“Docket No. 82-1137 SECRETARY OF LABOR, Complainant, v. THE L. E. MYERS CO. HIGH VOLTAGE SYSTEMS DIVISION, Respondent.OSHRC Docket No. 82-1137DECISION Before: BUCKLEY, Chairman; RADER and WALL,Commissioners. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(1), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established to resolve disputesarising out of enforcement actions brought by the Secretary of Labor under the Act and hasno regulatory functions. See section 10(c) of the Act, 29 U.S.C. ? 659(c).This case arises out of an accident in which oneemployee of Respondent L. E. Myers Company was electrocuted and another injured when theyfell from a ladder. As a result of his investigation of the accident, the Secretary issuedcitations charging L. E. Myers with violations of the Occupational Safety and Health Act,29 U.S.C.? 651 et seq. L. E. Myers contested the citations and the case was heard byAdministrative Law Judge Edwin G. Salyers. Judge Salyers vacated two of the citation itemsbecause the Secretary failed to prove any violation, and that portion of the judge’sdecision is not before us. However, Judge Salyers did find that L. E. Myers violated 29C.F.R. ? 1926.28(a) because its employees were not using safety belts and lanyards toprotect 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 proper angle,[[2]] and 29 C.F.R. ?1926.450(a)(6) for failing to keep the area at the base of the ladder clear.[[3]] Reviewwas directed on whether 29 C.F.R. ? 1926.28(a) was validly promulgated and whether thejudge erred in 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 whoconstructs and installs electrical transmission and distribution equipment. Myers was engaged by Emery Industries to place protective rubber hosing over certainelectrical power lines at Emery’s plant at St. Bernard, Ohio.[[4]] Myers put, one of itsforemen, Robert Sayre, in charge of this job. Sayre, an experienced lineman himself, wasassisted by James Carmac, a journeyman lineman, and by Russell Miller, an apprentice.The lines to be covered with rubber hosing ran fromthe top of a tower on 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 feet above the ground andthe tower on top of the roof was 20 feet high. The cross arm on the pole below was 47 feetabove the ground.Foreman Sayer and Carmac and Miller first attemptedto use a 55-foot bucket truck to put the hoses on the lines at that height, and then pushthem uphill towards the tower. However, this method proved infeasible because of thefriction on the wire and the weight of the hoses. Sayre then consulted with hissupervisor, James Kevelder, who was Myers’ district manager for the Cincinnati area. Theydetermined that the work could be done from a ladder on the boilerhouse roof placedagainst the tower, which would allow the employees to place the hoses on the power linesat the top of the tower and slide them in a downward direction.On the day of the accident, Sayre, Carmac and Millerbegan to do the job from the roof. Rubber blankets were placed over all electricalequipment and the employees wore protective rubber gloves and sleeves. None wore safetybelts or lanyards on the day of the accident. The ladder was placed on the east side ofthe tower and secured. Foreman Sayre and Carmac then went up on the ladder, with Sayreascending first. Miller, who stood on the roof below, began handing sections of hosing toCarmac. In turn, Carmac handed the pieces to Sayre, who placed them on the easternmostpower line. When the weight of the hosing on the east line began to unbalance the pole andcross arm at the lower end, Sayre and Carmac came down off the ladder, and the crew movedthe ladder to the west 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 thetower was obstructed by an air conditioner box, with a pipe extending outward from the boxtoward the tower. In the same area there were also angle iron braces for the tower itself.In order to avoid the air conditioner box and the angle iron bracing, the employees placedthe base of the ladder on the far side of the air conditioner box so that the airconditioner box was between the ladder and the tower. The top of the ladder was placedagainst a horizonal cross member of the tower that was 18 feet above the roof, and Carmacplaced a piece of wood under one of the legs of the ladder to compensate for unevenness inthe surface of the roof. Once the ladder was repositioned and made secure, the employees recommenced installing thehosing on the power line. This time Miller went up the ladder to place the hosing on thepower line, followed by Carmac, while Sayer remained on the roof to hand up the sectionsof hosing. For reasons unclear in the record, Miller fell off the ladder and struck anenergized \”pothead jumper\” (a connection between energized conductors on eitherside of the tower) some four to six feet below where he had been standing on the ladder.Miller was electrocuted when he struck the pothead jumper, and he then fell to the groundbelow. Carmac was injured when he jumped off the ladder onto the roof to avoid theelectric flash that resulted when Miller struck the pothead jumper. There was no evidencethat Miller’s fall was caused by the ladder tipping 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 to wear safety beltsand lanyards. Myers counters that it may not properly be cited under ? 1926.28(a) becausethe standard was invalidly promulgated and is therefore void. Myers also contends that thefailure of its employees to wear safety belts and lanyards on the Emery job was a directviolation of Myers’ published and enforced safety rules, was unknown to Myers, and couldnot have been reasonably anticipated. We deal with these contentions in order.(a) Validity and Interpretation of ? 1926.28(a)This standard was originally promulgated under the Contract Work Hours andSafety Standards Act, commonly known as the Construction Safety Act. Section 107 of thatstatute, 40 U.S.C. ? 333, authorizes the Secretary to prescribe safety and healthstandards for federal or federally-assisted construction contracts. The standard, thencodified as 29 C.F.R. ? 1518.28(a), required that personal protective equipment be worn\”in all operations where there is an exposure to hazardous conditions and where thispart [1518] indicates the need for using such equipment to reduce the hazards toemployees.\” (emphasis added). On May 29, 1971, the standards in Part 1518 wereadopted as standards under the Occupational Safety and Health Act, 36 Fed. Reg. 10469, andon December 30, 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 was accomplished pursuant tosection 6(a) of the Occupational Safety and Health Act, 29 U.S.C. ?655(a), which allowedthe Secretary for the first two years under the Act to adopt any existing federal ornational consensus safety or health standard without regard for the notice and commentrulemaking procedures of the Administrative Procedure Act, 5 U.S.C. 551 et seq, or thepromulgation procedures outlined in ? 6(b) of the OSH Act, 29 U.S.C. ? 655(b).When ? 28(a) was republished in the January 1, 1972,revised Code of Federal Regulations the wording of the standard was still exactly the sameas the old Construction Safety Act standard at 29 C.F.R. 1518.28(a). Subsequently, onDecember 16, 1972, without any notice and comment rulemaking procedure, the Secretary\”revised\” a number of the standards at Part 1926, including ? 1926.28(a). Therevised ? 1926.28(a) readThe employer is responsible for requiring the wearingof appropriate personal protective equipment in all operations where there is an exposureto hazardous conditions or where this part indicates the need for using such equipment toreduce the hazards to the employees. (Emphasis added.)37 Fed. Reg. 27510 (1972). This remains the languageof the current section 1926.28(a) under which Myers has been cited.Myers contends that the change of the word\”and\” to the word \”or\” was a substantive change in the standard, whichis impermissible without notice and comment rulemaking. The Secretary, on the other hand,contends that the revision of ? 28(a) was only to \”improve its usefulness\” andto \”correct a number of typographical and clerical errors,\” 37 Fed. Reg. 27503(1972), and did not materially affect the duties of employers under the standard.In its present form the standard is clearly in thedisjunctive; that is, an employer must require the wearing of personal protectiveequipment either where there is an exposure to a hazardous condition or where Part 1926elsewhere affirmatively indicates the need for using such equipment. But if the word\”and\” in the original standard was conjunctive, then it imposed a burden onemployers to require the wearing of personal protective equipment only if there existed anexposure to a hazardous condition and also if Part 1926 elsewhere affirmatively indicatedthe need for the use of such equipment.The Commission and the courts have held that inadopting consensus standards under ? 6(a) of the OSH Act the Secretary \”was notempowered to 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, 585 F.2d 1327, 1332 & n.6 (6thCir. 1978). Thus, the question before us is, first, whether \”and\” in thestandard as originally promulgated was conjunctive, and, if so, whether the subsequentchange of the word \”and\” to \”or\” in the standard substantivelyaffected the duties of employers. With respect to ? 1926.28(a), this Is not the firsttime that the question has been raised. Indeed, the history of ? 28(a) is particularlytroublesome. Previous cases have resulted in inconclusive and inconsistent holdings, orhave avoided the issue altogether.Previous Review Commission cases reflect a sharpdivision over whether the word \”and\” in the original standard was in theconjunctive or the disjunctive. See, e.g., Hoffman Construction Co., 75 OSAHRC 31\/E12, 2BNA OSHC 1523, 1974-75 CCH OSHD ? 19,275 (No. 644, 1975), rev’d, 586 F.2d 281 (9th Cir.1976); Carpenter Rigging & Contracting Corp., 75 OSAHRC 32\/D13, 2 BNA OSHC 1544,1974-75 CCH OSHD ? 19,252 (No. 1399, 1975); General Bronze Architectural Products, 75OSAHRC 62\/C14, 3 BNA OSHC 1244, 1974-75 CCH OSHD ? 19,690 (No. 2031, 1975); UnitedEngineers & 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 BNA OSHC 1964, 1975-76CCH OSHD ? 20,361 (No. 6415, 1976). However, it seems clear to us that the use of theword \”and\” in the standard as originally promulgated was in theconjunctive,[[6]] and that a violation could be established only upon proof of both (1) anexposure to a hazardous condition requiring the use of personal protective equipment, and(2) the failure to use this equipment when the need for its use is indicated elsewhere inPart 1926. Our view is buttressed by the holding of the Ninth Circuit in HoffmanConstruction Co., supra, 546 F.2d at 283, where the court held thatLiability under 29 C.F.R. ? 1926[.28(a)] as then written required proof of threeelements: (1) that the employer did not require the wearing of protective equipment; (2)that there was exposure to hazardous conditions; and (3) that [some other section of] Part1926 of the regulations indicated a need for protective equipment.It is equally clear that the revised ? 28(a) is inthe disjunctive. Under the standard as presently worded, a violation may be established byproof of either a hazard or the failure to use personal protective equipment when the needfor its use is indicated elsewhere In Part 1926. With the revision, a violation can beestablished by simply showing a failure to require the wearing of \”appropriate\”personal protective equipment where there is employee exposure to a hazardous condition.The former version required not only proof of exposure to a hazardous condition, but alsoproof that need for a specific item of protective equipment was indicated in anothersection of Part 1926. Thus, the revision of ? 28(a) obviously deleted an element of proofnecessary to establish a violation.Previous Review Commission cases have, again, sharply divided over whether this deletionof an element of proof, and the corresponding obligation of employers under the Act, wassubstantive.[[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., 76 OSAHRC 35\/A2, 3BNA OSHC 2056, 1975-76 CCH OSHD ? 20,466 (No. 3750, 1976); Schiavone Construction Co., 77OSAHRC 78\/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD ? 21,815 (No. 12767, 1977); cf. EichleayCorp., 75 OSAHRC 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 CCH OSHD ? 19,328 (No. 2232,1975); General Bronze Architectural Products, supra; B & B Insulation Inc., 77 OSAHRC49\/A2, 5 BNA OSHC 1265, 1977-78 CCH OSHD ? 21,747 (No. 9985, 1977), rev’d, 583 F.2d 1364(5th Cir. 1978). The decisions of the respective courts of appeals unfortunately provideno guidance in resolving this question. Thus far the courts of appeals have declined torule on the direct issue of whether the revision to ? 28(a) was substantive. See, AustinBuilding 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.2dat 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 theCommission’s decision in S & H Riggers and Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC1260, 1979 CCH OSHD ? 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 identical challenge to ?28(a) on the belief that \”we have consistently held that the change was notsubstantive.\” 7 BNA OSHC at 1263. The majority in S & H Riggers thought that theearlier Commission decisions in Carpenter Rigging & Contracting Corp, supra, IsseksBrothers, Inc., supra, Island Steel and Welding Ltd., supra, and Eichleay Corp, supra,established that the change in ? 1926.28(a) was not substantive. Analysis of those cases,however, reveals that a majority of the Commissioners never could agree on the properinterpretation of ? 28(a) either before or after the amendment. Indeed, as CommissionerBarnako correctly pointed out in his separate opinion in S & H Riggers, the casesrelied on in S & H Riggers actually reflect inconsistent and sharply divided views asto the proper interpretation of ? 28(a).[[8]]After careful consideration we conclude that the holding in S & H Riggers waspredicated on a misperception of Review Commission precedent. Therefore, to the extentthat S & H Riggers holds that the revision of ? 28(a) was not substantive, weoverrule that decision. We conclude, rather, that the revision or amendment of ? 28(a)constituted a substantive change, not an administrative one.[[9]]When the Secretary desires to make such a substantive change in a standard, he mustprovide notice of the contemplated change to the public and allow the opportunity tosubmit written objections thereto and to participate in a public hearing thereon. 5 U.S.C.? 553; 29 U.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 modified form because itwas not properly promulgated. Senco Products, Inc., supra; Florida Peach GrowersAssociation, Inc. v. United States Department 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.2d1046 (9th Cir. 1976); Conlon v. Adamski, 77 F.2d 397 (D.C. Cir. 1935). We thereforeconclude that the original version of ? 1926.28(a) remains in effect and that toestablish a violation the Secretary must prove (1) exposure to a hazardous condition; (2)that some other section of Part 1926 indicates a need for the use of particular protectiveequipment in the circumstances presented; and that (3) the employer failed to require theuse of the equipment. Hoffman Construction Co., supra, 546 F.2d at 283.(b) Proof Of A ViolationIn the present case the Secretary proved the first element necessary toestablish a violation. The facts plainly demonstrate that the three Myers’ employees wereexposed to the hazard of a fall warranting the use of safety belts. Indeed, Myers concedesthis in its brief on review.The second part of the Secretary’s burden under ?1926.28(a) requires him to prove that some other section of Part 1926 indicates the needfor the particular personal protective equipment under the circumstances of thiscase.[[11]] By \”indicates the need\” we mean that the other section indicatesthat a particular form of personal protective equipment is a practical and an appropriatemeans of protection against a specified hazard. We do not mean that the other sectionnecessarily requires the use of the particular equipment, but that it cites the equipmentas among the satisfactory means of protecting against a described hazard so as to put anemployer on notice that a particular type of personal protective equipment is appropriatein a given case. The Secretary has alleged, and we agree, that ? 1926.105(a)\”indicates the need\” for safety belts where the \”workplace is more than 25feet above the ground.\” The record in this case clearly establishes that Myers’employees were working \”more than 25 feet above the ground\” and were exposed toa fall hazard.[[12]]Finally, under the clear wording of the standard, theSecretary must prove that the employer failed to \”requir[e] the wearing of\” theprescribed safety equipment under the circumstances specified. We find here that Myers didrequire its employees to use safety belts and lanyards under the conditions cited. Therecord shows that Myers’ safety rules specifically address the appropriate use of safetybelts and require employees to use safety belts when \”working at elevated locationson poles, towers or other structures.\” Each supervisor is given a copy of Myers’safety manual containing these rules, must sign an acknowledgment of receipt, and isexpected to follow and enforce the rules. Myers’ safety supervisors visit the variousworksites to insure that safety directives are received, understood and followed. Thecompany’s safety program is enforced through a progressive system of discipline consistingof verbal and written reprimands, demotion to a lower classification, suspension fromduties, and discharge. At the hearing the compliance officer acknowledged that thecompany’s procedures for belts and ladders set forth in the safety rules and manual wereappropriate, and that he did not consider Myers’ employee training to be deficient. Myers’evidence concerning the communication of its rule regarding safety belts for allemployees, including foremen, established that Sayre received the same training affordedall employees.Moreover, Myers had no reason to suspect that Sayre’screw was likely to perform work in violation of its safety rules. Sayre was a goodsupervisor who in the past had never been known to engage in or supervise any activityduring which he or his crew failed to use safety belts when they were necessary. We findno evidence in the record before us that Robert Sayre’s conduct here was reasonablyforeseeable to or preventable by Myers. When Myers became aware of his violation, it tookdecisive action. After the company determined that Sayre had failed to require the use ofsafety belts on September 17, 1982, he was given a two-week disciplinary suspension withthe expectation that he would not return to work.Based on this evidence, we conclude that theSecretary failed to sustain his burden of proving a violation of section 5(a)(2) of theAct. See Pennsylvania Power & Light Co. v. OSHRC, 737 F.2d 350 (3rd Cir. 1984); HornePlumbing & 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, 1982 CCH 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 Ninth Circuit stated in Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139, 1144(9th Cir. 1975). \”Fundamental fairness would require that one charged with andpenalized for violation be shown to have caused, or at least knowingly acquiesced in, thatviolation.\” Since the Secretary did not make such a showing here, we vacate thecitation alleging noncompliance 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 this standard, JudgeSalyers found that the base of the 18 foot ladder upon which the employees were workingwas placed 9 feet 8 inches from the tower. However, it is not at all clear from theevidence in the record that this distance is correct.Myers contends that the distance between the base of the tower and the base of the ladderwas not that great, and from our review of the photographic evidence we are inclined toagree. Moreover, it appears that the air conditioning box, the pipe, and the angle ironbracing precluded placing the ladder anywhere other than on the far side of the airconditioning box. The ladder could not be placed between the box and the tower because thespace was clearly too narrow to allow the ladder to be safely pitched against the tower.The ladder would also have been obstructed by the pipe extending from the box if Myers hadattempted to place the ladder on the tower side of the air conditioner box. From ourreview of the evidence it appears that Myers’ employees had no alternative but to placethe ladder on the far side of the air conditioner box, when working on the west side ofthe tower.Section 1926.450(a)(7) does not require that thehorizontal distance to the base of a portable ladder must be precisely onefourth of theworking length of the ladder but, rather, requires only that the ratio between thehorizontal distance and the length of the ladder be \”about\” one-to-four. Thestandard, therefore, permits an employer to deviate from a strict one-to-four ratio butdoes not indicate the precise degree of deviation permitted. In interpreting a standardthat uses terms which are relative rather than absolute, the Commission must consider allobjective factors that may give guidance to the meaning of the standard. See Austin BridgeCo., 85 OSAHRC __\/__, 12 BNA OSHC 1181, 1985 CCH OSHD ?\u00a0 27,169 (No. 81-1049, 1985),petition for review filed, No. 85-4190 (5th Cir. Mar. 21, 1985). These factors shouldobviously include the purpose of the standard, to the extent that purpose can bediscerned. 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 to position theguardrail at a height that defeats the purpose of a guardrail). The record here does notindicate the purpose of the pitch requirement of the standard. We may reasonably conclude,however, that the standard is intended to insure that the angle at which a portable ladderis placed is neither too great nor too shallow to permit an employee to climb the ladderwithout losing his balance or causing the ladder to tip or fall. The judge here found, andthe Secretary does not dispute, that the ladder had been properly secured and was stable.Photographs taken shortly after the accident show that the ladder had remained in placeagainst the tower. Thus, the ladder did not move while the employees were working from it,and it remained in position even after Miller fell and Carmac jumped from it. Therefore,it is clear that the angle at which the ladder had been placed did not cause the ladderitself to be incapable of safely supporting the employees. Since the record fails toexplain what may have caused Miller to fall, it would be purely speculative to concludethat the angle of the ladder exposed Myers’ employees to injury.In conclusion, we find that the pitch of the ladderwas sufficiently within 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 wasexcessive in light of the totality of the circumstances here.[[13]]Alleged Violation of 29 C.F.R.? 1926.450(a)(6)The Secretary alleged that there were pieces of wood and metal on the roofnear the base of the ladder, and cited Myers for a tripping hazard. Myers acknowledgesthat when the employees moved the ladder to the west side of the tower they placed a pieceof wood under one leg of the ladder to brace it because the roof was uneven. Myerscontends that there was nothing other than that piece of wood near the base of the ladderand that it cannot properly be found in violation of this standard when it placed materialat the base of the ladder for the purpose of stabilizing the ladder. The judge found that,there were pieces of angle iron \”in the area around\” the foot of the ladder andaffirmed the citation.The standard says \”Portable ladder feet shall beplaced on a substantial base and the area around the top and bottom of the ladder shall bekept clear.\” The standard clearly intends that the ladder shall be firmly establishedon a base to prevent slippage or movement of the ladder, and also seeks to preventtripping hazards that could occur while an employee is ascending or descending the ladder.We do not believe that the purpose of ? 1926.450(a)(6) is to prevent the use of a pieceof wood to brace and stabilize the foot of the ladder. Rather, we find here that theladder feet were \”placed on a substantial base\” and conclude that there was noviolation of the standard as to proper bracing and stabilizing of the ladder.With respect to a possible tripping hazard, theevidence does not establish that any material other than the wood piece used to stabilizethe ladder was placed directly at the foot of the ladder. The inspector’s photographrelied on by the judge clearly shows pieces of metal some distance away from the ladder’sbase. However, the standard requires only that the \”area around\” the base of theladder be kept clear. Thus, the issue before us is whether Myers can be found in violationof this standard merely on the fact that metal objects were located on the roof in thegeneral vicinity of the ladder.The standard does not define the term\”area,\” nor does it otherwise indicate the extent of the area the employer isrequired to keep clear. As we said in discussing the alleged violation of section1926.450(a)(7), the Commission must rely on objective factors in order to give meaning toa standard that uses imprecise and relative terminology. There is no evidence showing theactual distance between the base of the ladder and the pieces of metal depicted in thephotograph. From the photograph, however, it- appears that there is a considerable cleararea along the roof from the metal objects to the ladder. It is plain from the photographthat these objects are not in a location where they would obstruct an employee inascending or descending the ladder. Indeed, on the limited record here, there is noapparent relationship between the metal objects and the ladder. Absent any indication tothe contrary, we cannot conclude that the standard was intended to apply in thesecircumstances. We therefore vacate this citation item.Accordingly, the citation items alleging violationsof 29 C.F.R. ?? 1926.28(a), 1926.450(a)(6) and 1926.450(a)(7) are vacated.FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary DATED: January 16, 1986The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-mail ( [email protected] ), telephone(202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES: [[1]] 29 C.F.R. ? 1926.28(a) provides as follows:The employer is responsible for requiring the wearing of appropriate personal protectiveequipment in all operations where there is an exposure to hazardous conditions or wherethis part indicates the need for using such equipment to reduce the hazards to theemployees. [[2]] 29 C.F.R. ? 1926.450(a)(7) requires thatPortable ladders shall be used at such a pitch that the horizontal distance from the topsupport to the foot of the ladder is about one quarter of the working length of the ladder(the length along the ladder between the foot and the top support). Ladders shall not beused in a horizontal position as platforms, runaways, or scaffolds.[[3]] Section 1926.450(a)(6) requires that\”[P]ortable ladder feet shall be placed on a substantial base, and the area aroundthe top and bottom of the ladder shall be kept clear.\”[[4]] Emery wanted to protect the power lines fromany accidental contact by a crane doing construction work at the plant.[[5]] The weight on the east and west lines had to bebalanced to prevent the pole at the lower level from twisting.[[6]] It is axiomatic that \”and\” normallyhas a conjunctive meaning. United States v. Castellana, 433 F.Supp. 1309 (M.D. Fla. 1977).See De Sylva v. Ballentine, 351 U.S. 570, 573-74 (1956). When \”and\” is used tojoin two clauses, it normally indicates that both must be read together in determining therights or obligations of those affected by the statute or regulation in question. SeeAreizaga v. Quern, 442 F.Supp. 168 (N.D. Ill. 1977), aff’d, 590 F.2d 226 (7th Cir. 1978);United States v. Gera, 279 F.Supp. 731 (W.D. Pa. 1968), rev’d and rem’d on other grounds,409 F.2d 117 (3d Cir. 1969). Conversely, \”or\” is normally a disjunctive ratherthan a conjunctive; it separates alternative or fully independent provisions. UnitedStates Customs Service v. FLRA, 739 F.2d 829 (2d Cir. 1984); United States v. Garcia, 718F.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. United States, 176 F.Supp.576, 583 (S.D. Cal. 1959), aff’d 283 F.2d 693 (9th Cir. 1960). As a disjunctive,therefore, \”or\” is not freely interchangeable with \”and.\” Illinois v.ICC, 687 F.2d 1047, 1054 (7th Cir. 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, that theremay be circumstances in which strict adherence to the usual definitions of \”and\”and \”or\” would frustrate the drafter’s intent or create an inconsistency withother provisions. United States v. Fisk, 70 U.S. 445 (1866); Moore, supra; In re Rice, 165F.2d 617, 619 n.3 (D.C. Cir. 1947). However, there is no history of section 1926.28(a) orother material to indicate the Secretary’s intent when he promulgated the standard underthe Construction Safety Act and adopted it under the OSH Act. We therefore cannot concludethat the Secretary intended \”and\” to be read disjunctively. See Alabama v.Marshall, 626 F.2d 366 (5th Cir. 1980), cert. denied, 452 U.S. 905 (1981) (interpretationof a statute must accord with its plain language if a contrary intent is not clearly anddistinctly shown). Nor is there any conflict with other standards arising from the term\”and\” to necessitate construing it in a disjunctive manner. The circumstancespresented here, therefore, do not justify construing \”and\” in a manner contraryto its usual meaning.[[7]] Under the standard as originally promulgatedthe Secretary had the duty to specify elsewhere in his standards the circumstances wherepersonal protective equipment must be used under ? 1926.28(a). By contrast, under thestandard in its present form the employer is liable for evaluating whether the conditionsin its workplace necessitate the use of personal protective equipment without the benefitof guidance from the Secretary as provided under the original version of the standard.[[8]] In Carpenter Rigging & Contracting Corp,supra, Commissioner Cleary interpreted the original standard as being in the disjunctiveand therefore concluded that the change from \”and\” to \”or\” was notsubstantive. Commissioner Moran took the opposite view. Commissioner Van Namee expresslydid \”not join in\” Commissioner Cleary’s interpretation of the standard, butvoted to affirm the citation on other grounds. 2 OSHC at 1549. In Eichleay Corp, and inIsland Steel and Welding, Ltd. the majority held only that the standard meant the sameafter the amendment as it did before the amendment. Commissioner Cleary so held because hebelieved that the \”and\” in the original standard was in the disjunctive, so thatthe change to \”or\” was not substantive. Commissioner Van Namee had statedearlier in Hoffman Constr. Co., supra, his contrary view that \”and\” in theoriginal standard was conjunctive, but expressly declined to address that issue in IslandSteel and Eichleay. He indicated instead that if the meaning of the standard after theamendment was not the same as the meaning before the amendment, then the change must bedeemed substantive and the Secretary’s \”failure to use the Act’s rulemaking machinerywould nullify the attempted amendment and leave the original standard intact.\” IslandSteel, supra, 3 BNA OSHC at 1102, 1974-75 CCH OSHD at p. 23,335. Commissioner Moranconsistently asserted that the change in the standard was substantive. Similarly, inIsseks Brothers, Inc., supra, Commissioner Cleary adhered to his previous interpretationsof the standard. Although Commissioner Barnako voted to affirm the citation, he expresslydisassociated himself from Commissioner Cleary’s \”discussion of the vagueness andvalidity\” of ? 28(a). 3 BNA OSHC at 1967, 1975-76 CCH OSHD at p. 24,288.Commissioner Moran again dissented on the grounds hat the amendment to the standard wasinvalid. Thus, there has never been a clear majority holding as to either theinterpretation or the validity of ? 28(a). Indeed, this divergence of views prompted theFifth Circuit to comment that \”each decision by the Commission has produced as manyconflicting interpretations as there were participating Commissioners, both under the oldregulation and the new.\” B & B Insulation, Inc., supra, 583 F.2d at 1368.[[9]] We reject the Secretary’s contention that the Commission should defer to thestatement accompanying the revision of the standards that no substantive changes weremade. As a subsequent, noncontemporaneous document, the revision and its preamble cannotbe relied on to establish the meaning the Secretary intended when he originallypromulgated section 1926.28(a) under the Occupational Safety and Health Act. WatermanSteamship Corp. v. United States, 381 U.S. 252, 269 (1965); United States v. Price, 361U.S. 304, 313 (1960). In any event, the Secretary’s characterization of his rulemakingactions is not binding on the 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 cases cited therein.[[10]] We do not view the notice and commentrequirements of 5 U.S.C. ? 553 as meaningless technicalities to be disregarded when it isinconvenient to follow these procedures. Section 553 was enacted to give the public anopportunity to participate in the rulemaking process. Section 553 also contemplates thatthe agency promulgating the rule (or amendment) will use this procedures which have asubstantial impact on those regulated. See Texaco, Inc. v. Federal Power Commission, 412F.2d 740, 744 (3rd Cir. 1969). This principle of fundamental fairness was emphasized bythe Supreme Court in N.L.R.B. v. Wyman Gordon Company, 394 U.S. 759, 764 (1969), whereinthe Court observed that the rule-making provisions of section 553 \”where designed toassure fairness and mature consideration of rules of general application.\”[[11]] We do not say, at this point, that the Secretary must specify in the citationitself the conjunctive section in Part 1926 that \”indicates the need\” forpersonal protective equipment under the particular circumstances, although that seems tous to be the better approach. We only reiterate the due process requirement that at somepoint in the proceedings the respondent must have fair notice of the conjunctive sectionupon which the Secretary relies. In the present case we find that Myers had fair notice ofthe charge of failure to use safety belts to abate the hazard of a fall exceeding twentyfive feet.[[12]] Section 1926.105(a) states as follows:Safety nets shall be provided when workplaces 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.If the issue of the interpretation of this language were one of firstimpression, Commissioner Rader would conclude that this standard does not indicate a needfor the use of personal protective equipment as fall protection. Rather, in CommissionerRader’s view, section 1926.105(a) speaks only to safety nets, and under the plain wordingof the standard, safety nets are called for only when the other specified means of fallprotection, including safety belts and safety lines, cannot feasibly or practicably beused. Commissioner Rader recognizes, however, that the courts and the Commission haveinterpreted section 1926.105(a) otherwise, and have held, as the majority states here,that the standard includes 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., 78OSAHRC 2\/E6, 6 BNA OSHC 1278, 1978 CCH OSHD ? 22,506 (No. 13638, 1978). In view of thecontrolling case law, Commissioner Rader joins in the majority’s conclusion that section1926.105(a) indicates a need for using safety belts in the circumstances of this case.[[13]] In this case, assuming, arguendo, that thedistance figures given by the inspector are correct, Myers’ ladder had been placed at anangle to the tower of approximately 62 degrees. An exact ratio of one-to-four between thehorizontal distance and the length of the ladder constitutes an angle of approximately 75degrees. We do not find this deviation to be sufficient under the circumstances to justifyfinding that Myers violated the standard.”