“SECRETARY OF LABOR,Complainant,v.TIPPENS STEEL ERECTION COMPANY,Respondent.OSHRC Docket No. 76-3682_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:The Secretary of Labor issued a citation alleging that Tippens SteelErection Company violated the personal protective equipment standard at29 C.F.R. ? 1926.28(a) by not requiring the use of safety belts byemployees exposed to a fall hazard. Administrative Law Judge John S.Patton vacated the citation on the ground that the standard was notapplicable to the steel erection work being performed. The Secretaryfiled a petition for discretionary review and Commissioner Clearygranted the petition under 29 U.S.C. ? 661(i). At issue is: (1)whether the judge erred in concluding that Tippens’ employees wereengaged in steel erection and that Tippens was therefore subject to therequirements of the steel erection standards in Subpart R of 29 C.F.R.Part 1926; (2) whether the judge erred in concluding that Subpart Rpreempts the application of section 1926.28(a) to the facts of thiscase; and (3) whether Tippens was in violation of section 1926.28(a). The Commission concludes, for the reasons stated in Part III of thisopinion, that Tippens’ employees were engaged in steel erection. Commissioners Cleary and Cottine conclude, for the reasons stated inPart IV, that section 1926.28(a) is applicable and that the judge’scontrary holding was incorrect. Chairman Rowland disagrees with theirconclusion and, for the reasons stated in his separate opinion, wouldaffirm the judge’s vacation of the citation. Inasmuch as CommissionerCleary finds, for the reasons stated in Part V, that the evidence isinsufficient to show that the cited standard was violated, he joinsChairman Rowland in vacating the citation. Commissioner Cottinedisagrees with this disposition, for the reasons stated in Part V.IAt the time of the alleged violation, Tippens was engaged inconstructing a one-story addition to a school in Smyrna, Georgia. Atthe hearing before Judge Patton, the parties stipulated that thebuilding then consisted of concrete block walls, a poured concretefloor, interior steel columns, and steel beams. It was further agreedthat three Tippens employees were engaged in positioning and weldingsteel bar joists and braces to form the roof supports. The bar joistswere set approximately 2 feet apart. The employees were working at thehighest point of the structure–approximately 12 feet above theconcrete, ground-level floor–and were not wearing safety belts,lifelines or lanyards. No safety nets, scaffolds, or temporary flooringhad been positioned under the work area and no cables or wires thatcould serve as a lifeline had been strung above, between, or across thework area.The Secretary’s only witness was Robert Wendell, the Assistant RegionalAdministrator for Federal-State OSHA Operations. Wendell testified thatthe mere fact that a building has structural steel members does not makeit a structural steel building. He testified that the building inquestion was not a structural steel building but was a concrete blockbuilding with structural steel supports. Wendell testified thatTippens’ workers could have secured themselves by tying off to thestructural steel member upon which they were working. He also statedthat a catenary line capable of supporting 5400 pounds could have beenerected above the employees and that the employees could have attachedtheir lanyards to that line. Wendell testified that he had observedboth of these practices used on similar buildings in the past. Wendelladded that an employee could erect the safety or catenary line whileworking from a ladder and thus avoid exposing himself to a hazardousfall during the installation procedure.Jack Tippens, the owner of the company, and two of his employeestestified that the work in question was structural steel work involvingjoists, beams, and columns as well as the basic steel erection tasks ofwelding and bolting-up. They added that it was not practical to tie offon this type of building nor was tying-off under these circumstances thepractice in the industry. Lawrence Drachman, vice-president of SuperiorRigging and Erecting Company, disputed Wendell’s claim that a catenaryline could be installed easily. Drachman contended that it was nearlyimpossible to anchor a catenary line on this type of structure. W.E.Fraser, the president of Erskine Fraser Steel Erecting Company, alsotestified that a catenary line on this type of structure would probablynot support the weight of a man.IIIn his decision, Judge Patton found that Tippens was engaged in steelerection work, noting that the material composition of the building\”does not change the fact that employees of [Tippens] were working onstructural steel supports.\” The judge then considered the parties’arguments concerning the applicability of section 1926.28(a) duringsteel erection. He reasoned that provisions in Subpart R (SteelErection) and Subpart Q (Concrete, Concrete Forms, and Shoring) whichrequire the use of protective clothing and articles under specificconditions would be unnecessary if section 1926.28(a) were interpretedto require the use of safety belts in steel erection generally and inconcrete work.[[2\/]] He also accepted Tippens’ contention that incertain circumstances, wearing safety belts might constitute a greaterhazard; the judge assumed from his reading of Subpart R that theSecretary had taken these factors into consideration by specificallyprescribing the use of safety belts in some situations, i.e., onfloating scaffolds pursuant to section 1926.752(k), while notprescribing their use in all situations. He also noted that if thecited standard had already required safety belts to be worn in steelerection, then there would have been no reason for the Secretary to haveamended Subpart R in 1974 in order to require that safety belts be wornwhen gathering and stacking planks. [[3\/]] Thus, Judge Patton concludedthat the cited standard did not apply here and, accordingly, he vacatedthe citation.IIIOne of the bases for the Secretary’s objection to Judge Patton’sdetermination that the steel erection standards preempt section1926.28(a) is that the steel erection standards are inapplicable in thiscase because the employees were not engaged in steel erection. Hemaintains that the structure was basically concrete block at the time ofthe inspection and was well past the steel erection stage. We rejectthis contention because we agree with Tippens’ assertion that thestandards contained in Subpart R are not restrictively applied to workbeing performed on buildings with an all-steel structural framework, butapply as well to the process of structural steel assembly and erectionregardless of whether the entire building framework consists of steelmembers. The parties stipulated that the workers were engaged inwelding and positioning steel bar joists and braces to form the roofsupports. The testimony clearly indicates that work involving barjoists and structural steel members is structural steel work. Moreover, the Secretary’s witness, Robert Wendell, admitted that boltswere used in this case to put the beams together and that bolting beamstogether is one of the operations in structural steel erection. Furthermore, the work at issue is classified as structural steel both inthe contract documents and in Tippens’ bid on the job; although theindustry’s classification of the work is not controlling, it isrelevant. Accordingly, we conclude that the judge properly held that thework being performed in the cited location was steel erection within themeaning of the standards in Subpart R.IVThe Commission comprehensively considered the preemption question inWilliams Enterprises, Inc., Docket No. 79-0843 (Apr. 27, 1983). InWilliams we rejected the claim that the standards contained in Subpart Rare exclusive for steel erection and therefore exempt ironworkers frombeing afforded fall protection required by safety standards locatedoutside of Subpart R. We noted that the two courts that have addressedthis problem have both held that the steel erection standards in SubpartR are not exclusive. L.R. Willson & Sons v. Donovan, 685 F.2d 664 (D.C.Cir. 1982); Bristol Steel & Iron Works v. OSHRC, 601 F.2d 717 (4th Cir.1979). An employer engaged in construction activities is required tocomply with any general standard applicable to its working conditionsunless a specific standard sets forth measures that an employer musttake to protect its employees from a particular hazard. L.R. Willson &Sons v. Donovan, supra at 670. Thus, we held in Williams that wheregeneral standards provide meaningful protection to employees thatsupplements the protection afforded by the steel erection standards, thegeneral standards apply to steel erection work.Inasmuch as Subpart R does not address the hazards of a fall that,though less than 30 feet, is of sufficient height to result in injury ordeath, section 1926.28(a), a general standard that requires the use ofsafety belts, is not preempted under Williams. See L.R. Willson & Sons,Inc. v. OSHRC & Donovan, 698 F.2d 507, 511 (D.C. Cir. 1983). Indeed,because the building involved in this case is not tiered, the preemptionargument is even less meritorious here than it was in Williams, wherethe building was tiered. Section 1910.5(c)(1) makes clear that a generalstandard such as section 1926.28(a) can be preempted only if Subpart Rprescribes \”specifically applicable\” standards.[[4\/]] Yet, the primaryfall protection standards that Tippens points to–those in section1926.750–are not applicable here in any sense because they apply onlyto tiered buildings. See Larkan Steel Erectors, 77 OSAHRC 167\/B12, 5 BNAOSHC 1783, 1977-78 CCH OSHD ? 22,100 (No. 15016, 1977).[[5\/]]Accordingly, we conclude that section 1926.28(a) is applicable.VAThe Secretary contends that the evidence establishes a violation ofsection 1926.28(a) because Tippens’ employees were not tied off orotherwise protected from the hazard of a 12-foot fall onto a concretefloor. He argues that the potential severity of the fall wasestablished by Wendell’s testimony that a 6-foot fall at anotherlocation had resulted in a fatality. The Secretary notes that the meansof protection were identified by the compliance officer and were clearlyfeasible in that Tippens’ employees wore the belts and lanyardsimmediately after the inspection.The Secretary disputes Tippens’ claim that the belts were impracticaland hazardous. He notes that the inconvenience and potential hazard oftied-off workers forgetting to unclip themselves from the beam alsoexists with respect to fall hazards of 30 feet, for which Tippensadmittedly has its employees tie off. Further, the Secretary arguesthat the additional time needed to complete the work as a result oftying off should not be weighed against the increased safety to theemployees. The Secretary also contends that Tippens’ claim that theinstallation of safety equipment would create a greater hazard iswithout basis. Moreover, the Secretary argues that Tippens has failedto sustain its burden of proving under the greater hazard affirmativedefense that alternative means of protecting the employees areunavailable and that a variance would be inappropriate.Tippens contends that, even if one assumes that section 1926.28(a) isapplicable to these facts, the Secretary has failed to carry his burdenin this case. Tippens contends that the Secretary has failed to provethe feasibility and utility of safety belts, lanyards, and lifelines,citing Frank Briscoe Co., 76 OSAHRC 129\/A2, 4 BNA OSHC 1729, 1976-77 CCHOSHD ? 21,162 (No. 7792, 1976). Tippens submits that the only evidenceadduced by the Secretary as to feasibility and utility is the opinion ofRobert Wendell that employees could have tied off to the beams or couldhave erected post anchorages for a life line. Tippens argues that itswitnesses are more credible, and that their testimony as to theimpracticality and difficulty of erecting posts rebuts Wendell’sproposals and establishes that industry practice is not to employ safetybelts under the cited circumstances. Tippens adds that, even if thetestimony of the employees were not deemed to have established thedefense of greater hazard, it should be given great weight to refute thealleged feasibility and utility of the suggested safety measures,because the judgment of experienced employees as to the essentials oftheir safety is not to be treated lightly. Tippens further argues that,as there was nothing above the point of operation to which a belt couldbe attached, it established impossibility of compliance and, hence, noviolation can be found.BIn order to establish noncompliance with section 1926.28(a), theSecretary must prove that a reasonable person familiar with the factualcircumstances surrounding the allegedly hazardous condition, includingany facts unique to a particular industry, would recognize a hazardwarranting the use of personal protective equipment. S&H Riggers &Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ? 23,480(No. 15855, 1979), rev’d, 659 F.2d 1273 (5th Cir. 1981). In addition,the Secretary must identify an appropriate form of personal protectiveequipment to protect against the hazard. Id. The Secretary is notobliged to affirmatively establish the feasibility and likely utility ofsafety belts, lifelines and lanyards. Id.Commissioner Cleary concludes that the Secretary has not sustained hisburden in this case. He is not persuaded that a reasonable personfamiliar with the factual circumstances surrounding this allegedlyhazardous condition, including the facts unique to the steel erectionindustry, would recognize that ironworkers, working approximately 12feet above the surface on bar joists located approximately 2 feet apart,are exposed to a hazardous condition warranting the use of personalprotective equipment. The 2-foot spacing of the joists made it sohighly unlikely that the workers could fall to the surface below thatthe use of safety belts was not warranted. Paul Kennedy, a journeymanironworker employed by Tippens, testified that the closeness of thejoists prevented him from falling between them on those occasions afterthe inspection when he forgot to untie his belt and lost his balancewhen he was jerked back. Commissioner Cleary credits Kennedy’stestimony and notes that the photographic evidence corroborates it.Accordingly, Commissioner Cleary concludes that the Secretary failed toshow that the use of personal protective equipment was warranted underthe circumstances of this case and, thus, failed to establish aviolation of section 1926.28(a).[[6\/]]Commissioner Cottine concludes that the Secretary has established thatTippens’ employees were exposed to a fall of 12 feet, a hazardouscondition requiring the use of personal protective equipment. SeeBethlehem Steel Corporation, 81 OSAHRC 108\/A2, 10 BNA OSHC 1264, 1982CCH OSHD ? 25,839 (No. 16067, 1981) (Cottine, Commissioner, dissenting);PPG Industries, Inc., 77 OSAHRC 196\/E5, 6 BNA OSHC 1050, 1977-78 CCHOSHD ? 22,344 (No. 15426, 1977), appeal denied, 582 F.2d 1275 (3d Cir.1978). He finds that the hazard was not diminished by the 2-footspacing between joists.[[7\/]] In addition, the Secretary has identifiedthe appropriate means of personal protective equipment needed to abatethe hazard, i.e., safety belts and lanyards. Commissioner Cottine notesthat the Commission has affirmed citations alleging noncompliance withsection 1926.28(a) where employees were working on steel beams withoutthe benefit of fall protection. See, e.g., Structural Painting Corp.,79 OSAHRC 70\/A12, 7 BNA OSHC 1682, 1979 CCH OSHD ? 23,817 (No. 15450,1979); Ray Evers Welding Co., Inc. 77 OSAHRC 181\/F7, 5 BNA OSHC 1948,1977-78 CCH OSHD ? 22,220 (No. 76-628, 1977), rev’d, 625 F.2d 726 (6thCir. 1980); Larkan Steel Erectors, supra. [[8\/]] He also rejectsTippens’ reliance on industry practice. Certainly, industry custom andpractice are useful reference points in determining whether a reasonableperson familiar with the facts would recognize a hazard requiring theuse of personal protective equipment; however, custom and practice arenot dispositive. S&H Riggers & Erectors, Inc., supra. The Act waspassed to improve the safety of working conditions in industry, not tomaintain a hazardous status quo. As a consequence, industry cannot bepermitted to maintain that status quo by setting its own standards ofcare. General Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599F.2d 453 (1st Cir. 1979).Commissioner Cottine would also reject Tippens’ claim that tying off inthis situation exposes the workers to a greater hazard. Tippens has notestablished the greater hazard defense because it has failed to showthat the hazards of compliance with the standard are greater than thoseexisting due to noncompliance, that alternative means of protectingemployees are unavailable, and that a variance application under section6(d) of the Act would be inappropriate. See National Steel &Shipbuilding,Co., 78 OSAHRC 48\/A2, 6 BNA OSHC 1680, 1978 CCH OSHD ?22,808 (Nos. 11011 & 11769, 1978), aff’d, 607 F.2d 311 (9th Cir. 1979). Accordingly, Commissioner Cottine would conclude that the Secretary hasestablished a violation of section 1926.28(a).VIBoth Chairman Rowland, see infra, and Commissioner Cleary conclude,although for different reasons, that the citation must be vacated. Accordingly, the judge’s disposition is affirmed. The citation is vacated.IT IS SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983————————————————————————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\/]] The standard reads:? 1926.28 Personal protective equipment.(a) 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\/]] Judge Patton referred specifically to ?? 1926.700(b),1926.752(a)(4), 1926.752(j) and 1926.752(k).[[3\/]] The Secretary amended section 1926.750(b)(2) of Subpart R, byadding subsection (iii):? 1926.750 Flooring requirements.(b) Temporary flooring–skeleton steel construction in tiered buildings.(2) … (iii) When gathering and stacking temporary floor planks fromthe last panel, the employees assigned to such work shall be protectedby safety belts with safety lines attached to a catenary line or othersubstantial anchorage.[[4\/]] Section 1910.5(c)(1) provides in part:? 1910.5 Applicability of standards.* * *(c)(1) If a particular standard is specifically applicable to acondition, practice, means, method, operation, or process, it shallprevail over any different general standard which might otherwise beapplicable to the same condition, practice, means, method, operation, orprocess…. [Emphasis added.][[5\/]] Tippens also relies on ? 1926.752(a)(4), which requires that eyeprotection be provided in accordance with Subpart E, and ? 1926.752(j),which requires that openings in floors be guarded in accordance withSubpart M. Tippens argues that the specific incorporation of thesesubparts indicates that they would not otherwise be generally applicableto steel erection work. In Tippens’ view, the contrasting failure ofSubpart R to specifically incorporate Subpart C–which includes thecited standard here–indicates that Subpart C is not applicable to steelerection. Tippens also argues that where safety belt protection isdeemed necessary in the steel erection industry, the standardsspecifically provide for it; it points to ? 1926.750(b)(2)(iii), whichprescribes the use of safety belts when gathering and stacking temporaryfloor planks, and ? 1926.752(k), which requires safety belts foremployees working on float scaffolds. Tippens maintains that it ?1926.28(a) provides fall protection in all instances, then there wouldbe no reason to have separate, specific requirements for the wearing ofbelts elsewhere in Subpart R. Moreover, applying the statutoryconstruction principle of expressio unius est exclusio alterius, Tippensargues that Subpart R implicitly indicates by its silence thoseinstances where the use of safety belts is deemed undesirable orunwarranted. We reject the contentions because they are inconsistentwith ? 1910.5(c)(2):? 1910.5 Applicability of standards(c)(2) On the other hand, any standard shall apply according to itsterms to any employment and place of employment in any industry, eventhough particular standards are also prescribed for the industry,…. tothe extent that none of such particular standards applies ….The maxim Tippens invokes must of course yield to the Secretary’sspecific applicability rule.[[6\/]] Commissioner Cleary finds this case distinguishable from WesternWaterproofing Company, Inc., discussed in note 7 infra. In that case,employees were working on a scaffold between the tenth and eleventhfloors of a building. The space between the front of the scaffold andthe building was approximately 14 to 18 inches, but the scaffold was notaffixed to the building, and the scaffold would logically move away fromthe building if an employee fell between the building and the scaffold. As discussed in the case there was also the danger of the scaffoldswinging in windy conditions which would increase the aperturesubstantially.Commissioner Cleary also notes that the factual circumstances here standin marked contrast to those in the cases cited infra in which theCommission affirmed citations under ? 1926.28(a) where employees wereexposed to serious fall hazards while working on steel beams: StructuralPainting Corp. (28-30 feet above a river); Ray Evers Welding Co. (18-24feet above the ground); Larkan Steel Erectors (23 feet above the ground).[[7\/]] Commissioner Cottine notes that in Western Waterproofing Co.,Inc., 79 OSAHRC D\/11, 7 BNA OSHC 1625, 1979 CCH OSHD ? 23,785 (No. 1087,1979), the Commission acknowledged that an open space of 14 to 18 inchesbetween the front of a scaffold and the adjacent wall was large enoughto permit an employee to fall through. In that case an employee hadsustained fatal injuries when he fell through the open space to asurface five stories below.[[8\/]] Furthermore, other standards contained in Title 29 of the Code ofFederal Regulations clearly require fall protection at heights less thanthe 12 feet involved in this case, e.g., ? 1910.23(c)(general industry:open-sided floors or platforms–4 feet or more); ? 1926.500(b)(1)(construction: wall openings–more than 4 feet); ?1926.500(d)(1)(construction: open-sided floors or platforms–6 feet ormore).”