“Docket No. 79-0843 SECRETARY OF LABOR,Complainant,v.WILLIAMS ENTERPRISES, INC.,Respondent.OSHRC Docket No. 79-0843DECISIONBefore:\u00a0 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), of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 JudgeChalk vacated the Secretary’s amended citation 1 alleging that certain employees ofWilliams Enterprises, Inc. (\”WEI\”) engaged in the construction of a buildingwere exposed to a 58-foot fall distance while moving metal decking over a platform thatlacked guardrails, and WEI therefore failed to comply with the general constructionstandard at 29 C.F.R. ? 1926.500(d)(1).\u00a0 Judge Chalk also vacated the Secretary’samended citation 2 alleging WEI’s willful noncompliance with both the steel erectionstandard at 29 C.F.R. ? 1926.750(b)(2)(i) and the general construction standard at 29C.F.R. ? 1926.105(a) in that employees spreading metal decking on the structural steelframework of the building were not protected from varying fall distances by the use ofboth temporary flooring and safety belts.\u00a0 The Commission vacates citation 1 andaffirms citation 2 to the extent indicated below, assessing an $8100 penalty.\u00a0 IA.The Secretary began an inspection of WEI’s worksite at the Dirksen SenateOffice Building Annex in Washington, D.C. on October 2, 1978.\u00a0 The inspection wasconducted by compliance officer (\”CO\”) John Wiseman and extended through Januaryof 1979.\u00a0 The primary responsibility of WEI at the worksite, at which ten othercontractors were also employed, was to spread sheets of metal decking to be used astemporary flooring on the building’s structural steel I-beams.\u00a0 The decking materialwas prefabricated in lengths of anywhere from twelve to thirty feet as required by thebuilding specifications.\u00a0 The material was three feet, three inches wide and wascorrugated so that it would interlock without slipping while being spread out to form thetemporary floors.Bundled quantities of decking were hoisted up to the different levels of thebuilding by crane and stacked on the steel beams.\u00a0 WEI employees would remove deckingfrom the hoisted bundles and carry it piece-by-piece across beams that were four to twelveinches wide to the particular areas where it was needed.The employees initially spread the decking loosely, without interlocking thecorrugated pieces, to form a temporary floor and offer protection for employees working onhigher floor levels.\u00a0 The employees worked from the floor itself as the floor wasbeing completed.\u00a0 Subsequently, the employees returned to where the temporary deckinghad been laid to make the 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 employees spreadingdecking on the roof of the elevator machine room in the building’s central wing.\u00a0 Theemployees were standing on steel beams or sheets of deck material and were not equippedwith safety belts.\u00a0 Had they fallen, the employees could have fallen a distance ofabout forty feet because the area directly below them was open for that distance. \u00a0The CO discussed the situation with WEI general foreman Rink (who had directed theemployees to work in that area) and foreman Eastep (who had accompanied the employees totheir work area) and advised them that the safety regulations required either a safety netor a solidly decked floor 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 noticed anothercrew of WEI employees spreading decking on the third floor of the worksite near columnlines 8 and K.\u00a0 The employees were not wearing safety belts and were working in anarea where they were exposed to a 47-foot fall.\u00a0 The CO discussed the situation withthe employees’ foreman, King, who told the CO that WEI had no safety belts on the site.\u00a0 General foreman Rink subsequently joined the conversation between the CO and Kingand was told by the CO that planked floors or nets, as well as safety belts, wererequired.\u00a0 Rink indicated he would attempt to acquire safety belts for the employees.On the morning of October 6, the CO observed WEI employees spreading deckingby column EC-E10 on the building’s third floor.\u00a0 The employees were not wearingsafety belts and were working in an area where they were exposed to a 47-foot fall becauseneither a solidly decked floor nor a safety net was below them.\u00a0 Foreman King, whosupervised the employees, told the CO that WEI did not yet have safety belts on theworksite.The CO continued his inspection at the worksite and, after determining thatsafety conditions were not significantly improving, drafted and posted an imminent dangernotice there on October 11.\u00a0 On the following day, the CO, his supervisor, and OSHAArea Director Esparza met with a number of employers at the worksite to discuss safetyhazards observed by the CO.\u00a0 WEI general foreman Rink attended the meeting and wasinformed by Esparza that his employees should wear tied off safety belts.\u00a0 Whensafety conditions at the site still failed to improve, OSHA sought injunctive relief infederal court against WEI and another employer at the sited.\u00a0 The inspectioncontinued while the injunction request, 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 three or four three-footwide pieces of decking on the building’s fourth floor.\u00a0 The platform did not haveguardrails and bridged a 30-40 foot long area of beams.\u00a0 The employees walked withinone foot of the edge of the platform and could have fallen 58 feet to the ground below.\u00a0 WEI foreman King worked with the employees during the time the CO was observingthem.On January 11, 1979, the CO returned to the worksite and observed four WEIemployees spreading decking on the building’s fourth floor near column line EE-E7. \u00a0The employees were not wearing tied off safety belts and could have fallen eleven feet,nine inches to the floor below.\u00a0 The employees were supervised by foreman Wine.\u00a0 Wine was observed by the CO walking without a safety belt along a steel beam on thebuilding’s perimeter.\u00a0 Off the outside portion of the beam, there was a clear falldistance of 58 feet.\u00a0 Off the inside portion of the beam, there was a possible falldistance of 58 feet because the area below had not been completely decked over. \u00a0After observing these incidents, the CO discussed them with both Wine and Rink. \u00a0Rink told the CO that the employees had been wearing safety belts but just had not putthem on that particular day.B.Two citations issued to WEI as a result of the Secretary’s inspection arebefore us for review.\u00a0 Serious citation 1 alleged noncompliance with the standard atsection 1926.500(d)(1)[[1\/]] in that employees were exposed to a 58-foot fall distancewhile moving decking over a platform that lacked standard guardrails.\u00a0 A $720 penaltywas proposed.\u00a0 Willful citation 2 alleged noncompliance with sections1926.28(a)[[2\/]] and 1926.105(a)[[3\/]] in that employees in the four following areas werenot protected against falls of over 25 feet by either nets, ladders, safety belts, orother appropriate personal protective equipment: (a) Third floor near 8 line and K -47-foot fall distance, (b) Third floor near column\u00a0 EC-E10 – 47-foot fall distance,(c) Fourth floor near column EE-E7 – 58-foot fall distance.\u00a0 Following subitems (a),(b), and (c) of citation 2 were the terms \”OR, IN THE ALTERNATIVE\” and aseparate allegation citing noncompliance with section 1926.750(b)(2)(i)[[4\/]] in that atightly planked floor was not maintained within two stories under employees placingdecking on the roof of the elevator machine room where there was a potential 40-foot falldistance.\u00a0 The proposed penalty for all of citation 2 was $8100.By his complaint, the Secretary amended willful citation 2 to alternativelyallege that the citation was serious and to delete his allegations of noncompliance withsection 1926.28(a).\u00a0 He also made certain other housekeeping and substantiveamendments to citation 2 which 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 K were notprotected from a 47-foot fall distance by either a net, safety belts, or other appropriatepersonal protective equipment, and by the use of a substantial floor no more than 30 feetbelow them.Subitem (b) alleged noncompliance with sections 1926.105(a) and1926.750(b)(2)(i) in that employees on the third floor near column EC-E10 were\u00a0 notprotected from a 47-foot fall distance by either a net, safety belts, or other appropriatepersonal protective equipment, and by the use of a substantial floor no more than 30 feetbelow them.Subitem (c) alleged noncompliance with sections 1926.105(a) and1926.750(b)(2)(i) in that employees on the fourth floor near column EE-E7 were notprotected from a 58-foot fall distance by the use of nets, safety belts, or otherprotective equipment, and by the use of a substantial floor no more than 30 feet belowthem.Subitem (d) alleged noncompliance with sections 1926.105(a) and1926.750(b)(2)(i) in that employees spreading decking on the roof of the elevator machineroom were not protected from a 40-foot fall distance by the use of nets, safety belts, orother protective equipment, and by the use of a substantial floor no more than 30 feetbelow them.The Secretary later moved for, and the judge granted, the followingamendments to citations 1 and 2:\u00a0 (a) citation 1 was amended to a willful and\/orrepeated, alternatively serious, citation with a proposed $2880 penalty, and (b) citation2 was amended to a willful and\/or repeated, alternatively serious, citation. \u00a0Further, at the conclusion of the hearing, the Secretary moved to amend subitem (c) ofcitation 2 to conform to the evidence presented and allege noncompliance with section1926.28(a) in that certain employees observed by the CO worked while not wearing safetybelts 11 feet, 9 inches above a temporary floor.\u00a0 The judge took the motion underadvisement.C.Judge Chalk vacated both citations 1 and 2.\u00a0 In discussing citation 1,the judge found that the facts were essentially as the Secretary alleged them and that,further, WEI employees had moved decking across unguarded platform on at least four otheroccasions.\u00a0 The judge vacated citation 1, however, after agreeing with the testimonyof WEI’s president, Williams, that cited section 1926.500(d)(1) was not applicable toskeleton steel erection and that the standard could only apply to buildings with floorsalready in place.\u00a0 The judge found support for that interpretation of the standard inthe Commission decision in Ashton Co., 76 OSAHRC 6\/B11, 3 BNA OSHC 1968, 1975-76 CCH OSHD? 20,351 (No. 5111, 1976).\u00a0 The judge also observed that if the employees had notused the platform to bridge the open area they would have had to transport the decking bywalking on the beams, which were as narrow as four inches wide, that framed the opening.In discussing citation 2, Judge Chalk noted that the CO’s position was thatdeckers were required to wear safety belts and lanyards even if temporary flooring was inplace two floors beneath them.\u00a0 The judge noted, however, that the testimony ofwitnesses with many years of industry experience established that the use of safety beltsby deckers impeded work progress, was impossible, and was more hazardous than not wearingthe belts.\u00a0 Further, industry practice was to spread decking without wearing tied-offsafety belts or using other protective devices.\u00a0 The judge noted that WEI’s presidentWilliams had testified that since Subpart R [[5\/]] did not require belts for deckers,belts were not required here.\u00a0 The judge found implied support for Williams’ viewsfrom Subpart R’s limited mandate under section 1926.750(b)(2)(iii) that safety belts beused by employees gathering and stacking temporary planking, a task unrelated to decking.\u00a0 The judge stated that if WEI’s evidence about the impossibility and hazards ofsafety belt use by deckers was creditable, it was logical to conclude that the safety beltrequirement the Secretary would impose in this case was purposely omitted from Subpart R.\u00a0 Because he concluded that Subpart R had purposely omitted a safety belt requirementfor deckers, the judge held that no safety belt requirement from any other part of theOSHA standards could be super-imposed in its place.The judge accepted the testimony of WEI president Williams that it was moredangerous for deckers to install safety nets than it was for deckers to work without nets.\u00a0 The judge also pointed out that union business agent Walker had agreed withWilliams’ testimony that it took about the same amount of time to hang a safety net as itdid to spread decking. With respect to the alleged lack of temporary flooring, the judge resolvedthe merits of the section 1926.750(b)(2)(i) allegations by finding that WEI could not havecomplied with the standard in this case because of the building’s numerous open galleryareas, some of which extended from the building’s basement to its roof.\u00a0 The judgefurther found that walking on beams unprotected by temporary floors, safety nets, orsafety belts was a necessary and proper adjunct to the decking process engaged in by WEI’semployees.D.The Secretary petitioned for review, taking exception to the judge’s ordervacating citations 1 and 2.\u00a0 Commissioner Cottine directed review on all of theissues raised by the petition including:1.\u00a0 Whether the judge erred in vacating citation no. 1 on the groundsthat cited standard section 1926.500(d)(1) is inapplicable to skeleton steel erection.2.\u00a0 Whether the judge erred in vacating citation no. 2, allegingnoncompliance with section 1926.750(b)(2)(i) or, alternatively, section 1926.105(a), onthe grounds that (a) compliance with the flooring requirements of the former standardwould be impossible, (b) no other means of protection was available, and (c) the use ofsafety nets or safety belts would be hazardous.3.\u00a0 Whether the judge erred in vacating citation no. 2 on the furtherground that a safety belt requirement was purposely omitted from steel erection Subpart Rand no other safety belt requirement can be superimposed in its place.4.\u00a0 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 WEI issubject to all the OSHA construction safety standards, not just those found in Subpart Rdealing with steel erection.\u00a0 The Secretary argues that the general constructionsafety standards must apply to steel erectors to provide those employees with anymeaningful protection under the Act.\u00a0 In support of his argument, the Secretary citesthe Fourth Circuit 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, thatsection 1926.500(d)(1) does not apply to steel erection and, with respect to citation 2,that the Secretary’s section 1926.28(a) amendment motion should be denied becauseamendment would deprive WEI of due process, but that, in any event, the Secretary did notprove that safety belts should have been used.\u00a0 WEI also argues that section1926.105(a) does not apply to safety belts but instead applies to safety nets, and thatthe Secretary did not prove noncompliance with either section 1926.105(a) or section1926.750(b)(2)(i).II.A.Employees engaged in structural steel erection are exposed to obvious fallhazards, and many employees have been killed during such work.\u00a0 See, e.g., DanielConstruction Co., 77 OSAHRC 21\/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD ? 21,521 (No. 7672,1977).\u00a0 The Secretary has promulgated standards designed to protect against fallhazards.\u00a0 He contends that the steel erection standards in Subpart R are not the onlystandards applicable to steel erectors and that fall protection standards applicable togeneral construction work supplement the fall protection standards in Subpart R.\u00a0 Inthis case, the Secretary contends that the employees of WEI should have been protected bystandard guardrails while working on a temporary platform, and by safety belts as well astemporary floors while working to spread decking in areas where they were exposed to falldistances of 30 feet or more.\u00a0 The safety standards requiring guardrail and safetybelt protection cited by the Secretary are both a part of the general constructionstandards, not Subpart R.\u00a0 The threshold issue is, therefore, whether Subpart R isexclusive and therefore precludes steelworkers from being afforded the fall protectionrequired by safety standards located outside Subpart R.The courts that have addressed this problem have held that the steel erectionstandards in Subpart R are not exclusive.\u00a0 In L.R. Willson & Sons v. Donovan, 685F.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 the steel erectionindustry unless a specific standard in Subpart R sets forth a different mandatory orpreferred method for protecting against the particular hazard in question.685 F.2d at 669.\u00a0 The Fourth Circuit, as the Secretary argues, hasreached a similar conclusion:The [steel erection standards] . . . . , while providing safety protection toemployees engaged in steel erections, cannot achieve the goal of adequately protectingthose employees in every conceivable situation.\u00a0 Infinite hypotheticals can beenvisioned in which employees engaged in steel erection would be exposed to an unnecessaryhazard not covered 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 Fourth Circuit’sreasoning persuasive and held:Section 1926.750(b) does not specify the measures required of employers toprotect workers in the structural steel industry from hazardous falls of less than 30 feetand it is beyond question that falls of less than 30 feet can cause \”serious physicalharm.\” Accordingly, the scheme of the regulations permitted the Secretary to citeWillson for a violation of section 1926.28(a) for failing to protect its workers from therisk of a hazardous fall of 24 feet.L.R. Willson & Sons v. OSHRC, 698 F.2d 507, 512 (D.C. Cir. 1983).\u00a0 These court decisions have properly resolved the issue.\u00a0 The fallprotection provisions in the steel erection standards are obviously directed at severalspecific situations rather than at the general problems of providing fall protectionduring all steel erection work.\u00a0 Indeed, the steel erection standard in citation 2here, section 1926.750(b)(2)(i), is a perfect illustration.\u00a0 The latter standardrequires a temporary floor within 30 feet of the tier of beams on which employees areworking.\u00a0 This standard does not, however, provide protection for employees that fallto the exterior of the building and offers only limited protection for employees that fall30 feet to the interior of a building onto temporary metal flooring.\u00a0 There isnothing in the steel erection standards which suggests that the Secretary intended to denyto steel erectors feasible protection otherwise available, that is, available outsideSubpart R, against falling 30 feet to a temporary floor on the interior of a building orto the ground outside a building.\u00a0 Consequently, where general standards providemeaningful protection to employees beyond the protection afforded by the steel erectionstandards, the general standards apply to steel erection work.\u00a0 This does not mean,however, as the balance of this opinion will show, that the Secretary can indiscriminatelycite employers engaged in steel erection under any general construction standard.B.In citation 1, the Secretary has cited WEI for noncompliance with section1926.500(d)(1) because certain of its employees were exposed to a 58-foot fall distancewhile moving decking over a \”platform\” that lacked standard guardrails. \u00a0The Commission has recognized, in interpreting standards requiring the guarding ofplatforms, that not every surface on which an employee may stand during the course of hiswork is a \”platform\” within the meaning of such standards.\u00a0 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 OSHC 1144, 1981 CCH OSHD ? 25,736(No. 76-2879, 1981); Rexco Industries, 80 OSAHRC 32\/A2, 8 BNA OSHC 1227, 1980 CCH OSHD ?24,376 (No. 15350, 1980).\u00a0 Instead, such standards must be given a reasonableinterpretation based on the facts of each case.\u00a0 General Electric Co. v. OSHRC, 583F.2d 61 (2d. Cir. 1978); Globe Industries, supra.The alleged \”platform\” in this case consisted of several sheets ofinterlocked temporary metal decking.\u00a0 At the time of the alleged violation, WEI’semployees were moving other sheets of temporary decking across this \”platform.\”Clearly, it would be unreasonable to apply the platform guarding requirementof section 1926.500(d)(1) to the work of spreading temporary decking during steelerection.\u00a0 Such work, by its nature, requires the brief presence of employees onvarious surfaces, including the building’s structural steel framework and the verytemporary decking being spread by the employees.\u00a0 To regard each of such surfaces asplatforms that require guarding would mean that, as the work progresses, each piece ofdecking on which employees stood to place the next piece of decking would have to beguarded.\u00a0 Such a requirement would not only be infeasible, but would alsounnecessarily expose employees to fall hazards for the time involved in erectingguardrails.\u00a0 Thus, the use by employees of interlocked temporary decking sections asworking surfaces from which to install or transport other sections of decking does notconvert those working surfaces into platforms within the meaning of section1926.500(d)(1).\u00a0 Further, section 1926.750(b)(1)(iii)[[7\/]] specifically requires theinstallation of 1\/2-inch wire rope safety railings around the periphery of temporary metaldecked floors.\u00a0 In light of the fact that the \”platform\” being used by theemployees consisted of temporary metal decking, it would be improper to apply the moregeneral standard at section 1926.500(d)(1) here.\u00a0 Ashton Co., supra. \u00a0Consequently, 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’s failure to use temporaryfloors to protect its employees from interior falls of 30 feet or more, WEI arguesgenerally that the Secretary failed to present evidence of a violation.\u00a0 WEI alsoargues, specifically in regard to subitems (a) and (b), that no flooring was placedbetween the employees and the ground because no flooring had been planned for that areauntil the building reached the level on which the employees worked and that the employeesobserved by the CO were laying decking as a safety precaution to protect employees workingon higher levels.\u00a0 WEI’s arguments are rejected because they do not rebut the primafacie case of nocompliance with section 1926.750(b)(2)(i) established by the testimony ofthe CO that employees worked without the protection of temporary floors that should havebeen placed within 30 feet beneath them.\u00a0 Further, with respect to WEI’s argumentdirected at subitems (a) and (b) that its employees were only laying decking to protectemployees working on higher levels, the Commission has held that employees must beprotected even while they are in the process of installing safety protection.\u00a0 SeeFloyd S. Pike Electrical Contractor, Inc., 77 OSAHRC 26\/B11, 5 BNA OSHC 1088, 1977-78 CCHOSHD ? 21,584 (No. 12398, 1977), aff’d, 576 F.2d 72 (5th Cir. 1978).\u00a0 WEI shouldtherefore have placed a temporary floor within 30 feet beneath where it knew its employeeswould work.\u00a0 Also, the judge erred in finding that WEI could not have complied withsection 1926.750(b)(2)(i) because of the building’s numerous open gallery areas. \u00a0Although WEI did introduce general evidence about the existence of gallery areas in thebuilding, such general evidence failed to establish that temporary floors could not havebeen placed beneath the employees working in the particular area specified by subitems(a), (b), and (d).\u00a0 Further, photographic evidence of the area cited in subitem (b)reveals that the employees could have been protected by the use of temporaryfloors.[[8\/]]\u00a0 Consequently, WEI failed to comply with section 1926.750 (b)(2)(i) insubitems (a), (b), and (d) of citation 2 where interior falls of 30 feet or more arealleged.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 assure that employees usedsafety belts, along with temporary floors or safety nets, to protect against interiorfalls of 30 or more feet.\u00a0 Although temporary floors are better than no protection atall for steel workers, the protection they offer is minimal and does not provide employeeswith the protection they need against serious injury should they fall 30 feet to temporaryfloors.\u00a0 Therefore, the protection offered by section 1926.750(b)(2)(i) may besupplemented by the protection offered in any appropriate safety standard found outsideSubpart R.\u00a0 L.R. Willson & Sons v. Donovan, supra; Bristol Steel & Iron Worksv. OSHRC, supra; see also L.R. Willson & Sons v. OSHRC, supra.\u00a0 The cited section1926.105(a), however, is not an appropriate standard for the protection of the employeeshere against interior falls because the standard would merely duplicate the protectionoffered by section 1926.750(b)(2)(i), under which standard violations have already beenfound.\u00a0 Both section 1926.105(a) and section 1926.750(b)(2)(i) look to floors aspreferred methods of protection from falls and safety nets as alternative means of fallprotection when floors are not practicable (section 1926.750(b)(2)(i)) or are impractical(section 1926.105(a)).[[9\/]]\u00a0 See S & H Riggers and Erectors, Inc., 79 OSAHRC23\/A2, 7 BNA OSHC 1260, 1261, 1979 CCH OSHD ? 23,480 at p. 28,434 (No. 15855, 1979),rev’d on other grounds, 659 F.2d 1273 (5th Cir. 1981).\u00a0 As determined above, floorscould and should have been provided to protect the employees involved in subitems (a),(b), and (d).\u00a0 Therefore, the Secretary’s allegations involve the failure to usesafety belts to protect employees against interior falls, are vacated.Protecting WEI’s employees from 30-foot falls to temporary floors would havebeen most appropriately attained by the use of safety belts.\u00a0 See L.R. Willson &Sons v. OSHRC, supra.\u00a0 By citing WEI for noncompliance with sections1926.750(b)(2)(i) and 1926.105(a), this is what the Secretary attempted to do.\u00a0 TheSecretary erred, however, in citing to section 1926.105(a) instead of section1926.28(a).[[10\/]]\u00a0 The latter section requires that safety belts be used whenever areasonable person familiar with the facts, including any facts unique to a particularindustry, would recognize a hazard warranting their use.\u00a0 S & H Riggers andErectors, Inc., 7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436.\u00a0 Although theSecretary originally included a section 1926.28(a) allegation in citation 2 as to theinterior falls of 30 feet or more, he deleted the allegation in his original complaint,and did not seek to restore it in his amended complaint.\u00a0 Thus, although WEI may wellhave violated section 1926.28(a) as well as section 1926.750(b)(2)(i), that question isnot 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 and noncompliance with section1926.105(a) for WEI’s failure to use safety belts to protect (1) a group of employeesworking without protection 11 feet, 9 inches above a temporary floor and (2) foreman Wineworking without protection on building perimeter beams 58 feet above the ground.\u00a0 TheSecretary seeks to amend the portion of subitem (c) involving the employees working 11feet, 9 inches above a temporary floor to allege noncompliance with the more appropriatesafety belt standard for that fall distance, section 1926.28(a).The Secretary’s motion to amend to section 1926.28(a) is denied.\u00a0 Asmentioned above, the Secretary’s citation 2 originally included a section 1926.28(a)allegation, but that allegation was deleted from the Secretary’s subsequently-issuedcomplaint.\u00a0 The Secretary failed to reinstate the section 1926.28(a) allegation inhis amended complaint and specifically stated in the pre-hearing deposition of the CO thathe was abandoning the section 1926.28(a) allegation.\u00a0 Further, the Secretary remainedsilent at the beginning of the hearing when the judge stated that the Secretary haddeleted the allegation from the case.\u00a0 The Secretary did not seek to reinstate theallegation until the end of the hearing and then only with respect to the employeessubject to the 11-foot, 9-inch fall distance.\u00a0 WEI was not, therefore, put on noticethat the appropriateness of safety belts to protect against 11-foot, 9-inch falls would beat issue during the hearing.\u00a0 WEI would be prejudiced if amendment were allowed.\u00a0 Also, WEI did not fail to comply with either section 1926.750(b)(2)(i) or section1926.105(a) as to the employees unprotected at the 11-foot, 9-inch fall distance becausethat fall distance is less than the fall distances against which the cited standardsrequire fall protection.WEI has, however, failed to comply with both sections 1926.750(b)(2)(i) and1926.105(a) in regard to foreman Wine, who was observed standing without protection onperimeter beams where he could either have fallen 58 feet to the ground on the interior ofthe building because there was no temporary flooring beneath him or 58 feet to the groundon the outside of the building because he was not wearing a safety belt and there was nota safety net on the building’s perimeter.\u00a0 WEI advances the same arguments in regardto the section 1926.750(b)(2)(i) allegation here as it did in regard to the section1926.750(b)(2)(i) allegations made in subitems (a), (b), and (d) above.\u00a0 Thearguments are rejected for the reasons outlined above.\u00a0 Also, photographic evidenceestablishes that Wine could have been protected from a 58-foot fall to the ground on thebuilding’s interior by the installation of temporary flooring within 30 feet beneath him.Further, the Secretary made out a prima facie case that WEI violated section1926.105(a) by proving that none of the means of fall protection specified in section1926.105(a) were used to protect Wine against an exterior fall to the ground of 58 feet.\u00a0 Southern Colorado Prestress Co. v. Marshall, 586 F.2d 1342 (10th Cir. 1978). \u00a0The CO testified that Wine should have been protected with a safety belt that could havebeen attached to a static line or, if there were a perimeter cable in the area, Wine couldhave snapped his belt to the cable and walked the entire length of the beam.WEI defends by arguing that the CO’s testimony is irrelevant because WEI hasnot been charged with noncompliance of any standard involving the use of safety belts orcables.\u00a0 WEI also argues that section 1926.750(b)(1)(iii), note 7 supra, does notrequire a perimeter cable until the floor on any particular building level has been fullydecked.\u00a0 The level on which the employee here worked was not yet fully decked.WEI’s arguments are rejected.\u00a0 Section 1926.105(a) may appropriately beapplied here to require safety belt protection against the exterior fall hazard becausethe temporary floor requirement of section 1926.750(b)(2)(i) would not have protected Winefrom a fall to the outside of the building.\u00a0 Further, WEI’s section1926.750(b)(1)(iii) argument is inapposite.\u00a0 WEI was required to afford Wine fallprotection.\u00a0 Since the use of a safety belt as fall protection would have requiredinstallation of a static line or perimeter cable to which the safety belt could have beenattached, WEI was required to install the static line or perimeter cable in time for itsuse by Wine as a safety belt tying off point. [[11\/]]IIIThe Secretary argues that citation 2 should be characterized as willful, andthe record amply supports such a characterization.\u00a0 The allegations made in the foursubitems of citation 2 relate to events which occurred on October 5 and 6, 1978: November1, 1978; and January 11, 1979.\u00a0 On October 5, 1978, the CO observed employees andtheir foreman, Eastep, working without the protection of temporary floors or safety belts.\u00a0 The CO spoke to both Eastep and WEI’s project general foreman, Rink, about theviolation and advised them to provide temporary floors within two stories of whereemployees worked.\u00a0 Later that same day, the CO observed WEI foreman King and his crewof employees working without the protection of temporary floors or belts.\u00a0 The COdiscussed the problem with King in a conversation which was subsequently joined by Rink.\u00a0 On the very next day, the CO again observed King and his crew working withoutprotection.\u00a0 The CO again spoke with King.The situation did not significantly improve thereafter, however, and the COcontinued to witness similarly violative conditions.\u00a0 On October 11, therefore, theCO posted an imminent danger notice at the jobsite.\u00a0 He warned employees andsupervisors about the violative conditions and urged their correction; similarly violativeconditions continued to appear, however.\u00a0 After spending a period of time away fromthe 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, orsafety net.\u00a0 The CO spoke to Wine and general foreman Rink about correcting therecurring problem.In addition, the Secretary presented testimony from a number of employees whohad worked at the jobsite for WEI during the period of inspection.\u00a0 Those employeesall testified that they frequently worked without the protection of temporary floors orsafety belts, usually in the presence of their supervisors.\u00a0 Thus, because the factsclearly establish WEI intentionally disregarded the terms of the cited standard, citation2 is willful.\u00a0\u00a0 See Mel Jarvis Construction Co., 81 OSAHRC 89\/B13, 10 BNA OSHC1052, 1981 CCH OSHD ? 25,713 (No. 77-2100, 1981).An $8,100 penalty is assessed for citation 2.\u00a0 WEI is a large employerwith a history of past violations of the Act.\u00a0 The gravity of the noncomplyinginstances in citation 2 was high because employees worked many feet above the groundwithout fall protection.\u00a0 Further, WEI was deficient in good faith because itessentially refused to protect its employees after being advised on numerous occasions ofwhat was required to protect them.\u00a0 Also relevant to WEI’s deficiencies in the areaof good faith is its operation of the jobsite under a general foreman, Rink, who lackedsafety training.\u00a0 Rink testified that he had never been given any training by WEI oranyone else on the contents of the OSHA safety standards and that he had never discussedemployee safety with WEI president Williams or WEI supervisory employees.\u00a0 Rink wasWEI’s senior supervisor at the jobsite and was present daily.IVThe Secretary also contends that the judge improperly failed to grant theSecretary’s request for a cease and desist order under Section 10(c) of the Act. \u00a0Assuming, without deciding, that the Commission has authority to grant such an order, theSecretary has failed to demonstrate the appropriateness of such an extraordinary remedy toa case involving a construction site where WEI’s responsibilities for the installation oftemporary flooring have ended.\u00a0 See Wright and Lopez, Inc., 80 OSAHRC 36\/A2, 8 BNAOSHC 1261, 1980 CCH OSHD ? 24,419 (No. 76-3743, 1980).Accordingly, citation 1 is vacated.\u00a0 Citation 2, subitems (a), (b), and(d) are affirmed insofar as they allege noncompliance with section 1926.750(b)(2)(i) forthe failure to use temporary floors to protect employees from interior fall distances of30 feet or more and vacated insofar as they allege noncompliance with section 1926.105(a)for the failure of employees to wear safety belts.\u00a0 Subitem (c) of citation 2 isvacated insofar as it alleges noncompliance with sections 1926.105(a) and1926.750(b)(2)(i) for the failure to protect employees from a fall of 11 feet, 9 inches.\u00a0 The Secretary’s motion to amend the foregoing portion of subitem (c) to allegenoncompliance with section 1926.28(a) is denied.\u00a0 Subitem (c) is affirmed insofar asit alleges noncompliance with section 1926.750(b)(2)(i) for the failure to use temporaryflooring and noncompliance with section 1926.105(a) for the failure to use a safety beltto protect foreman Wine from interior and exterior falls of 58 feet.\u00a0 Citation 2 isdesignated willful and an $8,100 penalty is assessed.\u00a0 The Secretary’s request for acease and desist order is denied.SO ORDERED.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 APR 27 1983The Administrative Law Judge decision in this matter is unavailable in this format.\u00a0 To obtain a copy of this document, please request one from our Public InformationOffice by e-mail ( [email protected] ),telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).\u00a0FOOTNOTES:[[1\/]] The standard at ? 1926.500(d)(1) provides:? 1926.500 Guardrails, handrails, and covers.*\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(d) Guarding of open-sided floors, platforms, and runways.(1) Every open-sided floor or platform 6 feet or more above adjacent floor orground level shall be guarded by a standard railing, or the equivalent as specified inparagraph (f)(1)(i) of this section, on all open sides, except where there is entrance toa ramp, stairway, or fixed ladder.\u00a0 The railing shall be provided with a standardtoeboard wherever, beneath the open sides, persons can pass, or there is moving machinery,or there is equipment with which falling materials could create 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 an exposure to hazardousconditions or where this part indicates the need for using such equipment to reduce thehazards 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 feet abovethe ground or water surface, or other surfaces where the use of ladders, scaffolds, catchplatforms, temporary floors, safety lines, or safety belts is impractical.[[4\/]] The standard at ? 1926.750(b)(2)(i) provides:? 1926.750 Flooring requirements.*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(b) Temporary flooring–skeleton steel construction in tiered buildings.(2)(i) 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 of beams on which any work is beingperformed, except when gathering and stacking temporary floor planks on a lower floor, inpreparation for transferring such planks for use on an upper floor.\u00a0 Where such afloor is 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 which contains standardsspecifically applicable to steel work.[[6\/]] Section 1910.5(c) provides:? 1910.5 Applicability of standards.*\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(c)(1) If a particular standard is specifically applicable to a condition,practice, means, method, operation, or process, it shall prevail over any differentgeneral standard which might otherwise be applicable to the same condition, practice,means, method, operation, or process.\u00a0 For example, ? 1501.23(c)(3) of this titleprescribes personal protective equipment for certain ship repairmen working in specifiedareas.\u00a0 Such a standard shall apply, and shall not be deemed modified nor supersededby any different general standard whose provisions might otherwise be applicable, to theship repairmen working in the areas specified in ? 1915.23(c)(3).(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, as in Subpart B or Subpart R of this part, to the extentthat none of such particular standards applies.\u00a0 To illustrate, the general standardregarding noise exposure 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)*\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 *(iii) Floor periphery–safety railing.\u00a0 A safety railing on 1\/2-inchwire rope or equal shall be installed, approximately 42 inches high, around the peripheryof a\u00a0 temporary-planked or temporary metal-decked floors of tier buildings and othermultifloored structures during structural steel assembly.[[8\/]] The photographic evidence depicting the areas involved in subitems (a)and (d) does not show the area beneath the employees where flooring should have beenplaced.[[9\/]] Section 1926.750(b)(2)(i), note 4 supra, provides that section1926.750(b)(1)(ii) applies when temporary floors are not practicable.\u00a0 The lattersection mandates that, on buildings or structures not adaptable to temporary floors,safety nets must be used whenever the potential fall distance exceeds 25 feet.\u00a0 Thus,under section 1926.750, floors must be installed within 30 feet or, if not practicable,nets must be used to limit the potential fall to 25 feet.\u00a0 Under section 1926.105(a),falls must be limited to 25 feet in all cases; if temporary floors, ladders scaffolds,catch platforms, safety lines, or safety belts are not practical, safety nets must beused.[[10\/]] The Secretary elected to proceed under ? 1926.105(a) rather than ?1926.28(a) stating that the former standard is more specifically applicable to falls ofmore than 25 feet than the latter.\u00a0 However, ? 1926.105(a) is not more specificallyapplicable, even when the height requirement is satisfied, than a standard requiring theuse of safety belts in the first instance.\u00a0 S & H Riggers and Erectors, Inc.,supra.[[11\/]] The CO’s testimony established that the installation of a cable couldhave been effected with significantly less danger than that presented by Wine’s standingerect on the perimeter beams without any protection.\u00a0 An employee could have\”walked\” a horizontal perimeter beam by placing his feet on the lower flange ofthe beam and grasping the beam’s top flange with his hands (a process sometimes referredto as \”cooning\” a beam).\u00a0 The employee would coon the horizontal beambetween two vertical steel columns and on reaching the columns attach a static line tothem.\u00a0 Once installed, the line could serve as a point to which safety belts andlanyards would be attached.\u00a0\u00a0″