“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-0819 ?? STEARNS-ROGER, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 17, 1980DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge John J. Morris is before the Commissionfor review pursuant to section 12(j)[1] of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). On the basis that theSecretary of Labor (?the Secretary?) failed to issue the citation with?reasonable promptness? as required by section 9(a) of the Act,[2] Judge Morris vacated theSecretary?s citation which alleged that Respondent, Stearns-Roger, Inc.(?Stearns-Roger? or ?the company?), violated section 5(a)(2) of the Act[3] by failing to comply with29 C.F.R. ? 1926.28(a).[4] Commissioner Cottinegranted the Secretary?s petition for review of the judge?s decision on thefollowing issue:Whether the Administrative Law Judge erredin vacating the citation on the ground that the citation was not issued withreasonable promptness, and if so, whether the alleged violation of 29 C.F.R. ?1926.28(a) should be affirmed.???????????? Forthe reasons that follow, we reverse the judge?s ruling and affirm the citation.I??????????? OnSeptember 21, 1977, a compliance officer of the United States Department ofLabor inspected Stearns-Roger?s worksite in Waterflow, New Mexico, as a resultof an employee complaint. At this worksite, Stearns-Roger was constructing aprecipitator tower of an electrical power plant. When the compliance officerarrived at the worksite, she discussed the complaint with Stearns-Roger?ssafety supervisor and the ironworker superintendent. The employee complaintconcerned pieces of iron being suspended and swung over the heads ofironworkers. Accompanied by the safety supervisor and the ironworkers? unionsteward, the compliance officer inspected the area at the ground level wherethe complaint arose and also ascended to the 90-foot level of the tower to talkto an ironworker who filed the complaint.??????????? Atthe time of the inspection, the tower was a large skeletal steel structure 142feet high. From the 94-foot level to the 120-foot level, a crew of from 10 to25 employees were performing ?bolting-up? operations. Bolting-up involvesinstalling the bolts that secure the structural steel members to each other.Employees in the bolting-up crew carried 20-pound pneumatic hammers attached to25-foot hoses. While employees were in a stationary position to performbolting-up work at a connection point, the employees tied off the 6-footlanyards of the safety belts they wore. However, while they walked the severalfeet from one connection point to the next on the 8-inch wide girders, they didnot tie off unless there happened to be a ?static line? installed at approximatelywaist-level along the girder. Stearns-Roger did not install static lines alongall of the girders on which employees walked and did not require that employeestie off at any time other than when they were stationary at a connection point.Although Stears-Roger?s safety supervisor considered that the employees?exposure to a fall hazard while installing all necessary static lines would begreater than the exposure while walking unprotected on the girders, heacknowledged that it would be possible to install static lines that wouldenable all employees walking on girders to tie off their safety belts. Theironworker superintendent, as well as Stearns-Roger?s safety supervisor,believed that a static line installed along the girder in the area where theemployee walked would restrict and trip the employee, but the ironworkersuperintendent testified that the static line could be installed above thelevel of the employees? heads. The company did not use nets, catch platforms,or other devices under the girders to protect the employees from falling duringbolting-up operations.??????????? Duringthe walkaround portion of the inspection, the compliance officer discussed herobservations to some extent with Stearns-Roger?s safety supervisor, but she didnot indicate that there were any violations. The discussions that were heldduring the inspection primarily concerned the employee complaint.??????????? As aresult of the inspection, the area director of the Labor Department?s areaoffice determined that a willful citation for failure to use tied-off safetybelts or other fall protection devices should be issued to Stearns-Roger.Although the determination was made late in October 1977, the Secretary?sinternal procedures dictated that a willful citation be reviewed by the RegionalSolicitor. In this case, the citation did not issue until February 21, 1978,which was 139 days after the inspection.II??????????? Stearns-Rogercontested the citation and, along with its answer to the Secretary?s complaint,the company filed a motion to dismiss the citation on the basis that it was notissued with reasonable promptness as required by section 9(a) of the Act.[5] The company argued thatthe delay prejudiced its investigation and defense of the citation. As to theprejudice, the company contends that it lacked knowledge of any allegedviolations until approximately four months after the inspection and that bythen many employees and much evidence had become unavailable. In its brief tothe judge, the company added a second argument. Citing Commissioner Barnako?sconcurring opinion in Jack Conie & Sons Corp., 76 OSAHRC 70\/A2, 4BNA OSHC 1378, 1976?77 CCH OSHD ?20, 849 (No. 6794, 1976) (?Jack Conie?),Stearns-Roger contended that the delay was unconscionable. The company arguedthat the substantial delay was not satisfactorily explained and could not beexcused in view of the seriousness of the allegations. Moreover, Stearns-Rogerasserted that the employer?s need for an adequate opportunity to investigatethe allegations before it could determine whether to contest them should havebeen obvious to the Secretary.??????????? Inhis response to Stearns-Roger?s motion to dismiss, the Secretary countered thatthe citation was issued well within the six-month limitation of section 9(c)[6] of the Act and that thecompany did not allege and should not have suffered actual prejudice. TheSecretary relied on the fact that Stearns-Roger?s safety supervisor hadaccompanied the compliance officer on the inspection when she made theobservations underlying the citation. The Secretary also indicated thatdiscovery procedures could be used to ascertain the underlying facts before thehearing. The Secretary further argued that the scrutiny of the willful citationby the Regional Solicitor before the citation was issued justified the delay.The Secretary did not further argue the issue in his brief to the judge.??????????? JudgeMorris vacated the citation on the alternate ground presented by Stearns-Roger,that the delay was unconscionable. Because the company?s safety supervisor hadfully observed the inspection which generated the citation, the judge foundthat Stearns-Roger was not prejudiced by the delayed issuance of the citation.He did not apply a prejudice test to uphold the citation, however, because heconsidered that the Commission decision in Jack Conie, to whichStearns-Roger referred, constituted the applicable Commission precedent andthat Jack Conie required an examination of the justification for thedelay.[7] He concluded that in thiscase the Secretary had failed to show sufficient justification since the onlyexplanation presented was the requirement that the Regional Solicitor reviewcitations for willful violations. Because the delay was 139 days, which henoted was longer than that in Jack Conie, Judge Morris considered thedelay unconscionable.??????????? Onreview, the parties continue to make substantially the same arguments that theymade to the judge. The Secretary contends that the section 9(a) requirement ofreasonable promptness in issuing citations is intended primarily to protectemployees by promoting prompt abatement of hazards. The Secretary accordinglycontinues to argue that vacation of the citation for his alleged failure tocomply with the statutory provision cannot be justified unless the employershows prejudice from the delay. Stearns-Roger asserts that the Secretary?scompliance with section 9(a) and the prompt abatement of hazards can best beachieved by vacating the citation where a substantial delay is unjustified inthe circumstances. The company also argues that actual prejudice is virtuallyimpossible to establish but that generally a delay in the issuance of acitation will increase the difficulty of investigating and defending thecitation. On the basis of these alleged difficulties, the company asks that theCommission find that the company was prejudiced in this case.[8]??????????? TheCommission has held that unless the employer establishes prejudice, a citationwill not be vacated for the Secretary?s alleged failure to issue it withreasonable promptness. Laclede Gas Co., 79 OSAHRC ___, 7 BNA OSHC 1874,1979 CCH OSHD ?24,007 (No. 76?3241, 1979). Judge Morris in this case found thatStearns-Roger was not prejudiced by the 139-day delay. Although Stearns-Rogeron review requests the Commission to reexamine the evidence regardingprejudice, the company has never specifically demonstrated that itsinvestigation and defense of the citation was materially harmed by the delay.[9] Accordingly, we concludethat the company was not prejudiced by the delay in the issuance of the citation.We reject the judge?s reliance on an unconscionability test and reverse hisruling vacating the citation on the basis that the Secretary allegedly failedto issue the citation with reasonable promptness.[10]III??????????? Althoughhe vacated the citation on the basis of Stearns-Roger?s reasonable promptnessdefense, Judge Morrie entered alternative findings and conclusions on themerits. Among other things, he found that Stearns-Roger?s bolting-up crew wasexposed to a fall hazard requiring the use of tied-off safety belts, that theinstallation of static lines for use in tying-off the lanyards of the safetybelts would not create greater hazards and was not impossible, and that theviolation was serious. He accordingly concluded that, except for his ruling onthe reasonable promptness issue, he would affirm the citation for serious violationof section 1926.28(a).[11]??????????? Onreview, the Secretary argues in support of the judge?s decision. The Secretaryargues that the fall hazard to which Stearns-Roger?s employees were exposed wasobvious?the bolting-up crew was required to walk upon beams eight inches wideand 94 to 120 feet above the ground but the employees frequently did not andwere not required to tie off their safety belts. The Secretary also argues thatthe use of tied-off safety belts was feasible?Stearns-Roger had installed somestatic lines for use in tying-off, and the company failed to prove that greaterhazards existed from the use of static lines.??????????? Stearns-Rogerpresents one argument on review against the judge?s findings and conclusions.The company argues that without proof that the use of tied-off safety belts byemployees moving upon the beams during bolting-up operations was a custom orpractice in the construction industry, a citation for noncompliance withsection 1926.28(a) cannot be affirmed. The company cites the decision of theCourt of Appeals for the Fifth Circuit in B & B Insulation, Inc. v.OSHRC, 583 F.2d 1364 (1978) and also relies on the Commission?s decision inFrank Briscoe Co., 76 OSAHRC 129\/A2, 4 BNA OSHC 1729, 1976?77 CCH OSHD?21,162 (No. 7792, 1976).??????????? In S& H Riggers and Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979CCH OSHD ?23,480 (No. 15855, 1979), appeal filed, No. 79?2358 (5th Cir.June 7, 1979), the Commission considered the significance of industry customand practice in proof of noncompliance with section 1926.28(a). We held thatindustry custom and practice are relevant to, but do not control, thedetermination of whether a reasonable person familiar with the facts unique toa particular industry would recognize a hazard requiring the use of personalprotective equipment. We accordingly respectfully declined to follow B &B Insulation, Inc. v. OSHRC, supra. We held that to satisfy his burden ofproof of noncompliance with section 1926.28(a), the Secretary must proveemployee exposure to a hazardous condition requiring the use of personalprotective equipment, applying a reasonable person test to determine theexistence of such a hazardous condition. The Secretary must also identify theappropriate form of personal protective equipment to eliminate the hazard. Wespecifically held that the Secretary is not required to prove the feasibilityor likely utility of the identified form of personal protective equipment.??????????? TheSecretary satisfied his burden of proof in this case.[12] The record establishesemployee exposure to an obvious fall hazard requiring personal protectiveequipment. In his citation charging noncompliance with section 1926.28(a), theSecretary indicated that safety belts and safety lines were appropriate toabate the hazard. The record contains no evidence concerning industry customand practice, but even if we assumed that Stearns-Roger?s practice of requiringemployees to tie off only when working in a stationary position reflects thecustom and practice of the industry as a whole, we would not conclude thatthere was no hazard at other times. As we said in S & H Riggers andErectors, Inc., supra, where the employees are exposed to hazardsrecognized by a reasonable person familiar with the facts, the industry cannotbe permitted to set its own standards which fail to afford adequate protectionto the employees.??????????? JudgeMorris considered and rejected Stearns-Roger?s arguments concerning thedefenses of greater hazard and impossibility. See S & H Riggers andErectors, Inc., supra. Our review of the record indicates hisdeterminations are proper and therefore we adopt his factual findings and legalconclusions on these defenses. See Gulf Oil Co., 77 OSAHRC 216\/B10, 6BNA OSHC 1240, 1978 CCH OSHD ? 22,737 (No. 14281, 1977). Accordingly, weconclude that Stearns-Roger committed a serious[13] violation of section1926.28(a).[14]??????????? Thefollowing factors were considered in assessing an appropriate penalty undersection 17(j) of the Act, 29 U.S.C. ? 666(i). Because 10 to 25 employees wereexposed to falls of at least 94 feet, and were thereby exposed to a substantiallikelihood of serious physical harm or death, the gravity of the violation washigh. Giving further consideration to Stearns-Roger?s size, prior history ofviolation under the Act, and good faith toward compliance, we assess a penaltyof $900.??????????? Accordingly,we reverse the judge?s decision vacating the citation on the basis that it wasnot issued with reasonable promptness as required by section 9(a) of the Act.We modify the citation to allege a serious violation of 79 C.F.R. ? 1926.28(a)and affirm the citation as so modified. We assess a penalty of $900. SOORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: OCT 17, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-0819 ?? STEARNS-ROGER, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 January 17, 1979APPEARANCES:James F. Gruben, Esq., Office of Ronald M.Gaswirth, Regional Solicitor, U. S. Department of Labor, Dallas, Texas, for theComplainant,\u00a0John L. Reiter, Esq., Assistant GeneralCounsel, Stearns-Roger, Incorporated, 4500 Cherry Creek Drive, Denver,Colorado, for the Respondent.?DECISION AND ORDERJohn J. Morris, Judge:??????????? Respondentis charged with not providing fall protection for its workers thereby violatingthe specific duty clause[15] of the OccupationalSafety and Health Act of 1970 (29 U.S.C. ? 651 et seq.).??????????? Citation1 alleges a willful violation of three standards on respondent?s precipitatortower. The standards were allegedly violated either singularly or in thealternative. They provide as follows:? 1926.28 Personal protective equipment.(a) The employer is responsible forrequiring the wearing of appropriate personal protective equipment in alloperations where there is an exposure to hazardous conditions or where thispart indicates the need for using such equipment to reduce the hazards to theemployees.? ? 1926.105 Safety nets.(a) Safety nets shall be provided whenworkplaces are more than 25 feet above the ground or water surface, or othersurfaces where the use of ladders, scaffolds, catch platforms, temporaryfloors, safety lines, or safety belts is impractical.\u00a0? 1926.750 Flooring requirements.?(b) Temporary flooring?skeleton steelconstruction in tiered buildings.?(ii) On buildings or structures notadaptable to temporary floors, and where scaffolds are not used, safety netsshall be installed and maintained whenever the potential fall distance exceedstwo stories or 25 feet. The nets shall be hung with sufficient clearance toprevent contacts with the surface of structures below.???????????? Respondentcontends the citation was not issued with reasonable promptness. Further, itargues ? 1926.28(a) was not properly promulgated. In addition, respondentstates it complied and its workers ?used? their safety belts and lanyards eventhough they would be tied off for insubstantial short periods of time.Respondent further states ? 1926.28(a) is unenforceably vague if it purports torequire an employer to install static lines. Also, the time required to installstatic lines is at least equivalent to the time unsecured workers are boltingup the structure.??????????? Concerning? 1926.105(a), respondent maintains that the installation of safety nets wasnot practical. Further, it insists Commission case law does not require safetynets when belts and lanyards are being used.??????????? Concerning? 1926.750(b)(ii) respondent declares the standard is not applicable to itsworksite.??????????? Inconcluding respondent contends there is insufficient evidence to support awillful violation.??????????? Theissues raised here require a review of the uncontroverted evidence.??????????? Complainant?sevidence. A compliance officer inspected respondent?s precipitator tower unit#3 on September 21, 1977. The citation was issued 139 days later on February 7,1978. The unit, a structural steel tower, measures 24 by 44 feet. The top ofthe tower is 142 feet above the ground.??????????? Todiscuss a complaint previously filed with the Department of Labor, workerSongco descended to the 90-foot level where the compliance officer was located.Songco climbed 28 feet down the diagonals to that point. He did not tie offwhen climbing down. In coming down in such a manner, he could fall.Respondent?s safety director did not say anything to Songco (Tr. 90?96, 115,116, 119, 175, Exhibits C?7 to C?12).??????????? Therewere 10 to 25 workers on the tower. Some workers were tied off to static linesbut not all were tied off at all times. The workers do not tie off when movingbetween work stations. Safety nets had not been installed. There was a fallpotential of 94 feet (Tr. 97?99, 123, Exhibit Cp-12).??????????? Therewere, in small areas, some float scaffolds on the structure. The worksite wasnot amenable to temporary floors but ladders, scaffolds, catch platforms,temporary floors, safety lines or safety belts would prevent the workers fromfalling. Safety nets would prevent serious injuries (Tr. 99?100, 119?120,Exhibits C?7 to C?11). If a worker fell, serious physical harm could result(Tr. 101).??????????? Companypolicy, in effect, requires a worker in an exposed location to tie off.However, it is not necessary to tie off if an employee is working as aconnector or if he is moving along a beam from one point to another (Tr.118?119, 121, 122, 136).??????????? Fiveprior citations, which became final orders of the Commission, have been issuedagainst respondent. In 1973 and 1975, it received citations for violating 29C.F.R. ? 1926.105(a). In 1976 and 1977, it received three citations forviolating 29 C.F.R. ? 1926.28(a). Two fatalities have occurred at the jobsite(Tr. 102, 128?134, Exhibits C?13?C?19).??????????? In1976, a compliance officer, other than the inspector in the instant case,discussed fall protection with respondent?s management (Tr. 135?136).??????????? Afterthe inspection, the compliance officer discussed her findings with the areadirector. Thereafter, in the second or third week in October, the file wasreferred to the regional administrator for his concurrence concerning theissuance of an alleged willful violation (Tr. 106?107).??????????? Respondent?sevidence. During the inspection at the tower unit, respondent?s safety directorsaw no workers at their work stations who were not tied off. During theinspection and at the closing conference, the compliance officer made nostatement about a violation having occurred nor did she comment on respondent?swork practices (Tr. 143, 146?149, 154, 155, 157?158, 183).??????????? Atthe time of the inspection, in addition to bolting up work, respondent?sworkers were plumbing up the building with wire ropes.??????????? Boltbags could not be lowered through any safety nets. Workers walk the beams toget from one connection to another. Unless there is a static line, they are nottied off. If a worker slipped, nothing would prevent his fall (Tr. 164?166,170, 171).??????????? Workerscarry 6-foot lanyards. Company policy is for workers not to tie off when goingfrom one work station to another (Tr. 176, 177).??????????? Netsand static lines were not practical; nets close off access. In using a staticline, a worker must lean away from a 6 to 8 inch wide steel beam to get anybenefit from the line. Respondent attempts to install static lines at 42inches. Where there is a solid floor, static lines or temporary guardrails areinstalled (Tr. 173, 184?189).??????????? First,in the order of construction activity, come the raising gang (also calledconnectors). This group has no protection because there is nothing available.Next comes the bolt-up gang who are protected by static lines, temporaryhandrails and decks. The next group are the detail people who do the welding andfinish work (Tr. 191?193).REASONABLE PROMPTNESS??????????? Thethreshold question concerns whether the citation was issued with reasonablepromptness as required by 29 U.S.C. ? 658(a).??????????? Theinspection occurred September 21, 1977, and the citation was issued 139 dayslater on February 7, 1978. Respondent raised the defense in its answer.??????????? Theonly evidence to explain the delay between the inspection and the issuance ofthe citation was to the effect that the file was referred to the regionaloffice for staff review and consultation with the solicitor?s office (Tr.106?107).??????????? Respondent,in its brief, argues it was prejudiced by the delay but the evidence fails todemonstrate any such prejudice. Respondent?s safety supervisor was present whenworker Songco climbed down the scaffold without being tied off and he confirmedthe inspector?s description of the incident (Tr. 95, 96, 180). In addition, itis company policy to permit workers to move between work stations without beingtied off (Tr. 99, 118, 119, 123, 136, 170, 177, Exhibit C?12).??????????? Onthese facts I accordingly rule that respondent did not suffer any prejudice byvirtue of the delay in the issuance in the citation.??????????? Thecases cited by respondent do not involve prejudice to an employer; rather, theyinvolve an unconscionable delay in the issuance of a citation.??????????? Complainant?sbrief does not address the reasonable promptness issue. In support of itsposition, respondent relies on Jack Conie & Sons Corporation, 76OSAHRC 70\/A2, (No. 6794, 1976); Todd Shipyards Corporation, 77 OSAHRC18\/A2, (No. 8500, 1977); Aluminum Coil Anodizing Corporation, 77 OSAHRC70\/A2, (No. 829, 1977); National Industrial Constructors, Inc., 77OSAHRC 168\/A2, (No. 76?3721, 1977).??????????? In JackConie, the Secretary failed to show any exceptional circumstances for the126-day delay between the inspection and the issuance of the citation. Thecitation was vacated. In Aluminum Coil, Chairman Cleary and CommissionerBarnako articulated their separate views concerning reasonable promptness. Thissame divergence, prejudice or unconscionable delay, appears in Todd ShipyardsCorporation. In National Industrial Constructors, the citation wasupheld but complainant presented detailed evidence on the day-to-day activitiesof the compliance officer that justified the delayed issuance of the citation.??????????? I amaware that the composition of the members of the Review Commission recentlychanged, but I am obliged to follow applicable precedent. Gulf and Western,77 OSAHRC 72\/A2, (No. 6804, 1977); Grossman Steel and Aluminum, 76OSAHRC 54\/D9, (No. 12775, 1976); F. H. Sparks of Maryland, Inc., 78OSAHRC 13\/C13, (No. 15472, 1978).??????????? Thedelay here (139 days) is greater than the delay in Jack Conie (129days). Since the record fails to offer a justifiable explanation[16], I will vacate thecitation since the delay in issuing the citation was unconscionable within thecase law expressed above. However, I decline to turn this case on a proceduralissue since the remaining substantive issues require discussion and analysis.??????????? 29 C.F.R.? 1926.28(a) Promulgation??????????? Respondentinsists that ? 1926.28(a) was not properly promulgated.? The original version of the regulationprovided:The employer is responsible for requiringthe wearing of appropriate personal protective equipment in all operationswhere there is an exposure to hazardous conditions and where this partindicates the need for using such equipment to reduce the hazards to theemployees. (Emphasis added.)???????????? By anamendment dated December 16, 1972 and without resorting[17] to the rule makingprocess of 29 U.S.C. ? 655(b), the Secretary changed the word ?and? to ?or.?Respondent relies on Usery v. Kennecott Copper Corporation, 577 F.2d1113, 10th Cir. 1977.??????????? In KennecottCopper, the U. S. Court of Appeals upheld a Review Commission ordervacating an alleged violation of 29 C.F.R. ? 1910.28(a)(12). Further, and asrespondent contends here, the 10th Circuit ruled the Secretary must adoptnational consensus standards verbatim. I agree the foregoing statementconstitutes the law. The Commission likewise agrees since it has ruled onseveral occasions that the Secretary?s attempt to amend ? 1926.28(a) withoutresorting to the rule making machinery is a nullity. The Commission has ruledthat the original standard remains intact and enforceable to the same extent itexisted prior to the Secretary?s publication in the Federal Register. For casesruling on the exact issue urged by respondent here, see Island Steel andWelding, Ltd., 75 OSAHRC 51\/A2, (No. 2931, 1975); Leon Marrano &Sons, Inc., 75 OSAHRC 51\/E5, (No. 3580, 1975); Eichleay Corporation,75 OSAHRC 35\/B6, (No. 2610, 1975). No conflict exists between KennecottCopper and Commission decisions. Both views invalidate the Secretary?sattempted standard change.??????????? 29C.F.R. ? 1926.28(a) Application to the Worksite??????????? Respondent?spivotal argument centers on its view that no violation of ? 1926.28(a) occursif the employees tie off at their work stations and only untie to move toanother station. Respondent relies on Scioto Erectors, Inc., 77 OSAHRC190\/A3, (No. 76?2258, 1977) and Southwestern Industrial Contractors andRiggers, Inc., 77 OSAHRC 95\/E9, (No. 14424, 1977) in support of thisposition.??????????? Complainantfailed to establish facts showing the distance a worker would traverse when goingunprotected from one work station to another. However, the company?s statedpolicy of permitting such movement combined with the photographs of the towercause me to conclude that the distance is not insubstantial. To hold otherwisewould put form above substance.??????????? Thecases relied on by respondent support its view, but the writer is not bound bythe cited case law. In Scioto Erectors, Inc. the Commission split 1 to 1 on theissue of whether a violation occurred when workers tied off while at their workstations but were unprotected during periods of movement. A split Commissiondecision is accorded the significance of an unreviewed Judge?s decision.[18] Scioto Erectors lacksprecedential value. On the above stated facts, I rule complainant proved aprima facie violation of ? 1926.28(a).??????????? Respondent?sargument, basically the greater hazard defense, is imbedded in the propositionthat the very act of installing static lines exposes the installer to a fallhazard at least equivalent in time to the danger incurred by the unprotectedworkman moving on the beams between work stations. I would reject this argumentsince a worker could coon the iron and tie off in the process if in fact thereis no reason install a static line for later use.??????????? Respondentfurther maintains that ?1926.28(a) is unenforceably vague in requiring that itinstall static lines. Respondent cites Frank A. Briscoe Company, Inc.,76 OSAHRC 129\/A2, (No. 7792, 1976) and relies on the testimony of his witnessthat static lines are impractical (Tr. 166). In Briscoe the Commissionrestated its view that in a violation of 29 C.F.R. ?1926.28(a) complainant mustprove the feasibility and utility of the specific measures it urges for anemployer. The record confirms the testimony of respondent?s witness; however,the physical facts would require me to disregard such testimony. The facts showthere were some static lines at the worksite. Further, there are various waysto connect them and they can be connected between two points (Tr. 121, 177,179).??????????? Respondent?sadditional evidence that a worker would have to lean away from a static line toget any benefit from it at best amounts to inconvenience, not infeasibility. Inaddition, any ?leaning away? problem appears speculative since the evidenceshows an overhead static line could be installed (Tr. 184?185, 187, 188).??????????? Respondent?sevidence shows the bolt-up gang can be protected by static lines (Tr. 191). Iconsider this to be sufficient proof to overcome its vagueness argument.??????????? Respondentfailed to prove the greater hazard defense. A company policy that permitsworkers to move from one work station to another without providing fallprotection conflicts with the standard.??????????? Theactivities of worker Songco certainly constitute a violation of some safetyregulation, for example the ladder regulation,[19] as in the companion case,but no violation of ? 1926.28(a) is involved. Photographs show Songco holdingwhat appears to be a diagonal wire rope in his hands. However, there is noindication the rope has sufficient strength to be used as a tie off. Whilevertical wire ropes appear in the photograph, a tie off to them could presentthe possibility of a free fall to the ground (Exhibit C?12). The facts do notwarrant a 15(b) amendment here.[20]Complainant did not seekto amend, and I do not find that the issue was tried by the express or impliedconsent of the parties.??????????? Iwould reject respondent?s argument that no violation occurred since the workerswere only tied off for a very short time. It is in this ?short time,? whileunprotected on the beams, that the workman is exposed to the greatest danger.??????????? Forthe above reasons I would affirm the citation alleging the violation of ?1926.28(a).??????????? 29C.F.R. ? 1926.105(a) Safety Net Standard??????????? Respondentalleges that the installation of safety nets was not practical on the structureinvolved in the citation.??????????? Theuncontroverted evidence shows nets would close off access particularly for thebolt bags which could not be raised or lowered to the bolt-up deck (Tr.165?166). In addition, various steel pieces would not permit sufficientclearance if a worker fell into the net. Further, the diagonal members wouldprevent coverage outside the perimeter and also prevent installation of thenets. The cross wire ropes would likewise interfere with the nets (Tr.193?1668, 185, 185A). On the basis of these facts, I would vacate the allegedviolation of 29 C.F.R. ? 1926.105(a). Cf. Alberici-Koch-Laumand, a JointVenture, 77 OSAHRC 179\/A2, (No. 13026, 1977).??????????? 29C.F.R. ? 1926.750(b)(ii) Tiered Buildings??????????? Theabove standard applies to tiered buildings. Complainant, who carries the burdenof proof, failed to establish that this tower was a tiered structure. I wouldtherefore vacate the alleged violation of ? 1926.750(b)(ii). DanielConstruction Company, 77 OSAHRC 21\/A2, (No. 7734, 1977); Jake HeatonErecting Company, Inc., 78 OSAHRC 33\/B6, (No. 15892, 1978).WILLFUL VIOLATION??????????? Respondent?sargument concerning willfulness rests on the proposition that ? 1926.28(a) is aperformance standard, and absent a similarity of circumstances, there is noshowing that respondent substituted its judgment for what is clearly prescribedby the cited standards. The cases relied by complainant in his brief do notappear controlling. Whether an act is willful is now clearly defined by theCommission and various appellate courts. Intercounty Construction Company v.OSHRC, 522 F.2d 777, 4th Cir. (1975), cert. denied 96 S. Ct. 854; F.X. Messina Construction Corp. v. OSHRC, 505 F.2d 701 (1st Cir. 1974); EmpireDetroit Steel Division, Detroit Steel Corporation v. OSHRC, 579 F.2d 378.There is evidence that a compliance officer conferred with respondent?smanagement concerning fall protection, including nets, in 1979 (Tr. 135?137).However, the record is bare as to the nature of the discussion at theconference.??????????? Theprevious citations, which became final orders, involved two allegations of aworker walking a beam in violation of ? 1926.28(a). Only one such allegationbecame a final order of the Commission (Tr. 128?135, Exhibits C?13, C?14,C?15(a), C?15(b), C?16, C?18, C?19). I would not base a willful violation on asingle prior incident particularly when a Commission decision post dating thefinal order against respondent appears to approve respondent?s policy. See SciotoErectors, Inc., supra. I would not find that respondent willfully violated? 1926.28(a).SERIOUS VIOLATION??????????? Undercertain circumstances, the Commission has ruled that a serious violation may befound when a willful violation was originally alleged. The test is whether theissue of seriousness was tried by the express or implied consent of theparties. Toler Excavating Company, 75 OSAHRC 76\/C8, (No. 2637); EnvironmentalUtilities Corporation, 77 OSAHRC 40\/A2, (No. 5324, 1977). In this casecomplainant established that if a worker fell it is likely that death orserious physical harm could result (Tr. 101). Respondent knew of the violationsince it was company policy to permit such activity. I would accordingly rulethat these facts establish a serious violation of ? 1926.28(a).PROPOSED CIVIL PENALTY??????????? Respondent,as prime contractor, employs 400 to 1000 workers at this site, a projectinvolving a multi-million dollar contract (Tr. 90?91, 145, 169?170).??????????? TheCommission has ruled that of the four statutory factors bearing on theappropriateness of a penalty the gravity of a violation should generally beaccorded the greatest weight, 29 U.S.C. ? 666(i); Secretary v. BaltzBrothers Packing Company, 73 OSAHRC 3\/C4, (No. 91, 1973). In the instantcase the gravity of a fall from 94 feet is apparent.??????????? Consideringthe statutory criteria, I would assess a civil penalty of $1500 for theviolation of ? 1926.28(a).JURISDICTION??????????? Respondentadmits jurisdiction (Tr. 88).FINDINGS OF FACT??????????? Noconflict exists in the evidence and the facts are as related above.??????????? Basedon the uncontroverted record, I enter the following:CONCLUSIONS OF LAW??????????? 1.The citation should be vacated since it was issued after an unconscionabledelay.??????????? 2. Inthe alternative I would affirm the alleged violation of 29 C.F.R. ? 1926.28(a).??????????? 3.Further, and in the alternative, I would vacate the alleged violations of 29C.F.R. ?\u00a01926.105(a) and 29 C.F.R. ? 1926.750(b)(ii).??????????? Basedon conclusion of law number 1, I enter the following:ORDER??????????? Citation1 and the proposed penalty therefor are vacated.??????????? JohnJ. MorrisJudge, OSHRCDated: January 17, 1979[1] 29 U.S.C. ?661(i).[2]29 U.S.C. ?658(a). In pertinent part, this section provides that [i]f,upon inspection or investigation, the Secretary or his authorized representativebelieves that an employer has violated a requirement of section 5 of this Act,[or] of any standard . . . promulgated pursuant to section 6 of this Act . . .,he shall with reasonable promptness issue a citation to the employer.[3] 29 U.S.C. ?654(a)(2).[4] This standardpertains to personal protective equipment and provides that[t]heemployer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.[5] Note 2 supra.[6] 29 U.S.C. ?658(c). The section provides that ?[n]o citation may be issued under thissection after the expiration of six months following the occurrence of anyviolation.?[7] In Jack Conie,Commissioner Moran and Commissioner Barnako set forth their individual tests onreasonable promptness. Each looked to evidence concerning the circumstancessurrounding the delay but in no other respect were their tests similar.Commissioner Moran would vacate a citation issued more than 72 hours after theinspection unless the Secretary established ?exceptional circumstanceswarranting a limited delay.? Commissioner Barnako explicitly disagreed with this72-hour rule and held that the vacation of the citation could be justified ?ifthe facts surrounding the issuance of the citation show patently unnecessaryand unjustifiable delay.?Commissioners Moran and Barnako in JackConie formed a majority vacating the citation on the basis of theSecretary?s failure to comply with section 9(a). Chairman Cleary dissented onthe ground that the employer failed to establish it was prejudiced by the delayin the preparation or presentation of its defense and that such prejudiceshould be the sole basis for granting relief to an employer if the Secretaryfails to comply with section 9(a).[8] See note 9 infra.[9] In its reviewbrief, in arguing the circumstances that could lead to prejudice, Stearns-Rogerstates the following:The[factual] particulars provided in the [citation and] pleadings prior to theAnswers To Interrogatories give little information for Respondent to rely uponin developing its defenses. Until supplied with these particulars, Respondentwas required to rely at its own risk on what activities the Complainant wouldrely on in proving its case. The fact that Respondent is able to present adefense, and even that the defense is successful on the merits does noteliminate prejudice. [Emphasis added][10] CommissionerBarnako adheres to his view expressed in Jack Conie, supra, and wouldvacate a citation notwithstanding the absence of demonstrated prejudice whenthe delay in issuance of the citation is unconscionable. Respondent, however,has the burden to establish that the delay is unconscionable. Laclede Gas,supra, 7 BNA OSHC at 1876 n. 8, 1979 CCH OSHD ? 24,007 at 29,153 n. 8. Althoughthe Secretary?s procedure for review and approval of the area director?sdecision to issue a willful citation took an extremely long length of time,such delay does not become unconscionable simply because it is of longduration. See Louisville & Nashville R.R., 76 OSAHRC 141\/A2, 4 BNAOSHC 1868, 1976?77 CCH OSHD ?21,310 (No. 9740, 1976). Respondent presented noother evidence regarding the basis for the delay in issuance of the citationand, in particular, offered no evidence from which Commissioner Barnako couldconclude that the delay was patently unnecessary and unjustifiable.Commissioner Barnako points out that this case is factually distinguishablefrom Jack Conie, where the record demonstrated that the delay was causedby the area director?s refusal to accept the regional solicitor?s decision notto authorize the issuance of a willful citation.[11] In the citation,the Secretary alleged that Stearns-Roger willfully failed to comply withgeneral construction safety standards 29 C.F.R. ? 1926.28(a) and 29 C.F.R. ?1926.105(a) by not using safety nets or tied-off safety belts or, in thealternative, failed to comply with the construction safety standard for steelerection 29 C.F.R. ? 1926.750(b)(1)(ii) by not using safety nets.Judge Morris determined that ?1926.750(b)(1)(ii) is inapplicable in this case because Stearns-Roger?semployees were not working upon a ?tiered building? within the meaning of?\u00a01926.750(b). He further determined that he would vacate the chargesunder ? 1926.105(a) because Stearns-Roger established impossibility defenses toa requirement to use safety nets. The judge determined that the company failedto comply with ? 1926.28(a) by not using tied-off safety belts, but he declinedto characterize the violation as willful because he concluded that theSecretary had not established willfulness. Although Stearns-Roger was notcharged with a serious violation, Judge Morris held that the issue ofseriousness was tried by the consent of the parties and that the ? 1926.28(a)violation was serious.In his petition for discretionaryreview, the Secretary took exception to Judge Morris? ruling on the reasonablepromptness defense and asked that the Commission affirm the citation forviolation of ?? 1926.28(a) and 1926.105(a) and assess an appropriate penalty.The petition for review was granted by Commissioner Cottine.Because exception has not beentaken to and review has not been directed on issues concerning?\u00a091926.750(b)(1)(ii), willfulness, the propriety of the amendment, andseriousness, these issues are not before the Commission on review. See LeoneConstruction Co., 76 OSAHRC 12\/E6, 3 BNA OSHC 1979, 1975?76 CCH OSHD?20,387 (No. 4090, 1976); see generally, Commission Rule 92, 44 Fed. Reg.70,106 at 70,111 (1979) [formerly Rule 91a, 29 C.F.R. ? 2200. 91a].Whether Stearns-Roger failed tocomply with ? 1926.105(a) is before the Commission for review. However, becausewe find that Stearns-Roger failed to comply with ? 1926.28(a), we do not reachthe question of noncompliance with ? 1926.105(a). See Forest Park Roofing Co.,80 OSAHRC ___, 8 BNA OSHC 1181, 1980 CCH OSHD ?24,344 (No. 76?1844, 1980).[12] Commissioner Barnako?sview of the elements of the Secretary?s burden of proof under ?\u00a01926.28(a)differs substantially from that of the majority. S & H Riggers andErectors, supra (concurring opinion); Forest Park Roofing Co., 80OSAHRC ___, 8 BNA OSHC 1181, 1186?87, 1980 CCH OSHD ?24,344 at 29,672?73 (No.76?1844, 1980) (concurring opinion). Commissioner Barnako agrees that in thiscase the Secretary satisfied his burden of proof because the evidencedemonstrates an obvious fall hazard and a feasible method, safety belts andlines, to abate the hazard. Additionally, 29 C.F.R. ? 1926.104 places employerson notice that safety belts provide appropriate protection against fallinghazards.[13] See note 11 supra.[14] Chairman Clearyand Commissioner Cottine reject the judge?s conclusion that the present versionof ? 1926.28(a) resulted from an impermissible amendment to a prior version ofthe standard. S & H Riggers and Erectors, Inc., supra, 7 BNA OSHC at1263, 1979 CCH OSHD at 28,435. In Commissioner Barnako?s view, the judge?sconclusion that the amendment was invalid and that the original version of thestandard therefore remains enforceable is correct. S & H Riggers andErectors (concurring opinion), 7 BNA OSHC at 1268, 1979 CCH OSHD at 28,440?41.[15] 29 U.S.C. ?654(a)(2).[16] Such as areference to the OSHA National Office to determine possible jurisdictionalconflicts resulting in a 102-day delay as in Louisville and Nashville RailroadCompany, 77 OSAHRC 209\/C8, (No. 5521, 1977).[17] Request forAdmissions.[18] The second caserelied on by respondent, Southwestern Industrial Contractors and Riggers,Inc., supra, is an unreviewed Judge?s decision.[19] 29 C.F.R. ?1926.451(a)(13).[20] Rule 15(b),F.R.C.P.”