsequent days andSullivan never observed the installation of a safety valve at the connecting point.In the event a hose came apart and there was no safety valve on the compressor, thepressure on the hose that would cause it to \”whip around\” with the possibilityof striking one of the employees in the head, causing a concussion, or knocking him off ahigh level to the ground below, either of which could result in serious bodily injury\u00a0 (Tr. 116).Richard McSpadden, Respondent’s president,accompanied by Respondent’s counsel, observed the air compressor on the morning of January16, 1981, before the hearing in the case reconvened that day.\u00a0 According to him, thecompressor was in the exact same condition it was in when observed by Sullivan, except forthe addition of two new safety valves recently installed on the two discharge ends of thepipe to which two separate hoses could be attached.\u00a0 In the process of installingthese new valves, however, it was discovered that the compressor already had a safetyvalve installed by the manufacturer on the main discharge line behind where the linebranched off into the two discharge ends to allow for the two connections (Exh. R-3).\u00a0 This valve was on the compressor when it was purchased and was thus on there whenobserved by Sullivan.\u00a0 As it was on the main discharge line behind the point where itbranched into the two discharge ends, it would cut off the flow of compressed air in theevent of a failure of either of the two separate hose lines that could be attached to thecompressor simultaneously.\u00a0 It therefore served the same purpose as would twoseparate safety valves attached to each of the two discharge ends.McSpadden had this safety valve removed and broughtit to the hearing.\u00a0 Although it was not offered in evidence, it was examined byComplainant’s representatives.\u00a0 Complainant thereafter stipulated that it was in facta safety valve, although Complainant declined to further stipulate that it was on thecompressor when Sullivan saw the compressor during the inspection.Item 4During his inspection on January 29, 1980, Sullivan noted that an extra counterweight hadbeen installed on top of the counterweight originally installed by the manufacturer on amobile truck crane used by Respondent at the worksite and that Respondent had no writtenapproval by the manufacturer to make this modification to the crane\u00a0 (Exhs. C-47,C-48).\u00a0 He described this addition as a \”box … and a bunch of reinforced steel. . . laid inside of it\”\u00a0 (Tr. 126).\u00a0 The crane, used to lift columns andbeams to the upper levels of the structure, had a 40 ton capacity but Sullivan did notknow the weights of the material lifted by it nor did he know whether the lifts exceededthe crane’s capacity.\u00a0 He believed, however, that the added weight might have causedthe crane to tip over in the event excessive weights were lifted.\u00a0 If the crane wereto tip over, he thought the crane operator or other employees on the structure or in thearea could have sustained death or serious bodily injury.Eric Traulsen, erection superintendent for aConnecticut based structural steel fabrication and erection firm, who had been engaged insteel erection since 1953 and had 20 years’ experience with such cranes, although he hadnever operated one, testified that the only reason to add a weight would be \”foradded boom and working over the capacity of the crane\”\u00a0 (Tr. 387-388). \u00a0Such a modification, according to him, would \”definitely\” affect the safeoperation of the crane (Tr. 389).\u00a0 As an example, he said that the outriggers weredesigned for a 40 ton crane and that the added weight might cause one or more of them tocollapse, with the result that the crane would topple over.\u00a0 He did not visit theworksite or see the crane.On cross-examination, Traulsen testified that if the crane was actually a 60 ton capacitycrane, it would \”definitely\” affect his opinion (Tr. 394).McSpadden admitted that Respondent had added thecounterweight and had not obtained the approval of the manufacturer.\u00a0 He said,however, that the weight was added to gain stability, conceding at the same time that itwould increase the capacity of the crane.\u00a0 He also said that the crane was largerthan a 40 ton crane, although he did not specify its exact capacity, and had been designedfor a 200 foot boom.\u00a0 Respondent did not, however, use that size boom at theworksite; and McSpadden did not believe that Respondent even owned such a boom. \u00a0Respondent had also used a different 40 ton crane at the worksite at other times withoutincident and the crane involved in these charges was never used to lift anything heavierthan was lifted by the smaller crane.Item 5Sullivan noted that the same crane involved in item 4 lacked an automatic boom stop, adevice that automatically disengages the \”motor drive clutch from the boom so that itwill stop\” when it reaches the maximum permissible boom angle during a lift (Tr.129). Without such mechanism, the boom \”could automatically go over backwards andfall down on the crane\”\u00a0 (Tr. 128).In Sullivan’s opinion, if such an accident occurred,any employee \”on the ground in the way\” could be killed or suffer serious bodilyinjury (Tr. 129).\u00a0 Although Sullivan mentioned this deficiency to one of the\”officers of the company,\” nothing was done about it and the crane remained inuse\u00a0 (Tr. 130).At the time of the inspection, Sullivan was awarethat the crane was an old one and \”wouldn’t disagree that it might very well havebeen manufactured about \”59 or \”60\” (Tr. 371).McSpadden conceded that the crane was not equipped with the device in question.\u00a0 Heexplained that the crane was built no later than 1959, the year the manufacturer stoppedmaking them, that the device was not included in \”the original design of thatcrane,\” and that the manufacturer never subsequently designed one that could beinstalled on the crane\u00a0 (Tr. 601-602).Item 6Subitem (a)On February 5, 1980, Sullivan observed two of Respondent’s connectors working on thefourth floor without fall protection, one of whom could have fallen some 62 to 63 feetbelow on vertically protruding reinforcing steel rods that were sticking up out ofconcrete (Exhs. C-15, C-17).[[12\/]]\u00a0 Sullivan was of the opinion that the rods couldhave pierced an employee’s body if he fell on them from that height.\u00a0 He said thatthe hazard subjecting an employee to death or serious injury could have been abated simplyby bending the rods over.When Sullivan pointed out the hazard to Respondent’sforeman, William Zipfel, the latter expressed the opinion that it would make no differencewhether or not an employee fell on the protruding rods if he fell from that height.\u00a0Zipfel then added that \”he had no control over the [rods] anyway\” (Tr. 133).Subitem (b)On February 13, 1980, Sullivan observed an employee of Respondent working without fallprotection over the same steel rods involved in subitem (a) above, only this employee wasat the sixth floor level at the time.\u00a0 He stated that his opinion of possibleinjuries was the same as he expressed under subitem (a).Compliance Officer John Wiseman,[[13\/]] who was present at the worksite that date, alsoobserved the alleged hazard and believed that anyone who fell from that height onto steelrods \”had a good chance\” of being killed (Tr. 466).Item 7Subitem (a)On February 12, 1980, Sullivan, accompanied by Wiseman, observed a welder working on thefifth floor who was subjected to about a 70 foot fall within the structure because he wasnot wearing a safety belt tied off and there was no net installed under him to catch himif he fell.\u00a0 Although Sullivan testified that it was \”an odd shaped area thatwas too small at the time to cover with a net,\” he believed that it could have beennetted by using a standard size net overlapped to take up the excess (Tr. 139).Zipfel, who was present at the time, told Sullivanthat because the area was so small and hard to net, he \”just left the man upthere\” (Tr. 138).\u00a0 When Sullivan asked him why the employee was not tied off,Zipfel replied that the employee should have been tied off and that he would speak to himabout it.Both Zipfel and McSpadden informed Sullivan at timesduring the inspection that Respondent had difficulty enforcing Respondent’s tie off rule.Wiseman concurred with Sullivan’s testimony relatingto this charge and expressed his opinion that the area could have been easily netted.BCitation Number 2 (Willful)Subitem 1(a)On January 29, 1980, Sullivan observed two of Respondent’s connectors standing on beams onthe second floor level of the exterior edge of the structure, about 30 feet above theground level, preparing to connect a column being raised at the time by a crane. Zipfelwas on the ground directing the crane and the operation.\u00a0 After the column wasconnected and the crane cable was removed, the connectors climbed to the third floorlevel, about 46-1\/2 feet above the ground, where they similarly received and connected abeam between the two columns they had just erected (Exhs. C-1 through C-8). \u00a0According to Sullivan, these employees were working without any fall protection to theoutside of the structure; they should either have been tied off or perimeter nets shouldhave been installed on the \”outside\” of the structure (Tr. 50).[[14\/]] \u00a0Sullivan was of the opinion that a fall from either height could have resulted in death orserious injury.On cross-examination, Sullivan expressed the opinionthat connectors should be tied off when they receive steel being lifted by a crane andthat it was not hazardous to do so.Wiseman, on the other hand, testified that he wouldnot cite connectors for not tying off under these circumstances because it was dangerousto do so.\u00a0 The danger, according to him, arises from the fact that the steel beinglifted by the crane might get out of control and the connectors, if tied off, might not beable to avoid being struck by the steel.Regarding the testimonial conflict between Sullivan and Wiseman on whether connectorsshould be tied off, McSpadden agreed with Wiseman that it was dangerous for connectors totie off when receiving and connecting steel.\u00a0 He also included bolters in his opinionbecause bolters are normally \”right on the heels of the connectors\” (Tr. 929).McSpadden, also referring to Exhibit C-11, said thatit was impossible to string nets, either interior or exterior, on these columns becausethey were the first ones erected from the ground up and the cross beams had not yet beeninstalled.\u00a0 If nets had been strung to these columns the beams would not have gone inand the structure could not have been plumbed.\u00a0 He also said that it was impossibleto string a cable on the columns to which safety belts could be tied off for the samereason.Subitem 1(b)On February 5, 1980, Sullivan observed two of Respondent’s connectors connecting beams tocolumns at the edge of the structure at the fourth floor level, about 62 feet above theground and in some instances above steel reinforcing rods, who were not protected fromfalls to the outside of the structure (Exhs. C-9 through C-18).[[15\/]]\u00a0 They were,however, protected by a net from falls within the structure.\u00a0 Sullivan, Wiseman andMcSpadden testified that everything they said concerning subitem 1(a) above was equallyapplicable to this subitem. Subitem 1(c)On February 13, 1980, Sullivan, accompanied by Wiseman, observed two of Respondent’sconnectors between the fourth and fifth floor levels of the structure and at its edge,about 73 feet above the ground, positioning a tube held by the crane preparatory towelding the tube in place (Exhs. C-19 through C-23).\u00a0 Zipfel was directing theoperation from the ground.\u00a0 Although both of the employees were wearing safety belts,neither was tied off at the time, nor were they tied off when they previously climbed downto that point from the fifth floor level.\u00a0 There was also no perimeter net on theoutside of the building.\u00a0 When one of them left, the other started to weld the tubein place.\u00a0 At this time, the one welding had his lanyard laid over a beam but notconnected \”as far as we could see\” (Tr. 347; Exh. C-21).\u00a0 Sullivan claimedthat the employee later admitted to him that he was not tied off.Wiseman testified that there was nothing to protectthe two connectors if they fell to the outside of the building.\u00a0 Agreeing in allrespects with what Sullivan said, he too said that the one connector just had his lanyardlaying across the beam above him.Zipfel testified that when Sullivan pointed out theconnector who was welding and said that he was not tied off, he (Zipfel) told Sullivan hewas tied off.\u00a0 Moreover, when the connector came down and Sullivan asked him why hewas not tied off, the connector said he was tied off.\u00a0 Then. . we got in a heated argument because [theemployee] was disturbed because he knew he was tied off and Mr. Sullivan pretty well,pointedly pointed out that he wasn’t.\u00a0 (Tr. 936)After examining Exhibit C-19, McSpadden agreed that the employee welding could have fallento the outside of the building. However, he said that it would take several hours toinstall an exterior net and the employees installing it would be exposed to a fall.Subitems 1(d) and (e)Both subitems involve alleged employee exposure to falls in traversing a beam from themain structure to the judges tower at the sixth floor level on separate dates, February13, 1980 and February 19, 1980.\u00a0 Sullivan described the fall distance variously as\”80 to 90 feet\” and about 95 feet (Tr. 86).Referring to subitem 1(c), Sullivan testified that onFebruary 13, 1980, the other employee departed the area where the tube was being weldedand proceeded to the judges tower above to obtain some more bolts (Exhs. C-24 throughC-26).\u00a0 This employee, according to Sullivan, was exposed to a fall outside thebuilding to the ground below and at one point in time onto the vertical steel barsinvolved in subitem 1(b) because he was not tied off and there was no perimeter net intowhich he could fall.Sullivan testified that on February 19, 1980, abolter crossed the same beam to obtain bolts and was similarly exposed to a fall outsidethe structure (Exhs. C-27 through C-44).\u00a0 However, on this occasion, Sullivan notedthat because the interior net below the beam was improperly strung and had a gap in it,the employee was also exposed to a fall of about 64 feet to the ground level if he fellinside the building and through the gap.\u00a0 Although he did not go up in the structureto look at this net, Sullivan \”got underneath it as close as [he] could and looked upthere\” (Tr. 356).Sullivan did not notice this net on the earlier date,February 13, 1980; hence, he could not say whether it was in place on that date or, if itwas, whether it had the gap in it.Wiseman accompanied Sullivan on February 13, 1981 but not on February 19, 1980. \u00a0Confirming everything that Wiseman said regarding subitem 1(d), he stated that theinterior net with the gap in it was in place on that date, February 13, 1980, and that theemployee could have fallen within the structure through the gap in the net four floors tothe ground below.McSpadden and Zipfel both disagreed that the interiornet presented a hazard.\u00a0 According to McSpadden, he walked the beam, observed thenet, and noted that if an employee fell to the inside of the structure from the beam hewould land almost in the center of the net (Tr. C-44).\u00a0 Zipfel said that he installedthe net, that it would protect any employee falling inward from the beam, and that theonly gap in it was on the outside of the structure (Exh. C-44).\u00a0 Moreover, accordingto Zipfel, the side of the beam to the outside was protected by a cable that was installed42 inches high (Exh. C-44).Subitem 1(f)On February 23, 1980, Sullivan observed an employee climbing a column between the secondand third floor levels to reach the judges tower who was not tied off while he wasclimbing the column nor was he protected by a perimeter net.\u00a0 The employee could havefallen to the outside about 45 feet to the ground, although he was protected from a fallinward by an interior net.Willful CharacterizationSullivan recommended that this citation be characterized as willful, based upon thefollowing reasons:A.\u00a0 I think that anytime that an employee can bekilled or can receive serious bodily injury, then I knowingly go to the contractor and thecontractor notes that this employee is exposed and does nothing about it, then I considerit willful.Q.\u00a0 Then it is a-A.\u00a0 He has knowledge of it –I mean, I do all I can do to try to rectify it, ordebate it and when they don’t do it, then I go willful.JUDGE CHALK:\u00a0 You mean they don’t do it right then and there when you tell them?\u00a0\u00a0 Is that what you mean when you say they don’t do it.\u00a0 They don’t abateit?THE WITNESS:\u00a0 They don’t abate it.JUDGE CHALK:\u00a0 When?\u00a0 When you tell them?THE WITNESS:\u00a0 Not right there and then, they stop.\u00a0 In other words, they stopthe operation and get the employees out of there, then I think that abated.\u00a0 And, Ithink that it’s taken care of, that shows good faith when a man is trying to do something.\u00a0 If they continue, and don’t take care of it, then I figure it’s a willful. \u00a0(Tr. 357)IIDocket Number 80-3694Citation Number 1 (Serious)Wiseman conducted an inspection of the same worksite on May 15, 1980 and recommended theissuance of the single item citation based upon his observation of one of Respondent’swelders and its foreman, neither of whom were wearing protective helmets, working\”directly\” under other employees who were carrying \”hand tools and othermaterial\” (Tr. 486).\u00a0 If the employees above them had dropped any of these toolsor materials, such as wrenches or \”nuts, bolts,\” Wiseman believed that the twoemployees could have sustained \”serious physical harm\” (Tr. 486, 487).According to Wiseman, both of these employees werewearing welding masks that would not fit over the helmets they had with them but were notwearing.\u00a0 However, these employees should have been provided with and required to use\”special hard hats that are manufactured for the hoods to fit right on them\”(Tr. 559).IIIOne of the more controversial issues litigated at the hearing arose as the result of oneof the alternative charges in Citation number 2 of Docket number 80-1622 that Respondentfailed to comply with 29 CFR 1926.105(c)(1) by not erecting nets that extended eight feetbeyond the exterior of the structure, referred to by the various witnesses as perimeternets. Complainant’s witnesses Sullivan, Traulsen and Wiseman addressed comments to thissubject.As to each of the six subitems of that citation, Sullivan testified that Respondent hadnot but should have installed these perimeter nets around the outside of the structure asone of the alternative methods of eliminating the hazard attending the fall of an employeeto the outside of the structure.All of Traulsen’s experience was acquired in Connecticut, the only state where he hadworked in the trade. He testified that starting in 1978 when OSHA first started enforcingthe use of such nets in Connecticut, his firm had used them in constructing some three orfour multi-tiered buildings. He was also aware that other contractors in that state hadused them and had seen them in use by larger firms in New York and New Jersey, even thoughthese firms were \”not asked to do it,\” because \”it lowered the insurancecosts\” (Tr. 225). Traulsen said that his firm did not use these nets before 1978,however, because, in his wordsWhy should I obey something that is not there [sic]. (Tr. 300)Traulsen then proceeded to outline the various methods by which these nets could beinstalled and, after examining the photographs of the structure in this case, expressedthe opinion that their use thereon was feasible. He said that his firm tested these netsby throwing a keg of nails weighing about 200 pounds into the nets. He was unaware of anyprescribed test and these nets were never \”tested at 400 pounds at 25 feet\” (Tr.294).Wiseman agreed with Traulsen’s testimony concerning the feasibility of using nets onmulti-tiered buildings under construction. After stating generally that in his vastexperience he had inspected anywhere from 150 to 200 multi-tiered steel structures for theDistrict of Columbia Government and 20 or less for OSHA, he stated that he had seenperimeter nets in use in this area only on the Dirksen Office Building in Washington,D.C., in 1979, following an inspection of that worksite begun in October 1978.[[16\/]]\u00a0 He also stated that in July 1980, apparently in the preparation of this case, hevisited several localities in Connecticut to observe and photograph construction siteswhere these nets were in use (Exhs. C-5 through C-64).\u00a0 According to him, this visitwas essential because he could not find any steel erection projects in this area wheresuch nets were being used:They were not using the nets in this area … (Tr.531)Aside from these personal observations of perimeternets in use, Wiseman expressed a familiarity with them from \”trade journals and otherconstruction magazines and pictures that [he had] observed of other jobs\” (Tr.469).\u00a0 When questioned further about the pictures, he stated that he had receivedthem from \”other locals,\” referring to labor unions (Tr. 469).On cross-examination, Wiseman, after conceding thathis area director had authorized Respondent to continue to use interior nets in lieu oftemporary flooring, testified that he would have cited Respondent under 29 CFR1926.105(c)(1) for not having installed perimeter nets even if Respondent had installedtemporary flooring on every other floor of the structure.Wiseman also stated that in October 1980, he attended a two-day meeting sponsored by theOSHA \”National Office\” relating to perimeter nets, as well as fall protectionfor \”iron workers\” in general (Tr. 532, 536).\u00a0 Although most of those inattendance were OSHA employees, some members of the International Association of IronWorkers also attended.\u00a0 He did not hear the instant case mentioned during thismeeting.Called as a witness for Complainant, McSpaddenconceded that Respondent did not use perimeter nets.\u00a0 On cross-examination byRespondent, however, he stated his continuing belief that perimeter nets were not requiredby the standard.James Woods, called as a witness for Respondent, wasthe chief engineer of the Northern Virginia Steel Corporation.\u00a0 He was a graduatearchitectural engineer, a part-time consultant to the construction industry, and had beenassociated with the construction industry since 1963 in various locations \”fromPennsylvania to Florida\” (Tr. 1014).\u00a0 His experience since 1968 has been withmulti-storied structural steel fabrication and erection from Washington, D.C. \”allthe way up through the New England Boston area\” (Tr. 1025).\u00a0 Although he hadbeen involved in \”literally hundreds of projects,\” not one involved the use ofperimeter nets (Tr. 1025).\u00a0 Moreover, he had never seen them used on any multi-tieredsteel buildings under construction by other erectors.After Woods examined the photographs taken by Wisemanof exterior nets on structures in Connecticut (Exhs. C-51 through C-64), he expressed theopinion that these nets were not safe.\u00a0 First, he said that if a man fell into one ofthem, the net would probably \”fold like an accordian and the person would probablyfall out.\” (Tr. 1022) Then he said:The picture marked Exhibit 52 shows a pipe of approximately the same diameter as listed inthe Complainant’s Exhibit 50 and it shows just under a tremendous deflection in the pipe,in this approximately 2 and a half inch diameter pipe, under the weight of the net byitself and it gives no lateral support.\u00a0 It gives no support at the ends of the pipewhatsoever and I, certainly, would not be willing to risk my life falling into that netsupported by that pipe.\u00a0 (Tr. 1023)Another witness for Respondent, Charles Green, a certified safety professional andpresently a consultant to the construction industry, worked for the District of ColumbiaGovernment from 1957 until his retirement as Director of its Industrial Safety Division in1979.\u00a0 He had served in that division first as a construction inspector and then as afield supervisor of construction inspectors until he was appointed acting director of thedivision in 1963.\u00a0 During a part of this period, his division actually administeredthe OSHA Act on behalf of the Federal Government.Green was one of the past presidents of the localchapter of the American Society of Safety Engineers, a past president of the MetropolitanWashington Construction Safety Association, presently the chairman of the Research andTechnical Development Committee of the American Society of Safety Engineers and presentlythe chairman of the Government Labor Agency and Standards Committee for the Labor Sectionof the National Safety Counsel, having just completed an eight year term as a member ofthe Board of Directors of that Council.Green stated that although OSHA regulations requirethe testing of nets once they are in place, these regulations do not specify theparticular test to be applied.\u00a0 The ANSI standards on safety nets, however, dorequire a test that consists of dropping a 400 pound bag of sand into the nets from aheight of 25 feet.When questioned about the applicability of 29 CFR 1926.105(a) and 105(c)(1) to steelerection, Green replied that the question had been raised in the Technical Research andDevelopment Committee of the American Society of Safety Engineers that he chaired, as theresult of an inquiry about this particular case.\u00a0 It was his opinion that there was\”a big problem with the application and\/or the interpretation of the Standards [on]nets visa vee [sic] the standards that would apply in steel erection\” (Tr. 1062).\u00a0 Continuing, he explained:The ambiguity is that you have a requirement in a steel erection standard of OSHA which isthe most logical section where a person doing steel erection work would first look for anyprotection that he would need in a multi-tiered building or any other steel erectionjob.\”\u00a0 (Tr. 1063)Stating that the steel erection standards werecontained in subpart R, starting with 29 CFR 1926.750, he continued:WITNESS:\u00a0 In 750, which is the introduction tosteel erection, as far as someone who might have standards in the field, that particularsection, the first requirement and the primary requirement in that section on themulti-tiered building is for temporary flooring.Then it just almost casually says that if a temporaryfloor is impractical, then you would use nets.\u00a0 It makes no reference in there to thesection they want you to refer to the nets.\u00a0 They don’t even make a reference inthere to the specific ANSE Code, as far as nets. That same section spells out threedifferent types of workers –I’m sorry, two different types of workers, that should betied off under the circumstances of temporary floors.\u00a0 It refers to men laying thetemporary floors and it spells out the use of a catenary line for their protection and howthey should extend the floor.Then in the other section, it calls for tie off linesfor men working from the float, in that same steel job.Q\u00a0 Explain what a \”float\” is?A\u00a0 A \”float\” is a working platform that is suspended either by cable orrope and hung under a beam on a structural steel job.Q\u00a0 Normally is a float to accommodate one man or more?A\u00a0 Usually it accommodates two men.\u00a0 You don’t see many of them in use. \u00a0Usually it was for rivet bucking and this sort of thing.Q\u00a0 Go ahead.A\u00a0 The [sic] because of the fact the use of 105,when it came to switching over to that requirement, the net, it should extend 8 feetbeyond the perimeter of the building.Q\u00a0 So I’ll understand.\u00a0 You said 105requires the next extend- 105(c) is it?A\u00a0 In 105, I’m taking the whole section becauseit can easily be taken section by section.\u00a0 105 says that if it is impractical to usea temporary floor, a ladder, a safety belt, a catch, platform other [sic] other means ofprotection, then you use safety nets.The safety nets takes the last line of precedence in the protection of people if you usethose two-if you compare those two requirements.\u00a0 The other thing we want to–it alsorequires that if you use the net, it must extend 8 feet beyond the building.\u00a0 Youcan’t have one without the other, but if we go back to 750, you put temporary flooring inand it does not extend outside the perimeter of the building- JUDGE CHALK:\u00a0 You mean the floors don’t?WITNESS:\u00a0 The floors don’t extend outside the perimeter of the building.\u00a0 Theambiguity is that if you put a floor in that is directly under the steel that you areerecting and then you call for a net that must extend 8 feet out the perimeter of thebuilding, here you have a floor made of two inch lumber for which a man–you permit a manto fall 25 feet, if he falls, by their own standards.\u00a0 Yet, when you put in the nets,that serves in the same area, you’re saying that that net has to be in there and thenfurther extend 8 feet out beyond the edge of the building.Now if it’s practical and acceptable to havetemporary floors in there you can hit and do serious damage if you do hit, why is it notacceptable for somebody to reason that a net erected in the same place couldn’t providethe same protection and, in my opinion, it could be better protected because you’re notliable to hit and injure yourself in the same manner as you would if you had temporaryfloors in there so that’s why I’m saying that the standards are just ambiguous to thatpoint, if you mix those standards.If you don’t mix the standards, then one appears tobe reasonable.\u00a0 Now, one of the problems is that the history of that next standardhas always been, prior to OSHA, applicable to bridges and large vaulted buildings whereyou cannot, it’s impractical to get a temporary floor in because under these standardsthere is a span of which you cannot extend temporary floor planking, so there are somebuildings where it would be impractical unless you built a whole lot of false work to putup temporary floors.Q\u00a0 Explain what false work is?A\u00a0 False work would be work that is put up to support some other work.Q\u00a0 Would false work remain in the structure?A\u00a0 It would not remain, not to the point of putting up a temporary floor.\u00a0 (Tr.1063 through 1066)Green expressed his familiarity with the\”ongoing program\” sponsored by the International Association of Bridge,Structural, and Ornamental Iron Workers of instructing its apprentices in safety mattersrelating to steel erection.\u00a0 According to him, that Association argues with hisopinion that the standards on netting in 29 C.F.R. 1926.105 do not apply and never havebeen applied to steel erection by the industry, as indicated by the following from page247 of that Association’s Structural Manual for Ironworkers, Manual V, Volume 1:INTRODUCTION TO STRUCTURAL STEEL ERECTIONPlanking, decking or nets, covering a radius of at least 10 feet shall also be providednot more than two (2) floors or a maximum of 25 feet beneath all points on all buildings,bridges and other structures while workmen are working at such points, except thatplanking, decking or nets will not be required on buildings beyond the outside perimeterof the building.\u00a0 (Exh. R-9)Green testified that this particular netting questionwas never raised or enforced by OSHA in this area, that between 1957 and 1981 he never sawperimeter nets in use in the area, that there were no such nets on the Dirksen buildingany of the times he observed it, and that it was not the practice to use them in thisarea.\u00a0 Moreover, he stated that although he had observed many \”steel jobs\”in \”many different cities in the country,\” including New York City, he had neverseen perimeter nets in use anywhere (Tr. 1078).Cross-examined about the Dirksen building and the useof perimeter nets on it, Green said that he was \”a little surprised\” that anyonewould install them \”knowing what the ambiguity of those regulations was\” (Tr.1085).\u00a0 He reiterated that he never saw such nets on it, notwithstanding the fact he\”may have seen\” the building \”40 times\” in traveling around the city(Tr. 1086).In response to my questions, Green stated that OSHAnow enforced perimeter nets in this area and in fact did not even require them on its ownbuilding, the Department of Labor Building, when it was under construction.Respondent also called Gilbert L. Esparzza, the areadirector, as a witness who testified that he had been enforcing exterior nets since hebecame area director in December 1976 but that the first such enforcement was in October1978, that perimeter nets would be required even if temporary floors are installed, andthat perimeter nets have only been enforced in the Hartford, Connecticut area and by\”some compliance officers in the Washington, D.C. area\” (Tr. 993).As Complainant’s only objection to certain documentsoffered in evidence by Respondent rebating to the meeting convened in the OSHA nationaloffice in October 1980, referred to by Wiseman, was that they were not relevant to thecharges, these documents were received in evidence (Exhs R-1, R-2, R-5, R-6, R-7,R-8).\u00a0 Briefly, these documents, after expressing concern by OSHA officials over the\”extraordinary hazards inherent in steel erection,\” reflect that the DeputyAssistant Secretary for Occupational Safety and Health directed the convening of thetwo-day meeting for the following basic reasons spelled out in Exhibit R-2:1.\u00a0 The \”urgent need\” for aclarification of OSHA policy concerning fall protection in structural steel erection,2.\u00a0 Employees working on the perimeter of a building are regularly exposed to fallsof as much as several hundred feet,3.\u00a0 Subpart R of the construction standards contains specific regulations formulti-storied steel erection but is lacking in safety belt and perimeter protection foremployees, although such protection is provided by OSHA’s \”general standards,\”4.\u00a0 In litigation, employers have taken the position that they are only subject tothe requirements of Subpart R, with the Courts seemingly going both ways, 5.\u00a0 The \”confusion in\” judicial opinions \”as to a steel erector’sobligations is paralleled by a lack of consistency in OSHA enforcement of itsregulations,\”6.\u00a0 The \”greatest divergence in enforcement…lies in the enforcement of 29 CFR1926.105(c)91), which mandates the use of perimeter nets for employees exposed to a fallof greater than 25 feet.\”\u00a0 A survey of \”a number of OSHA area and regionaloffices\” indicates that this requirement is now being enforced only by the Hartford,Connecticut Area Office and \”recently by some compliance officers\” in theWashington, D.C. Office, and 7.\u00a0 A program Directive and\/or Interpretive Rule should be promulgated not only toOSHA field personnel but also to industry and labor union representatives to\”clarify\” that in addition to Subpart R, the general fall protection standardsin the construction series apply to steel erection.IVDocket Number 80-1622ACitation Number 1 (Serious)Item 2After comparing the testimony of Sullivan with that of McSpadden given some six dayslater, during which period of time the compressor was more closely examined and the safetyvalve installed by the manufacturer was discovered, it is obvious to me that the safetyvalve was on the compressor at the time of the inspection and that everyone overlooked it.\u00a0 Accordingly, as Complainant has not carried his burden of proving this violation,item 2 will be vacated.Item 4As the standard requires the manufacturer’s written approval for any modification of acrane that affects its capacity, without regard to whether it also affects it safeoperation, and Respondent admitted that it made the modification without such writtenapproval, this much of the violation charged in the citation is sustained by the record.\u00a0 However, I find that the evidence is not sufficient to establish that themodification affected the safe operation of the crane and that it could have resulted ininjury to an employee, ingredients of the charge that cannot be founded on speculation orconjecture (C.J. Tyrrell, as Trustee of the Estate of Roy E. Shoaff Drilling Co., Inc. v.Dobbs Investment Co., 337 F.2d 761 (10th Cir., 1964); Epoch Producing Corp. v. KilliamShows, Inc., et al., 522 F.2d 737 (2nd Cir., 1975); Vlases v. Montgomery Ward & Co.,377 F.2d 846 (3rd Cir.,1967); Boomer v. New York Central R.R. Co., 409 F.2d 382 (7th Cir.,1969)).Both Sullivan, who saw the crane, and Traulsen, whodid not, expressed their respective views that the added counterweight could have affectedthe safe operation of the crane.\u00a0 Sullivan, moreover, added to this opinion hisfurther conclusion that the counterweight could have resulted in some sort of failure ofthe crane during its operation that in turn could have caused the death of or seriousinjury to an employee.These opinions expressed by Sullivan and Traulsenclearly were based on hypothetical situations rather than facts, for Sullivan neverascertained what the added counterweight weighed.[[17\/]]\u00a0 In fact, as he said nothingother than that it consisted of a box containing \”a bunch\” of reinforced steel,one might reasonably infer that the added weight, when considered in relation to thecounterweight installed by the manufacturer and the gross capacity of the crane itself,was so minimal as to have had no appreciable effect on the safe operation of the cranewhatsoever.Accordingly, as Complainant has failed to prove any relationship between the violationestablished by this record, that which Respondent admits, and the safety and health ofRespondent’s employees, I will reduce the charge to a de minimis violation.Item 5Respondent also conceded that the same crane was not equipped with an automatic means tostop the boom drum motion when the maximum permissible boom angle was reached, explainingthat the crane was not equipped with such a device by the manufacturer when it was builtin 1959 or earlier.\u00a0 This charge, however, cannot be sustained.According to the citation, the basis for the chargeis Section 5-1.9.1, ANSI standard B30.5-1968, as adopted by 29 CFR 1926.550(b)(2), whichsaid standard does indeed require such a device on some truck cranes but not all.According to its own terms, this source standardbecame effective on December 16, 1968.\u00a0 In Section IV thereof, under the generalheading \”Scope,\” it provides:One year after the date on which this Code becomeseffective, all new cranes shall conform to these rules.\u00a0 Cranes manufactured prior tothat date should be modified to conform to these rules, unless it can be shown that thecrane cannot feasiblyor economically be altered and that the crane substantially complies with the requirementsof the Code.(Emphasis supplied)Section V of the same standard also provides that arule is mandatory if the word \”shall\” is used, but advisory only if the word\”should\” is used.As the truck crane in this case was manufactured nineor more years prior to the effective date of ANSI standard B30.5-1968, it falls within theadvisory provisions of the standard rather than the mandatory provisions thereof.Accordingly, the charge cannot be sustained (Secretary of Labor v. Anaconda Co., 596 F.2d370 (9th Cir., 1979); Secretary v. U.S. Steel Corp., 76 OSAHRC 64\/C8, Docket Nos. 10825& 10849.Item 6 Both subitems of item 6 allege that Respondent permitted employees on two different datesto work above vertically protruding reinforcing steel rods that had not been protected toeliminate the hazard of impalement.\u00a0 As Complainant’s evidence fully supports theseviolations and Zipfel admitted them, they will be affirmed.\u00a0 Moreover, as these rodscould have pierced the bodies of these employees if they fell respectively from the fourthfloor level, or about 63 feet, or from the sixth floor level, an additional 32 feethigher, where they were working, it is clear that these employees could have sustainedserious bodily harm if not death.Item 6 will be affirmed as a serious violation as toboth subparts. Item 7(a)Although Respondent had installed interior nets within the structure on every other floorin lieu of installing temporary flooring, Sullivan and Wiseman observed a welder weldingon the fifth floor, 70 feet above the ground, that had no net below it and the welder wasnot tied off.As the evidence demonstrates that the area could havebeen netted, and Zipfel’s excuses that the area was hard to net and that Respondentexperienced difficulty enforcing its tie off rule are not persuasive, the evidencesupports the violation and it will be affirmed.\u00a0 Moreover, as Sullivan had alreadystated on other charges that a fall from such a height could result in death or seriousbodily harm, and such a conclusion is otherwise supported by this record, I will affirmthe violation as a serious one.BCitation Number 2 (Willful)The course charted by complainant in pressing perimeter net charges in this case is highlycontroversial and fraught with confusion and ambiguity almost beyond description.\u00a0 Itraises the applicability of the safety net requirements of 29 CFR 1926.105 to structuralsteel erections of tiered buildings.The controversy stems from the fact that 29 CFR1926.750, found in Subpart R that deals specifically with steel erections of tieredbuildings, has its own safety net requirement that is identical in all important aspectsto that found in 29 CFR 1926.105(a). However, because 29 CFR 1926.750 does not provide fornet coverage in any situation beyond the perimeters of the structure being constructed,whereas 29 CFR 1926.105 does under certain circumstances (29 CFR 1926.105(c)(1)),Complainant maintains that the latter applies to the steel erection of tiered buildings.This specific issue, to my knowledge, has not beenaddressed by the Commission, although the Commission has held that 29 CFR 1926.105(a)applies to steel erection (Secretary v. National Industrial Construction Inc., __OSAHRC__,Docket No. 76-5241, July 1, 1980).After providing in 29 CFR 1926.105(a) for theinstallation of a net to protect employees from falls to the interior of the building, 29CFR 1926.105(c)(1) further requires that this net extend eight feet beyond the perimeterof the structure when employees are working at the structure’s edge.That steel erectors and others knowledgeable in theart of steel erection of tiered structures look to Subpart R as the last word on thesubject and believe that the use of perimeter nets is unknown in the industry notrequired, is overwhelmingly established on this record.\u00a0 In fact, it appears to methat the vast majority of Complainant’s compliance personnel countrywide, except for\”some\” in the District of Columbia and those in the Hartford area office inConnecticut, shared these same views, otherwise one would be forced to the unlikelyconclusion that they were remiss in carrying out their inspection duties.\u00a0 AlthoughComplainant does not agree, he nevertheless was compelled to convene the October 1978meeting in Washington, D.C., to determine a course of action designed to rectify what heconsidered to be a serious inspection and compliance problem. In resolving this issue, my attention initially mustbe focused on the apparent conflicts and ambiguities attending a construction of these twosets of standards as a compatible and equally applicable to the industry, so wellhighlighted by Respondent’s witnesses and especially Green.\u00a0 Not only is thisevidence persuasive but I additionally discern an ambiguity in the 105 standard itselfwherein it speaks of nets vis-a-vis temporary floors.\u00a0 Read as a whole, this standardappears to require perimeter net protection only in relation to use of interior nets, thusrequiring no perimeter protection where temporary floors are installed, the same analogyGreen drew between the two separate sets of standards.[[18\/]]Speaking generally of vague enactments, the UnitedStates Supreme Court remarked It is a basic principle of due process that anenactment is void for vagueness if its prohibitions are not clearly defined.\u00a0 Vaguelaws offend several important values.\u00a0 First, because we assume that man is free tosteer between lawful and unlawful conduct, we insist that laws give the person of ordinaryintelligence a reasonable opportunity to know what is prohibited, so that he may actaccordingly.\u00a0 Vague laws may trap the innocent by not providing fair warning. \u00a0Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provideexplicit standards for those who apply them[[4]].\u00a0 A vague law impermissiblydelegates basic policy matters to policemen, judges, and juries for resolution on an adhoc and subjective basis, with the attendant dangers of arbitrary and discriminatoryapplication.[[5]]\u00a0 Third, but related, where a vague statute \”abut[s] uponsensitive areas of basic First Amendment freedoms,\” [[6]] it \”operates toinhibit the exercise of [those] freedoms.\”[[7]]\u00a0 Uncertain meanings inevitablylead citizens to \”‘steer far wider of the unlawful zone’…than if the boundaries ofthe forbidden areas were clearly marked.\”[[8]]\u00a0 Grayned v. City of Rockford, 408U.S. 104, 92S.Ct. 2294, at pages 2298 and 2299 (1972).(Footnotes Omitted)The same principle has been applied to OSHA standardsthat tend to confuse employers and require them to guess what they must do to stay withinthe law (Kent Nowlin Construction Co. v. Occupational Safety and Health Review Comm., etal., 593 F.2d 368 (10th Cir., 1979); Secretary of Labor v. Kennecott Copper Corp., 577F.2d 1113 (10th Cir., 1977); Diamond Roofing Co., Inc. v. Occupational Safety and HealthRev. Comm., et al., 528 F.2d 645 (5th Cir., 1976)).[[19\/]]\u00a0 As the Tenth Circuit hassaid,We think it significant that there is disagreementamong the Secretary’s compliance officers, the administrative law judge, and even amongthe commissioners of the Review Commission as to the interpretation, interrelationship andapplication of the regulations involved.\u00a0 The Secretary, in citing the petitionertreated the cavity as a trench for the purpose of one citation and as an excavation forthe purpose of the other.\u00a0 The administrative law judge, remarking that while alltrenches are also excavations all excavations are not trenches, held that the cavity inquestion was not a trench.\u00a0 Commissioners Barnako, and Cleary ruled that the cavityclearly was a trench and in effect that it was also an excavation, so that the prescribedstandards relating to excavations are equally applicable to trenches.\u00a0 CommissionerMoran, agreeing with his colleagues that the cavity was a trench, disagreed with theconclusion that an employer should be held liable irrespective of the classification ofthe cavity.We recognize that the interpretation by the Secretaryof his own regulations is entitled to deference but we are not required to rubber stampadministrative decisions that frustrate the congressional policy underlying astatute.\u00a0 Volkswagenwerk v. Federal Maritime Com’n., 390 U.S. 261.88 S.Ct. 929, 19L.Ed.2d 1090 (1968); Marathon Oil Co. v. Kleppe, 556 F.2d 982 (10th Cir. 1977). \u00a0Although it was the expressed intent of Congress…to assure so far as possible every working man and woman in the nation safe andhealthful working conditions….[29 U.S.C. ?651(b)] administrative regulations cannot beconstrued to mean what an agency intended but did not adequately express.\u00a0 DiamondRoofing v. Occupational S. & H. Rev. Com’n., 528 F.2d 645 (5th Cir. 1976).In Usery v. Kennecott Copper Corp., 577 F.2d 1113(10th Cir. 1977), we held that an employer is not required to assume the burden ofguessing what the Secretary intended the safety regulations to mean.\u00a0 In that case wequote from the opinion of Chief Judge Brown in Diamond Roofing v. Occupational S. & H.Rev. Com’n., supra:An employer, however, is entitled to fair notice indealing with his government.\u00a0 Like other statutes and regulations which allowmonetary penalties against those who violate them, an occupational safety and healthstandard must give an employer fair warning of the conduct it prohibits or requires, andit must provide a reasonably clear standard of culpability to circumscribe the discretionof enforcing authorities and its agents.\u00a0 528 F.2d at p. 649….The petitioner should not be penalized fordeviation from a standard the interpretation of which, in relationship with kindredstandards, cannot be agreed upon by those who are responsible for compelling compliancewith it and with oversight of the procedures for its enforcement.\u00a0 Kent Nowlin, supra,at pages 370, 371.As this case is indistinguishable from Kent Nowlin,Complainant’s interpretation of the twostandards cannot be upheld.\u00a0 I will not therefore affirm this perimeter net aspect ofthe charge.In the alternative, Complainant alleges in effectthat Respondent was in noncompliance with 29 CFR 1926.105(a) by not providing the othermeans of fall protection provided for therein.\u00a0 Complainant’s evidence, however,limits this aspect of the charge to Respondent’s failure to require its employees, underthe same facts alleged in the perimeter net charge, to wear tied off safety belts.Subitems 1(a) and (b)Subitems (a) and (b) of this charge involved connectors connecting either beams or columnsas they were being lifted in place by the crane.\u00a0 Sullivan testified that theseconnectors should have been tied off, as it was his opinion that it was not dangerous todo so. He stood alone in this opinion, however, for others, including Complainant’switness Wiseman, testified that it was more dangerous to tie off when receiving steel thannot to tie off.As Commission precedent supports the opinions ofthose contrary to that of Sullivan, Subitems 1(a) and (b) will be vacated (Secretary v.American Bridge, Div. of U.S. Steel Corp., 74 OSAHRC 71\/B10, Docket No. 2249; Secretary v.Industrial Steel Erectors, Inc., 74 OSAHRC 2\/E5, Docket No. 703).Subitem 1(c)In part, my disposition of subitems 1(a) and (b) is applicable to one aspect of theevidence relating to subitem 1(c), as Sullivan rested a part of this charge on the factthat the two connectors involved were not tied off when receiving what was described as atube being lifted in place by the crane preparatory to its being welded in place on theexterior of the structure.\u00a0 These observations were made from the ground, about 73feet below where the connectors were working and about 30 feet away from the structure.The other aspect of the evidence relating to this subitem rested on the opinion ofSullivan and Wiseman that one of these connectors was not tied off while welding the tubein place but instead, merely had his lanyard laid across a beam above him.This evidence, however, was disputed, as Zipfel, whowas present at the time, stated that the connector was tied off, that the connectorhimself later told him that he had been tied off, and that a \”heated argument\”ensued between the connector and Sullivan because the connector \”was disturbed\”by Sullivan’s accusation that he was not tied off.Having considered this conflict in the evidence inlight of the photographs (Exhs. C-19 through C-23) which are somewhat inconclusive becauseof the distance from which they were taken, the same place where Sullivan and Wisemanobserved the employee, I am not persuaded that Complainant carried his burden of provingthat the connector was not tied off at the time in question (Zurich Insurance Co., v.Oglesby, 217 Fed. Supp. 180 (D.C.W.D. Va., 1963); Sanders, et al. v. Roy, et al., 242So.2d 587 (C.A. La., 1970); B. Stern Co., Ltd. v. Perry, 246 So.2d 246 (C.A. La., 1971);Howard v. Coyle, et al., ll So. 697 (S.C.La., 1927)).Finally, I am not persuaded to affirm this subitem onthe basis of Wiseman’s oblique remark, not otherwise explained, that the two connectorswere not tied off when they climbed down between the two floor levels to get in positionto receive the tube.\u00a0 As it was not explained exactly how these connectors got thereor where they came from, and the photographs tend to indicate that the beam framing wasfar from complete, there is no proof that it was possible for them to tie off in reachingthe position where they received the tube.\u00a0 Moreover, Wiseman’s remark does not ruleout the possibility that these connectors climbed down within the structure where theywere protected by an interior net.Subitem 1(c) will be vacated.Subitems1(d) and (e)Both subitems involved different employees onseparate dates traversing a beam 90 to 95 feet above the ground that was connected at oneend to the main trustee and at the other end to what was called the judges tower. \u00a0Sullivan observed the employees crossing the beam on both dates, whereas Wiseman was thereonly on the first occasion.Both Sullivan and Wiseman said that these employeeswere not tied off and they were not otherwise protected from falls toward the outside ofthe structure.\u00a0 Additionally, Wiseman said that because of a gap at a certain pointin the interior net below the beam, a fall inward at that point would result in no netprotection.Sullivan did not notice this gap in the interior neton the first occasion but did so on the second and said that he observed it by walkinginside the structure and looking up.\u00a0 Neither Sullivan nor Wiseman went up inside thestructure to get a closer look at the situation.Both Zipfel and McSpadden disagreed about the gap inthe interior net.\u00a0 Zipfel said that he had installed the net, that it would protectany employee falling inward from any point on the beam, and that the only gap in the netwas on the outside of the structure.McSpadden agreed with Zipfel, stating that he went upin the structure and walked the beam.\u00a0 According to him, any employee who fell inwardfrom the beam would land in the net.Additionally, Zipfel testified that the outward sideof the beam was protected by a perimeter cable installed 42 inches high.Once again, the evidence presented by the parties wasin direct conflict.\u00a0 After considering the inconclusive nature of the photographs,together with the fact that neither Sullivan nor Wiseman went up into the structure for acloser look,I conclude that Complainant has not carried his burden of proving these two subitems(Zurich Insurance Co. v. Oglesby, supra; Sanders, et al. v. Roy, et al., supra; B. SternCo., Ltd. v. Perry, supra; Howard v. Coyle, et al., supra).\u00a0 Accordingly, subitems1(d) and (e) will be vacated.Subitem (f)The main thrust of Sullivan’s testimony concerning the hazard presented by this employeeclimbing a column to reach the judges tower appears to be the absence of a perimeter net.\u00a0 However, Sullivan also made the oblique statement without further explanation thatthe employee was not tied off.As Complainant has furnished no insight as to how aperson climbing a column during the erection phase of a tiered building could tie off,leaving me to speculate that tying off under these circumstances was possible, Complainanthas not proved this aspect of the charge (C.J. Tyrrell, as Trustee of the Estate of Roy E.Shoaff Drilling Co., Inc. v. Dobbs Investment Co., supra; Epoch Producing Corp. v. KilliamShows, Inc., et al., supra; Vlases v. Montgomery Ward & Co., supra). \u00a0Accordingly, subitem 1(f) will be vacated.VDocket Number 80-3694The unrebutted testimony of Wiseman establishes that the two employees who were notwearing protective helmets were working under other employees at a higher level who werehandling tools and other material and that it said tools or other materials were dropped,either of the two employees could have sustained serious injury if struck on the head.\u00a0 Accordingly, this citation will be affirmed.In proposing penalties for all items of Citation number 1 for serious violations in DocketNumber 80-1622, Sullivan credited Respondent with a 10 percent reduction each for goodfaith and size, awarding Respondent no credit for prior history, although no evidence ofprior history was introduced.\u00a0 He also considered the gravity of each violation andarrived at the conclusion that each violation could have resulted in death or seriousinjury.\u00a0 On this basis, he proposed penalties of $720 each for items 4 and 6 and apenalty of $640 for the two subitems of item 7, one of which withdrew at the beginning ofthe hearing.As I am reducing item 4 of this citation to a deminimis violation, no penalty is authorized.\u00a0 Having considered the record inlight of my statutory responsibility to assess penalties, I find that a penalty of $500 isappropriate for item 6 and that a penalty of $300 is appropriate for item 7(a)In proposing a penalty for Citation number 1 forserious violation in Docket Number 80-3694, Wiseman credited Respondent with a 30 percentreduction for good faith and a 10 percent reduction for size, also awarding Respondent nocredit for prior history. Regarding prior history, however, Wiseman expressed the opinionthat an employer had a prior history as soon as a citation had been issued against thatemployer.\u00a0 Thus, as there was no evidence of prior history introduced, Wisemanapparently construed the pending contested citations in Docket number 80-1622 asconstituting the prior history which he relied upon in awarding Respondent no credittherefor.\u00a0 He arrived at a proposed penalty of $300 for this charge.Applying the same considerations as in Docket number80-1622, in addition to considering Wiseman’s misconception of what constitutes priorhistory, I find that a penalty of $100 is appropriate for this violation.VIIFindings of FactDocket 80-1622A Citation Number 1 (Serious)1.\u00a0 At the time and place alleged in item 2, the compressor was equipped with anappropriate safety valve that was overlooked by both Sullivan and Respondent’s personnel.2.\u00a0 At the time and place alleged in item 4, Respondent had added a counterweight tothe crane without the written approval of the manufacturer of the crane.3.\u00a0 Regarding the crane in \”2\” above, there was no evidence of the weightof that added or that the addition affected the safe operation of the crane or presented ahazard that could have resulted in death or any bodily harm to an employee.4.\u00a0 At the time and place alleged in item 5, the crane was not equipped with anautomatic means to stop the boom drum motion when the maximum permissible boom angle wasreached.5.\u00a0 Regarding the crane in \”4\” above, the crane was constructed in 1959 orearlier.6.\u00a0 At the times and places alleged in subitems 6(a) and (b), Respondent’s employeeswere working at the heights alleged above vertically protruding reinforcing steel rodsthat had not been protected to eliminate the hazard of impalement.7.\u00a0 Regarding \”6\” above, an employee who fell on these rods could havesustained death or serious bodily harm.8.\u00a0 At the time and place alleged in subitem 7(a), an employee was working within thestructure 70 feet above the ground who was not tied off nor was he protected by aninterior net below him.9.\u00a0 Regarding \”8\” above, if the employee fell, he could have sustaineddeath or serious bodily harm.BCitation Number 2 (Willful)1.\u00a0 As to all subitems, the evidence establishesthat Respondent, the steel industry and most of Complainant’s compliance personnelcountrywide were unaware that the perimeter net requirement of 29 CFR 1926.105(c)(1)applied to the steel erection of tiered structures.2.\u00a0 At the times and places alleged in subitems 1(a) and (b), connectors receivingand connecting beams and columns lifted by the crane were not wearing tied off safetybelts.3.\u00a0 Regarding \”2\” above, the evidence establishes that it was a greaterhazard to wear tied off safety belts than not to be tied off.4.\u00a0 At the time and place alleged in subitem 1(c), two connectors were not wearingtied off safety belts when receiving a tube lifted by a crane and the same factualfindings in \”3\” above, is applicable thereto.5.\u00a0 Regarding \”4\” above, there was no evidence to establish that it waspossible for these two connectors to wear tied off safety belts when climbing down betweentwo floor levels to reach the point where they were to receive the tube lifted by thecrane, nor was there evidence to establish that they did not climb down within thestructure where they were protected by an interior net.6.\u00a0 Regarding \”4\” above, there was no evidence to establish that theconnector did not have his safety belt tied off while welding the tube in place.7.\u00a0 At the times and places alleged in subitems 1(d) and (e), there was no evidenceto establish that employees walking across a beam from the main structure to the judgestower were not fully protected by a net from falls inward from the beam.8.\u00a0 Regarding \”7\” above, the evidence establishes that these same employeeswere protected from falls outward while walking the beam by a perimeter cable installed 42inches high.9.\u00a0 At the time and place alleged in subitem 1(f), there was no evidence to establishthat it was possible for the employee to wear a tied off safety belt while climbing acolumn.Docket Number 80-3694Citation Number 1 (Serious)At the time and place alleged in the citation, two ofRespondent’s employees were not wearing protective hats while working under employeesabove them who were carrying tools and other materials that if dropped, could haveinflicted serious bodily harm on the two employees below.Conclusions of LawThe Commission has jurisdiction over the proceedings in both dockets.Docket Number 80-1622ACitation Number 1 (Serious)1.\u00a0 Respondent did not violate 29 U.S.C.654(a)(2) by not complying with 29 CFR1926.302(b)(7) and 29 CFR 1926.550(b)(2).2.\u00a0 Respondent violated 29 U.S.C.654(a)(2) by not complying with 29 CFR1926.550(a)(16) but said violation was de minimis.3.\u00a0 Respondent violated 29 U.S.C.654(a)(2) by not complying with 29 CFR1926.700(b)(2) and said violation was serious.4.\u00a0 Respondent violated 29 U.S.C.654(a)(2) by not complying with 29 CFR1926.750(b)(1)(ii), is alleged in subitem 7(a), and said violation was serious.BCitation Number 2 (Willful)1.\u00a0 Respondent was not given fair notice that the perimeter net requirement of 29 CFR1926.105(c)(1) applied to the steel erection of tiered structures, if it did in factapply.2.\u00a0 Respondent did not violate 29 U.S.C.654(a)(2) by not complying with 29 CFR1926.105(c)(1) or 29 CFR 1926.105(a).Docket Number 80-3694Citation Number 1 (Serious)Respondent violated 29 U.S.C. 654(a)(2) by notcomplying with 29 CFR 1926.100(a) and said violation was serious.VIIIDocket Number 80-1622Complainant’s motions to withdraw items 1 and 3 and subitem 7(b) of Citation number 1 forserious violations are granted and said items and subitem are vacated.\u00a0 Complainant’smotion to withdraw Citation number 3 for other than serious violations is granted and saidcitation is vacated.\u00a0 Item 4 of Citation number 1 for serious violations, modified toallege a de minimis violation, is affirmed, whereas items 2 and 5 thereofare vacated.\u00a0 Item 6 and subitem 7(a) of Citation number 1 for serious violations areaffirmed and penalties of $500 and $300 respectively are assessed therefor.\u00a0 Citationnumber 2 for willful violation is vacated.Docket Number 80-3694Citation number 1 for serious violation is affirmedand penalty of $100 is assessed therefor.So ORDERED.JOSEPH L. CHALKJudge, OSHRCDated:\u00a0 May 26, 1981Hyattsville, MarylandFOOTNOTES: [[1]] See, e.g., Brock v. L.R. Willson & Sons, Inc., 773 F.2d1377 (D.C. Cir. 1985); Donovan v. Adams Steel Erection, Inc., 766 F.2d 804 (3d Cir.1985); Donovan v. Daniel Marr & Son Co., 763 F.2d 477 (1st Cir. 1985).[[1\/]] The standard provides:All hoses exceeding 1\/2-inch inside diameter shallhave a safety device at the source of supply or branch line to reduce pressure in case ofhose failure.[[2\/]] This standard provides:No modifications or additions which affect thecapacity or safe operation of the equipment shall be made by the employer without themanufacturer’s written approval.\u00a0 If such modifications or changes are made, thecapacity, operation, and maintenance instruction plates, tags, or decals, shall be changedaccordingly.\u00a0 In no case shall the original safety factor of the equipment bereduced.[[3\/]] This standard provides:All crawler, truck, or locomotive cranes in use shallmeet the applicable requirements for design, inspection, construction, testing,maintenance and operation as prescribed in the ANSI B30.5-1968 Safety Code for Crawler,Locomotive and Truck Cranes.[[4\/]] This standard provides:Employees shall not be permitted to work abovevertically protruding reinforcing steel unless it has been protected to eliminate thehazard of impalement.[[5\/]] This standard provides:On buildings or structures not adaptable to temporaryfloors, and where scaffolds are not used, safety nets shall be installed and maintainedwhenever the potential fall distance exceeds two stories or 25 feet.\u00a0 The nets shallbe hung with sufficient clearance to prevent contacts with the surface of structuresbelow.[[6\/]] This standard provides:Nets shall extend 8 feet beyond the edge of the worksurface where employees are exposed and shall be installed as close under the work surfaceas practical but in no case more than 25 feet below such work surface.\u00a0 Nets shall behung with sufficient clearance to prevent user’s contact with the surfaces or structuresbelow.\u00a0 Such clearances shall be determined by impact load testing.[[7\/]] This standard provides:Safety nets shall be provided when work-places aremore than 25 feet above the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts isimpractical.[[8\/]] This standard provides:All crawler, truck, or locomotive cranes in use shallmeet the applicable requirements for design, inspections, construction, testing,maintenance and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler,Locomotive and Truck Cranes.[[9\/]] This standard provides:Platforms and walkways shall have anti-skid surfaces.[[10\/]] This standard provides:Employees working in areas where there is a possibledanger of head injury from impact, or from falling or flying objects, or from electricalshock and burns, shall be protected by protective helmets.[[11\/]] Sullivan started work as a compliance officer in August 1975.\u00a0 Prior to thattime, he worked in the \”construction trade\” as a steamfitter and pipefitter,starting 1942.\u00a0 In addition to the training courses he attended during hisapprenticeship which included safety training relating to his field, he attended acompliance officers training course for one month when he joined OSHA that was designed toacquaint the students with. . . the paperwork, recognition of hazards, all types that you could run into in theconstruction phase, construction job site in general industry.\u00a0 That’s it basicallyand then I also had an electrical course.\u00a0 I also took a course on cranes basically.\u00a0 It set you up so you were qualified to inspect cranes and I took a course intunneling in West Virginia and fire protection.\u00a0 (Tr. 45)[[12\/]] This is the same factual situation involvedin the allegations contained in subitem 1(b) of Citation number 2 for willful violation.[[13\/]] Wiseman became a compliance officer in 1975.\u00a0 From 1964 to 1975, he worked asa safety inspector in the District of Columbia’s industrial safety division.\u00a0 Priorto 1964, he served his apprenticeship as an iron worker and became a journeyman in thattrade in 1952, thereafter serving in the Army where he received training as a combatengineer.\u00a0 After serving as an instructor in the Army for about one year, teaching\”construction and basic construction techniques,\” he returned to civilianemployment working variously as a journeyman and a foreman, until he went to work for theDistrict of Columbia safety division (Tr. 453).\u00a0 In the construction area, he had\”done all phases of iron work,\” including connecting, bolting, plumbing columnsand welding, and had supervised others performing those duties (Tr. 454).[[14\/]] Sullivan said there was an interior net to catch them if they fell inside thestructure and Exhibits C-5, C-6 and C-8 confirm that fact.[[15\/]] These same facts form the basis for thecharge alleged in subitem 6(a) of Citation number 1 for serious violations and thus tendto duplicate that charge.[[16\/]] The parties agreed that Wiseman was referring to two different contractors at theDirksen worksite who were cited and who ultimately entered into settlement agreements,vis:\u00a0 Secretary v. Elizabeth Iron Works,___OSAHRC___ , Docket No. 79-1382, September14, 1979, and Secretary v. Baltimore Contractors, Inc., ___OSAHRC__, Docket No.79-512\/79-2013, November 6, 1979.[[17\/]] He also never ascertained the weights of the various material lifted by the craneor whether any lifts exceeded the crane’s rated capacity.[[18\/]] As it is now settled law that 29 CFR 1926.105 imposes requirements for all fallprotection devices mentioned therein (see Secretary v. Sierra Construction Corp., 72OSAHRC 2\/E6, Docket No. 13638), contrary to my prior belief that it imposed only arequirement for safety nets, I must conclude that it imposes a requirement for temporaryfloors, although I am aware of no Commission decision in point.[[19\/]] In yet another case, the Eighth Circuit, in Builders Steel Co. v. Secretary ofLabor, et al., 622 F.2d 367 (1980), dealing with the same two standards involved herein,found them inconsistent and ambiguous.”