“Docket No. 76-3682 SECRETARY OF LABOR,Complainant,v.TIPPENS STEEL ERECTION COMPANY,Respondent.OSHRC Docket No. 76-3682DECISIONBefore:\u00a0 ROWLAND, Chairman; CLEARY and COTTINE, Commissioners. BY THE COMMISSION:The Secretary of Labor issued a citation alleging that Tippens Steel Erection Companyviolated the personal protective equipment standard at 29 C.F.R. ? 1926.28(a) by notrequiring the use of safety belts by employees exposed to a fall hazard. \u00a0Administrative Law Judge John S. Patton vacated the citation on the ground that thestandard was not applicable to the steel erection work being performed.\u00a0 TheSecretary filed a petition for discretionary review and Commissioner Cleary granted thepetition under 29 U.S.C. ? 661(i).\u00a0 At issue is:\u00a0 (1) whether the judge erredin concluding that Tippens’ employees were engaged in steel erection and that Tippens wastherefore subject to the requirements of the steel erection standards in Subpart R of 29C.F.R. Part 1926; (2) whether the judge erred in concluding that Subpart R preempts theapplication of section 1926.28(a) to the facts of this case; and (3) whether Tippens wasin violation of section 1926.28(a).\u00a0 The Commission concludes, for the reasons statedin Part III of this opinion, that Tippens’ employees were engaged in steel erection.\u00a0 Commissioners Cleary and Cottine conclude, for the reasons stated in Part IV, thatsection 1926.28(a) is applicable and that the judge’s contrary holding was incorrect.\u00a0 Chairman Rowland disagrees with their conclusion and, for the reasons stated in hisseparate opinion, would affirm the judge’s vacation of the citation. Inasmuch asCommissioner Cleary finds, for the reasons stated in Part V, that the evidence isinsufficient to show that the cited standard was violated, he joins Chairman Rowland invacating the citation.\u00a0 Commissioner Cottine disagrees with this disposition, for thereasons stated in Part V.I At the time of the alleged violation, Tippens was engaged in constructing aone-story addition to a school in Smyrna, Georgia.\u00a0 At the hearing before JudgePatton, the parties stipulated that the building then consisted of concrete block walls, apoured concrete floor, interior steel columns, and steel beams.\u00a0 It was furtheragreed that three Tippens employees were engaged in positioning and welding steel barjoists and braces to form the roof supports.\u00a0 The bar joists were set approximately 2feet apart.\u00a0 The employees were working at the highest point of thestructure–approximately 12 feet above the concrete, ground-level floor–and were notwearing safety belts, lifelines or lanyards.\u00a0 No safety nets, scaffolds, or temporaryflooring had been positioned under the work area and no cables or wires that could serveas a lifeline had been strung above, between, or across the work area.The Secretary’s only witness was Robert Wendell, the Assistant RegionalAdministrator for Federal-State OSHA Operations. Wendell testified that the mere fact thata building has structural steel members does not make it a structural steel building.\u00a0 He testified that the building in question was not a structural steel building butwas a concrete block building with structural steel supports.\u00a0 Wendell testified thatTippens’ workers could have secured themselves by tying off to the structural steel memberupon which they were working.\u00a0 He also stated that a catenary line capable ofsupporting 5400 pounds could have been erected above the employees and that the employeescould have attached their lanyards to that line.\u00a0 Wendell testified that he hadobserved both of these practices used on similar buildings in the past.\u00a0 Wendelladded that an employee could erect the safety or catenary line while working from a ladderand thus avoid exposing himself to a hazardous fall during the installation procedure.Jack Tippens, the owner of the company, and two of his employees testifiedthat the work in question was structural steel work involving joists, beams, and columnsas well as the basic steel erection tasks of welding and bolting-up. They added that itwas not practical to tie off on this type of building nor was tying-off under thesecircumstances the practice in the industry. Lawrence Drachman, vice-president of SuperiorRigging and Erecting Company, disputed Wendell’s claim that a catenary line could beinstalled easily. Drachman contended that it was nearly impossible to anchor a catenaryline on this type of structure. W.E. Fraser, the president of Erskine Fraser SteelErecting Company, also testified that a catenary line on this type of structure wouldprobably not support the weight of a man.II In his decision, Judge Patton found that Tippens was engaged in steelerection work, noting that the material composition of the building \”does not changethe fact that employees of [Tippens] were working on structural steel supports.\”\u00a0 The judge then considered the parties’ arguments concerning the applicability ofsection 1926.28(a) during steel erection.\u00a0 He reasoned that provisions in Subpart R(Steel Erection) and Subpart Q (Concrete, Concrete Forms, and Shoring) which require theuse of protective clothing and articles under specific conditions would be unnecessary ifsection 1926.28(a) were interpreted to require the use of safety belts in steel erectiongenerally and in concrete work.[[2\/]]\u00a0 He also accepted Tippens’ contention that incertain circumstances, wearing safety belts might constitute a greater hazard; the judgeassumed from his reading of Subpart R that the Secretary had taken these factors intoconsideration by specifically prescribing the use of safety belts in some situations,i.e., on floating scaffolds pursuant to section 1926.752(k), while not prescribing theiruse in all situations.\u00a0 He also noted that if the cited standard had already requiredsafety belts to be worn in steel erection, then there would have been no reason for theSecretary to have amended Subpart R in 1974 in order to require that safety belts be wornwhen gathering and stacking planks. [[3\/]]\u00a0 Thus, Judge Patton concluded that thecited standard did not apply here and, accordingly, he vacated the citation.IIIOne of the bases for the Secretary’s objection to Judge Patton’s determinationthat the steel erection standards preempt section 1926.28(a) is that the steel erectionstandards are inapplicable in this case because the employees were not engaged in steelerection. He maintains that the structure was basically concrete block at the time of theinspection and was well past the steel erection stage. We reject this contention becausewe agree with Tippens’ assertion that the standards contained in Subpart R are notrestrictively applied to work being performed on buildings with an all-steel structuralframework, but apply as well to the process of structural steel assembly and erectionregardless of whether the entire building framework consists of steel members.\u00a0 Theparties stipulated that the workers were engaged in welding and positioning steel barjoists and braces to form the roof supports.\u00a0 The testimony clearly indicates thatwork involving bar joists and structural steel members is structural steel work. \u00a0Moreover, the Secretary’s witness, Robert Wendell, admitted that bolts were used in thiscase to put the beams together and that bolting beams together is one of the operations instructural steel erection.\u00a0 Furthermore, the work at issue is classified asstructural steel both in the contract documents and in Tippens’ bid on the job; althoughthe industry’s classification of the work is not controlling, it is relevant. Accordingly,we conclude that the judge properly held that the work being performed in the citedlocation was steel erection within the meaning of the standards in Subpart R.IV The Commission comprehensively considered the preemption question in WilliamsEnterprises, Inc., Docket No. 79-0843 (Apr. 27, 1983).\u00a0 In Williams we rejected theclaim that the standards contained in Subpart R are exclusive for steel erection andtherefore exempt ironworkers from being afforded fall protection required by safetystandards located outside of Subpart R.\u00a0 We noted that the two courts that haveaddressed this problem have both held that the steel erection standards in Subpart R arenot exclusive.\u00a0 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).\u00a0 An employerengaged in construction activities is required to comply with any general standardapplicable to its working conditions unless a specific standard sets forth measures thatan employer must take to protect its employees from a particular hazard.\u00a0 L.R.Willson & Sons v. Donovan, supra at 670.\u00a0 Thus, we held in Williams that wheregeneral standards provide meaningful protection to employees that supplements theprotection afforded by the steel erection standards, the general standards apply to steelerection work.Inasmuch as Subpart R does not address the hazards of a fall that, thoughless than 30 feet, is of sufficient height to result in injury or death, section1926.28(a), a general standard that requires the use of safety belts, is not preemptedunder 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 preemption argument is even less meritorious here than it was in Williams, where thebuilding was tiered. Section 1910.5(c)(1) makes clear that a general standard such assection 1926.28(a) can be preempted only if Subpart R prescribes \”specificallyapplicable\” standards.[[4\/]] Yet, the primary fall protection standards that Tippenspoints to–those in section 1926.750–are not applicable here in any sense because theyapply only to tiered buildings. See Larkan Steel Erectors, 77 OSAHRC 167\/B12, 5 BNA OSHC1783, 1977-78 CCH OSHD ? 22,100 (No. 15016, 1977).[[5\/]] Accordingly, we conclude thatsection 1926.28(a) is applicable.V A The Secretary contends that the evidence establishes a violation of section1926.28(a) because Tippens’ employees were not tied off or otherwise protected from thehazard of a 12-foot fall onto a concrete floor.\u00a0 He argues that the potentialseverity of the fall was established by Wendell’s testimony that a 6-foot fall at anotherlocation had resulted in a fatality.\u00a0 The Secretary notes that the means ofprotection were identified by the compliance officer and were clearly feasible in thatTippens’ employees wore the belts and lanyards immediately after the inspection.The Secretary disputes Tippens’ claim that the belts were impractical andhazardous.\u00a0 He notes that the inconvenience and potential hazard of tied-off workersforgetting to unclip themselves from the beam also exists with respect to fall hazards of30 feet, for which Tippens admittedly has its employees tie off.\u00a0 Further, theSecretary argues that the additional time needed to complete the work as a result of tyingoff should not be weighed against the increased safety to the employees.\u00a0 TheSecretary also contends that Tippens’ claim that the installation of safety equipmentwould create a greater hazard is without basis.\u00a0 Moreover, the Secretary argues thatTippens has failed to sustain its burden of proving under the greater hazard affirmativedefense that alternative means of protecting the employees are unavailable and that avariance 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 burden in this case.\u00a0 Tippens contends that the Secretary has failed to prove the feasibility and utilityof safety belts, lanyards, and lifelines, citing Frank Briscoe Co., 76 OSAHRC 129\/A2, 4BNA OSHC 1729, 1976-77 CCH OSHD ? 21,162 (No. 7792, 1976). Tippens submits that the onlyevidence adduced by the Secretary as to feasibility and utility is the opinion of RobertWendell that employees could have tied off to the beams or could have erected postanchorages for a life line.\u00a0 Tippens argues that its witnesses are more credible, andthat their testimony as to the impracticality and difficulty of erecting posts rebutsWendell’s proposals and establishes that industry practice is not to employ safety beltsunder the cited circumstances.\u00a0 Tippens adds that, even if the testimony of theemployees were not deemed to have established the defense of greater hazard, it should begiven great weight to refute the alleged feasibility and utility of the suggested safetymeasures, because the judgment of experienced employees as to the essentials of theirsafety is not to be treated lightly.\u00a0 Tippens further argues that, as there wasnothing above the point of operation to which a belt could be attached, it establishedimpossibility of compliance and, hence, no violation can be found.BIn order to establish noncompliance with section 1926.28(a), the Secretary must prove thata reasonable person familiar with the factual circumstances surrounding the allegedlyhazardous condition, including any facts unique to a particular industry, would recognizea hazard warranting the use of personal protective equipment.\u00a0 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).\u00a0 In addition, the Secretary mustidentify an appropriate form of personal protective equipment to protect against thehazard.\u00a0 Id.\u00a0 The Secretary is not obliged to affirmatively establish thefeasibility and likely utility of safety belts, lifelines and lanyards.\u00a0 Id.Commissioner Cleary concludes that the Secretary has not sustained his burdenin this case.\u00a0 He is not persuaded that a reasonable person familiar with the factualcircumstances surrounding this allegedly hazardous condition, including the facts uniqueto the steel erection industry, would recognize that ironworkers, working approximately 12feet above the surface on bar joists located approximately 2 feet apart, are exposed to ahazardous condition warranting the use of personal protective equipment.\u00a0 The 2-footspacing of the joists made it so highly unlikely that the workers could fall to thesurface below that the use of safety belts was not warranted.\u00a0 Paul Kennedy, ajourneyman ironworker employed by Tippens, testified that the closeness of the joistsprevented him from falling between them on those occasions after the inspection when heforgot to untie his belt and lost his balance when he was jerked back.\u00a0 CommissionerCleary credits Kennedy’s testimony and notes that the photographic evidence corroboratesit. Accordingly, Commissioner Cleary concludes that the Secretary failed to show that theuse of personal protective equipment was warranted under the circumstances of this caseand, thus, failed to establish a violation of section 1926.28(a).[[6\/]]Commissioner Cottine concludes that the Secretary has established that Tippens’ employeeswere exposed to a fall of 12 feet, a hazardous condition requiring the use of personalprotective equipment.\u00a0 See Bethlehem Steel Corporation, 81 OSAHRC 108\/A2, 10 BNA OSHC1264, 1982 CCH OSHD ? 25,839 (No. 16067, 1981) (Cottine, Commissioner, dissenting); PPGIndustries, Inc., 77 OSAHRC 196\/E5, 6 BNA OSHC 1050, 1977-78 CCH OSHD ? 22,344 (No.15426, 1977), appeal denied, 582 F.2d 1275 (3d Cir. 1978).\u00a0 He finds that the hazardwas not diminished by the 2-foot spacing between joists.[[7\/]]\u00a0 In addition, theSecretary has identified the appropriate means of personal protective equipment needed toabate the hazard, i.e., safety belts and lanyards. Commissioner Cottine notes that theCommission has affirmed citations alleging noncompliance with section 1926.28(a) whereemployees were working on steel beams without the benefit of fall protection.\u00a0 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 (6th Cir. 1980); LarkanSteel Erectors, supra. [[8\/]]\u00a0 He also rejects Tippens’ reliance on industrypractice.\u00a0 Certainly, industry custom and practice are useful reference points indetermining whether a reasonable person familiar with the facts would recognize a hazardrequiring the use of personal protective equipment; however, custom and practice are notdispositive.\u00a0 S&H Riggers & Erectors, Inc., supra.\u00a0 The Act was passedto improve the safety of working conditions in industry, not to maintain a hazardousstatus quo.\u00a0 As a consequence, industry cannot be permitted to maintain that statusquo by setting its own standards of care.\u00a0 General Dynamics Corp., QuincyShipbuilding Div. v. OSHRC, 599 F.2d 453 (1st Cir. 1979).Commissioner Cottine would also reject Tippens’ claim that tying off in this situationexposes the workers to a greater hazard. Tippens has not established the greater hazarddefense because it has failed to show that the hazards of compliance with the standard aregreater than those existing due to noncompliance, that alternative means of protectingemployees are unavailable, and that a variance application under section 6(d) of the Actwould be inappropriate.\u00a0 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.2d311 (9th Cir. 1979).\u00a0 Accordingly, Commissioner Cottine would conclude that theSecretary has established a violation of section 1926.28(a).VI Both Chairman Rowland, see infra, and Commissioner Cleary conclude, althoughfor different reasons, that the citation must be vacated.\u00a0 Accordingly, the judge’sdisposition is affirmed.\u00a0 The citation is vacated.IT IS SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr. Executive SecretaryDATED:\u00a0 APR 27 1983The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 appropriate personalprotective equipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for using such equipment to reduce the hazards tothe 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, by addingsubsection (iii):? 1926.750 Flooring requirements.(b) Temporary flooring–skeleton steel construction in tiered buildings.(2) … (iii) When gathering and stacking temporary floor planks from the last panel, theemployees assigned to such work shall be protected by safety belts with safety linesattached to a catenary line or other substantial 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 a condition, practice,means, method, operation, or process, it shall prevail over any different general standardwhich might otherwise be applicable to the same condition, practice, means, method,operation, or process…. [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 requiresthat openings in floors be guarded in accordance with Subpart M.\u00a0 Tippens argues thatthe specific incorporation of these subparts indicates that they would not otherwise begenerally applicable to steel erection work.\u00a0 In Tippens’ view, the contrastingfailure of Subpart R to specifically incorporate Subpart C–which includes the citedstandard here–indicates that Subpart C is not applicable to steel erection.\u00a0 Tippensalso argues that where safety belt protection is deemed necessary in the steel erectionindustry, the standards specifically provide for it; it points to ? 1926.750(b)(2)(iii),which prescribes the use of safety belts when gathering and stacking temporary floorplanks, and ? 1926.752(k), which requires safety belts for employees working on floatscaffolds.\u00a0 Tippens maintains that it ? 1926.28(a) provides fall protection in allinstances, then there would be no reason to have separate, specific requirements for thewearing of belts elsewhere in Subpart R.\u00a0 Moreover, applying the statutoryconstruction principle of expressio unius est exclusio alterius, Tippens argues thatSubpart R implicitly indicates by its silence those instances where the use of safetybelts is deemed undesirable or unwarranted.\u00a0 We reject the contentions because theyare inconsistent with ? 1910.5(c)(2):? 1910.5 Applicability of standards(c)(2) On the other hand, any standard shall apply according to its terms to anyemployment and place of employment in any industry, even though particular standards arealso prescribed for the industry,…. to the extent that none of such particular standardsapplies ….The maxim Tippens invokes must of course yield to the Secretary’s specificapplicability rule.[[6\/]] Commissioner Cleary finds this case distinguishable from Western WaterproofingCompany, Inc., discussed in note 7 infra.\u00a0 In that case, employees were working on ascaffold between the tenth and eleventh floors of a building.\u00a0 The space between thefront of the scaffold and the building was approximately 14 to 18 inches, but the scaffoldwas not affixed to the building, and the scaffold would logically move away from thebuilding if an employee fell between the building and the scaffold.\u00a0 As discussed inthe case there was also the danger of the scaffold swinging in windy conditions whichwould increase the aperture substantially. Commissioner Cleary also notes that the factual circumstances here stand in markedcontrast to those in the cases cited infra in which the Commission affirmed citationsunder ? 1926.28(a) where employees were exposed to serious fall hazards while working onsteel beams: Structural Painting Corp. (28-30 feet above a river); Ray Evers Welding Co.(18-24 feet above the ground); Larkan Steel Erectors (23 feet above the ground).[[7\/]] Commissioner Cottine notes that in Western Waterproofing Co., Inc., 79OSAHRC D\/11, 7 BNA OSHC 1625, 1979 CCH OSHD ? 23,785 (No. 1087, 1979), the Commissionacknowledged that an open space of 14 to 18 inches between the front of a scaffold and theadjacent wall was large enough to permit an employee to fall through.\u00a0 In that casean employee had sustained fatal injuries when he fell through the open space to a surfacefive stories below.[[8\/]] Furthermore, other standards contained in Title 29 of the Code ofFederal Regulations clearly require fall protection at heights less than the 12 feetinvolved in this case, e.g., ? 1910.23(c)(general industry: open-sided floors orplatforms–4 feet or more); ? 1926.500(b)(1) (construction: wall openings–more than 4feet); ? 1926.500(d)(1)(construction: open-sided floors or platforms–6 feet or more).”