“SECRETARY OF LABOR,Complainant,v.WILLIAMS ENTERPRISES, INC.,Respondent.OSHRC Docket No. 81-0381_ORDER VACATING DIRECTION FOR REVIEW_Before: BUCKLEY, Chairman; WALL, Commissioner.BY THE COMMISSION:On January 20, 1982, Administrative Law Judge George O. Taylor vacatedone item of a citation that alleged that Williams Enterprises failed toprovide adequate fall protection for its employees engaged in structuralsteel erection on a project in Vienna, Virginia. The judge also affirmedother items that alleged violations of other construction industrystandards.The central issue on review is whether, at the time of the inspection in1980, Williams had fair notice that it was obligated to provideperimeter nets under the general construction industry standard at 29C.F.R. ? 1926.105. Williams contends that it lacked such notice becausethe construction standards specifically applicable to steel erectionunder Subpart R of Part 1926 do not require such protection, and becausethe Secretary generally was not issuing citations to steel erectionemployers for lack of perimeter nets.The Fourth Circuit, where this case arose, has held that Subpart R doesnot preempt the general standard requiring personal protective equipmentto guard against hazards which are not covered by that subpart. BristolSteel & Iron Works, Inc. v. OSHRC, 601 F.2d 717 (4th Cir. 1979). Bristoldid not, however, address whether the fall protection requirements inthe steel erection standards preempt any obligation of steel erectors toprovide perimeter nets under section 1926.105. After the issuance of thecitation here, there have been several decisions in other circuits thathave elaborated upon the reasoning in Bristol and specifically concludedthat steel erection standards do not preempt any requirement in section1926.105 to use perimeter nets in circumstances similar to those here.[[1]] The Secretary has also issued an instruction explicitly statingthat during structural steel erection, perimeter fall protection,including perimeter nets, is required under section 1926.105. Thedocument directs OSHA field personnel to issue citations accordingly.OSHA Instruction STD 3-3.1 (July 18, 1983), reprinted in 1 BNA OSH Rep.Ref. File ? 21:9118 and in 1982-83 CCH Employ. S. & H. Guide NewDevelopments ? 12,855.In view of these developments in the case law and in the Secretary’senforcement policy, the issue of whether a steel erection employer inthe Fourth Circuit has fair notice of an obligation to provide perimeternets for fall protection is in a completely different posture row thanit was in 1980. A decision on whether Williams had notice of such arequirement when this case arose would not establish whether Williams,or other steel erection employers, have notice of a need for perimeternets under the current state of the law. Since Williams’ constructionproject has been completed, abatement of the alleged perimeter fallhazard and other cited conditions is not in controversy. Under thesecircumstances, we conclude that review is no longer provident. SeePaschen \/Morrison-Knudsen\/ Kenny, a Joint Venture, 86 OSAHRC 12 BNA OSHC1827, 1986 CCH OSHD ? 27,571 (No. 80-6448, 1986); P & Z Co., 82 OSAHRC8\/C8, 10 BNA OSHC 1427, 1982 CCH OSHD ? 25,937 (No. 76-431, 1982); A. C.& S., Inc., 76 OSAHRC 93\/A2, 4 BNA OSHC 1529, 1976-77 CCH OSHD ? 20,955(No. 2229, 1976).Accordingly, the direction for review is vacated; the judge’s decisionis the final order of the Commission.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 16, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.WILLIAMS ENTERPRISES, INC.,Respondent.OSHRC Docket No. 81-0381APPEARANCESMichael S. Berger, Esq.,for the complainant.James Brent Clarke, Jr., Esq. andDavid R. Clarke, Esq.,for the respondent._DECISION AND ORDER_Taylor, Judge:_Statement of the Case_The respondent was the steel erection contractor for a three-storybuilding with a penthouse in Vienna, Virginia. (Tr. 167, 366; Exhs.C-20, C-21.) Following an inspection of that worksite on December 2,1980, the respondent was issued a citation for serious violations thatalleges that the respondent violated seven occupational safety standards.The respondent duly contested all of the charges. The respondentadmitted in its answer to the complaint that jurisdiction over this caseis vested in the Commission. The respondent’s counsel also confirmed atthe trial that there were no jurisdictional problems in the case. (Tr. 7.)_Item 1_Item 1 alleges that the respondent violated paragraphs (a) and (c)(1) of29 ? 1926.105 in the following particulars:(a) Penthouse, North Side – Employees were connecting steel at edge ofstructure and not protected from falling approximately sixty-one feet tothe ground ….(b) Third Floor, East Side – Employees were connecting steel at edge ofstructure and not protected from falling approximately forty-five feetto the ground ….A penalty of $900 is proposed for this item.The complainant’s inspector observed four of the complainant’s employeesconnecting steel on the north side of the building from positions atopthe penthouse. Only two of the connectors were working at the edge ofthe structure. (Tr. 175-176, 288; Exhs. C-22 through C-25.) Theinspector also observed two of the complainant’s employees connectingsteel on the edge of the east side of the building at the roof level.(Tr. 186-194, 288; Exhs. C-26 through C-28.) A temporary floor locatedon the third floor beneath the connectors was within two stories and 30feet of the connectors at both levels. [[1\/]] (Tr. 257; Exhs. C-22through C-28.) However, the connectors were not otherwise protected fromfalls. (Tr. 186, 194.) At the exterior of the building, the falldistance to the ground below was 61 feet from the top of the penthouseand 45 feet from the roof. (Tr. 182, 184- 185, 194, 409.)The section of the standards here in issue, 29 C.F.R. ? 1926.105, isentitled \”Safety Nets\” and is located in Subpart E of the complainant’sconstruction standards. That subpart is entitled \”Personal Protectiveand Life Saving Equipment.\” Paragraph (a) of 29 C.F.R. ? 1926.105provides that:Safety nets shall be provided when workplaces fire 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.Paragraph (c)(1) of ? 1926.105 provides that:Nets shall extend 8 feet beyond the edge of the work surface whereemployees are exposed and shall be installed as close under the worksurface as practical but in no case more than 25 feet below such worksurface. Nets shall be hung with sufficient clearance to prevent user’scontact with the surfaces or structures below. Such clearances shall bedetermined by impact load testing.At the outset of the trial, the complainant’s counsel explained that thegravamen of the charge was the complainant’s failure to provide safetynets on the building’s exterior. (Tr. 22-23.) The complainant was notgoing \”to show … that safety belts or anything else besides netsshould have been used.[[2\/]] (Tr. 23.) The complainant’s position isthat the respondent’s failure to provide exterior nets constitutes aviolation of ? 1926.105(a) and that ? 1926.105(c) tells employers howthe nets are supposed to be extended beyond a building’s perimeter.[[3\/]] (Tr. 22-23.)The paramount thing that rings true in the record in this ease is thatthere is a wide divergence of opinion among the complainant’s keyenforcement personnel as to whether the standards in issue require steelerectors to provide exterior safety nets. This is succinctly illustratedby following statements in a September 26, 1980, memorandum from theAssociate Solicitor for Occupational Safety and Health to the DeputyAssistant Secretary for Occupational Safety and Health, on the need forclarifying policy as to fall protection in structural steel erection:The confusion in judicial opinions as to a steel erector’s obligationsis paralleled by a lack of consistency in OSHA enforcement of itsregulations. Many compliance officers require no more than compliancewith subpart R (decking every two floors and eventual erection of aparimeter [sic] cable).* * *The greatest divergence in enforcement, however, lies in the enforcementof 29 C.F.R. 1926.105(e)(1), which mandates the use of perimeter netsfor employees exposed to a fall of greater than 25 feet. A survey of anumber of OSHA area and regional offices indicates that this requirementis now being enforced only by the Hartford, Connecticut Area Office, andrecently by some compliance officers in the Washington, D.C. AreaOffice. Throughout the rest of the country ironworkers walk theperimeter beams without any fall protection. (Exh. R-3.)As a result of the above memorandum, a meeting was held on October 16,and 17, 1980, at the direction of Stephen D. Cooper, then a specialassistant to the Assistant Secretary for Occupational Safety and Health,to \”determine the needed clarification.\” (Tr. 550-551, 554, 558,561-562; Exh. R-3.) The meeting was attended by officials from theSolicitor of Labor’s office, the Occupational Safety and HealthAdministration (OSHA), and the International Association of lronworkers.(Tr. 479, 555-556; Exh. R-4.) Among other things, the applicability of29 C.F.R. ? 1926.105(a) and (c)(1) to steel connectors and the contentof the steel erection standards in 29 C.F.R. ? 1926.750 were consideredat the meeting. (Tr. 481, 559-560.) Cooper testified that the meetingdid not result in any consensus as to what ? 1926.105(a) and (c)(1)meant or on whether steel connectors should or could be protected byexterior safety nets. (Tr. 562-563, 567, 570-572.) Arthur J. Amchan, anattorney in Solicitor of Labor’s office and one of the attendees at themeeting, testified that there was general agreement at the meeting thatsteel connectors \”can and should be protected by perimeter nets or someother means, if some other means exists, at least when they are on thesecond floor or above.\” (Tr. 473, 483.) Amchan did not testify as towhether there was a consensus regarding the meaning of 29 C.F.R. ?1926.105(a) and (c)(1). I consider the testimony of Cooper to he morecredible than that of Amchan because Amchan’s memory was quite hazy asto what transpired at the meeting. (Tr. 481, 484-485, 488.)After the meeting, Amchan prepared a \”draft program directive\” thatprovided the following in regard to protecting employees engaged in theinitial connection of steel columns and beams:If an employer has not protected such employees, or employees performingother operations, above the second floor (above 25 feet) from perimeterfalls with safety belts or other protective devices, the employer mustprotect such employees by erecting safety nets at the buildingperimeter, at a level below such employees.(Tr. 502-505; Exh. R-7.) However, at the time of the trial of this case,Amchan’s draft proposal had not been officially adopted by OSHA. (Tr.507, 579.)Pursuant to Cooper’s request in about March 1980, the National Institutefor Occupational Safety and Health contracted with the Western Institutefor Research and Education, Incorporated, for a \”Pilot Program toDetermine the Effectiveness of OSHA Construction Standards at the Pointof Operation.\” (Tr. 580; Exh. R-8.) Among other things, the contractrequires Western to verify the applicability of 29 C.F.R. ? 1926.105 topoint of erection operations. (Exh. R- 8.) The last Cooper heard,Western expected to complete their study by October 1991. (Tr. 581.)Most steel erectors do not use exterior nets. (Tr. 117, 163-164, 374,425, 486.) However, a few steel erectors in Washington, D.C., andConnecticut have used perimeter safety nets to protect steel workers.(Tr. 73, 112.) The evidence at the trial indicates that OSHA’senforcement personnel only in Texas, Connecticut and Washington, D.C.,enforce a requirement for exterior safety nets under 29 C.F.R. ?1926.105 in steel erection. [[4\/]] (Tr. 131-132, 490-491, 529-534,575-577; Exh. R-3.)Cooper testified that the meaning of 29 C.F.R. ? 1926.105(a) and (c)(1)\”is ambiguous and not clear.\” (Tr. 561.) He construes 29 C.F.R. ?1926.750(b)(l)(ii) [[5\/]] as meaning that safety nets are not requiredif a steel erector complies with flooring requirements in 29 C.F.R. ?1926.750(b)(2)(i). [[6\/]] (Tr. 594.)Charles T. Greene, a safety consultant in steel construction (Tr. 597).agreed with Cooper. Mr. Greene has a long and distinguished career inindustrial safety. (Tr. 598- 602.) This includes serving as the Directorof Industrial Safety in the District of Columbia from 1963 until 1980.(Tr. 598-599.) He initially joined that office in 1957, first serving asan inspector and later as a supervisor of the field staff. (Tr. 600.)From 1973 to 1975, his office enforced OSHA safety standards under 29U.S.C. ? 656(c)(l). (Tr. 599, 619.)Greene testified that 29 C.F.R. ? 1926.105(a) and (c)(l) did not applyto steel connection if temporary floors are provided at the properdistance below the connectors. (Tr. 603, 606, 627.) He pointed out thatthe steel erection standards in Subpart R of the construction standardsmake no reference to ? 1926.105(a) or (c) and requires safety nets onlyif its \”impractical\” to put in a floor. [[7\/]] (Tr. 606-607.)Kenneth Higdon, the assistant chief inspector of Maryland’s IndustrialSafety Division, agreed with Cooper and Greene. Higdon’s agency hasenforced the complainant’s construction standards in Maryland since1973. (Tr. 462.) Higdon testified that his agency cited steel erectorsfor a lack of exterior safety nets under 29 C.F.R. ? 1926.105 where theyhad installed interior nets under 29 C.F.R. ? 1926.750, but that it didnot do so when temporary floors had been installed instead of interiornets. (Tr. 465-470.)In two cases where the evidence is substantially the same as in theinstant case, Review Commission Judge Joseph L. Chalk has held that thecomplainant’s construction standards do not afford steel erectors withfair warning that they are required to install exterior safety nets.[[8\/]] I agree with Judge Chalk’s conclusion and his rationale therefor.Unquestionably, steel erection is a hazardous business. (Tr. 383-385.)However, as the Fifth Circuit has recently indicated, \”due processrequires not only that employers be aware of it hazard but also thatthey have notice of what is required of them under the regulations inresponse to that hazard.\” [[9\/]] In my opinion, no reasonable personcould conclude that the complainant’s standards provide steel erectorswith fair notice that they must use exterior safety nets.In recognition that steel erection is a unique industry, the complainanthas promulgated specific standards in Subpart R of its constructionstandards that are applicable only to steel erection. Such specificstandards \”‘prevail over any different general standard which mightotherwise be applicable,’ including … the general fall protectionstandard at 29 C.F.R. ? 1926.105(a).\”[10\/] Under Subpart R a steelerector is required to maintain a floor \”within two stories or 30 feet,whichever is less, below and directly under that portion of each tier ofbeams on which any work is being performed.\”[[11\/]] If he does not andthe potential fall distance exceeds two stories or 25 feet, then SubpartR requires him to install safety nets.[[12\/]] In 29 C.F.R. ? 1926.105,paragraph (c) provides notice that exterior safety nets are generallyrequired. However, the specific steel erection standards make no mentionof exterior safety nets and do not even cite steel erectors to ?1926.105. The only logical conclusion that can be drawn from this isthat a steel erector is not required to install perimeter nets even wheninterior nets are used under 29 C.F.R. ? 1926.750(b)(1)(ii), much lesswhen he uses flooring in accordance with 29 C.F.R. ?1926.750(b)(2)(i).[[13\/]]The complainant knows that it is not the practice of the structuralsteel erection industry to use exterior nets and that there is a widedivergence of opinion among his key enforcement personnel as to whetherhis construction standards require steel erectors to use exterior safetynets. Yet, the complainant has not amended Subpart R or issued anygeneral notice to steel erectors that he interprets his standards torequire them to use exterior safety nets.The complainant argues in his post-trial brief that the respondent hadactual knowledge that exterior nets were required because it \”was citedfor a violation of 1926.105 a[t] the Dirksen Office Building in 1978\”and because two other steel erectors on that job, who subsequentlysettled their cases, were cited for exterior safety net violations. (Tr.113-116.) It is unclear from the testimony at this trial [[14\/]] (Tr.115-116) and the judge’s decision in the respondent’s prior case [[14\/]]that the complainant was proceeding in that case on a theory thatexterior safety nets were required under ? 1926.105. The charge thererelated to the protection of deckers and was vacated by the judge. Atbest, the citations issued to steel erectors constructing the DirksenOffice Building merely shows that the respondent was \”aware that theSecretary would like to require\” exterior safety nets and falls farshort of establishing that the respondent had actual knowledge that theywere required under the standards. [[15\/]]_Item 2_Item 2 contains two subitems. Subitem 2a alleges a violation of 29C.F.R. ? 1926.450(a)(9) [[16\/]] in that a wooden ladder was restingabout one foot below a landing on the north side or the building.Subitem 2b alleges that the ladder was 20 feet long and was not securedto prevent displacement as required by 29 C.F.R. ? 1926.450(a)(10).[[17\/]] The proposed penalty for item 2 is $400.The evidence conclusively establishes that a ladder conforming to thedescriptions contained in the two charges was positioned in an uprightposition on the north side of the building, with the top of the ladderresting about one foot below the landing to the second floor. (Tr. 204,212, 356; Exhs. C-29, C-30.) The ladder was equipped with safetyshoes,[[18\/]] but it was neither tied nor blocked. (Tr. 208, 356.) Thefall distance from the second floor to the ground below was about 16feet. (Tr. 184.)The ladder was put in place by Fred B. Lamb, one of the respondent’swelders. (Tr. 352, 356, 426.) Lamb testified that he did not use theladder to gain access to the second floor. (Tr. 356, 359.) According toLamb he used the ladder only for welding and to gain access to a weldingchair positioned beside the ladder. (Tr. 353, 355-356, 359, 364.) Lambdid not see anyone using the ladder to get to the second floor. (Tr.360, 363.) Arthur Ward, the respondent’s superintendent, testified thathe did not see any of the respondent’s employees use the ladder to gainaccess to the second floor. (Tr. 407, 426, 429.)The complainant’s inspector testified that she saw Lamb use the ladderonce to gain access to the second floor. (Tr. 207, 301, 304-305.)Although she did not see any other employee of the respondent on theladder, she did see employees of other contractors use the ladder togain access to the second floor. (Tr. 207, 210-212, 309.)Both Lamb and Ward could not testify that employees of other contractorsdid not use the ladder to gain access to the second floor because theywere not always present at the ladder’s location when it was in theupright position. (Tr. 363, 429.) On the basis of the inspector’sunrebutted testimony, I find that employees of other contractors on theworksite used the ladder to gain access to the second floor.[[19\/]]The purpose of the requirement in 29 C.F.R. ? 1926.450(a)(9) for siderails to extend at least 36 inches above a landing is to provide asecure grip for an employee when mounting or dismounting a ladder on alanding. Accordingly, if a ladder is used only for fall protection, thestandard does riot apply.[[20\/]] I know of no good reason for similarlylimiting the applicability of 29 C.F.R. ? 1926.450(a)(10) on the basisof ladder usage and have found no authority for doing so. [[21\/]]Since both violative conditions were in plain view, the respondent wouldhave known of them if it had exercised reasonable diligence. Therefore,I find that the respondent possessed constructive knowledge of theviolations. The violations are serious because there is a substantialprobability that fractures or lacerations could result if an employeefell from the ladder. (Tr. 213, 439.)_Item 3_Item 3 alleges that the respondent violated 29 C.F.R. ? 1926.550(a)(9)in that the swing radius of a 90-ton BLH Lima Truck Crane, Model 900-T,located on the north side of the building, was not barricaded asrequired by 29 C.F.R. ? 1926.550(a)(9). [[22\/]] A penalty of $400 isproposed for this item.It is undisputed that the cited crane was not barricaded. (Tr. 214-215,222; Exh. C-31.) The crane, which was the property of the respondent,was being used to lift steel to \”the top floors.\” (Tr. 217-218.) Whilethe crane was being used for this purpose, employees passed within \”veryclose proximity\” to both sides of the crane. [[23\/]] (Tr. 214, 216-217,312.) At least three of these employees were employed by the respondent.(Tr. 216-217.) Although there is no evidence that any employee cameclose enough to the crane to be struck by the rotating superstructure orhad reason to come that close to the crane (Tr. 313-214), it is clearthat the employees had access to the danger area. [[24\/]]The violative condition was in plain view. The respondent would haveknown of that condition if it had exercised reasonable diligence. Thus,the respondent possessed constructive knowledge of the violativecondition. The violation is serious, there being a substantialprobability that an employee would be killed or receive serious injuriesif crushed against the crane by the rotating superstructure. (Tr. 313,439-440.)_Item 4_Item 4 alleges that the respondent failed to comply with the safetyrailing requirement of 29 C.F.R. ? 1926.750(b)(1)(iii)[[25\/]] on thenorth and east sides of the second and third floors in that:Employees were carrying materials, placing metal decking and walkingalong edges of floors, exposed to a fall of approximately 16 to 31 feet ….The proposed penalty for this item is $700No wire rope or equivalent protection was installed where therespondent’s employees were working on the north side of the second andthird floors and on the east side of those floors. (Tr. 229.)Lamb, the respondent’s welder, walked along the north side of the secondfloor at the edge of the unguarded perimeter. (Tr. 230, 233; Exh. C-32,C-33.) Complainant’s Exhibit 34 also shows that another one of therespondent’s employees, either Howard Beam or Jeffrey Coleman, waswalking along the east side of the second floor.[[26\/]] (Tr. 229-230,239, 241; Exh. C-34.) He was about 2 feet from the unguarded perimeterof the building. (Tr. 238–239.) While carrying decking materials, Beamand Coleman were also within about 2 feet of the unprotected perimeterof the second floor on the north side of the building. (Tr. 236.) Inaddition, the unrebutted testimony of the complainant’s inspectorindicates that she saw employees of the respondent performing variousfunctions at the edge of the unprotected perimeter on both the secondand third floors. (Tr. 321.) Accordingly, I find that the respondent’semployees were actually exposed to the violative condition as alleged.The second and third floors were not completely decked. Five bays on thesecond floor and four bays on the third floor were not decked withtemporary flooring. (Tr. 325-326.) On both floors, there were alsoseveral openings for welding that were approximately 4 feet square andopenings for an elevator shaft that were not decked. (Tr. 243–244,323.) However, the laying of temporary metal-decking had been completedas far as the respondent planned to go in the areas where therespondent’s employees were working near the perimeters of the twofloors. (Tr. 239, 320, 323-324, 327.)The normal procedure in steel erection is to completely deck a floorbefore starting another floor. (Tr. 321-322.) This was also therespondent’s normal procedure. (Tr. 421.) On this jobsite, however, itwas necessary to stagger the decking because an insufficient amount ofdecking was on hand. (Tr. 242, 419-421.) Therefore, the respondent movedthe decking from one location to another on the floor in order toprotect the connectors working above the floor as required by 29 C.F.R.? 1926.750(b)(2)(i) [[27\/]] (Tr. 242, 327-328, 330, 420-421)The respondent argues. that 29 C.F.R. ? 1926.750(b)(l)(iii) does notrequire the installation (if a safety railing until a floor iscompletely decked. There is some testimony that tends to support therespondent’s position. (Tr. 152, 319-320, 613-614.) There is also sometestimony to the contrary. (Tr. 320-324, 327-330, 437.)Section 1926.750(b)(l)(iii) does not specify how much temporary flooringmust be in place before the safety railing must be installed. I rejectthe respondent’s argument and conclude that the respondent violated thestandard by not installing safety railings on the north and east sidesof the two floors.Government regulations and standards must be interpreted in a reasonablemanner.[[28\/]] Pointing out that the purpose of the standard is toprotect employees from falls at the perimeter of steel buildings, thecomplainant contends that ? 1926.750(b)(1)(iii) requires theinstallation of safety railings \”at the latest after deck is laid aroundthe periphery.\”[[29]] In my opinion, the complainant’s interpretation isfor more reasonable than that of the respondent,[[30\/]] particularlywhen viewed in light of the Occupational Safety and Health Act’s purposeof assuring employee safety so far as possible. [[31\/]] Moreover, Wardconceded that he usually installed safety railings while the temporaryflooring was being put down. (Tr. 415-416.) Of course, there wouldprobably be no violation of the standard if employees did not work nearan unguarded perimeter and were not likely to be near it In theperformance of job-related activities,[[32\/]] but that is not the case here.Since this violative condition was also in plain view, the respondentwould have known of that condition if it had exercised reasonablediligence. Therefore, the respondent possessed constructive knowledge ofthe violative condition.The fall distances from the second and third floors were 16 and a feet,respectively. (Tr. 184, 235.) If an employee did not suffer death fromfalling those distances, there is clearly a substantial probability thathe would incur serious physical harm in the form of fractures orlacerations. (Tr. 213.)_Item 5_Item 5 alleges that the respondent failed to maintain the flooringrequired by 29 C.F.R. ? 1926.750(b)(2)(i)[[33\/]] in the followingparticulars:North Side of Building, Second and Third Floors – Elevator shaft, 8 feetby 10 feet and 4 foot openings in metal decking. Employees walking andworking above openings and exposed to a fall of approximately sixty-onefeet . .A penalty of $800 is proposed for this item.Three of the respondent’s employees, while connecting steel atop thepenthouse on the north side of the building, were working above at leasttwo series of openings in the temporary floors on the second and thirdfloors through which they could have fallen 61 feet to the first floor.(Tr. 184, 246-251, 334, 341- 342; Exhs. C-35 through C-37.) The openingswere \”approximately three to four-foot\” in size. (Tr. 249.) An elevatorshaft was located on the third floor near the northeast corner of thebuilding. (Tr. 252-256; Exhs. C-38, C-39.) Another shaft was locateddirectly below it on the second floor. (Tr. 254-255.) The dimensions ofthese openings were about 8 by 10 feet. (Tr. 253.) At the roof level,two of the respondent’s connectors walked on beams that were directlyabove the elevator shaft openings. (Tr. 253-254, 338.) The fall distancefrom the roof through the openings to the first floor was 45 feet. (Tr.184, 255.) Therefore, the evidence[[34\/]] establishes that therespondent failed to maintain \”a tightly planked and substantial floor… within two stories or 30 feet … below and directly under\” tiers ofbeams on which its employees were working as required by 29 C.F.R. ?1926.750(b)(2)(i).The violative conditions again begin in plain view, the respondent wouldhave known of them if it had exercised reasonable diligence.Accordingly, the respondent’s constructive knowledge of the violativeconditions is established.Because of the absence of tightly planked and substantial floors, therespondent’s employees were actually exposed to falls varying from 45 to61 feet. Obviously, there is a substantial probability that a fall ofsuch a distance could result in death or serious physical harm. (Tr.213, 254-255.)_Penalties _The respondent has about 50 full-time regular employees, but it employsup to as many as 400 employees at times. (Tr. 386-387.) The respondenthad about 6 to 12 employees at the worksite involved in this case. (Tr.372.) There was no proof that any prior citations issued to therespondent had become final orders of the Commission, which is requiredto establish a history of prior violations. [[35\/]] (Tr. 199-201.)Ward’s failure to cooperate with the complainant’s inspector during theinspection reflects unfavorably on the respondent. (Tr. 172, 176,345-346.) However, the evidence tends to indicate that the respondentdoes not have an unusually excessive injury rate for its type of work.(Tr. 379- 382, 394-401.) Since October 1980, the respondent has beenstriving to improve its safety program through a new safety director.(Tr. 393, 431-433.) In my opinion, the proposed penalties for items 2through 5 are appropriate, particularly in view of the gravity of theviolations._Conclusions of Law_1. The Commission has jurisdiction over the case.2. The respondent did not violate 29 U.S.C. ? 654(a)(2) by failing tocomply with 29 C.F.R. ? 1926.105(a) or (c)(1).3. The respondent violated 29 U.S.C. ? 654(a)(2) by failing to complywith 29 C.F.R. ?? 1926.450(a)(9), 1926.450(a)(10), 1926.550(a)(9),1926.750(b)(l)(iii), and 1926.750(b)(2)(i).4. Considering the criteria contained in 29 U.S.C. ? 666(i) inconjunction with the entire record, the penalties proposed for items 2through 5 are appropriate.OrderItem 1 of Citation Number 1 is vacated. Items 2 through 5 of CitationNumber 1 are affirmed. A total penalty of $2,300 is assessed. GEORGE O. TAYLOR, Jr.Judge, OSHRCDated: January 20, 1982Hyattsville, MarylandFOOTNOTES:[[1]] See, e.g., Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377 (D.C.Cir. 1985); Donovan v. Adams Steel Erection Inc., 766 F2d 804 (3d Cir.1985); Donovan v. Daniel Marr & Son Co., 763 F.2d 477 (1st Cir. 1985). [[1\/]] The steel erection standard fit 29 C.F.R. ? 1926.750(b)(2)(i)requires that:Where skeleton steel erection is being done, a tightly planked andsubstantial floor shall be maintained within two stories or 30 feet,whichever is less, below and directly under that portion of each tier ofbeams on which any work is being performed, except when gathering andstacking temporary floor planks on a lower floor, in preparation fortransferring such planks for use on an upper floor. Where such a flooris not practicable, paragraph (b)(l)(ii) of this section applies.[[2\/]] Apparently the complainant did not contend that safety belts wererequired because the use of safety belts by steel connectors, ratherthen enhancing their safety, usually exposes them to a more hazardoussituation. (Tr. 104-105, 393- 384, 491, 493-4144, 570; Exh. R-1.)[[3\/]] It is unnecessary to examine the validity of this contention.Since the citation alleges a violation of the two standards in theconjunctive, I will consider whether the standards collectively requiredthe respondent to provide exterior safety nets. Obviously, if they donot collectively impose such a requirement, neither one of them can doso individually.[[4\/]] In his post-trial brief, the complainant cites a number of casesfor the proposition that OSHA has a national policy of enforcing 29C.F.R. ? 1926.105 with respect to steel erection. The cases cited by thecomplainant clearly do not establish a national policy of requiring theuse of exterior safety nets to protect connectors where an employer hascomplied with 29 C.F.R. ? 1926.750(b)(2)(i), supra at footnote 1, byinstalling temporary flooring within two stories or 30 feet below theconnectors. At best, the cases show that the complainant’s enforcementis slightly broader than the evidence at the trial reflected. Moreover,none of the cases address whether 29 C.F.R. ? 1926.105 provides fairnotice that exterior safety nets are required during steel erection,which is the critical issue in this case.[[5\/]] This standard, which is contained in Subpart R of thecomplainant’s construction standards, provides that:On buildings or structures not adaptable to temporary floors, and wherescaffolds are not used, safety nets shall be installed and maintainedwhenever the potential fall distance exceeds two stories or 25 feet. Thenets shall be hung with sufficient clearance to prevent contacts withthe surface of structures below. (Emphasis added.)Subpart R is entitled \”Steel Erection.\”[[6\/]] See footnote 1, supra.[[7\/]] See footnote 5, supra.[[8\/]] L.R. Willson & Sons, Inc., OSHRC Docket No. 80-5866 (November 16,1981)(on review); Skyline Crane Service, Inc., OSHRC Docket No. 80-1622(May 26, 1981) (on review).[[9\/]] S & H Riggers & Erectors, Inc. v. OSHRC, No. 79-2358 (5th Cir.,October 26, 1981).[[10\/]] Vicon Corp., OSHRC Docket No. 78-2923 (October 30,1981).[[11\/]] Sec footnote 1, supra.[[12\/]] See footnote 5, supra.[[13\/]] See Bethlehem Steel Corp., 81 OSAHRC 15\/A2 (No. 76-3444,1981).[[14\/]] Williams Enterprises, Inc., OSHRC Docket No. 79-843 (February14, 1980) (on review).[[15\/]] See S & H Riggers & Erectors, Inc., supra.[[16\/]] This ladder standard provides that:The side rails shall extend not less than 36 inches above the landing.When this is not practical, grab rails, which provide a secure grip foran employee moving to or from the point of access, shall be installed.[[17\/]] This standard provides that:Portable ladders in use shall be tied, blocked, or otherwise secured toprevent their being displaced.[[18\/]] Safety shoes are component parts on ladders, with one safetyshoe being attached to each of the two feet on a ladder. (Tr. 634.) Asafety shoe is \”a metal bracket . . . with a rubber pad underneath it \”It provides \”a better foundation\” and reduces the possibility ofslipping. (Tr. 362.)[[19\/]] It is unnecessary for me to resolve the conflicting evidence asto whether Lamb used the ladder to gain access to the second floor.Since the respondent created the violative condition and had controlover it, the respondent is responsible for the violation even thoughonly employees of other contractors used ladders to gain access to thesecond floor. Anning-Johnson Co., 76 OSAHRC 54\/A2 (No. 3694,1976).[[20\/]] Turner Welding & Erection Co., 80 OSAHRC 62\/A2 (No. 16235,1980).[[21\/]] Greene testified that a ladder with safety shoes can be\”otherwise secured\” within the meaning of ? 1926.450(a)(10). (Tr.617-618.) However, he admitted that safety shoes, did not provideadequate protection for ladders used to gain access to a floor. (Tr.615-616, 618, 631-633.) In my opinion, \”otherwise secured\” does notencompass a component part of a ladder and means some external measure.Nevertheless, my finding that the ladder was to gain access to thesecond floor makes the question moot.[[22\/]] This standard provides that:Accessible areas within the swing radius of the rear of the rotatingsuperstructure of the crane, either permanently or temporarily mounted,shall be barricaded in such a manner as to prevent an employee frombeing struck or crushed by the crane.[[23\/]] The testimony indicates that the employees were moving towards atrailer owned by the respondent. (Tr. 214-215, 217, 312, 422.) However,their reason for passing the crane is irrelevant, the dispositivequestion being whether the employees had access to the swing radius ofthe rotating superstructure of the crane.[[24\/]] Access to the zone of danger is sufficient to establish therequisite employee exposure. Gilles & Cotting, Inc. 76 OSAHRC 30\/D9 (No.504, 1976); Jensen Construction Co., 717 OSAHRC 201\/C6 (No. 14300, 1977).[[25\/]] This standard provides as follows:Floor periphery-safety railing. A safety railing of 1\/2-inch wire ropeor equal shall be installed, approximately 42 inches high, around theperiphery of all temporary-planked or temporary metal-decked floors oftier buildings and other multifloored structures during structural steelassembly.[[26\/]] The complainant’s inspector testified that this employee was onthe third floor. (Tr. 238.) However, I conclude on the basis of thephotographic evidence he was on the second floor. Complainant’s Exhibit34 shows temporary flooring on the floor on which the employee waswalking and also on the floor above him. Since there was no temporaryflooring on the roof (Exhs. C-22 through C-28) it is clear that theemployee was on the second floor.[[27\/]] See footnote 1, supra.[[28\/]] B & B Insulation, Inc v. OSHRC, 583 F.2d 1364 (5th Cir. 1978);Builders Steel Co. v. Marshall, 575 F.2d 663 (8th Cir. 1978).[[29\/]] The complainant also asserts that: \”Preferably, it could beplaced before the deck is laid.\” It is unnecessary to address thatcontention in this case in view of the factual situation.[[30\/]] A contrary conclusion in this case would allow steel erectors tointentionally avoid compliance with ? 1926.750(b)(1)(iii) simply by notinstalling complete temporary decking on a floor.[[31\/]] 29 U.S.C. ? 651(b).[[32\/]] Gilles & Cotting, Inc., supra.[[33\/]] For the contents of this standard, see footnote 1, supra.[[34\/]] There is also evidence that employees other than connectorswalked on beams over the openings (Tr. 333–334, 341-342: Exh. C-26.)[[35\/]] General Steel Fabricators, Inc., 77 OSAHRC 173\/F2 (No. 76-710,1977).”