“SECRETARY OF LABOR,Complainant,v.THE L. E. MYERS CO. HIGH VOLTAGE SYSTEMS DIVISION,Respondent.OSHRC Docket No. 82-1137_DECISION _Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(1), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).This case arises out of an accident in which one employee of RespondentL. E. Myers Company was electrocuted and another injured when they fellfrom a ladder. As a result of his investigation of the accident, theSecretary issued citations charging L. E. Myers with violations of theOccupational Safety and Health Act, 29 U.S.C.? 651 et seq. L. E. Myerscontested the citations and the case was heard by Administrative LawJudge Edwin G. Salyers. Judge Salyers vacated two of the citation itemsbecause the Secretary failed to prove any violation, and that portion ofthe judge’s decision is not before us. However, Judge Salyers did findthat L. E. Myers violated 29 C.F.R. ? 1926.28(a) because its employeeswere not using safety belts and lanyards to protect against a fall.[[1]]The judge also found L. E. Myers in violation of 29 C.F.R. ?1926.450(a)(7) for failing to position the ladder at a properangle,[[2]] and 29 C.F.R. ? 1926.450(a)(6) for failing to keep the areaat the base of the ladder clear.[[3]] Review was directed on whether 29C.F.R. ? 1926.28(a) was validly promulgated and whether the judge erredin finding Respondent L. E. Myers in violation of ?? 1926.28(a),1926.450(a)(6) and 1926.450(a)(7).L. E. Myers is an electrical contractor who constructs and installselectrical transmission and distribution equipment.Myers was engaged by Emery Industries to place protective rubber hosingover certain electrical power lines at Emery’s plant at St. Bernard,Ohio.[[4]] Myers put, one of its foremen, Robert Sayre, in charge ofthis job. Sayre, an experienced lineman himself, was assisted by JamesCarmac, a journeyman lineman, and by Russell Miller, an apprentice.The lines to be covered with rubber hosing ran from the top of a toweron the roof of Emery’s boiler house downward to a pole and cross armapproximately 85 feet away. The roof of the boiler house was 60 feetabove the ground and the tower on top of the roof was 20 feet high. Thecross arm on the pole below was 47 feet above the ground.Foreman Sayer and Carmac and Miller first attempted to use a 55-footbucket truck to put the hoses on the lines at that height, and then pushthem uphill towards the tower. However, this method proved infeasiblebecause of the friction on the wire and the weight of the hoses. Sayrethen consulted with his supervisor, James Kevelder, who was Myers’district manager for the Cincinnati area. They determined that the workcould be done from a ladder on the boilerhouse roof placed against thetower, which would allow the employees to place the hoses on the powerlines at the top of the tower and slide them in a downward direction.On the day of the accident, Sayre, Carmac and Miller began to do the jobfrom the roof. Rubber blankets were placed over all electrical equipmentand the employees wore protective rubber gloves and sleeves. None woresafety belts or lanyards on the day of the accident. The ladder wasplaced on the east side of the tower and secured. Foreman Sayre andCarmac then went up on the ladder, with Sayre ascending first. Miller,who stood on the roof below, began handing sections of hosing to Carmac.In turn, Carmac handed the pieces to Sayre, who placed them on theeasternmost power line. When the weight of the hosing on the east linebegan to unbalance the pole and cross arm at the lower end, Sayre andCarmac came down off the ladder, and the crew moved the ladder to thewest side of the tower to begin placing the hosing on the west powerline.[[5]]The roof area near the base of the west side of the tower was obstructedby an air conditioner box, with a pipe extending outward from the boxtoward the tower. In the same area there were also angle iron braces forthe tower itself. In order to avoid the air conditioner box and theangle iron bracing, the employees placed the base of the ladder on thefar side of the air conditioner box so that the air conditioner box wasbetween the ladder and the tower. The top of the ladder was placedagainst a horizonal cross member of the tower that was 18 feet above theroof, and Carmac placed a piece of wood under one of the legs of theladder to compensate for unevenness in the surface of the roof.Once the ladder was repositioned and made secure, the employeesrecommenced installing the hosing on the power line. This time Millerwent up the ladder to place the hosing on the power line, followed byCarmac, while Sayer remained on the roof to hand up the sections ofhosing. For reasons unclear in the record, Miller fell off the ladderand struck an energized \”pothead jumper\” (a connection between energizedconductors on either side of the tower) some four to six feet belowwhere he had been standing on the ladder. Miller was electrocuted whenhe struck the pothead jumper, and he then fell to the ground below.Carmac was injured when he jumped off the ladder onto the roof to avoidthe electric flash that resulted when Miller struck the pothead jumper.There was no evidence that Miller’s fall was caused by the laddertipping or sliding._Alleged Violation of 29 C.F.R. ? 1926.28(a_)The Secretary charged Myers with a serious violation of’ 29 C.F.R. ?1926.28(a) for its failure to require its employees at the work site towear safety belts and lanyards. Myers counters that it may not properlybe cited under ? 1926.28(a) because the standard was invalidlypromulgated and is therefore void. Myers also contends that the failureof its employees to wear safety belts and lanyards on the Emery job wasa direct violation of Myers’ published and enforced safety rules, wasunknown to Myers, and could not have been reasonably anticipated. Wedeal with these contentions in order.(a) _Validity and Interpretation of ? 1926.28(a)_This standard was originally promulgated under the Contract Work Hoursand Safety Standards Act, commonly known as the Construction Safety Act.Section 107 of that statute, 40 U.S.C. ? 333, authorizes the Secretaryto prescribe safety and health standards for federal orfederally-assisted construction contracts. The standard, then codifiedas 29 C.F.R. ? 1518.28(a), required that personal protective equipmentbe worn \”in all operations where there is an exposure to hazardousconditions and where this part [1518] indicates the need for using suchequipment to reduce the hazards to employees.\” (emphasis added). On May29, 1971, the standards in Part 1518 were adopted as standards under theOccupational Safety and Health Act, 36 Fed. Reg. 10469, and on December30, 1971, ? 28(a) was redesignated as 29 C.F.R. ? 1926-28(a). 36 Fed.Reg. 25232 (1971). This adoption of the standards at Part 1518 wasaccomplished pursuant to section 6(a) of the Occupational Safety andHealth Act, 29 U.S.C. ?655(a), which allowed the Secretary for the firsttwo years under the Act to adopt any existing federal or nationalconsensus safety or health standard without regard for the notice andcomment rulemaking procedures of the Administrative Procedure Act, 5U.S.C. 551 et seq, or the promulgation procedures outlined in ? 6(b) ofthe OSH Act, 29 U.S.C. ? 655(b).When ? 28(a) was republished in the January 1, 1972, revised Code ofFederal Regulations the wording of the standard was still exactly thesame as the old Construction Safety Act standard at 29 C.F.R.1518.28(a). Subsequently, on December 16, 1972, without any notice andcomment rulemaking procedure, the Secretary \”revised\” a number of thestandards at Part 1926, including ? 1926.28(a). The revised ? 1926.28(a)readThe employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.(Emphasis added.)37 Fed. Reg. 27510 (1972). This remains the language of the currentsection 1926.28(a) under which Myers has been cited.Myers contends that the change of the word \”and\” to the word \”or\” was asubstantive change in the standard, which is impermissible withoutnotice and comment rulemaking. The Secretary, on the other hand,contends that the revision of ? 28(a) was only to \”improve itsusefulness\” and to \”correct a number of typographical and clericalerrors,\” 37 Fed. Reg. 27503 (1972), and did not materially affect theduties of employers under the standard.In its present form the standard is clearly in the disjunctive; that is,an employer must require the wearing of personal protective equipmenteither where there is an exposure to a hazardous condition or where Part1926 elsewhere affirmatively indicates the need for using suchequipment. But if the word \”and\” in the original standard wasconjunctive, then it imposed a burden on employers to require thewearing of personal protective equipment only if there existed anexposure to a hazardous condition and also if Part 1926 elsewhereaffirmatively indicated the need for the use of such equipment.The Commission and the courts have held that in adopting consensusstandards under ? 6(a) of the OSH Act the Secretary \”was not empoweredto make substantive changes from the source standard.\” Senco Products,Inc., 82 OSAHRC 59\/E9, 10 BNA OSHC 2091, 2095, 1982 CCH OSHC ? 26,304,p. 33,271 (No. 79-3291, 1982). See also Diebold, Inc. v. Marshall, 585F.2d 1327, 1332 & n.6 (6th Cir. 1978). Thus, the question before us is,first, whether \”and\” in the standard as originally promulgated wasconjunctive, and, if so, whether the subsequent change of the word \”and\”to \”or\” in the standard substantively affected the duties of employers.With respect to ? 1926.28(a), this Is not the first time that thequestion has been raised. Indeed, the history of ? 28(a) is particularlytroublesome. Previous cases have resulted in inconclusive andinconsistent holdings, or have avoided the issue altogether.Previous Review Commission cases reflect a sharp division over whetherthe word \”and\” in the original standard was in the conjunctive or thedisjunctive. See, e.g., Hoffman Construction Co., 75 OSAHRC 31\/E12, 2BNA OSHC 1523, 1974-75 CCH OSHD ? 19,275 (No. 644, 1975), rev’d, 586F.2d 281 (9th Cir. 1976); Carpenter Rigging & Contracting Corp., 75OSAHRC 32\/D13, 2 BNA OSHC 1544, 1974-75 CCH OSHD ? 19,252 (No. 1399,1975); General Bronze Architectural Products, 75 OSAHRC 62\/C14, 3 BNAOSHC 1244, 1974-75 CCH OSHD ? 19,690 (No. 2031, 1975); United Engineers& Constructors, Inc., 75 OSAHRC 69\/A2, 3 BNA OSHC 1313, 1974-75 CCH OSHD? 19,780 (No. 2414, 1975); Isseks Brothers, Inc., 76 OSAHRC 8\/B9, 3 BNAOSHC 1964, 1975-76 CCH OSHD ? 20,361 (No. 6415, 1976). However, it seemsclear to us that the use of the word \”and\” in the standard as originallypromulgated was in the conjunctive,[[6]] and that a violation could beestablished only upon proof of both (1) an exposure to a hazardouscondition requiring the use of personal protective equipment, and (2)the failure to use this equipment when the need for its use is indicatedelsewhere in Part 1926. Our view is buttressed by the holding of theNinth Circuit in Hoffman Construction Co., supra, 546 F.2d at 283, wherethe court held thatLiability under 29 C.F.R. ? 1926[.28(a)] as then written required proofof three elements: (1) that the employer did not require the wearing ofprotective equipment; (2) that there was exposure to hazardousconditions; and (3) that [some other section of] Part 1926 of theregulations indicated a need for protective equipment.It is equally clear that the revised ? 28(a) is in the disjunctive.Under the standard as presently worded, a violation may be establishedby proof of either a hazard or the failure to use personal protectiveequipment when the need for its use is indicated elsewhere In Part 1926.With the revision, a violation can be established by simply showing afailure to require the wearing of \”appropriate\” personal protectiveequipment where there is employee exposure to a hazardous condition. Theformer version required not only proof of exposure to a hazardouscondition, but also proof that need for a specific item of protectiveequipment was indicated in another section of Part 1926. Thus, therevision of ? 28(a) obviously deleted an element of proof necessary toestablish a violation.Previous Review Commission cases have, again, sharply divided overwhether this deletion of an element of proof, and the correspondingobligation of employers under the Act, was substantive.[[7]] See, e.g.Carpenter Rigging & Contracting Corp., supra; Island Steel & Welding,Ltd., 75 OSAHRC 51\/A2, 3 BNA OSHC 1101, 1974-75 CCH OSHD ? 19,545 (No.2931, 1975); Isseks Brothers, Inc., supra; Sweetman Construction Co., 76OSAHRC 35\/A2, 3 BNA OSHC 2056, 1975-76 CCH OSHD ? 20,466 (No. 3750,1976); Schiavone Construction Co., 77 OSAHRC 78\/A2, 5 BNA OSHC 1385,1977-78 CCH OSHD ? 21,815 (No. 12767, 1977); cf. Eichleay Corp., 75OSAHRC 35\/B6, 2 BNA OSHC 1635, 1974-75 CCH OSHD ? 19,324 (No. 2610,1975); Die-Underhill, 75 OSAHRC 35\/F10, 2 BNA OSHC 1651, 1974-75 CCHOSHD ? 19,328 (No. 2232, 1975); General Bronze Architectural Products,supra; B & B Insulation Inc., 77 OSAHRC 49\/A2, 5 BNA OSHC 1265, 1977-78CCH OSHD ? 21,747 (No. 9985, 1977), rev’d, 583 F.2d 1364 (5th Cir.1978). The decisions of the respective courts of appeals unfortunatelyprovide no guidance in resolving this question. Thus far the courts ofappeals have declined to rule on the direct issue of whether therevision to ? 28(a) was substantive. See, Austin Building Co. v. OSHRC,647 F.2d 1063, 1067 (10th Cir. 1981); Ray Evers Welding Co. v. OSHRC,625 F.2d 726, 730 n.5 (6th Cir. 1980); B & B Insulation, Inc., supra,583 F.2d at 1368; Hoffman Construction Co., supra, 546 F.2d at 283 n-5.Judge Salyers below, ruled that the revision of ? 28(a) from \”and\” to\”or\” was not substantive, following the Commission’s decision in S & HRiggers and Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCHOSHD ? 23,480 (No. 15855, 1979), rev’d on other grounds, 659 F.2d 1273(5th Cir. 1981). In S & H Riggers the Commission rejected an identicalchallenge to ? 28(a) on the belief that \”we have consistently held thatthe change was not substantive.\” 7 BNA OSHC at 1263. The majority in S &H Riggers thought that the earlier Commission decisions in CarpenterRigging & Contracting Corp, supra, Isseks Brothers, Inc., supra, IslandSteel and Welding Ltd., supra, and Eichleay Corp, supra, establishedthat the change in ? 1926.28(a) was not substantive. Analysis of thosecases, however, reveals that a majority of the Commissioners never couldagree on the proper interpretation of ? 28(a) either before or after theamendment. Indeed, as Commissioner Barnako correctly pointed out in hisseparate opinion in S & H Riggers, the cases relied on in S & H Riggersactually reflect inconsistent and sharply divided views as to the properinterpretation of ? 28(a).[[8]]After careful consideration we conclude that the holding in S & HRiggers was predicated on a misperception of Review Commissionprecedent. Therefore, to the extent that S & H Riggers holds that therevision of ? 28(a) was not substantive, we overrule that decision. Weconclude, rather, that the revision or amendment of ? 28(a) constituteda substantive change, not an administrative one.[[9]]When the Secretary desires to make such a substantive change in astandard, he must provide notice of the contemplated change to thepublic and allow the opportunity to submit written objections theretoand to participate in a public hearing thereon. 5 U.S.C. ? 553; 29U.S.C. ? 655(b).[[10]] Those procedures were not followed in amending 29C.F.R. ? 1926.28(a). Section 28(a) is therefore invalid in its modifiedform because it was not properly promulgated. Senco Products, Inc.,supra; Florida Peach Growers Association, Inc. v. United StatesDepartment of Labor, 489 F.2d 120 (5th Cir. 1974). Since amendment of ?28(a) was invalid, it did not repeal the original standard. Frost v.Corporation Commission, 278 U.S. 515, 525-527 (1929); United States v.Tufti, 542 F.2d 1046 (9th Cir. 1976); Conlon v. Adamski, 77 F.2d 397(D.C. Cir. 1935). We therefore conclude that the original version of ?1926.28(a) remains in effect and that to establish a violation theSecretary must prove (1) exposure to a hazardous condition; (2) thatsome other section of Part 1926 indicates a need for the use ofparticular protective equipment in the circumstances presented; and that(3) the employer failed to require the use of the equipment. HoffmanConstruction Co., supra, 546 F.2d at 283.(b) _Proof Of A Violation_In the present case the Secretary proved the first element necessary toestablish a violation. The facts plainly demonstrate that the threeMyers’ employees were exposed to the hazard of a fall warranting the useof safety belts. Indeed, Myers concedes this in its brief on review.The second part of the Secretary’s burden under ? 1926.28(a) requireshim to prove that some other section of Part 1926 indicates the need forthe particular personal protective equipment under the circumstances ofthis case.[[11]] By \”indicates the need\” we mean that the other sectionindicates that a particular form of personal protective equipment is apractical and an appropriate means of protection against a specifiedhazard. We do not mean that the other section necessarily requires theuse of the particular equipment, but that it cites the equipment asamong the satisfactory means of protecting against a described hazard soas to put an employer on notice that a particular type of personalprotective equipment is appropriate in a given case. The Secretary hasalleged, and we agree, that ? 1926.105(a) \”indicates the need\” forsafety belts where the \”workplace is more than 25 feet above theground.\” The record in this case clearly establishes that Myers’employees were working \”more than 25 feet above the ground\” and wereexposed to a fall hazard.[[12]]Finally, under the clear wording of the standard, the Secretary mustprove that the employer failed to \”requir[e] the wearing of\” theprescribed safety equipment under the circumstances specified. We findhere that Myers did require its employees to use safety belts andlanyards under the conditions cited. The record shows that Myers’ safetyrules specifically address the appropriate use of safety belts andrequire employees to use safety belts when \”working at elevatedlocations on poles, towers or other structures.\” Each supervisor isgiven a copy of Myers’ safety manual containing these rules, must signan acknowledgment of receipt, and is expected to follow and enforce therules. Myers’ safety supervisors visit the various worksites to insurethat safety directives are received, understood and followed. Thecompany’s safety program is enforced through a progressive system ofdiscipline consisting of verbal and written reprimands, demotion to alower classification, suspension from duties, and discharge. At thehearing the compliance officer acknowledged that the company’sprocedures for belts and ladders set forth in the safety rules andmanual were appropriate, and that he did not consider Myers’ employeetraining to be deficient. Myers’ evidence concerning the communicationof its rule regarding safety belts for all employees, including foremen,established that Sayre received the same training afforded all employees.Moreover, Myers had no reason to suspect that Sayre’s crew was likely toperform work in violation of its safety rules. Sayre was a goodsupervisor who in the past had never been known to engage in orsupervise any activity during which he or his crew failed to use safetybelts when they were necessary. We find no evidence in the record beforeus that Robert Sayre’s conduct here was reasonably foreseeable to orpreventable by Myers. When Myers became aware of his violation, it tookdecisive action. After the company determined that Sayre had failed torequire the use of safety belts on September 17, 1982, he was given atwo-week disciplinary suspension with the expectation that he would notreturn to work.Based on this evidence, we conclude that the Secretary failed to sustainhis burden of proving a violation of section 5(a)(2) of the Act. SeePennsylvania Power & Light Co. v. OSHRC, 737 F.2d 350 (3rd Cir. 1984);Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564, 571 (5th Cir.1976); H.E. Wiese, Inc., 82 OSAHRC 18\/A2, 10 BNA OSHC 1499, 1505, 1982CCH OSHD ? 25,985, pp. 32,613-14 (Nos. 78-204 & 78,205, 1982), aff’d,No. 82- 4202, (5th Cir. Apr. 27, 1983) (unpublished). As the NinthCircuit stated in Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139,1144 (9th Cir. 1975). \”Fundamental fairness would require that onecharged with and penalized for violation be shown to have caused, or atleast knowingly acquiesced in, that violation.\” Since the Secretary didnot make such a showing here, we vacate the citation allegingnoncompliance with 29 C.F.R. ? 1926.28(a)._Alleged Violation of 29 C.F.R. ? 1926.450(a)(7)_Section 1926.450(a)(7) requires that the pitch of a portable ladder be\”about\” one-to-four. In concluding that Myers had violated thisstandard, Judge Salyers found that the base of the 18 foot ladder uponwhich the employees were working was placed 9 feet 8 inches from thetower. However, it is not at all clear from the evidence in the recordthat this distance is correct.Myers contends that the distance between the base of the tower and thebase of the ladder was not that great, and from our review of thephotographic evidence we are inclined to agree. Moreover, it appearsthat the air conditioning box, the pipe, and the angle iron bracingprecluded placing the ladder anywhere other than on the far side of theair conditioning box. The ladder could not be placed between the box andthe tower because the space was clearly too narrow to allow the ladderto be safely pitched against the tower. The ladder would also have beenobstructed by the pipe extending from the box if Myers had attempted toplace the ladder on the tower side of the air conditioner box. From ourreview of the evidence it appears that Myers’ employees had noalternative but to place the ladder on the far side of the airconditioner box, when working on the west side of the tower.Section 1926.450(a)(7) does not require that the horizontal distance tothe base of a portable ladder must be precisely onefourth of the workinglength of the ladder but, rather, requires only that the ratio betweenthe horizontal distance and the length of the ladder be \”about\”one-to-four. The standard, therefore, permits an employer to deviatefrom a strict one-to-four ratio but does not indicate the precise degreeof deviation permitted. In interpreting a standard that uses terms whichare relative rather than absolute, the Commission must consider allobjective factors that may give guidance to the meaning of the standard.See Austin Bridge Co., 85 OSAHRC __\/__, 12 BNA OSHC 1181, 1985 CCH OSHD? 27,169 (No. 81-1049, 1985), petition for review filed, No. 85-4190(5th Cir. Mar. 21, 1985). These factors should obviously include thepurpose of the standard, to the extent that purpose can be discerned.Cf. F.L. Heughes & Co., 83 OSAHRC 31\/A2, 11 BNA OSHC 1391, 1983 CCH OSHD? 26,520 (No. 14519, 1983) (standard allowing guardrail to be placed at\”approximately\” a 42-inch height does not permit the employer toposition the guardrail at a height that defeats the purpose of aguardrail). The record here does not indicate the purpose of the pitchrequirement of the standard. We may reasonably conclude, however, thatthe standard is intended to insure that the angle at which a portableladder is placed is neither too great nor too shallow to permit anemployee to climb the ladder without losing his balance or causing theladder to tip or fall. The judge here found, and the Secretary does notdispute, that the ladder had been properly secured and was stable.Photographs taken shortly after the accident show that the ladder hadremained in place against the tower. Thus, the ladder did not move whilethe employees were working from it, and it remained in position evenafter Miller fell and Carmac jumped from it. Therefore, it is clear thatthe angle at which the ladder had been placed did not cause the ladderitself to be incapable of safely supporting the employees. Since therecord fails to explain what may have caused Miller to fall, it would bepurely speculative to conclude that the angle of the ladder exposedMyers’ employees to injury.In conclusion, we find that the pitch of the ladder was sufficientlywithin the standard’s relative requirement that the angle be \”about\”one- to-four, and that the Secretary failed to demonstrate that anydiscrepancy between a precise one-to-four pitch and the slope of Myers’ladder was excessive in light of the totality of the circumstanceshere.[[13]]_Alleged Violation of 29 C.F.R.? 1926.450(a)(6)_The Secretary alleged that there were pieces of wood and metal on theroof near the base of the ladder, and cited Myers for a tripping hazard.Myers acknowledges that when the employees moved the ladder to the westside of the tower they placed a piece of wood under one leg of theladder to brace it because the roof was uneven. Myers contends thatthere was nothing other than that piece of wood near the base of theladder and that it cannot properly be found in violation of thisstandard when it placed material at the base of the ladder for thepurpose of stabilizing the ladder. The judge found that, there werepieces of angle iron \”in the area around\” the foot of the ladder andaffirmed the citation.The standard says \”Portable ladder feet shall be placed on a substantialbase and the area around the top and bottom of the ladder shall be keptclear.\” The standard clearly intends that the ladder shall be firmlyestablished on a base to prevent slippage or movement of the ladder, andalso seeks to prevent tripping hazards that could occur while anemployee is ascending or descending the ladder. We do not believe thatthe purpose of ? 1926.450(a)(6) is to prevent the use of a piece of woodto brace and stabilize the foot of the ladder. Rather, we find here thatthe ladder feet were \”placed on a substantial base\” and conclude thatthere was no violation of the standard as to proper bracing andstabilizing of the ladder.With respect to a possible tripping hazard, the evidence does notestablish that any material other than the wood piece used to stabilizethe ladder was placed directly at the foot of the ladder. Theinspector’s photograph relied on by the judge clearly shows pieces ofmetal some distance away from the ladder’s base. However, the standardrequires only that the \”area around\” the base of the ladder be keptclear. Thus, the issue before us is whether Myers can be found inviolation of this standard merely on the fact that metal objects werelocated on the roof in the general vicinity of the ladder.The standard does not define the term \”area,\” nor does it otherwiseindicate the extent of the area the employer is required to keep clear.As we said in discussing the alleged violation of section1926.450(a)(7), the Commission must rely on objective factors in orderto give meaning to a standard that uses imprecise and relativeterminology. There is no evidence showing the actual distance betweenthe base of the ladder and the pieces of metal depicted in thephotograph. From the photograph, however, it- appears that there is aconsiderable clear area along the roof from the metal objects to theladder. It is plain from the photograph that these objects are not in alocation where they would obstruct an employee in ascending ordescending the ladder. Indeed, on the limited record here, there is noapparent relationship between the metal objects and the ladder. Absentany indication to the contrary, we cannot conclude that the standard wasintended to apply in these circumstances. We therefore vacate thiscitation item.Accordingly, the citation items alleging violations of 29 C.F.R. ??1926.28(a), 1926.450(a)(6) and 1926.450(a)(7) are vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: January 16, 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386). FOOTNOTES:[[1]] 29 C.F.R. ? 1926.28(a) provides as follows:The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.[[2]] 29 C.F.R. ? 1926.450(a)(7) requires thatPortable ladders shall be used at such a pitch that the horizontaldistance from the top support to the foot of the ladder is about onequarter of the working length of the ladder (the length along the ladderbetween the foot and the top support). Ladders shall not be used in ahorizontal position as platforms, runaways, or scaffolds.[[3]] Section 1926.450(a)(6) requires that \”[P]ortable ladder feet shallbe placed on a substantial base, and the area around the top and bottomof the ladder shall be kept clear.\”[[4]] Emery wanted to protect the power lines from any accidentalcontact by a crane doing construction work at the plant.[[5]] The weight on the east and west lines had to be balanced toprevent the pole at the lower level from twisting.[[6]] It is axiomatic that \”and\” normally has a conjunctive meaning.United States v. Castellana, 433 F.Supp. 1309 (M.D. Fla. 1977). See DeSylva v. Ballentine, 351 U.S. 570, 573-74 (1956). When \”and\” is used tojoin two clauses, it normally indicates that both must be read togetherin determining the rights or obligations of those affected by thestatute or regulation in question. See Areizaga v. Quern, 442 F.Supp.168 (N.D. Ill. 1977), aff’d, 590 F.2d 226 (7th Cir. 1978); United Statesv. Gera, 279 F.Supp. 731 (W.D. Pa. 1968), rev’d and rem’d on othergrounds, 409 F.2d 117 (3d Cir. 1969). Conversely, \”or\” is normally adisjunctive rather than a conjunctive; it separates alternative or fullyindependent provisions. United States Customs Service v. FLRA, 739 F.2d829 (2d Cir. 1984); United States v. Garcia, 718 F.2d 1528, 1532-33(11th Cir. 1983), aff’d 105 S.Ct. 479 (1984); George Hyman Constr. Co.v. OSHRC, 582 F.2d 834, 840, n. 10 (4th Cir. 1978); Piet v. UnitedStates, 176 F.Supp. 576, 583 (S.D. Cal. 1959), aff’d 283 F.2d 693 (9thCir. 1960). As a disjunctive, therefore, \”or\” is not freelyinterchangeable with \”and.\” Illinois v. ICC, 687 F.2d 1047, 1054 (7thCir. 1982); United States v. Moore, 613 F.2d 1029, 1040 (D.C. Cir.1979), cert. denied, 446 U.S. 954 (1960). We recognize, of course, thatthere may be circumstances in which strict adherence to the usualdefinitions of \”and\” and \”or\” would frustrate the drafter’s intent orcreate an inconsistency with other provisions. United States v. Fisk, 70U.S. 445 (1866); Moore, supra; In re Rice, 165 F.2d 617, 619 n.3 (D.C.Cir. 1947). However, there is no history of section 1926.28(a) or othermaterial to indicate the Secretary’s intent when he promulgated thestandard under the Construction Safety Act and adopted it under the OSHAct. We therefore cannot conclude that the Secretary intended \”and\” tobe read disjunctively. See Alabama v. Marshall, 626 F.2d 366 (5th Cir.1980), cert. denied, 452 U.S. 905 (1981) (interpretation of a statutemust accord with its plain language if a contrary intent is not clearlyand distinctly shown). Nor is there any conflict with other standardsarising from the term \”and\” to necessitate construing it in adisjunctive manner. The circumstances presented here, therefore, do notjustify construing \”and\” in a manner contrary to its usual meaning.[[7]] Under the standard as originally promulgated the Secretary had theduty to specify elsewhere in his standards the circumstances wherepersonal protective equipment must be used under ? 1926.28(a). Bycontrast, under the standard in its present form the employer is liablefor evaluating whether the conditions in its workplace necessitate theuse of personal protective equipment without the benefit of guidancefrom the Secretary as provided under the original version of the standard.[[8]] In Carpenter Rigging & Contracting Corp, supra, CommissionerCleary interpreted the original standard as being in the disjunctive andtherefore concluded that the change from \”and\” to \”or\” was notsubstantive. Commissioner Moran took the opposite view. Commissioner VanNamee expressly did \”not join in\” Commissioner Cleary’s interpretationof the standard, but voted to affirm the citation on other grounds. 2OSHC at 1549. In Eichleay Corp, and in Island Steel and Welding, Ltd.the majority held only that the standard meant the same after theamendment as it did before the amendment. Commissioner Cleary so heldbecause he believed that the \”and\” in the original standard was in thedisjunctive, so that the change to \”or\” was not substantive.Commissioner Van Namee had stated earlier in Hoffman Constr. Co., supra,his contrary view that \”and\” in the original standard was conjunctive,but expressly declined to address that issue in Island Steel andEichleay. He indicated instead that if the meaning of the standard afterthe amendment was not the same as the meaning before the amendment, thenthe change must be deemed substantive and the Secretary’s \”failure touse the Act’s rulemaking machinery would nullify the attempted amendmentand leave the original standard intact.\” Island Steel, supra, 3 BNA OSHCat 1102, 1974-75 CCH OSHD at p. 23,335. Commissioner Moran consistentlyasserted that the change in the standard was substantive. Similarly, inIsseks Brothers, Inc., supra, Commissioner Cleary adhered to hisprevious interpretations of the standard. Although Commissioner Barnakovoted to affirm the citation, he expressly disassociated himself fromCommissioner Cleary’s \”discussion of the vagueness and validity\” of ?28(a). 3 BNA OSHC at 1967, 1975-76 CCH OSHD at p. 24,288. CommissionerMoran again dissented on the grounds hat the amendment to the standardwas invalid. Thus, there has never been a clear majority holding as toeither the interpretation or the validity of ? 28(a). Indeed, thisdivergence of views prompted the Fifth Circuit to comment that \”eachdecision by the Commission has produced as many conflictinginterpretations as there were participating Commissioners, both underthe old regulation and the new.\” B & B Insulation, Inc., supra, 583 F.2dat 1368.[[9]] We reject the Secretary’s contention that the Commission shoulddefer to the statement accompanying the revision of the standards thatno substantive changes were made. As a subsequent, noncontemporaneousdocument, the revision and its preamble cannot be relied on to establishthe meaning the Secretary intended when he originally promulgatedsection 1926.28(a) under the Occupational Safety and Health Act.Waterman Steamship Corp. v. United States, 381 U.S. 252, 269 (1965);United States v. Price, 361 U.S. 304, 313 (1960). In any event, theSecretary’s characterization of his rulemaking actions is not binding onthe Commission. See Marshall v. Huffhines Steel Co., 488 F.Supp. 995(N.D. Tex. 1979), aff’d mem., 645 F.2d 288 (5th Cir. 1981), and casescited therein.[[10]] We do not view the notice and comment requirements of 5 U.S.C. ?553 as meaningless technicalities to be disregarded when it isinconvenient to follow these procedures. Section 553 was enacted to givethe public an opportunity to participate in the rulemaking process.Section 553 also contemplates that the agency promulgating the rule (oramendment) will use this procedures which have a substantial impact onthose regulated. See Texaco, Inc. v. Federal Power Commission, 412 F.2d740, 744 (3rd Cir. 1969). This principle of fundamental fairness wasemphasized by the Supreme Court in N.L.R.B. v. Wyman Gordon Company, 394U.S. 759, 764 (1969), wherein the Court observed that the rule-makingprovisions of section 553 \”where designed to assure fairness and matureconsideration of rules of general application.\”[[11]] We do not say, at this point, that the Secretary must specify inthe citation itself the conjunctive section in Part 1926 that \”indicatesthe need\” for personal protective equipment under the particularcircumstances, although that seems to us to be the better approach. Weonly reiterate the due process requirement that at some point in theproceedings the respondent must have fair notice of the conjunctivesection upon which the Secretary relies. In the present case we findthat Myers had fair notice of the charge of failure to use safety beltsto abate the hazard of a fall exceeding twenty five feet.[[12]] Section 1926.105(a) states as follows:Safety nets shall be provided when workplaces are more than 25 feetabove the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, orsafety belts is impractical.If the issue of the interpretation of this language were one of firstimpression, Commissioner Rader would conclude that this standard doesnot indicate a need for the use of personal protective equipment as fallprotection. Rather, in Commissioner Rader’s view, section 1926.105(a)speaks only to safety nets, and under the plain wording of the standard,safety nets are called for only when the other specified means of fallprotection, including safety belts and safety lines, cannot feasibly orpracticably be used. Commissioner Rader recognizes, however, that thecourts and the Commission have interpreted section 1926.105(a)otherwise, and have held, as the majority states here, that the standardincludes safety belts as an appropriate means of fall protection. SeeSouthern Colorado Prestress Co. v. OSHRC, 586 F.2d 1342, 1350 (10th Cir.1978); Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir.1974); Sierra Constr. Corp., 78 OSAHRC 2\/E6, 6 BNA OSHC 1278, 1978 CCHOSHD ? 22,506 (No. 13638, 1978). In view of the controlling case law,Commissioner Rader joins in the majority’s conclusion that section1926.105(a) indicates a need for using safety belts in the circumstancesof this case.[[13]] In this case, assuming, arguendo, that the distance figures givenby the inspector are correct, Myers’ ladder had been placed at an angleto the tower of approximately 62 degrees. An exact ratio of one-to-fourbetween the horizontal distance and the length of the ladder constitutesan angle of approximately 75 degrees. We do not find this deviation tobe sufficient under the circumstances to justify finding that Myersviolated the standard.”