“SECRETARY OF LABOR,Complainant,v.WILLIAMS ENTERPRISES, INC.,Respondent.OSHRC Docket No. 79-0843_DECISION_Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.CLEARY, Commissioner:A decision of Administrative Law Judge Joseph L. Chalk is before theCommission for review pursuant to section 12(j), 29 U.S.C. ? 661(i), ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678(\”the Act\”). Judge Chalk vacated the Secretary’s amended citation 1alleging that certain employees of Williams Enterprises, Inc. (\”WEI\”)engaged in the construction of a building were exposed to a 58-foot falldistance while moving metal decking over a platform that lackedguardrails, and WEI therefore failed to comply with the generalconstruction standard at 29 C.F.R. ? 1926.500(d)(1). Judge Chalk alsovacated the Secretary’s amended citation 2 alleging WEI’s willfulnoncompliance with both the steel erection standard at 29 C.F.R. ?1926.750(b)(2)(i) and the general construction standard at 29 C.F.R. ?1926.105(a) in that employees spreading metal decking on the structuralsteel framework of the building were not protected from varying falldistances by the use of both temporary flooring and safety belts. TheCommission vacates citation 1 and affirms citation 2 to the extentindicated below, assessing an $8100 penalty. IA.The Secretary began an inspection of WEI’s worksite at the DirksenSenate Office Building Annex in Washington, D.C. on October 2, 1978. The inspection was conducted by compliance officer (\”CO\”) John Wisemanand extended through January of 1979. The primary responsibility of WEIat the worksite, at which ten other contractors were also employed, wasto spread sheets of metal decking to be used as temporary flooring onthe building’s structural steel I-beams. The decking material wasprefabricated in lengths of anywhere from twelve to thirty feet asrequired by the building specifications. The material was three feet,three inches wide and was corrugated so that it would interlock withoutslipping while being spread out to form the temporary floors.Bundled quantities of decking were hoisted up to the different levels ofthe building by crane and stacked on the steel beams. WEI employeeswould remove decking from the hoisted bundles and carry itpiece-by-piece across beams that were four to twelve inches wide to theparticular areas where it was needed.The employees initially spread the decking loosely, without interlockingthe corrugated pieces, to form a temporary floor and offer protectionfor employees working on higher floor levels. The employees worked fromthe floor itself as the floor was being completed. Subsequently, theemployees returned to where the temporary decking had been laid to makethe decking tight and weld it to the building’s steel beams.On October 5 at about 8:10 a.m., the CO observed six WEI employeesspreading decking on the roof of the elevator machine room in thebuilding’s central wing. The employees were standing on steel beams orsheets of deck material and were not equipped with safety belts. Hadthey fallen, the employees could have fallen a distance of about fortyfeet because the area directly below them was open for that distance. The CO discussed the situation with WEI general foreman Rink (who haddirected the employees to work in that area) and foreman Eastep (who hadaccompanied the employees to their work area) and advised them that thesafety regulations required either a safety net or a solidly deckedfloor within thirty feet below the employees and that the employeescould also wear tied off safety belts while spreading decking.Subsequently, at about 9:30 a.m. on that same day, the CO noticedanother crew of WEI employees spreading decking on the third floor ofthe worksite near column lines 8 and K. The employees were not wearingsafety belts and were working in an area where they were exposed to a47-foot fall. The CO discussed the situation with the employees’foreman, King, who told the CO that WEI had no safety belts on the site. General foreman Rink subsequently joined the conversation between theCO and King and was told by the CO that planked floors or nets, as wellas safety belts, were required. Rink indicated he would attempt toacquire safety belts for the employees.On the morning of October 6, the CO observed WEI employees spreadingdecking by column EC-E10 on the building’s third floor. The employeeswere not wearing safety belts and were working in an area where theywere exposed to a 47-foot fall because neither a solidly decked floornor a safety net was below them. Foreman King, who supervised theemployees, told the CO that WEI did not yet have safety belts on theworksite.The CO continued his inspection at the worksite and, after determiningthat safety conditions were not significantly improving, drafted andposted an imminent danger notice there on October 11. On the followingday, the CO, his supervisor, and OSHA Area Director Esparza met with anumber of employers at the worksite to discuss safety hazards observedby the CO. WEI general foreman Rink attended the meeting and wasinformed by Esparza that his employees should wear tied off safetybelts. When safety conditions at the site still failed to improve, OSHAsought injunctive relief in federal court against WEI and anotheremployer at the sited. The inspection continued while the injunctionrequest, subsequently denied, was being litigated.On November 1, the CO noticed four WEI employees moving sheets of metaldecking across a bridge or platform formed by the interlocking of threeor four three-foot wide pieces of decking on the building’s fourthfloor. The platform did not have guardrails and bridged a 30-40 footlong area of beams. The employees walked within one foot of the edge ofthe platform and could have fallen 58 feet to the ground below. WEIforeman King worked with the employees during the time the CO wasobserving them.On January 11, 1979, the CO returned to the worksite and observed fourWEI employees spreading decking on the building’s fourth floor nearcolumn line EE-E7. The employees were not wearing tied off safetybelts and could have fallen eleven feet, nine inches to the floorbelow. The employees were supervised by foreman Wine. Wine wasobserved by the CO walking without a safety belt along a steel beam onthe building’s perimeter. Off the outside portion of the beam, therewas a clear fall distance of 58 feet. Off the inside portion of thebeam, there was a possible fall distance of 58 feet because the areabelow had not been completely decked over. After observing theseincidents, the CO discussed them with both Wine and Rink. Rink toldthe CO that the employees had been wearing safety belts but just had notput them on that particular day.B.Two citations issued to WEI as a result of the Secretary’s inspectionare before us for review. Serious citation 1 alleged noncompliance withthe standard at section 1926.500(d)(1)[[1\/]] in that employees wereexposed to a 58-foot fall distance while moving decking over a platformthat lacked standard guardrails. A $720 penalty was proposed. Willfulcitation 2 alleged noncompliance with sections 1926.28(a)[[2\/]] and1926.105(a)[[3\/]] in that employees in the four following areas were notprotected against falls of over 25 feet by either nets, ladders, safetybelts, or other appropriate personal protective equipment: (a) Thirdfloor near 8 line and K – 47-foot fall distance, (b) Third floor nearcolumn EC-E10 – 47-foot fall distance, (c) Fourth floor near columnEE-E7 – 58-foot fall distance. Following subitems (a), (b), and (c) ofcitation 2 were the terms \”OR, IN THE ALTERNATIVE\” and a separateallegation citing noncompliance with section 1926.750(b)(2)(i)[[4\/]] inthat a tightly planked floor was not maintained within two stories underemployees placing decking on the roof of the elevator machine room wherethere was a potential 40-foot fall distance. The proposed penalty forall of citation 2 was $8100.By his complaint, the Secretary amended willful citation 2 toalternatively allege that the citation was serious and to delete hisallegations of noncompliance with section 1926.28(a). He also madecertain other housekeeping and substantive amendments to citation 2which resulted in the following allegations:Subitem (a) alleged noncompliance with sections 1926.105(a) and1926.750(b)(2)(i) in that employees on the third floor near 8 line and Kwere not protected from a 47-foot fall distance by either a net, safetybelts, or other appropriate personal protective equipment, and by theuse of a substantial floor no more than 30 feet below them.Subitem (b) alleged noncompliance with sections 1926.105(a) and1926.750(b)(2)(i) in that employees on the third floor near columnEC-E10 were not protected from a 47-foot fall distance by either a net,safety belts, or other appropriate personal protective equipment, and bythe use of a substantial floor no more than 30 feet below them.Subitem (c) alleged noncompliance with sections 1926.105(a) and1926.750(b)(2)(i) in that employees on the fourth floor near columnEE-E7 were not protected from a 58-foot fall distance by the use ofnets, safety belts, or other protective equipment, and by the use of asubstantial floor no more than 30 feet below them.Subitem (d) alleged noncompliance with sections 1926.105(a) and1926.750(b)(2)(i) in that employees spreading decking on the roof of theelevator machine room were not protected from a 40-foot fall distance bythe use of nets, safety belts, or other protective equipment, and by theuse of a substantial floor no more than 30 feet below them.The Secretary later moved for, and the judge granted, the followingamendments to citations 1 and 2: (a) citation 1 was amended to awillful and\/or repeated, alternatively serious, citation with a proposed$2880 penalty, and (b) citation 2 was amended to a willful and\/orrepeated, alternatively serious, citation. Further, at the conclusionof the hearing, the Secretary moved to amend subitem (c) of citation 2to conform to the evidence presented and allege noncompliance withsection 1926.28(a) in that certain employees observed by the CO workedwhile not wearing safety belts 11 feet, 9 inches above a temporaryfloor. The judge took the motion under advisement.C.Judge Chalk vacated both citations 1 and 2. In discussing citation 1,the judge found that the facts were essentially as the Secretary allegedthem and that, further, WEI employees had moved decking across unguardedplatform on at least four other occasions. The judge vacated citation1, however, after agreeing with the testimony of WEI’s president,Williams, that cited section 1926.500(d)(1) was not applicable toskeleton steel erection and that the standard could only apply tobuildings with floors already in place. The judge found support forthat interpretation of the standard in the Commission decision in AshtonCo., 76 OSAHRC 6\/B11, 3 BNA OSHC 1968, 1975-76 CCH OSHD ? 20,351 (No.5111, 1976). The judge also observed that if the employees had not usedthe platform to bridge the open area they would have had to transportthe decking by walking on the beams, which were as narrow as four incheswide, that framed the opening.In discussing citation 2, Judge Chalk noted that the CO’s position wasthat deckers were required to wear safety belts and lanyards even iftemporary flooring was in place two floors beneath them. The judgenoted, however, that the testimony of witnesses with many years ofindustry experience established that the use of safety belts by deckersimpeded work progress, was impossible, and was more hazardous than notwearing the belts. Further, industry practice was to spread deckingwithout wearing tied-off safety belts or using other protectivedevices. The judge noted that WEI’s president Williams had testifiedthat since Subpart R [[5\/]] did not require belts for deckers, beltswere not required here. The judge found implied support for Williams’views from Subpart R’s limited mandate under section 1926.750(b)(2)(iii)that safety belts be used by employees gathering and stacking temporaryplanking, a task unrelated to decking. The judge stated that if WEI’sevidence about the impossibility and hazards of safety belt use bydeckers was creditable, it was logical to conclude that the safety beltrequirement the Secretary would impose in this case was purposelyomitted from Subpart R. Because he concluded that Subpart R hadpurposely omitted a safety belt requirement for deckers, the judge heldthat no safety belt requirement from any other part of the OSHAstandards could be super-imposed in its place.The judge accepted the testimony of WEI president Williams that it wasmore dangerous for deckers to install safety nets than it was fordeckers to work without nets. The judge also pointed out that unionbusiness agent Walker had agreed with Williams’ testimony that it tookabout the same amount of time to hang a safety net as it did to spreaddecking.With respect to the alleged lack of temporary flooring, the judgeresolved the merits of the section 1926.750(b)(2)(i) allegations byfinding that WEI could not have complied with the standard in this casebecause of the building’s numerous open gallery areas, some of whichextended from the building’s basement to its roof. The judge furtherfound that walking on beams unprotected by temporary floors, safetynets, or safety belts was a necessary and proper adjunct to the deckingprocess engaged in by WEI’s employees.D.The Secretary petitioned for review, taking exception to the judge’sorder vacating citations 1 and 2. Commissioner Cottine directed reviewon all of the issues raised by the petition including:1. Whether the judge erred in vacating citation no. 1 on the groundsthat cited standard section 1926.500(d)(1) is inapplicable to skeletonsteel erection.2. Whether the judge erred in vacating citation no. 2, allegingnoncompliance with section 1926.750(b)(2)(i) or, alternatively, section1926.105(a), on the grounds that (a) compliance with the flooringrequirements of the former standard would be impossible, (b) no othermeans of protection was available, and (c) the use of safety nets orsafety belts would be hazardous.3. Whether the judge erred in vacating citation no. 2 on the furtherground that a safety belt requirement was purposely omitted from steelerection Subpart R and no other safety belt requirement can besuperimposed in its place.4. Whether the judge erred in failing to issue a cease and desist orderfor the allegedly noncomplying conditions specified in citations 1 and 2.E.The major argument presented in the Secretary’s review brief is that WEIis subject to all the OSHA construction safety standards, not just thosefound in Subpart R dealing with steel erection. The Secretary arguesthat the general construction safety standards must apply to steelerectors to provide those employees with any meaningful protection underthe Act. In support of his argument, the Secretary cites the FourthCircuit Court of Appeal’s decision in Bristol Steel & Iron Works v.OSHRC, 601 F.2d 717 (4th Cir. 1979).WEI’s primary contentions on review are, with respect to citation 1,that section 1926.500(d)(1) does not apply to steel erection and, withrespect to citation 2, that the Secretary’s section 1926.28(a) amendmentmotion should be denied because amendment would deprive WEI of dueprocess, but that, in any event, the Secretary did not prove that safetybelts should have been used. WEI also argues that section 1926.105(a)does not apply to safety belts but instead applies to safety nets, andthat the Secretary did not prove noncompliance with either section1926.105(a) or section 1926.750(b)(2)(i).II.A.Employees engaged in structural steel erection are exposed to obviousfall hazards, and many employees have been killed during such work. See, e.g., Daniel Construction Co., 77 OSAHRC 21\/A2, 5 BNA OSHC 1005,1976-77 CCH OSHD ? 21,521 (No. 7672, 1977). The Secretary haspromulgated standards designed to protect against fall hazards. Hecontends that the steel erection standards in Subpart R are not the onlystandards applicable to steel erectors and that fall protectionstandards applicable to general construction work supplement the fallprotection standards in Subpart R. In this case, the Secretary contendsthat the employees of WEI should have been protected by standardguardrails while working on a temporary platform, and by safety belts aswell as temporary floors while working to spread decking in areas wherethey were exposed to fall distances of 30 feet or more. The safetystandards requiring guardrail and safety belt protection cited by theSecretary are both a part of the general construction standards, notSubpart R. The threshold issue is, therefore, whether Subpart R isexclusive and therefore precludes steelworkers from being afforded thefall protection required by safety standards located outside Subpart R.The courts that have addressed this problem have held that the steelerection standards in Subpart R are not exclusive. In L.R. Willson &Sons v. Donovan, 685 F.2d 664 (D.C. Cir. 1982), the court stated:We think it clear from the plain language employed in section 1910.5(c)[[6\/]] that the general standards apply to all hazards native to thesteel erection industry unless a specific standard in Subpart R setsforth a different mandatory or preferred method for protecting againstthe particular hazard in question.685 F.2d at 669. The Fourth Circuit, as the Secretary argues, hasreached a similar conclusion:The [steel erection standards] . . . . , while providing safetyprotection to employees engaged in steel erections, cannot achieve thegoal of adequately protecting those employees in every conceivablesituation. Infinite hypotheticals can be envisioned in which employeesengaged in steel erection would be exposed to an unnecessary hazard notcovered by a Subpart R specific safety standard.Bristol Steel & Iron Works v. OSHRC, 601 F.2d at 721-22.In another case before the U.S. Court of Appeals for the District ofColumbia, also involving L.R. Willson & Sons, the court found the FourthCircuit’s reasoning persuasive and held:Section 1926.750(b) does not specify the measures required of employersto protect workers in the structural steel industry from hazardous fallsof less than 30 feet and it is beyond question that falls of less than30 feet can cause \”serious physical harm.\” Accordingly, the scheme ofthe regulations permitted the Secretary to cite Willson for a violationof section 1926.28(a) for failing to protect its workers from the riskof a hazardous fall of 24 feet.L.R. Willson & Sons v. OSHRC, 698 F.2d 507, 512 (D.C. Cir. 1983). These court decisions have properly resolved the issue. The fallprotection provisions in the steel erection standards are obviouslydirected at several specific situations rather than at the generalproblems of providing fall protection during all steel erection work. Indeed, the steel erection standard in citation 2 here, section1926.750(b)(2)(i), is a perfect illustration. The latter standardrequires a temporary floor within 30 feet of the tier of beams on whichemployees are working. This standard does not, however, provideprotection for employees that fall to the exterior of the building andoffers only limited protection for employees that fall 30 feet to theinterior of a building onto temporary metal flooring. There is nothingin the steel erection standards which suggests that the Secretaryintended to deny to steel erectors feasible protection otherwiseavailable, that is, available outside Subpart R, against falling 30 feetto a temporary floor on the interior of a building or to the groundoutside a building. Consequently, where general standards providemeaningful protection to employees beyond the protection afforded by thesteel erection standards, the general standards apply to steel erectionwork. This does not mean, however, as the balance of this opinion willshow, that the Secretary can indiscriminately cite employers engaged insteel erection under any general construction standard.B.In citation 1, the Secretary has cited WEI for noncompliance withsection 1926.500(d)(1) because certain of its employees were exposed toa 58-foot fall distance while moving decking over a \”platform\” thatlacked standard guardrails. The Commission has recognized, ininterpreting standards requiring the guarding of platforms, that notevery surface on which an employee may stand during the course of hiswork is a \”platform\” within the meaning of such standards. GlobeIndustries, 82 OSAHRC 40\/D6, 10 BNA OSHC 1596, 1982 CCH OSHD ? 26,048(No. 77-4143, 1982); General Electric Co., 81 OSAHRC 97\/D6, 10 BNA OSHC1144, 1981 CCH OSHD ? 25,736 (No. 76-2879, 1981); Rexco Industries, 80OSAHRC 32\/A2, 8 BNA OSHC 1227, 1980 CCH OSHD ? 24,376 (No. 15350,1980). Instead, such standards must be given a reasonableinterpretation based on the facts of each case. General Electric Co. v.OSHRC, 583 F.2d 61 (2d. Cir. 1978); Globe Industries, supra.The alleged \”platform\” in this case consisted of several sheets ofinterlocked temporary metal decking. At the time of the allegedviolation, WEI’s employees were moving other sheets of temporary deckingacross this \”platform.\”Clearly, it would be unreasonable to apply the platform guardingrequirement of section 1926.500(d)(1) to the work of spreading temporarydecking during steel erection. Such work, by its nature, requires thebrief presence of employees on various surfaces, including thebuilding’s structural steel framework and the very temporary deckingbeing spread by the employees. To regard each of such surfaces asplatforms that require guarding would mean that, as the work progresses,each piece of decking on which employees stood to place the next pieceof decking would have to be guarded. Such a requirement would not onlybe infeasible, but would also unnecessarily expose employees to fallhazards for the time involved in erecting guardrails. Thus, the use byemployees of interlocked temporary decking sections as working surfacesfrom which to install or transport other sections of decking does notconvert those working surfaces into platforms within the meaning ofsection 1926.500(d)(1). Further, section 1926.750(b)(1)(iii)[[7\/]]specifically requires the installation of 1\/2-inch wire rope safetyrailings around the periphery of temporary metal decked floors. Inlight of the fact that the \”platform\” being used by the employeesconsisted of temporary metal decking, it would be improper to apply themore general standard at section 1926.500(d)(1) here. Ashton Co.,supra. Consequently, citation 1 is vacated.C.With respect to citation 2 and the allegations made in subitems (a),(b), and (d) of noncompliance with section 1926.750(b)(2)(i) for WEI’sfailure to use temporary floors to protect its employees from interiorfalls of 30 feet or more, WEI argues generally that the Secretary failedto present evidence of a violation. WEI also argues, specifically inregard to subitems (a) and (b), that no flooring was placed between theemployees and the ground because no flooring had been planned for thatarea until the building reached the level on which the employees workedand that the employees observed by the CO were laying decking as asafety precaution to protect employees working on higher levels. WEI’sarguments are rejected because they do not rebut the prima facie case ofnocompliance with section 1926.750(b)(2)(i) established by the testimonyof the CO that employees worked without the protection of temporaryfloors that should have been placed within 30 feet beneath them. Further, with respect to WEI’s argument directed at subitems (a) and (b)that its employees were only laying decking to protect employees workingon higher levels, the Commission has held that employees must beprotected even while they are in the process of installing safetyprotection. See Floyd S. Pike Electrical Contractor, Inc., 77 OSAHRC26\/B11, 5 BNA OSHC 1088, 1977-78 CCH OSHD ? 21,584 (No. 12398, 1977),aff’d, 576 F.2d 72 (5th Cir. 1978). WEI should therefore have placed atemporary floor within 30 feet beneath where it knew its employees wouldwork. Also, the judge erred in finding that WEI could not have compliedwith section 1926.750(b)(2)(i) because of the building’s numerous opengallery areas. Although WEI did introduce general evidence about theexistence of gallery areas in the building, such general evidence failedto establish that temporary floors could not have been placed beneaththe employees working in the particular area specified by subitems (a),(b), and (d). Further, photographic evidence of the area cited insubitem (b) reveals that the employees could have been protected by theuse of temporary floors.[[8\/]] Consequently, WEI failed to comply withsection 1926.750 (b)(2)(i) in subitems (a), (b), and (d) of citation 2where interior falls of 30 feet or more are alleged.D.The Secretary has also alleged noncompliance with section 1926.105(a) insubitems (a), (b), and (d) of citation 2 for WEI’s failure to assurethat employees used safety belts, along with temporary floors or safetynets, to protect against interior falls of 30 or more feet. Althoughtemporary floors are better than no protection at all for steel workers,the protection they offer is minimal and does not provide employees withthe protection they need against serious injury should they fall 30 feetto temporary floors. Therefore, the protection offered by section1926.750(b)(2)(i) may be supplemented by the protection offered in anyappropriate safety standard found outside Subpart R. L.R. Willson &Sons v. Donovan, supra; Bristol Steel & Iron Works v. OSHRC, supra; seealso L.R. Willson & Sons v. OSHRC, supra. The cited section1926.105(a), however, is not an appropriate standard for the protectionof the employees here against interior falls because the standard wouldmerely duplicate the protection offered by section 1926.750(b)(2)(i),under which standard violations have already been found. Both section1926.105(a) and section 1926.750(b)(2)(i) look to floors as preferredmethods of protection from falls and safety nets as alternative means offall protection when floors are not practicable (section1926.750(b)(2)(i)) or are impractical (section 1926.105(a)).[[9\/]] SeeS & H Riggers and Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260,1261, 1979 CCH OSHD ? 23,480 at p. 28,434 (No. 15855, 1979), rev’d onother grounds, 659 F.2d 1273 (5th Cir. 1981). As determined above,floors could and should have been provided to protect the employeesinvolved in subitems (a), (b), and (d). Therefore, the Secretary’sallegations involve the failure to use safety belts to protect employeesagainst interior falls, are vacated.Protecting WEI’s employees from 30-foot falls to temporary floors wouldhave been most appropriately attained by the use of safety belts. SeeL.R. Willson & Sons v. OSHRC, supra. By citing WEI for noncompliancewith sections 1926.750(b)(2)(i) and 1926.105(a), this is what theSecretary attempted to do. The Secretary erred, however, in citing tosection 1926.105(a) instead of section 1926.28(a).[[10\/]] The lattersection requires that safety belts be used whenever a reasonable personfamiliar with the facts, including any facts unique to a particularindustry, would recognize a hazard warranting their use. S & H Riggersand Erectors, Inc., 7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436. Although the Secretary originally included a section 1926.28(a)allegation in citation 2 as to the interior falls of 30 feet or more, hedeleted the allegation in his original complaint, and did not seek torestore it in his amended complaint. Thus, although WEI may well haveviolated section 1926.28(a) as well as section 1926.750(b)(2)(i), thatquestion is not before us in this case.E.Subpart (c) of citation 2 alleges noncompliance with section1926.750(b)(2)(i) for WEI’s failure to use temporary floors andnoncompliance with section 1926.105(a) for WEI’s failure to use safetybelts to protect (1) a group of employees working without protection 11feet, 9 inches above a temporary floor and (2) foreman Wine workingwithout protection on building perimeter beams 58 feet above theground. The Secretary seeks to amend the portion of subitem (c)involving the employees working 11 feet, 9 inches above a temporaryfloor to allege noncompliance with the more appropriate safety beltstandard for that fall distance, section 1926.28(a).The Secretary’s motion to amend to section 1926.28(a) is denied. Asmentioned above, the Secretary’s citation 2 originally included asection 1926.28(a) allegation, but that allegation was deleted from theSecretary’s subsequently-issued complaint. The Secretary failed toreinstate the section 1926.28(a) allegation in his amended complaint andspecifically stated in the pre-hearing deposition of the CO that he wasabandoning the section 1926.28(a) allegation. Further, the Secretaryremained silent at the beginning of the hearing when the judge statedthat the Secretary had deleted the allegation from the case. TheSecretary did not seek to reinstate the allegation until the end of thehearing and then only with respect to the employees subject to the11-foot, 9-inch fall distance. WEI was not, therefore, put on noticethat the appropriateness of safety belts to protect against 11-foot,9-inch falls would be at issue during the hearing. WEI would beprejudiced if amendment were allowed. Also, WEI did not fail to complywith either section 1926.750(b)(2)(i) or section 1926.105(a) as to theemployees unprotected at the 11-foot, 9-inch fall distance because thatfall distance is less than the fall distances against which the citedstandards require fall protection.WEI has, however, failed to comply with both sections 1926.750(b)(2)(i)and 1926.105(a) in regard to foreman Wine, who was observed standingwithout protection on perimeter beams where he could either have fallen58 feet to the ground on the interior of the building because there wasno temporary flooring beneath him or 58 feet to the ground on theoutside of the building because he was not wearing a safety belt andthere was not a safety net on the building’s perimeter. WEI advancesthe same arguments in regard to the section 1926.750(b)(2)(i) allegationhere as it did in regard to the section 1926.750(b)(2)(i) allegationsmade in subitems (a), (b), and (d) above. The arguments are rejectedfor the reasons outlined above. Also, photographic evidence establishesthat Wine could have been protected from a 58-foot fall to the ground onthe building’s interior by the installation of temporary flooring within30 feet beneath him.Further, the Secretary made out a prima facie case that WEI violatedsection 1926.105(a) by proving that none of the means of fall protectionspecified in section 1926.105(a) were used to protect Wine against anexterior fall to the ground of 58 feet. Southern Colorado PrestressCo. v. Marshall, 586 F.2d 1342 (10th Cir. 1978). The CO testified thatWine should have been protected with a safety belt that could have beenattached to a static line or, if there were a perimeter cable in thearea, Wine could have snapped his belt to the cable and walked theentire length of the beam.WEI defends by arguing that the CO’s testimony is irrelevant because WEIhas not been charged with noncompliance of any standard involving theuse of safety belts or cables. WEI also argues that section1926.750(b)(1)(iii), note 7 supra, does not require a perimeter cableuntil the floor on any particular building level has been fully decked. The level on which the employee here worked was not yet fully decked.WEI’s arguments are rejected. Section 1926.105(a) may appropriately beapplied here to require safety belt protection against the exterior fallhazard because the temporary floor requirement of section1926.750(b)(2)(i) would not have protected Wine from a fall to theoutside of the building. Further, WEI’s section 1926.750(b)(1)(iii)argument is inapposite. WEI was required to afford Wine fallprotection. Since the use of a safety belt as fall protection wouldhave required installation of a static line or perimeter cable to whichthe safety belt could have been attached, WEI was required to installthe static line or perimeter cable in time for its use by Wine as asafety belt tying off point. [[11\/]]IIIThe Secretary argues that citation 2 should be characterized as willful,and the record amply supports such a characterization. The allegationsmade in the four subitems of citation 2 relate to events which occurredon October 5 and 6, 1978: November 1, 1978; and January 11, 1979. OnOctober 5, 1978, the CO observed employees and their foreman, Eastep,working without the protection of temporary floors or safety belts. The CO spoke to both Eastep and WEI’s project general foreman, Rink,about the violation and advised them to provide temporary floors withintwo stories of where employees worked. Later that same day, the COobserved WEI foreman King and his crew of employees working without theprotection of temporary floors or belts. The CO discussed the problemwith King in a conversation which was subsequently joined by Rink. Onthe very next day, the CO again observed King and his crew workingwithout protection. The CO again spoke with King.The situation did not significantly improve thereafter, however, and theCO continued to witness similarly violative conditions. On October 11,therefore, the CO posted an imminent danger notice at the jobsite. Hewarned employees and supervisors about the violative conditions andurged their correction; similarly violative conditions continued toappear, however. After spending a period of time away from the jobsite,the CO subsequently returned to it and on January 11, 1979 observed WEIsupervisor Wine working without the protection of a temporary floor,safety belt, or safety net. The CO spoke to Wine and general foremanRink about correcting the recurring problem.In addition, the Secretary presented testimony from a number ofemployees who had worked at the jobsite for WEI during the period ofinspection. Those employees all testified that they frequently workedwithout the protection of temporary floors or safety belts, usually inthe presence of their supervisors. Thus, because the facts clearlyestablish WEI intentionally disregarded the terms of the cited standard,citation 2 is willful. See Mel Jarvis Construction Co., 81 OSAHRC89\/B13, 10 BNA OSHC 1052, 1981 CCH OSHD ? 25,713 (No. 77-2100, 1981).An $8,100 penalty is assessed for citation 2. WEI is a large employerwith a history of past violations of the Act. The gravity of thenoncomplying instances in citation 2 was high because employees workedmany feet above the ground without fall protection. Further, WEI wasdeficient in good faith because it essentially refused to protect itsemployees after being advised on numerous occasions of what was requiredto protect them. Also relevant to WEI’s deficiencies in the area ofgood faith is its operation of the jobsite under a general foreman,Rink, who lacked safety training. Rink testified that he had never beengiven any training by WEI or anyone else on the contents of the OSHAsafety standards and that he had never discussed employee safety withWEI president Williams or WEI supervisory employees. Rink was WEI’ssenior supervisor at the jobsite and was present daily.IVThe Secretary also contends that the judge improperly failed to grantthe Secretary’s request for a cease and desist order under Section 10(c)of the Act. Assuming, without deciding, that the Commission hasauthority to grant such an order, the Secretary has failed todemonstrate the appropriateness of such an extraordinary remedy to acase involving a construction site where WEI’s responsibilities for theinstallation of temporary flooring have ended. See Wright and Lopez,Inc., 80 OSAHRC 36\/A2, 8 BNA OSHC 1261, 1980 CCH OSHD ? 24,419 (No.76-3743, 1980).Accordingly, citation 1 is vacated. Citation 2, subitems (a), (b), and(d) are affirmed insofar as they allege noncompliance with section1926.750(b)(2)(i) for the failure to use temporary floors to protectemployees from interior fall distances of 30 feet or more and vacatedinsofar as they allege noncompliance with section 1926.105(a) for thefailure of employees to wear safety belts. Subitem (c) of citation 2 isvacated insofar as it alleges noncompliance with sections 1926.105(a)and 1926.750(b)(2)(i) for the failure to protect employees from a fallof 11 feet, 9 inches. The Secretary’s motion to amend the foregoingportion of subitem (c) to allege noncompliance with section 1926.28(a)is denied. Subitem (c) is affirmed insofar as it alleges noncompliancewith section 1926.750(b)(2)(i) for the failure to use temporary flooringand noncompliance with section 1926.105(a) for the failure to use asafety belt to protect foreman Wine from interior and exterior falls of58 feet. Citation 2 is designated willful and an $8,100 penalty isassessed. The Secretary’s request for a cease and desist order is denied.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 onefrom our 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 at ? 1926.500(d)(1) provides:? 1926.500 Guardrails, handrails, and covers.* * *(d) Guarding of open-sided floors, platforms, and runways.(1) Every open-sided floor or platform 6 feet or more above adjacentfloor or ground level shall be guarded by a standard railing, or theequivalent as specified in paragraph (f)(1)(i) of this section, on allopen sides, except where there is entrance to a ramp, stairway, or fixedladder. The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials couldcreate a hazard.[[2\/]] The standard at ? 1926.28(a) provides:? 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.[[3\/]] The standard at ? 1926.105(a) provides:? 1926.105 Safety nets.(a) Safety nets shall be provided when workplaces are more than 25 feetabove the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, orsafety belts is impractical.[[4\/]] The standard at ? 1926.750(b)(2)(i) provides:? 1926.750 Flooring requirements.* * *(b) Temporary flooring–skeleton steel construction in tiered buildings.(2)(i) Where skeleton steel erection is being done, a tightly plankedand substantial 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)(1)(ii) or this section applies.[[5\/]] Subpart R, entitled \”Steel Erection,\” is that portion of theconstruction standards found at 29 C.F.R. ?? 1926.750-1926.752 whichcontains standards specifically applicable to steel work.[[6\/]] Section 1910.5(c) provides:? 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. For example, ? 1501.23(c)(3) of this title prescribes personalprotective equipment for certain ship repairmen working in specifiedareas. Such a standard shall apply, and shall not be deemed modifiednor superseded by any different general standard whose provisions mightotherwise be applicable, to the ship repairmen working in the areasspecified in ? 1915.23(c)(3).(2) On the other hand, any standard shall apply according to its termsto any employment and place of employment in any industry, even thoughparticular standards are also prescribed for the industry, as in SubpartB or Subpart R of this part, to the extent that none of such particularstandards applies. To illustrate, the general standard regarding noiseexposure in ? 1910.95 applies to employments and places of employment inpulp, paper, and paperboard mills covered by ? 1910.261.[[7\/]] The standard at ? 1926.750(b)(1)(iii) provides:? 1926.750 Flooring requirements.(b) Temporary flooring–skeleton steel construction in tiered buildings. (1)* * *(iii) Floor periphery–safety railing. A safety railing on 1\/2-inchwire rope or equal shall be installed, approximately 42 inches high,around the periphery of a temporary-planked or temporary metal-deckedfloors of tier buildings and other multifloored structures duringstructural steel assembly.[[8\/]] The photographic evidence depicting the areas involved insubitems (a) and (d) does not show the area beneath the employees whereflooring should have been placed.[[9\/]] Section 1926.750(b)(2)(i), note 4 supra, provides that section1926.750(b)(1)(ii) applies when temporary floors are not practicable. The latter section mandates that, on buildings or structures notadaptable to temporary floors, safety nets must be used whenever thepotential fall distance exceeds 25 feet. Thus, under section 1926.750,floors must be installed within 30 feet or, if not practicable, netsmust be used to limit the potential fall to 25 feet. Under section1926.105(a), falls must be limited to 25 feet in all cases; if temporaryfloors, ladders scaffolds, catch platforms, safety lines, or safetybelts are not practical, safety nets must be used.[[10\/]] The Secretary elected to proceed under ? 1926.105(a) rather than? 1926.28(a) stating that the former standard is more specificallyapplicable to falls of more than 25 feet than the latter. However, ?1926.105(a) is not more specifically applicable, even when the heightrequirement is satisfied, than a standard requiring the use of safetybelts in the first instance. S & H Riggers and Erectors, Inc., supra.[[11\/]] The CO’s testimony established that the installation of a cablecould have been effected with significantly less danger than thatpresented by Wine’s standing erect on the perimeter beams without anyprotection. An employee could have \”walked\” a horizontal perimeter beamby placing his feet on the lower flange of the beam and grasping thebeam’s top flange with his hands (a process sometimes referred to as\”cooning\” a beam). The employee would coon the horizontal beam betweentwo vertical steel columns and on reaching the columns attach a staticline to them. Once installed, the line could serve as a point to whichsafety belts and lanyards would be attached. “