Adams Steel Erection, Inc.

Read the official release (oshrc.gov)

Plain-English summary

Adams Steel was the steel-erection subcontractor on a multistory Pittsburgh construction project. The Commission affirmed a perimeter-railing item because decking remained temporary until it was welded into the structure as permanent flooring. It vacated a ladderway-opening item because the steel-erection rule incorporated general floor-opening protection only for unused openings, while this opening was the active access route to the third floor. Following controlling Third Circuit precedent, the Commission also affirmed the safety-net item for workers exposed to an exterior fall of about 50 feet, since the temporary floor below protected only against an interior fall. The warrantless inspection was consensual because Adams Steel's foreman joined it without objection, and anonymous complaints did not invalidate OSHA's inspection authority. The affirmed reviewed items carried $420 and $50 penalties, while a separate no-penalty hard-hat item remained affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.750(b)(1)(iii); 29 C.F.R. § 1926.500(b)(2); 29 C.F.R. § 1926.28(a); 29 C.F.R. § 1926.105(a); 29 C.F.R. § 1926.100(a)
• Outcome: Perimeter-railing and safety-net items affirmed with $470 total penalties; ladderway item vacated; separate hard-hat item affirmed without penalty.
• Key point: Steel-erection rules required perimeter protection until the floor became structurally permanent, but did not require guarding an access opening still in active use.

Full text (OSHRC public release)

Docket No. 77-3804

SECRETARY OF LABOR,

Complainant,

v.

ADAMS STEEL ERECTION, INC.,

Respondent.

OSHRC Docket No. 77-3804

DECISION

Before:  BUCKLEY, Chairman, and WALL,
Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and
Health Review Commission under 29 U.S.C. � 661(j), section 12(j) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. �� 651-678 ("the Act").  The
Commission is an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration ("OSHA").  It was established
to resolve disputes arising out of enforcement actions brought by the Secretary of Labor
under the Act and has no regulatory functions.  See section 10(c) of the Act,
29 U.S.C. � 659(c).

This case arises from an OSHA inspection of a
construction worksite in Pittsburgh, Pennsylvania, where Adams Steel Erection, Inc. was
the steel erection subcontractor.  Before us on review are three items of two
citations.  Former Administrative Law Judge Henry F. McQuade affirmed all three
items.

Adams Steel objects to the disposition of these three items, to the judge's denial of a
motion to suppress the evidence on the ground that the underlying inspection was illegal,
and to the judge's ruling on its challenges to the constitutionality of the Act.  We
affirm the judge in all but one respect; we reverse his disposition of one of the three
items, which we vacate because the cited standard was inapplicable.

I.

In its answer, Adams Steel alleged that:

The Citations . . . are invalid since the
Occupational Safety and Health Act of 1970 is unconstitutional, violating the Fourth,
Fifth and Sixth Amendments to the Constitution and since the inspection which resulted in
the Citations was unconstitutional and void, being an inspection without a warrant.

In his decision, Judge McQuade noted Adams Steel's
contention that the Act is unconstitutional.  In response, he held that the
Commission lacked jurisdiction to question the constitutionality of the Act.

Adams Steel has not particularized its arguments
under the Fifth and Sixth Amendments, and therefore we affirm the judge's decision not to
rule on them.  As the judge correctly stated, under longstanding Commission
precedent, the Commission lacks authority to rule on questions of the constitutionality of
provisions of the Act on which no court has yet ruled; the Commission can do no more than
apply judicial precedent concerning the constitutionality of the Act.  E.g ., McGowen
v. Marshall , 604 F.2d 885, 892 (6th Cir. 1979); Daniel International Corp .,81
OSAHRC 57/A2, 9 BNA OSHC 1980, 1985, 1981 CCH OSHD � 25,492, p. 31,792 (No. 15690, 1981),
order set aside on other grounds , 683 F.2d 361 (11th Cir. 1982); Bomac Drilling ,
81 OSAHRC 45/A2, 9 BNA OSHC 1681, 1699, 1981 CCH OSHD � 25,363, p.31,555 (No. 76-2131,
1981).  See also the cases cited by Judge McQuade.  Because Adams Steel has not
particularized its arguments, they cannot be addressed in any fashion, even to such extent
as might be permissible.  We therefore reject Adams Steel's Fifth and Sixth Amendment
challenges.

We reject Adams Steel's challenge under the Fourth
Amendment, but for different reasons.  The Supreme Court's decision in Marshall v.
Barlow's, Inc ., 436 U.S. 307, 98 S.Ct. 1816 (1978), sustains Adams Steel's contention
that the Act violates the Fourth Amendment to the extent that it purports to authorize
warrantless searches.  The Barlow's decision nevertheless made clear that it
was not invalidating all inspections conducted under the authority of section 8(a) of the
Act, 29 U.S.C. � 651(a).  On the contrary, the Court suggested that only an
inspection conducted without an inspection warrant or its constitutional
"equivalent," e.g., the voluntary consent of the inspected employer, would be
invalid.  See , e.g ., 436 U.S. at 316, 325, 98 S. Ct. at 1822, 1827.
  See also 436 U.S. at 314, 98 S.Ct. at 1821 (objection to warrantless
entry is "[t]he critical fact in this case").  Adams Steel is therefore
entitled to relief only if OSHA's inspection of Adams Steel's workplace violated the
Fourth Amendment.

Adams Steel claims that OSHA's inspection violated
the Fourth Amendment because OSHA lacked a warrant and consent.  In support of a
renewed motion to dismiss at the end of the hearing, it alleged that "any permission
. . . granted for entry at the time . . . [was] permission from the general contractor in
possession of the premises and certainly not . . . [from Adams Steel]."   When
an employer seeks to suppress evidence obtained in a warrantless inspection, the Secretary
bears the burden of proving that the inspection was lawful.  Sarasota Concrete Co .,
81 OSAHRC 48/A2, 9 BNA OSHC 1608, 1612, 1981 CCH OSHD � 25,360, p. 31,531 (No. 78-5264,
1981), aff'd , 693 F.2d 1061 (11th Cir. 1982).  The inspection here was
evidently warrantless.  We must therefore determine whether there was consent.

When the compliance officer arrived at the Prudential
Realty Building construction project, the representative of the general contractor invited
Adams Steel's foreman, Donald McClendon, as well as representatives of other
subcontractors, to join the inspection party.  Mr. McClendon accompanied the
compliance officer during the inspection.  The compliance officer inspected the
operations of other employers at the worksite in addition to Adams Steel's operations.

Adams Steel denies that it gave its own consent to
the inspection.  It seems to concede, however, that the general contractor consented
to the inspection; the only issue it raised before Judge McQuade was whether it was bound
by that consent.  It is, however, clear from the record that Adams Steel itself
consented to a warrantless inspection since its foreman joined the inspection party. 
There is also no evidence nor any claim that Adams Steel objected to the warrantless
inspection or requested OSHA to obtain an inspection warrant.[[1]]  We therefore find
that the inspection was consensual.

II.

This case is one of three related cases in which
Adams Steel raised issues concerning the Secretary's inspection policies and procedures.
  The first in the series was a case we will refer to as Adams Steel I :  Adams
Steel Erection, Inc ., 84 OSAHRC, 11 BNA OSHC 2073, 1984-85 CCH OSHD � 26,976 (No.
77-4238, 1984), rev'd , 766 F.2d 804 (3d Cir. 1985).

At the beginning of the hearing in Adams Steel I ,
the employer moved to consolidate that case with the case now on review and with a third
related case, OSHRC Docket No. 77-3773.  Adams Steel sought this consolidation so
that a joint hearing could be held on its motions in all three cases to suppress the
evidence on the ground that the inspections were unlawful, violating both the Constitution
and the Act.  Judge McQuade denied the motions to consolidate and the motions to
suppress in all three cases. However, he granted Adams Steel's motions to incorporate
relevant parts of the proceeding in Adams Steel I into the records in the other two
cases.  Accordingly, the inspection issues we now review in this section of our
decision are based on the record in Adams Steel I.

Adams Steel's claim that the inspection violated the
Act raises three questions:

(1) Is the Secretary's authority to inspect in
response to complaints limited by section 8(f)(1) of the Act, 29 U.S.C. � 657(f)(1)?

(2) Did the Secretary comply with the
"reasonableness requirement" of section 8(a)(2) of the Act, 29 U.S.C. �
657(a)(2)?

(3) Did the Secretary exceed his statutory authority
in adopting the inspection policy set forth in OSHA Field Information Memorandum #76-20
(July 2, 1976)("FIM 76-20")?

Adams Steel's original formulation of its defense under section 8(f)(1) was set forth in
its answer, as follows:

The inspection of [Adams Steel's] work place on
September 23, 1977 was invalid because it was in response to a complaint from a person
other than an employee or employee representative.  [Adams Steel] avers that the
non-employee informer was engaged in intentional harassment of [Adams Steel].

The issue implicitly raised by this defense is
whether the Secretary exceeded his authority under section 8(f)(1) by conducting an
inspection in response to a complaint of unsafe working conditions filed by someone not an
employee of Adams Steel nor a representative of its employees.[[2]]

Judge McQuade rejected this argument on the basis of Aluminum
Coil Anodizing Corp ., 77 OSAHRC 70/A2, 1 BNA OSHC 1508, 1973-74 CCH OSHD � 17,185
(No. 829, 1974) (" Aluminum Coil I ").  That case involved an
inspection conducted in response to a complaint of unsafe working conditions.   The
complainant was neither an employee nor a representative of employees.   Aluminum
Coil moved to vacate the citation on the ground that the inspection was therefore invalid
under section 8(f)(1) of the Act.  The Commission disagreed, holding in effect that,
because the complaint had not been filed by an employee or an employee representative,
section 8(f)(1) was irrelevant in determining the validity of the inspection. 
Instead, the issue was whether the Secretary had properly exercised his general inspection
authority under section 8(a) of the Act.[[3]]

Applying Aluminum Coil I to this case, Judge
McQuade held that the status of the complainant as an anonymous telephone caller did not
render the inspection invalid.  He also rejected Adams Steel's argument that the
alleged motive of the complainant, i.e., the alleged intent to harass Adams Steel,
invalidated the inspection.  In essence, the judge found that Adams Steel had failed
to establish this allegation ("The facts do not bear out the contention that anyone .
. . was engaged in a program of intentional harassment of [Adams Steel]").

The parties seem to agree that the complaint that precipitated the inspection came from
neither an employee nor a representative of employees.  This does not mean, however,
that the Secretary could not act on it.  In Aluminum Coil I , former
Commissioner Van Namee reasoned as follows:  (1) section 8(f)(1) is not a limitation
on the Secretary's authority to conduct inspections in response to complaints of unsafe
working conditions but rather a "specific duty" to "conduct a 'special
inspection' when certain conditions are met"; (2) when complaints are filed by
individuals who are not employees or employee representatives, the source of the
Secretary's authority to conduct a responsive inspection is section 8(a) of the Act; and
(3) the validity of these inspections is therefore determined under the
"reasonableness" standard of section 8(a)(2) rather than by applying the
"formality requirements"[[4]] of section 8(f)(1).

The Commission has not departed from this view of the
relationship between sections 8(a) and 8(f)(1).  See , e.g ., Quality
Stamping Products Co ., 79 OSAHRC sections 28/F11, 7 BNA OSHC 1285, 1288, 1979
CCH OSHD � 23,520, p. 28,504 (No. 78-235, 1979); Aluminum Coil Anodizing Corp ., 77
OSAHRC 70/A2, 5 BNA OSHC 1381, 1977-78 CCH OSHD � 21,739 (No. 829, 1977) ( Aluminum
Coil II ).  In addition, in those federal court cases where the issue of the
Secretary's authority has been expressly raised, the courts have consistently agreed that
the Secretary can respond to complaints from persons who are neither employees nor
employee representatives.  E.g ., Marshall v. Horn Seed Co. , 647 F.2d
96, 100 n.3, 103 (10th Cir. 1981); Burkart Randall Div . of Textron, Inc. v.
Marshall , 625 F.2d 1313, 1321-1322 (7th Cir. 1980); Donovan v. Metal Bank of
America, Inc ., 516 F. Supp. 674, 678 (E.D. Pa. 1981) (anonymous telephone call
complaints).  We therefore reject Adams Steel's argument that "[t]he
inspection...was invalid because it was in response to a complaint from a person other
than an employee or employee representative."

Adams Steel asserts, however, "that the
non-employee informer was engaged in intentional harassment of [Adams Steel]."  
At the hearing in Adams Steel I , the employer attempted to establish that it had
been subjected to a series of inspections that were interrelated.  The parties
stipulated that, during a five-week period in September and October 1977, OSHA's area
office in Pittsburgh, Pennsylvania, inspected six different construction worksites where
Adams Steel was performing work as a steel erection subcontractor.  The first five of
these inspections were conducted in response to anonymous telephone call complaints of
unsafe working conditions.  Two of these calls were directed against the unnamed
steel erection contractor (later identified as Adams Steel) on specified projects, while
the other three expressly named Adams Steel as the employer involved.  The sixth
inspection was conducted in response to a complaint that concerned a particular, named
subcontractor that was not Adams Steel at a worksite where Adams Steel was also a
subcontractor.  This last complaint apparently was not received in the form of an
anonymous telephone call.

This record does not identify the specific
allegations of any of the six complaints.  We are therefore unable to determine the
extent to which the safety complaints may have been meritorious.  However, four of
the six inspections resulted in the issuance of citations to Adams Steel.  There is
also no direct evidence as to the identity and motivation of the complainant or
complainants.  Adams Steel has argued throughout this proceeding that all six
complaints were filed by one person whose purpose was to harass Adams Steel.

Nevertheless, after unsuccessfully attempting to
establish its claim through a request for admissions, Adams Steel made no further attempt
to establish any of these allegations.[[5]]

In sum, Adams Steel proved only that it was subjected
to six complaint inspections at six different construction project worksites in a period
of five weeks and that five of those inspections resulted from anonymous telephone calls
that directly or indirectly alleged safety violations by Adams Steel.   Adams Steel
did not show that the telephone calls were not motivated by a genuine concern with
safety.  We therefore agree with Judge McQuade that, particularly in light of the
hazardous nature of the steel erection industry, the evidence was insufficient to
establish a claim of intentional harassment.  We further note that, under Commission
precedent, improper motivation on the part of the complainant is not in itself sufficient
grounds for declaring an inspection invalid.  E.g ., Quality Stamping
Products Co ., 7 BNA OSHC at 1289, 1979 CCH OSHD at, p. 28,505; Aluminum Coil II .

Consistent with Aluminum Coil I , Judge McQuade
held that the issue raised by Adams Steel's challenge to the underlying inspection
"is properly framed as whether the inspections were reasonable under section 8(a) of
the Act...." He held that the Secretary had complied with the reasonableness
requirement of section 8(a)(2), which states that "the Secretary...is authorized...to
inspect and investigate...within reasonable limits and in a reasonable manner...."
See note 3 supra (complete text of section 8 (a)).  In its petition for
discretionary review, Adams Steel expressly took exception to this conclusion.  Yet,
in its brief on review, it presents no argument in support of this exception.

We note initially that Adams Steel has neither
alleged nor sought to prove any active misconduct or improper motivation on the part of
OSHA personnel.  On the contrary, the employer expressly states in its review brief
that "[i]t is not contended...that there was vindictive enforcement of the statute by
the Secretary against [Adams Steel]."  We particularly note that Adams Steel
does not direct any of its criticisms to the manner in which the OSHA compliance officer
conducted his inspection.  Adams Steel's criticism refers instead to the procedures
followed by OSHA's Pittsburgh area office in handling anonymous telephone call complaints
and, in particular, OSHA's decision to conduct workplace inspections in response to this
series of complaints.

Adams Steel has not established a violation of
section 8(a) of the Act.  The Secretary may be required by the Fourth Amendment to
obtain a warrant based on evidence of probable cause before he inspects without consent.
  However, section 8(a) of the Act does not require the Secretary to obtain evidence
of any particular sort to support his decision to seek a consensual inspection.  Of
course, section 8(a) does require the Secretary to inspect "within reasonable limits
and in a reasonable manner...." But we can find no basis in the record before us to
support a conclusion that the Secretary failed to do that.

Adams Steel's primary argument is that the inspection was conducted under an inspection
policy that circumvented the procedural protections for employers in section 8(f)(1) of
the Act.  This policy, which was embodied in FIM 76-20, was to inspect in response to
complaints "without regard to the formality requirements of Section 8(f)."
  See note 4 supra .  Citing Aluminum Coil I's discussion of the
legislative history of the Act, 1 BNA OSHC at 1509, 1973-74 CCH OSHD at p. 21,797, Adams
Steel asserts that Congress intended for the Secretary to take effective measures to
prevent misuse of section 8(f) procedures as a harassment device. In the employer's view,
FIM 76-20 not only failed to comply with this Congressional expectation; it actually
invited and encouraged harassment of employers by persons seeking to abuse the complaint
inspection procedures.  Specifically, Adams Steel contends, this is "a
case wherein [OSHA's] 8(f) procedure has obviously been used as a harassment device."

We have already held that the Secretary has the
statutory authority under section 8(a) of the Act to conduct inspections in response to
"non-formal complaints."  It necessarily follows that the Secretary had the
authority to adopt FIM 76-20 and to inspect "without regard to the formality
requirements of Section 8(f)."

In any event, we are not convinced that FIM 76-20
unfairly affected Adams Steel.  We previously held that Adams Steel failed to
establish its assertion that the complaint that led to the inspection was filed to harass
Adams Steel.  There is also no evidence supporting Adams Steel's broader allegation
that FIM 76-20 invited and encouraged harassment of employers generally.  FIM 76-20
contained provisions designed to prevent such abuses of procedure.  For example,
paragraph 3(f) stated that "all complaints, regardless of formality requirements,
will be thoroughly evaluated by the receiving Area Office and an inspection shall be
conducted in the event the existence of safety and health hazards is indicated ...."
(Emphasis added.)  In addition, paragraph 3(g) stated that, "if there is
compelling evidence to indicate that the complaint procedure is abused groups or
individuals for purposes other than safety and health matters, the Area Director shall
consult with the Regional Administrator to determine whether to investigate the matter,
and if the determination is reached that conducting an inspection is not warranted, shall
so indicate in the complaint log."

We therefore affirm Judge McQuade's denial of Adams
Steel's motion to suppress the evidence.

III.

Item 1 of citation 1 alleges a violation of section
1926.750(b)(1)(iii), which provides:

� 1926.750 Flooring requirements .

(b) Temporary flooring--skeleton steel construction
in tiered buildings.

(1)...(iii) Floor periphery--safety railing .
  A safety railing of 1/2-inch wire rope or equal shall be installed, approximately
42 inches high, around the periphery of all temporary planked or temporary metal-decked
floors of tier buildings and other multifloored structures during structural steel
assembly.

This citation item relates to the third floor of the
Prudential Realty Building.  The building was triangular in shape and designed to
have six floors and a roof.  By the time of the inspection, structural steel had been
erected up to the fifth level while decking had been installed up to the third level.
  It is undisputed that no safety railing of any type was in place around the
perimeter of the third-floor decking.  Three ironworkers employed by Adams Steel were
working on the third floor and were thereby exposed to the hazard of falling from its
unguarded edges.

The primary issue with respect to this citation item is whether the standard applied to
the third floor.  The standard requires a wire-rope safety railing around
"temporary metal-decked floors . . . during structural steel assembly."
 The specific question is whether the standard applies when a steel erection
contractor is in the process of replacing temporary flooring or decking with permanent
flooring or decking.  Adams Steel asserts that "where, as here, the temporary
deck has been removed and the permanent deck is in the process of construction, it must
necessarily follow that the cited standard, by its own terms, is inapplicable."
  We disagree.

Adams Steel used the same sheets of metal in both its
temporary decking and its permanent decking.  For example, when Adams Steel installed
permanent decking on the third floor, it used the same metal sheets that had previously
been installed as the temporary decking at that level.  That the same decking was
used for both purposes, however, does not mean that there is no difference between
temporary and permanent flooring.  All of the witnesses, the Secretary's as well as
Adams Steel's, acknowledged that there were differences between temporary and permanent
flooring.

Temporary decking, as described by the witnesses, was
installed as a safety measure and for convenience in carrying out the work of structural
steel assembly.  It served three functions during steel erection work:   (a) as
a storage area and base of operations for those working above the floor, (b) as a working
surface for those working at floor level, and (c) as a catch platform for employees and
materials that might fall from upper levels.  A temporary deck consisted of sheets of
metal that were haphazardly laid and uncut.  Because the building was triangular,
this meant that the sheets overlapped the building's perimeter.  The temporary
decking was held in place by wire or cable.

Permanent decking, on the other hand, was a part of the building's structure it was cut to
shape, fitting within the perimeter of the building.  It was welded into place, and
it served as a foundation on which a concrete floor eventually would be poured.  
During steel erection work, the primary function of the permanent decking was to
contribute to the stability of the building.

In replacing temporary decking with permanent
decking, it appears the procedure was essentially as follows:  When Adams Steel was
ready to complete construction of a floor, it "uncovered" the entire perimeter
of the temporary floor by pulling back the metal decking from the edges.  Plumb-up
cables, which were used to align the building, were extended between the floors.
 Once the building was properly aligned, the "points" were
"bolted" (i.e., apparently, pre-existing bolting in the underlying structural
members was tightened, or reinforced with additional bolting, or both).  The decking
was then cut by an employee using an acetylene torch, so that the sheets would fit within
the building's perimeter.  Access areas and other openings were cut into the decking
(also with an acetylene torch), and the decking was welded into place.  Once welded,
the floor could no longer move and the plumb-up cables could be removed.  At a later
stage in the construction process, concrete was poured onto the metal decking, thereby
forming the completed floor.

It is not clear on this record how far the
installation of permanent decking on the third floor had progressed by the time of the
inspection.  At various points in his testimony, ironworker Robert Tierney stated
that work on the permanent third floor had begun "about the same day" as the
OSHA inspection, the day before the inspection "at least", and
"perhaps" two days before the inspection.  At the time of the inspection,
he asserted, the employees "were laying the [permanent] deck down and starting to cut
it." The compliance officer testified that the employees "had lifted the
temporary floor back down, tightened up the bolts and were putting down a permanent
decking to weld."  Adams Steel's foreman McClendon testified that an employee
photographed by the compliance officer was at the time "cutting everything to size
around the columns, around openings and welding it down."

The record indicates that the key factor in
determining whether flooring has become "permanent" is whether the flooring has
been integrated into the structure so that it contributes to the stability of the
building.  As stated by foreman McClendon, it is the welding that "holds the
building."  Yet, there is no evidence in this record as to what percentage of
the floor had been welded to the structural steel.

In any event, both parties agree on the two
fundamental facts concerning the stage of construction.  First, at the time of the
inspection, Adams Steel had disassembled the temporary decking on the third floor and
begun the process of installing the permanent decking.  Second, Adams Steel had not
yet completed the process, for the decking was yet not an integral part of the building's
structure, contributing to its stability.  The question posed here is therefore
whether section 1926.750(b)(1)(iii) requires a wire rope after the temporary decking is
disassembled but before the permanent flooring is complete.

Judge McQuade cited Ashton Co., 76 OSAHRC 6/B11, 3
BNA OSHC 1968, 1975-76 CCH OSHD � 20,351 (No. 5111, 1976), and concluded that section
1926.750(b)(1)(iii) applied because the building "was still in the steel erection
stage and installation of permanent flooring was not yet completed at the time of the
inspection."

We agree with Judge McQuade's reading of Commission
precedent.  Adams Steel contends that Ashton is distinguishable because the
employees in Ashton were engaged in installing temporary decking rather than
permanent decking.  However, any ambiguity in Ashton on that point was
resolved by the later Commission decisions in Pima Construction Co. , 76 OSAHRC
106/D3, 4 BNA OSHC 1620, 1622, 1976-77 CCH OSHD � 20,998, p. 25,229 (No. 5221, 1976), and
Carr Erectors, Inc .,77 OSAHRC 14/C9, 4 BNA OSHC 2009, 2010, 1976-77 CCH OSHD �
21,471, p. 25,777 (No. 7247, 1977).  Read together, Commission precedent holds that
if the employer is still engaged in structural steel erection and the permanent floor has
not yet been completed, then the floor is a "temporary-planked" or
"temporary metal-decked" floor within the meaning of section
1926.750(b)(1)(iii).

Our review of Subpart R in its entirety persuades us
that Commission precedent is correct.  Subpart R makes precisely the same distinction
between "permanent flooring" and "temporary flooring" and uses the
terms in the same sense, as the witnesses in this case did.  In particular,
paragraphs (a) and (b) of section 1926.750 are captioned "Permanent
flooring--skeleton steel construction in tiered buildings" and "Temporary
flooring--skeleton steel construction in tiered buildings," respectively.
 Separate requirements are established under Subpart R for these two distinct types
of flooring.  Further, the text of the permanent flooring requirements in section
1926.750(a), particularly the final clause of section 1926.750(a)(1), shows that the
section's purpose is to insure the stability of the building.  See also
section 1926.750(a)(2) ("permanently secured floor" used as synonym for
"permanent flooring").  Thus, section 1926.750(a) indicates that the
principal distinguishing feature of "permanent" flooring is that the flooring
has been made an integral part of the building's structure and therefore contributes to
stabilizing the building.  This is the same sense in which the witnesses used the
term "permanent flooring."

The decking here was temporary rather than permanent
flooring.  The decking had not been welded to the structural steel, had not become an
integral part of the building's structure, and therefore was not contributing to the
stability of the building.  Thus, section 1926.750(b)(1)(iii) was still applicable.

IV.

Item 2 of citation 1 alleges a violation of section
1926.500(b)(2).  The cited standard, which is contained in Part 1926, Subpart
M--Floor and Wall Openings, and Stairways, provides as follows:

� 1926.500 Guardrails, handrails and covers .

(b) Guarding of floor openings and floor holes .

(2) Ladderway floor openings or platforms shall be
guarded by standard railings with standard toeboards on all exposed sides, except at
entrance to opening, with the passage through the railing either provided with a swinging
gate or so offset that a person cannot walk directly into the opening.

The primary issue with respect to this item is
whether the cited standard is preempted by more specifically applicable standards in Part
1926, Subpart R--Steel Erection.

The location of this alleged violation was the third
floor of the Prudential Realty Holding Building, that is, the same floor that was the
location of the violation alleged in item 1.  The compliance officer testified that
item 2 related to a 36-foot-long wooden ladder that provided access from the ground up to
the third floor.  At the third-floor level, the ladder extended through a ladderway
opening that was not guarded.  The compliance officer further testified that Adams
Steel's employees "had to use" the ladder because it "was the only ladder
to the third floor."

Adams Steel does not dispute its failure to guard the
ladderway opening in accordance with section 1926.500(b)(2) or the exposure of its
employees to the unguarded opening.  Instead, it defends on the ground that the cited
standard was preempted by more specifically applicable steel erection standards.  
Its argument is based on 29 C.F.R. � 1910.5(c)(1).[[6]]

In its arguments before the judge, Adams Steel
reasoned that, because it was engaged in steel erection, Subpart R preempted section
1926.500(b)(2).  It noted that Subpart R specifically treats the subject of access
openings in floors in section 1926.750(b)(1)(i), which states that a derrick or erection
floor shall be solidly planked except for access openings.  It further noted that
Subpart R deals with safety railings in section 1926.750(b)(1)(iii), which requires such
railings only around the perimeter of the floor.  Thus, Adams Steel concluded:

Had the Secretary intended that the floor at access
openings be guarded by safety railing, it must be presumed that the Secretary had the
right and the ability to so require by a specific regulation.  Instead, by limiting
safety railings only to the floor periphery and by permitting access openings to exist in
decked floors, it must be assumed that the steel erection industry is not required to
guard open ladderways.

(Emphasis in the original.)

In response, the Secretary contended that Subpart R
"does not speak to protection of workers from the hazard of falling into unguarded
access openings."  Therefore, he concluded, reliance on the generally applicable
standard at section 1926.500(b)(2) was appropriate.[[7]]  In his decision, Judge
McQuade essentially adopted the Secretary's position.  Accordingly, he affirmed the
citation item.  On review, both parties resubmit the arguments that they made before
the judge.

We agree with Adams Steel that the cited standard did
not apply to the ladderway opening in the third floor at the time of OSHA's
inspection.  However, our reasoning is based on another standard in Subpart R,
section 1926.752(j), which provides:

� 1926.752  Bolting, riveting, fitting-up,
and plumbing-up .

(j) All unused openings in floors, temporary or
permanent, shall be completely planked over or guarded in accordance with Subpart M of
this part.

Section 1926.752(j) is a scope provision that limits
the application of the floor opening standards in Subpart M during the steel erection
phase of construction to floor openings that are "unused."  In this case,
since the opening in question was being actively used as the only means of access to the
third floor, guarding was not required.  We therefore vacate item 2 of citation 1.

V.

Citation 2 as amended alleged a violation of section
1926.28(a) or section 1926.105(a) in that employees were working on a structural beam at
the fifth-floor level, approximately 50 feet above the ground, and "[s]afety nets,
ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts were
not used" to protect them.

On review, only the alleged violation of Section
1926.105(a), which the judge affirmed, is still at issue.  See note 8 infra .
 This general construction standard provides:

� 1926.105 Safety nets .

(a) Safety nets shall be provided when workplaces are
more than 25 feet above the ground or water surface, or other surfaces where the use of
ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is
impractical.

Adams Steel defends against this charge on two
grounds.  First, it contends that, under the terms of section 1926.105(a), it was not
required to install safety nets because it had instead provided one of the other listed
alternatives, "temporary floors."  In any event, it argues, section
1926.105(a) cannot be applied to steel erection work because it is preempted by more
"specifically applicable" standards in Subpart R.

The relevant facts in determining the preemption
issue are not in dispute.  The compliance officer observed that two employees of
Adams Steel were working from a beam at the fifth-floor level while bolting up objects
identified as "relief angles for the masonry" or "masonry lintels."
  The compliance officer testified that the two employees, who were wearing safety
belts that were not tied off, were exposed to the hazard of falling either 50 feet toward
the outside of the building or approximately 20 feet toward the inside of the building.
 On the outside of the building, there was nothing between the fifth-level beam and
the ground below.  If either employee had fallen to the inside of the beam, he would
have fallen to the third-floor decking.

This case is indistinguishable from two other cases
in which the Commission previously has ruled on the same preemption issue: Adams Steel
I , referred to above in connection with the employer's motion to dismiss; and Williams
Enterprises of Georgia, Inc ., 86 OSAHRC ____, 12 BNA OSHC 2097, 1986 CCH OSHD �
27,692 (No. 79-4618, 1986), appeal filed, No. 86-8825 (11th Cir. Nov. 10, 1986).  In
Adams Steel I, the Commission concluded that section 1926.105(a) cannot be applied to the
hazard of falling from perimeter beams during steel erection work because it is a general
construction standard and is therefore preempted by more "specifically
applicable" standards in Subpart R. See note 6 supra.  On review, the Court of
Appeals for the Third Circuit reversed the Commission, holding that section 1926.105(a)
can be applied to the hazard of exterior falls at issue because there are no
"particular standards" in Subpart R that apply to that hazard.  See note 7 supra .
  In Williams Enterprises , the Commission, with Commissioner Wall dissenting,
respectfully disagreed with the position of the Third Circuit and reaffirmed the position
it had taken in Adams Steel I .

In the absence of a ruling from the Supreme Court or
a Court of Appeals with jurisdiction over the case, Chairman Buckley would adhere to the
Commission's position on the preemption issue as stated in Adams Steel I and Williams
Enterprises .  Nevertheless, because this case arises in the Third Circuit, i.e.,
both the inspected workplace and Adams Steel's principal place of business are located
there, Chairman Buckley defers to the appellate court for that circuit in rejecting the
preemption argument raised by Adams Steel.  See Babcock & Wilcox Co. v. OSHRC ,
622 F.2d 1160, 1166 (3d Cir. 1980) (binding effect of appellate court's rulings on cases
arising in the Third Circuit).  See also Davis Metal Stamping, Inc ., 85 OSAHRC
_____, 12 BNA OSHC 1259, 1261, 1984-85 CCH OSHD � 27,236, p. 35,156 (No. 78-5775), aff'd ,
800 F.2d 1351 (5th Cir. 1986).  Commissioner Wall rejects Adams Steel's argument on
its merits, concluding that section 1926.105(a) applies to the cited conditions.

The facts relating to Adams Steel's argument that it
was in compliance with the standard are also undisputed.  Based on the compliance
officer's uncontradicted testimony, Judge McQuade entered the following finding:

It was not practical or of likely utility for Adams
Steel employees at the Prudential Building to use scaffolds, ladders, catch platforms, or
temporary floors as safety devices to protect against the dangers of outer perimeter
falls.

Resolving a conflict in the testimony over the
feasibility of personal protective equipment, the judge also entered this finding:

It was not practical or of likely utility for Adams
Steel employees at the Prudential Building to tie off to beams, relief angles, bolt holes,
or static lines.

This latter finding is not challenged on
review.[[8]]  Because all of these other forms of fall protection were impractical,
the judge concluded that, under the terms of section 1926.105(a), Adams Steel was required
to provide perimeter safety nets.  It is undisputed that perimeter safety nets were
not provided and that the temporary flooring at the third-floor level would not have
broken an exterior fall from the perimeter beam at the fifth-floor level to the ground
below.

Adams Steel contends that, because it provided
temporary flooring approximately 20 feet below the two employees on the perimeter beam, it
was in compliance with section 1926.105(a), even though this flooring would not have
provided protection if either employee had fallen toward the outside of the building.
 We conclude, however, that this argument is contrary to the Third Circuit's decision
in Adams Steel I .  We interpret the court's decision as holding that, under
the circumstances that existed both in that case and in this case, section 1926.105(a) not
only applies but also is violated.  In the Third Circuit's view, the hazard at issue
in these cases is the hazard of falling from a perimeter beam to the outside of a
building.  See , e.g ., 766 F.2d at 808.  Section 1926.105(a)
applies to this hazard as thus defined and requires the employer to protect employees
against it.  Since a temporary floor provides no protection against exterior falls, see ,
e.g ., 766 F.2d at 808, an employer who relies solely on temporary floors is not in
compliance with section 1926.105(a), as it is interpreted by the Third Circuit.  We
therefore will affirm citation 2 as modified by the judge.

Accordingly, we affirm item 1 of citation 1, vacate
item 2 of citation 1, and affirm citation 2 as modified by the judge.

FOR THE COMMISSION

Ray H. Darling Jr.

Executive Secretary

DATED: February 2, 1987

SECRETARY OF LABOR,

Complainant,

v.

ADAMS STEEL ERECTION, INC.,

Respondent.

OSHRC Docket No. 77-3804

DECISION AND ORDER

Appearances:

David F. Street, Esq.

Office of the Regional Solicitor

U.S. Department of Labor

Philadelphia, Pennsylvania

for the Complainant

Richard S. Crone, Esq.

Crone and Zittrain

Philadelphia, Pennsylvania

for the Respondent

McQuade, Judge:

This proceeding was commenced pursuant to Section 10
of the Occupational Safety and Health Act of 1970, 29 U.S.C. � 651, et seq .,
(the Act).  The Respondent is charged with serious violations of 29 C.F.R. 1926.28(a)
or, in the alternative, 1926.105(a); 29 C.F.R. 1926.750(b)(1)(iii); and 29 C.F.R.
1926.500(b)(2).  Respondent is also charged with an other-than-serious violation of
29 C.F.R. 1926.100(a).

Respondent, Adams Steel Erection, Inc., is a Pennsylvania corporation having its sites as
a steel erection company in the Pittsburgh area and maintaining its headquarters in
Kittaning, Pennsylvania.

The Pittsburgh office of the Occupational Safety and
Health Administration (OSHA) conducted six inspections of the Respondent's construction
sites pursuant to anonymous telephone calls.  Three inspections resulted in issued
citations, one inspection in an uncontested nonserious violation, and two inspections in
findings of compliance (Tr. 321-322).

This case resolves the citations which were issued
from the September 23, 1977, inspection of the Prudential Building worksite in Pittsburgh,
Allegheny County, Pennsylvania.  Adams Steel Erection, Inc., (Adams Steel) was issued
three citations on October 17, 1977.

On November 7, 1977, Citation No. 1 was amended to
reduce the proposed penalties of the two items from $800 each to $420 each.  The
proposed penalty for Citation No. 2, termed at that time as a "Repeated
Citation," was reduced from $2,000 to $840. Respondent contested all citations on
November 7, 1977, and a hearing was, conducted on March 27, 1978.

Complainant moved to amend Citation No. 2's
classification from "Repeated" to "Serious."  Without objection
from the Respondent the motion was granted (Tr. 8).

Serious Citation No. 1, Item 1, alleges noncompliance
with 29 C.F.R. 1926.750(b)(1)(iii) because Respondent did not supply a safety railing
around the periphery of the third floor.

The regulation requires:

(iii) Floor periphery--safety railing.  A safety
railing of 1/2-inch wire rope or equal shall be installed approximately 42 inches high,
around the periphery of all temporary-planked or temporary metal-decked floors of tier
buildings and other multifloored structures during structural steel assembly.

The inspecting compliance officer, James Weyrauch,
observed during the course of the inspection three Adams Steel employees working on the
third floor of the Prudential Building structure.  The workers were in the process of
converting temporary decking into permanent flooring.  No wire rope or other safety
railing was in place around the third-floor perimeter (Tr. 13, 22-23; Ex. C-1, C-2, C-3).

Weyrauch testified that the employee shown kneeling
in the background of Exhibit C-1 was 3 feet from the edge of an unprotected outside
perimeter, with nothing to break a 27-foot fall should he fall from the edge of the
building (Tr. 16).  Weyrauch described the surface upon which the employee could have
fallen as either street, sidewalk, or "excavated rocks and rubble from the
trench." (Tr. 18).  Weyrauch testified that an employee falling 27 feet from the
third floor would suffer "broken bones, possibly death." (Tr. 18-19).

Respondent's witness offered varying estimates of
what percentage of the third floor had already been converted to permanent flooring:
  70, 80 and 85 percent.

Robert Tierney, Respondent's employee, testified that
all the flooring shown in Exhibits C-1, C-2, and C-3 had been temporary, but that by the
time of the inspection 70 percent of the third floor had been converted to permanent
flooring. (Tr. 116).

Don McClendon, Respondent's foreman, testified that the conversion from temporary deck to
permanent decking was 80 percent completed (Tr. 133).

Lloyd Leadbeter, Respondent's supervisor, gave the
highest estimate of the third-floor portion already converted to permanent, 85 percent
(Tr. 165-167).  However, Complainant argues that Leadbeter's estimate is the least
reliable since he was not at the worksite on the day of the inspection, nor had he been
there for a week prior to the inspection (Tr. 180).  He based his estimate only from
examining the worksite the day after the inspection and from examining Weyrauch's
photographs.

Respondent argues that (1) the standard is
inapplicable under the facts of the case, and (2) compliance is impossible.  This is
asserted in Respondent's Eighth Defense in its Answer and reiterated in motions for
involuntary dismissal at the conclusion of the presentation of both the Secretary's case
(Tr. 89-90) and all evidence (Tr. 193).

Adams Steel points to the testimony of its witnesses
Tierney, McClendon, and Leadbeter to show that the third floor consisted primarily of
permanent flooring at the time of inspection (70 to 85 percent).  Respondent thereby
concludes that the standard in issue is inapplicable to the facts because
1926.750(b)(1)(iii) prescribes safety railings only for temporary flooring, not permanent
floors.

Respondent contends that the standard in issue is
vague as to time of applicability and denies the employer fair warning of the conduct it
prohibits or requires.

Respondent also argues that the Secretary has the
burden of proving that the local custom in the steel erection industry requires use of a
railing around the perimeter of the structure during conversion from temporary to
permanent flooring.  Respondent claims that the Secretary has failed this burden.

However, the Secretary has no such burden of
proof.  Local custom and usage cannot control in the face of a Federal standard.
There is no requirement that Federal law carry with it a showing that it does not
contradict local custom to be enforceable.

Furthermore, Respondent's contention is not sustained
that the standard is too vague to be enforced and does not supply the fair notice to which
employers are entitled.  The standard is very precise as to specifications for
railing, its placement, its height, the type of floors and structures where it is to be
placed, and the stage of construction at which the safety railing is to be in place. 
The employer receives fair notice of what is required by the standard from its
language.  The requirement of safety railings around temporary floors "during
structural steel assembly" is a clear mandate for this safety measure; the absence of
exceptions or particular address to the stages of temporary flooring does not function as
a loophole to compliance.  The standard is clear:  A safety railing is required
around the perimeter of temporary floors of multi-floored steel erection structures.

Complainant relies on The Ashton Company, Inc .,
76 OSAHRC 6/B11, 3 BNA OSHC 1968, 1975-76 CCH OSHD 20,351, OSHRC Docket No. 511 (1976), in
which the Commission held 1926.750(b)(1)(iii) to apply to the working conditions of a
building "still in the steel erection stage [where] the installation of permanent
flooring had not completed."  In the case at bar, the permanent flooring
similarly had not been "completed" and the construction similarly was still in
the steel erection stage.  Therefore, by the reasoning of the Commission in Ashton
Company , it is clear 1926.750(b)(1)(iii) applies to the Prudential Building inspection
facts.

The three elements of establishing a violation
are:  (1) applicability of the standard to the facts, (2) employer failure to comply
with the standard, and (3) employee access to the hazard resulting from the violation.
  Anning-Johnson Company , 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD
20,690, OSHRC Docket Nos. 3694 and 4409 (1976).

Since it is clear that the Prudential Building was
still in the steel erection stage and installation of permanent flooring was not yet
completed, by the Ashton Company standard, 1926.750(b)(1)(iii) applies to the
facts.  Therefore, the first of the three elements of a violation is satisfied. 
It is also clear that Adams Steel did not provide any safety railing and that employees
working on the third floor were exposed to the danger of falling 27 feet to the ground,
thereby satisfying the second and third elements of establishing a violation.  
Complainant has thereby proven the violation.

Respondent's argument that because the floor in
question had been largely converted from temporary to permanent flooring, the standard is
inapplicable, lacks support.  During the conversion period, Respondent is still
required to provide protection for its employees.  Whether the permanent floor safety
railing requirement, 29 C.F.R. 1926.500(d)(1), or the temporary floor safety railing
requirement, 1926.750(b)(1)(iii), is applicable, the prescription is clear:  An
employer must provide a safety railing around the building perimeter.  The basic
purpose is to protect workers during all phases of the steel erection, regardless of
whether 20 percent or 80 percent assembled.  The standard applies and has been
violated.

Serious Citation No. 1, Item 2, alleges noncompliance
with 29 C.F.R. 1926.500(b)(2) because Respondent left a third-floor ladderway opening
unguarded by railings or toeboards.

The applicable regulation requires:

SUBPART M--FLOOR AND WALL

OPENINGS, AND STAlRWAYS

� 1926.500 Guardrails, handrails, and covers.

(b) Guarding of floor openings and floor holes.

(2) Ladderway floor openings or platforms shall be
guarded by standard railings with standard toeboards on all exposed sides, except at
entrance to opening, with the passage through the railing either provided with a swinging
gate or so offset that a person cannot walk directly into the opening.

The inspecting compliance officer, Weyrauch,
testified that entry onto the third floor was provided by a 36-foot wooden ladder. The
ladder was the sole means of access from the ground to the third floor for ironworkers.
 The Iadderway opening was in use and was not protected by standard railings,
standard toeboards, or any perimeter guarding whatsoever.  Employees were exposed to
a fall of 27 feet through the hole erected by the opening (Tr. 19-22; Ex. C-4).  This
evidence is undisputed.

Weyrauch testified that the hazard workers were
exposed to was a possible 27-foot fall to dirt, material and rubble from a trench, and
steel scaffolding, a hazard which would result in serious injury or death (Tr. 57-59).

Respondent's witnesses testified that the ladder had
been in place one week (Tr. 102), but the opening was smaller, only 2-1/2 feet wide, prior
to the day of inspection when cutting for the permanent flooring had begun (Tr. 102-103,
131).  Messrs, Tierney, McClendon, and Leadbeter, all Respondent witnesses with
considerable industry experience, agreed that they had never seen a steel erector install
a handrail or cable around an opening for an access way to a deck (Tr. 105, 134-136,
168).  Supervisor Lloyd Leadbeter also stated that a reasonably prudent employer in
the steel erection industry in the Pittsburgh area would not recognize the necessity of a
steel erector to install standard railings and toeboards (Tr.168).

Respondent denies the applicability of the standard,
claiming Subpart R, the steel erection standard, specifically treats the subject of access
openings in floors.  Subpart R only indirectly mentions access ways in 1926.750(b),
however, in requiring that floors be solidly planked except for access openings. 
Respondent reasons that since Subpart R requires tightly planked floors except for access
openings, and also requires safety railings around the periphery of the floor, this
excludes steel erectors from being required to place guardrails around openings. 
Respondent claims a reasonable employer would find in Subpart R permission to leave access
ways unguarded.

However, to assume that the steel erection industry
is not required to guard open ladderways is taking liberty with the spirit of the Act and
an application of loophole logic.  The Subpart R standards do not address the issue
of protection of workers from the hazard of falling into unguarded access openings.  
Complainant is correct in arguing that since 1926.750(b) does not deal with protection of
employees from this hazard of falling through access openings, reference to the
construction standards pertaining generally to openings is necessary.

The Act provides in 1910.5(c)(2) that to the extent
that a particular standard does not apply (giving as an example Subpart R, the specific
standard in question in the case at bar), more general standards apply.

The relevant provision, 29 C.F.R. 1910.5(c)(2), after
requiring the priority of on-point specific standards over general standards, states:

On the other hand, any standard shall apply according
to its terms to any employment and place of employment in any industry, even though
particular standards are also prescribed for the industry, as in Subpart B or Subpart R of
this part, to the extent that none of such particular standards applies.  To
illustrate, the general standard regarding noise exposure in � 1910.95 applies to
employment and places of employment in pulp, paper, and paperboard mills covered by �
1910.261.

The rule of construction of 1910.5(c)(2) is that a
general standard may apply, even if a particular standard is also prescribed for the
industry, to the extent that the particular standard is inapplicable.  Bristol
Steel & Iron Works, Inc ., 77 OSAHRC 181/D6, 5 BNA OSHC 1940, 1977-78 CCH OSHD
22,240, OSHRC Docket No. 14537 (1977).  In Bristol , Commissioner Cleary held:

I agree with the Administrative Law Judge that the
steel erection standards were not intended to cover all situations related to steel
erection.  In other words, Subpart R contains some specific steel erection standards.
 It does not contain comprehensive rules for steel erection, or rules covering work
incidental thereto.  This is why the rule of construction in 29 C.F.R. 1910.5(c)(2)
should be applied.

Respondent argues that the standard is ambiguous and,
therefore, custom and practice in the industry in the Pittsburgh area is most significant
and a "reasonable man" test should be applied.  However, 1926.500(b)(2) is
clear in its language and applicability is in order.  Federal law takes priority over
local practice.

Complainant reasons that since 1910.5(c)(2) and Bristol
Steel and Iron Works , supra , support the applicability of the standard, the two
remaining elements for establishing a violation are:  Employer failure to comply with
the standard and employee access to the hazard resulting from the violation Anning-Johnson
Company , supra .  Since the facts that the standard were not complied with
and workers had access to the danger of a 27-foot fall are undisputed, Respondent was in
violation of the cited standard.

Serious Citation No. 2 alleges a violation of 29
C.F.R. 1926.28(a) or, in the alternative, 1926.105(a).  The inspecting compliance
officer, James Weyrauch, observed two employees tightening bolts on the structure on beam
B-16 between columns C-7 and C-13 at the inspected worksite.  To their left side was
a deck 22 feet below; to their right side was concrete 50 feet below (Tr. 23, 86; Ex.
C-5).

Complainant alleges that these employees should have
been tied off to beams or to a static line to reduce the potential hazard of these workers
falling.  Adams Steel's failure to provide lanyards and a static line to tie off on
is the basis of the alleged personal protective equipment violation, 29 C.F.R. 1926.28(a),
which reads:

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the
wearing of appropriate personal protective equipment in all operations where there is an
exposure to hazardous conditions or where this part indicates the need for using such
equipment to reduce the hazards to the employees.

In the alternative, if such protective equipment is deemed to be impractical or to present
a greater hazard, Complainant alleges 29 C.F.R. 1926.105(a) noncompliance because
Respondent did not supply safety netting as an alternative safety precaution.

The safety nets regulation requires:  �1926.105
Safety nets.

(a) Safety nets shall be provided when workplaces are
more than 25 feet above the ground or water surface, or other surfaces where the use of
ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is
impractical.

Compliance Officer Weyrauch testified that an
employee fall of 50 feet would result in serious injury or death (Tr. 25-26). Although
both employees observed (Ex. C-5) were wearing safety belts, there were no lanyards or
static line and if a static line had been erected above the beam, the employees could have
tied off to the line as a protection against falling.  Weyrauch testified that the
employees could have tied off to the beam they were working on, to the previous relief
angles they had just put in, to the bolt hole (with a connector's lanyard), or to a static
line (Tr. 26-27).  Weyrauch also suggested that the fifth floor perimeter guardrail
could have been used as a static line with an O-ring attached to the lanyard end for ease
of movement (Tr. 77-79).  Weyrauch also admitted on cross-examination, however, that
the fifth floor had no safety railing and no flooring.  Respondent's counsel tried to
establish that since there was no flooring, no railing was required or supplied, and thus
a perimeter safety railing could not practically be used as a static line (Tr. 78-79).

Weyrauch admitted scaffolds, ladders, catch
platforms, and temporary floors were impractical as protection against injury from falls
to the outside of the building (Tr. 27-28).  Weyrauch also testified that there were
no safety nets in use at the inspected worksite (Tr. 27).

Respondent's employee, Robert Tierney, claimed it
would be more of a problem to tie off to the relief angle than not to tie off. Because the
beam was 30 or 33 inches deep and 12 inches wide, 42-45 inches of the 6-foot lanyard would
be consumed by tying off itself.  This would necessitate the worker bending over
several feet and would have been neither practical nor feasible (Tr. 107-108).

Tierney testified that the workers were bolting up
either two or four bolt holes, a process which took "about a minute," followed
by movement 4 or 5 feet to the next position.  Tierney said the only bolt holes
available were the ones the workers were filling with bolts, so that it is obvious you
cannot tie off to the same bolt holes you are bolting up (Tr. 109-110).

Tying off to the beam is also impractical, according
to Tierney, because the beam is 84 or 90 inches in circumference and the lanyards are only
72 inches long (Tr. 110-111).

Tierney also found Weyrauch's suggestion of tying off
to a static line from a perimeter railing impractical.  Since there was no temporary
floor, there was no perimeter railing around the temporary floor.  Tierney testified
he had never seen a railing where there was no floor (Tr. 111).

Tierney did admit, however, that there had been
scattered temporary decking on the fifth floor prior to the inspection day (Tr. 126-127).

Foreman McClendon agreed with Tierney on several
points:  It was 4 or 5 feet between work positions, the lanyards were too short to
reach around the beams, and tying off to the bolt holes was impossible since the workers
were engaged in the very act of filling those bolt holes with bolts (Tr. 137-139).
 McClendon said the bolting up process took 1 to 3 minutes, which was less time than
it would take to tie off (Tr. 138-139).  McClendon testified that he had never seen a
perimeter safety railing used as a static line (Tr. 139).

Respondent's superintendent, Lloyd Leadbeter, said
that tying off to either the relief angle or the beam was more dangerous than simply
straddling it (Tr. 171, 173).  He testified that the lanyard and a bolt could not
both fit into a bolt hole (Tr. 172).  Leadbeter also testified that a perimeter wire
static line would be impractical because workers as they stood up would have been
"into the cable" (Tr. 176-177).

Complainant counters that an employee bumping his
head is not a greater danger than an employee working without protection from falling.
  Complainant maintains that the greater hazard defense fails since a knot on the
head is a less serious injury than the injury resulting from a fall of 50 or 22 feet.

However, workers would be subjected to more serious
harm than a bump on the head; workers could be bumped, knocked down, or entangled by the
connecting, disconnecting, and wearing of the safety belt-lanyard-static line-perimeter
railing apparatus. The greater hazard claim of Respondent has not been dispelled and
the practicality of static lines is doubtful.  Complainant's suggestion of a second
perimeter railing being installed above the normal railing (at a greater height) is also
impractical.  Under any of the suggested means of tying off - to the beam, relief
angle, bolt hole, or static line from perimeter railing - tying off is impractical.

Complainant maintains that in the event 1926.28(a) safety measures be deemed impractical,
1926.105(a) has been violated because Respondent has not supplied safety nets.

Respondent's argument that both 1926.28(a) and
1926.105(a) are vague and impossible to comply to, and therefore inapplicable, lacks
merit.  Adams Steel claims the standards are ambiguous and imprecise, but the
standards' language is clear and implicit in its prescription of applicability.
 Respondent claims that in the event of a citation under an ambiguous standard,
custom and practice in the industry should prevail.  However, local industry custom
does not prevail as against a specific Federal standard.

Respondent also argues that 1926.105(a) is
inapplicable because Subpart R, the more specific steel erection standards section,
applies.  Adams Steel contends that 1926.750(b)(2)(i), in Subpart R, requires only a
tightly planked and substantial floor. Respondent argues that 1926.105(a) is ambiguous
because safety nets are required only where alternate protection is impractical.  In
the case at bar, Respondent maintains the employer had a floor within two stories or 25
feet of employees, as required by the steel erection standard, and this suffices as a
valid form of fall protection as required.

However, Respondent's reliance for this argument is
on the critically distinguishable facts of Southwestern Industrial Contractors and
Riggers, Inc ., 77 OSAHRC 95/E9, 5 BNA OSHC 1631, 1977-78 CCH OSHD 22,840, OSHRC Docket
No. 14424 (1977).  In Southwestern , the employer had safety belts in use as a
form of fall protection already, so that safety nets were not required.  The safety
belts in use protected Southwestern's employees against harm from falls on the interior
and exterior of the structure.  In the case at bar, Respondent's argument that
temporary flooring is a valid substitute for the use of safety nets ignores the hazard of
falls on the outside of the structure.

Although temporary flooring protects high
steelworkers against falls to the interior sides of the building structure, absolutely no
protection against falls on the outside perimeter of the building was provided by Adams
Steel.  As Complainant points out, an employee falling in the "wrong"
direction, to the outside of the structure, would fall 50 feet to the ground below.

Complainant relies on precedent to show that
1926.105(a) is applicable when personal protective equipment is impractical under
1926.28(a).  Roanoke Iron & Bridge Works, Inc ., 77 OSAHRC 74/C9, 5 BNA
OSHC 1391, 1977-78 CCH OSHD 22,522, OSHRC Docket No. 10411 (1977), Cornell &
Company, Inc ., 77 OSAHRC 18/D10, 5 BNA OSHC 1018, 1977-78 CCH OSHD 21,532, OSHRC
Docket No. 9353 (1977).  Particularly on point is the Cornell holding that
Respondent was "required under the terms of Sec 1926.105(a) to protect its employees
by erecting safety netting on the outside perimeter of the building."

Other-than-Serious Citation No. 3 alleges a violation
of the Act for noncompliance with 29 C.F.R 1926.100(a) because an employee of Respondent
was not wearing a hard hat and was exposed to the potential harm which would result from
being struck by falling materials.

The relevant statute requires:

� 1926.100   Head protection.

(a) Employees working in areas where there is a
possible danger of head injury from impact, or from falling or flying objects, or from
electrical shock and burns, shall be protected by protective helmets.

The employee shown in Exhibit C-7 is not wearing a
hard hat and is "standing directly beneath the man working on beam-16,"
according to the inspector (Tr. 35).  The employee, foreman McClendon's son, was
employed as an apprentice and was carrying ice as part of his duties as a
"go-fer" (Tr. 115).  Respondent's witnesses testified that the employee was
"maybe five feet" (Tr. 114) and "about ten feet away from the
building" (Tr. 140).  The employee's father, foreman McClendon, testified that
his son had long hair, didn't "get along" well with his hard hat, and
"would take it off every chance he could." (Tr. 140-141).

Complainant argues that since this employee was
directly under or near the perimeter of the building and was without a hard hat,
Respondent was in violation of the cited standard.

Respondent argues that there is no violation because
(1) the employee was not working, and (2) he was not in a place where there was a possible
danger of head injury from impact or from falling or flying objects.

Respondent points out that the employee depicted in
Exhibit C-7 was merely standing near the street smoking a cigarette.  He was carrying
ice for a water bucket and looked as if he were calling up to people to see if they wanted
coffee, to which his father, the foreman, attests "he is not doing much work..."
(Tr. 140).  Respondent claims this leads to the factual dispute -- was the employee
working?--since the standard only applies to "employees working" in areas where
danger exists.

However, the presence of the employee in an area of
exposure to hazard is enough; he doesn't have to be actively working.  We need not
assume that employees momentarily inactive are excluded from coverage of the standard
regardless of exposure to the hazard.  The standard's language, "employees
working," simply means "on the job" and if the employee is on the worksite,
it is spurious reasoning to rationalize exemption from the standard because he is on
"break."

Respondent also argues that the employee is not in a
position of danger since its witnesses testified that the employee was 5 or 10 feet away
from the building's perimeter.  Complainant's witness, the inspecting officer,
testified that the employee was right under a beam being worked on, and Exhibit C-7
appears to bear this out.

Regardless of the dispute as to distance of the
employee from the building's, outside perimeter, whether 10 or 5 feet or less, he is still
an employee working on the worksite without wearing a hard hat.  It is enough to be
near the perimeter of the building, not directly under, to be exposed to the hazard the
standard seeks to rectify.  The regulation contemplates the entire worksite and it is
Respondent's duty to ensure that the exposure to the hazard is minimized, especially for
an employee whom the foreman knows "would take off (his hard hat) every chance he
could." (Tr. 141).

Harassment Issue

Respondent argues that the six inspections of Adams
Steel construction sites are invalid because they were in response to the complaints of
anonymous caller(s), and the informant(s) who, aided by OSHA, were engaged in a program of
intentional harassment of the Respondent.

In the Ninth Defense in its Answer, Respondent
contends that the inspection is invalid because (1) it was in response to a person other
than an employee or his representative and (2) the non-employee informer was engaged in
intentional harassment.  Respondent motioned to suppress all evidence (Tr. 4), and
later motioned twice for involuntary dismissal (Tr. 89, 192).

Adams Steel objected to the series of inspections and
the administrative policy elucidated in Field Information Memorandum No. 76-20, which
represents an intent to inspect all but the clearly frivolous complaints, including
anonymous complaints, and to give priority to steel erection site complaints because of
the high hazard of this work.

Respondent considers the series of Adams Steel
worksite inspections, totaling six inspections within 33 days, unreasonable and therefore
beyond the reasonableness prescribed in Section 8(a) of the Act.  Section 8(a) gives
the Secretary inspection authority during reasonable times, within reasonable limits and
in a reasonable manner.

Section 8(a) of the Act provides that:

Inspections, Investigations, and Recordkeeping

Sec. 8. (a) In order to carry out the purposes of
this Act, the Secretary, upon presenting appropriate credentials to the owner, operator,
or agent in charge, is authorized--

(1) to enter without delay and at reasonable times
any factory, plant, establishment, construction site, or other area, workplace or
environment where work as performed by an employee of an employer; and

(2) to inspect and investigate during regular working
hours and at other reasonable times, and within reasonable limits and in a reasonable
manner, any such place of employment and all pertinent conditions, structures, machines,
apparatus, devices, equipment, and materials therein, and to question privately any such
employer, owner, operator, agent or employee.

Respondent maintains that the six inspections from
September 23 to October 26, 1977, transcend this statutory authority and constitute
harassment of the Respondent which Adams Steel alleges to be both unwarranted and illegal.
 The schedule of anonymous telephone complaints and subsequent OSHA inspections of
Adams Steel's plants totaling six inspections within a five-week period is as follows:

Plant
Date of Anonymous Call
Date of Inspection

Prudential Building

(the site at which

inspection is at bar)
September 21, 1977
September 23, 1977

L. B. Foster Project
September 19, 1977
September 23, 1977

U.S. Steel Supply
October 6, 1977
October 11, 1977

Bridgeville Bridge
October 6, 1977
October 12,1977

Robinson Township Project
October 18, 1977
October 20, 1977

Beaver County Medical

Center
General schedule inspection*
October 26, 1977

*A sewer contractor on the job site was named in a complaint received by OSHA, and all
contractors and subcontractors on the site, including the Respondent, were subsequently
inspected.

Respondent argues that Section 8(f),[[1/]] unlike the
general inspection provision Section 8(a), requires that the Secretary determine there are
reasonable grounds to believe such a violation or danger exists.   Respondent further
points to Field Information Memorandum (FIM) No. 76-20[[2/]] and its consideration of the
handling of Section 8(f) complaints.  Paragraph 3(g) of FIM No.76-20 lists some
exceptions to the general rule of the memorandum's policy to conduct the inspection
without regard to source or adherence to Section 8(f) formality.  One of these
exceptions is "if there is compelling evidence to indicate that the complaint
procedure is abused by groups or individuals for purposes other than safety and health
matters."  Harassment certainly is not a safety or health matter and would be a
proper reason for non-response to complaints if it was clearly determined that the purpose
of such complaints was harassment of an employer.  However, it has not been shown by
Respondent that the series of six Adams Steel inspections, given the hazardous nature of
the industry, constitutes "compelling evidence" that the complaint response
process has been abused.  The facts do not bear out the contention that anyone, let
alone an employee, was engaged in a program of intentional harassment of the Respondent.

The Complainant maintains that in relation to worker
safety, the steel erection industry is one of the "highest hazard" of all
American industries, citing the Bureau of Labor Statistics discussed at the hearings (Tr.
339-341) to bear this out.  The Pittsburgh Area Office, like several other Region III
offices, ranks complaints on a system of three priorities with "serious" being
the highest priority assigned.  Complaints dealing with Steel erecting contractors
are always given a "serious" designation with the intention to inspect within 3
days of the complaint (Tr. 328-330).

The Secretary points to the number and severity of
worker injuries in the steel erection industry as justification for the quick and thorough
response to complaints in this area and as strong policy against ignoring such complaints.

Charles Straw, OSHA's Pittsburgh Area Director,
testified that "(i)f somebody reports an unsafe condition at a workplace, we cannot
afford to ignore that simply on the basis that it may or may not be valid...(b)ecause
somebody may suffer serious injury or death as a result of our ignoring the
complaint" (Tr. 355).

OSHA argues that public policy favors inspection over
non-response since lives are at stake.  The possibility that too frequent or
inconvenient inspections of a business' worksite may occur is overbalanced by the
hazardous nature of the industry.  Because of these dangers, the need for assured
worker safety is greater, as is the compulsion to respond to complaints.

Complainant's further evidence is not only as to the
need, but also as to the routineness of response to anonymous complaints.

OSHA's operations officer for the Pittsburgh area, William Mason, testified that his
office received 1,400 safety and health complaints in 1976 and all of them, excepting the
clearly frivolous, lead to inspections (Tr. 358, 360-361).  Charles Straw's testimony
that between 20 and 25 percent of the complaints received at the Pittsburgh office are
anonymous phone calls (despite attempts to ascertain informant's names) (Tr. 331-332)
indicates that the Prudential Building inspection, which the Respondent alleges to be
intentional harassment, is only one of over 300 inspections a year which that office
routinely conducts in response to anonymous complaints.

Since all serious complaints are followed up, and all
steel erection firms are inspected quickly after a complaint is received, the issue as to
the source of the complaint is rendered moot.  Regardless of anonymity, each Adams
Steel complaint would have been followed through by an inspection.

Straw also testified on behalf of Complainant as to
the infeasibility of requiring informants to supply their names to OSHA before complaints
are responded to.  He said that requiring names would reduce both the number of
complaints received and the effectiveness of OSHA's safety program (Tr. 354).

Complainant contends that informants call anonymously
because of fear of employment discrimination despite advisement of their rights and the
protection of Section 11(c) of the Act[[3/]], and efforts by OSHA personnel to ascertain
the identity of callers (Tr. 331-333).

The proof does not establish harassment.
 Complainant's proof left unfettered the longstanding premise that anonymous calls
are a valid basis for industrial searches under Section 8(a) of the Act.  Section
8(a) gives the Secretary the right to inspect.  This section begins "(i)n order
to carry out the provisions of this Act."  Since the Act's first words are
"(t)o assure safe and healthful working conditions for working men and women,"
the purposes of this Act are clear.  Since nearly all witnesses agreed that it is a
high-hazard occupation, it is not unreasonable for the Secretary to give priority to
complaints, even anonymous complaints, in this occupational field.

OSHA is not only entitled to inspect, but in the case
of high safety-risk industries such as this, the statute demands timely and efficient
response to complaints.

Respondent complains that OSHA policy opens it to
anonymous complaints by competitors, estranged wives, and nonunion contractors (Tr. 344).

Anonymous complaints are not the same as employee
complaints and cannot be assumed to be so.  Therefore, Section 8(f), and any
arguments pursuant thereto, are inoperable in this case.  Employees are not known to
be the informants and logically can only be considered a subgroup of the callers.

Regardless of the source of the complaint,
Respondent, in a high worker safety-risk industry, was inspected and issued three
citations, two of them serious.

Respondent cites the Congressional Record as quoted
in Aluminum Coil Anodizing Corporation , 77 OSAHRC 70/A2, 5 BNA OSHC 1381, 1977-78
CCH OSHD � 21,789, OSHRC Docket No. 829 (1977) as showing the Secretary is aware of the
potential for harassment, including harassment by competitors.  The passage notes
"we (Congress) have seen very few cases wherein it might conceivably be said there
was a harassment factor involving either labor or business."  However, contrary
to Respondent's contention, this supports the proposition that the Secretary is complying
with Congress' expectations, and abuse of the standard for harassment is uncommon.

Since the identity of the caller(s) is unknown, the
issue is properly framed as whether the inspections were reasonable under Section 8(a) of
the Act, not Section 8(f).  The formality requirements of Section 8(f) or the
judiciousness of FIM No. 76-20 are not at issue.  What is at issue is whether the
Prudential Building inspection in particular, and the series of six inspections in
general, are a reasonable and valid exercise of OSHA authority to inspect.

As to the Section 8(f) employee complaints
provisions, the specification of employee status renders this section inapplicable to the
facts of this case.  At no point was it shown that the complaints received were from
employees of the Respondent and there is no reason to believe, absent such proof, that the
anonymous caller(s) were necessarily either employees or employee representatives.  
In discussing its contention that there is no evidence that a former employee made any of
the calls, Respondent readily admits "it appears agreed that anyone could have made
these complaints."  Since Section 8(f) is inapplicable, the proper standard to
use to measure the validity of the inspections is Section 8(a).  Like Section 8(f),
FIM No. 76-20 and any purpose it may have or duty it may create is inappropriate as the
measure of inspection validity.

Complainant relies on Aluminum Coil , supra ,
in which the Commission held:

The identity or purpose of the individual responsible
for making the complaint does not alter the fact that the Secretary is broadly authorized
by subsection 8(a) to conduct inspections.

This holding was reaffirmed by the Commission In Robberson
Steel Company , 78 OSAHRC 21/C14, 6 BNA OSHC 1430, 1977-78 CCH OSHD 22,603, OSHRC
Docket Nos. 76-4636 and 76-4637 (1978).

In Aluminum Coil the complaint received was
from a non-employee, which may or may not be the case here.  The Commission in Aluminum
Coil barred subsequent Respondent's evidence, proposed to show the informer's intent
was to harass, because "(t)he purpose of the individual does not affect the validity
of the inspection."  The Commission held that the Section 8(a) general authority
to inspect "is not limited by the special inspection provision of subsection
8(f)."

Based on this recent, unanimous Commission policy, Complainant here argues that the
identity or purpose of a caller is irrelevant to any inquiry as to the OSHA inspection's
legality.  Aluminum Coil supports Complainant's argument that the Secretary
may exercise his authority to respond to complaints not meeting the Section 8(f) formality
requirements.  The inspection in this case was made pursuant to the Secretary's
general inspection authority.

The record evidences Complainant's good faith and
does not bear out Respondent's contention that the OSHA inspections reached an unbiased
level.  The disagreement concerns whether six inspections in five weeks are
reasonable under the circumstances.  These circumstances favor the validity of the
inspection:  OSHA's broad authority under Section 8(a) to conduct inspections, relied
upon by Complainant with reference to Aluminum Coil Anodizing Corporation , supra ,
and Robberson Steel Company , supra ; the high-hazard nature of the industry
and priority given by OSHA to complaints concerning steel erection; the prevalence of both
anonymous complaints and subsequent inspections; and the public policy heavily favoring
the concerns of protecting worker safety and lives over employer convenience,
accommodation, and freedom from determination of compliance.  The inspections were
routinely authorized and conducted within the requirements of Section 8(a).

Constitutional Issue

Adams Steel contends that the Occupational Safety and
Health Act of 1970 is unconstitutional because it violates the Fourth, Fifth, and Sixth
Amendments to the Constitution.  Respondent argues that the citations are invalid
based on these constitutional grounds in the Third Defense of its Answer and in motions
for involuntary dismissal at the conclusion of evidence presented by both Complainant (Tr.
89) and Respondent (Tr. 192-193).

These arguments must be discounted, however, since
the Commission is not an Article 3 court and, therefore, cannot decide constitutional
issues.

Precedent makes it clear the Review Commission lacks
authority to determine constitutional issues.  The Commission has no jurisdiction
over issues which question the constitutionality of the Act itself.  This was
announced in Secretary of Labor v. Grebb Electric Company 74 OSAHRC 63/C10,
1974-75 CCH OSHD � 18,567, OSHRC Docket No. 3552 (1974) which held, "judges of this
Commission have no authority to rule on issues which involve direct attacks upon the
constitutionality of provisions of the Act." Grebb Electric cites Public
Utilities Commission of California v. United States , 335 U.S. 534, 78 S. Ct. 446
(1958) and Secretary of Labor v. American Smelting and Refining Company , 76
OSAHRC 5/A2, 3 BNA OSHC 1992,1975-76 CCH OSHD � 20,345, OSHRC Docket No. 10 (1975). 
The Court in Public Utilities Commission of California v. United States , supra ,
held that not only direct attacks on the Act's constitutionality, but also indirect
constitutional questions are not within the province of the Commission's discretion.
  Only when "an administrative proceeding might leave no remnant of the
constitutional question" may it apply administrative remedy; otherwise, judicial
relief should be sought.

Substantial additional precedent states that the
Review Commission lacks authority to decide constitutional questions.  Secretary
of Labor v. Colorado Pipe Lines, Inc .; 75 0SAHRC 23/A2, 3 BNA OSHC 1865,
1975-76 CCH OSHD � 20,251, OSHRC Docket No. 2805 (1975); Secretary v. Garland Call
Pole Company ; 75 OSAHRC 57/E12, 3 BNA OSHC 1188, 1974-75 CCH OSHD � 19,603, OSHRC
Docket No. 2028 (1975); Secretary v. Heede International Inc. , 75 OSAHRC 26/C9, 2
BNA OSHC 1466, 1974-75 CCH OSHD � 19,182, OSHRC Docket No. 1889 (1975); Secretary v.
Marino Development Corporation , 74 OSAHRC 73/B12, 2 BNA OSHC 1260, 1974-75 CCH OSHD �
18,825, OSHRC Docket No. 1040 (1974).

Furthermore, there is sufficient precedent in the
Federal courts upholding the constitutionality of the Occupational Safety and Health Act
of 1970 and holding that employers are not denied due process because the Secretary
inspects, cites, and penalizes as a final order absent a challenge.  Atlas Roofing
v. Occupational Safety and Health Review Commission , 97 S. Ct. 1261, 518 F.2d 990
(1977) and Lake Butler Apparel Company v. Secretary of Labor , 519 F.2d 84 (5th
Cir., 1975).  Civil penalties are not penal in nature and, therefore, are not invalid
because the Act does not provide for the constitutional protections given criminal
defendants by the Constitution.  Atlas Roofing , supra ; Lake Butler
Apparel Company , supra .  Although its full impact is yet to be seen, the
Supreme Court's holding in Marshall v. Barlow's, Inc ., 98 S. Ct. 1816 (1978)
concerns only inspections where the employer refused consent to the search and denied
entry, which did not occur in this case.

Nonetheless, it is clear that this proceeding has no
jurisdiction over, and cannot determine, constitutional issues.

Respondent is a relatively large steel erector in the Pittsburgh, Pennsylvania area.
 Previous violations or employee injuries have not been shown.  In the past, it
should be noted, Adams Steel has demonstrated a safety program and significant concern for
the safety of its employees.  Use of safety nets around building perimeters is
uncommon in the industry.  Therefore, Respondent should not suffer a large penalty
simply because it is one of the first employers to be determined in violation of the
general standard 29 C.F.R. 1926.105(a).

FINDINGS OF FACT

1.  Adams Steel Erection, Inc., is a corporation
headquartered in Kittaning, Pennsylvania which conducts its principal business activities
in the Pittsburgh, Pennsylvania area.

2.  The inspection of the Prudential Building
was in response to an anonymous complaint received at the Pittsburgh Occupational Safety
and Health Administration Office.

3.  The inspection was one of six inspections of
Adams Steel worksites conducted within a 5-week period.  All six inspections were
conducted pursuant to anonymous telephone call complaints.

4.  Of all American industries, the steel
erection industry is one of the most hazardous to employees.

5.  The inspection took place at what Section
8(a)(1) of the Act describes as a "construction site . . . where work is performed by
an employee of an employer."  The physical inspection itself was within the
limits prescribed in Section 8(a)(2), having been conducted "during regular working
hours" and within reasonable limits and in a reasonable manner."

6.  Employees working at an elevation of greater
than 25 feet above the ground are exposed to a substantial risk of harm from falling.

7.  No wire rope or other safety railing was in
place around the third-floor perimeter.

8.  Three employees were observed working on the
third floor of the Prudential Building structure at a height of 27 feet above the ground.

9.  An employee falling over the outside
perimeter of the building would have suffered serious injury or death.

10.  The third floor was between 70 and 85
percent converted from temporary to permanent flooring.

11.  The safety railing around temporary
flooring statute, 29 C.F.R. 1926.750(b)(1)(iii), is sufficiently clear and precise, and
gives employers fair notice so as to be enforceable.

12.  The Prudential Building was still in the
steel erection stage and installation of permanent flooring was not yet completed at the
time of inspection.

13.  The ladder in issue was in use at the time
of inspection, was the sole means of access from the ground to the third floor, and
ascended through a third-floor opening unprotected by railings, toeboards or any similar
safety guards.

14.  An employee falling 27 feet through the
opening to the ground would have suffered serious injury or death.

15.  Subpart R does not, by omission of
addressing the subject, permit steel erectors to leave access ways unguarded.

16.  General standards apply to the extent that
particular standards are inapplicable.

17.  An employee falling 50 feet over the
outside perimeter of the building would have suffered serious injury or death.

18.  It was not practical or of likely utility
for Adams Steel employees at the Prudential building to tie off to beams, relief angles,
bolt holes, or static lines.

19.  It was not practical or of likely utility
for Adams Steel employees at the Prudential Building to use scaffolds, ladders, catch
platforms, or temporary floors as safety devices to protect against the dangers of outer
perimeter falls.

20.  Both 29 C.F.R. 1926.28(a) and 1926.105(a)
are sufficiently clear and precise, and give employers fair notice so as to be
enforceable.

21.  Respondent did not provide safety nets or
other protection against outside perimeter falls.

22.  Safety nets were practical and useful as
safety device which could have been employed at the Prudential Building to protect workers
against the dangers of falling.

23.  There was need for safety nets on the
outside perimeter of the structure since employees were working on or near the outside
perimeter and were subject to outside perimeter falls of 50 feet.

24.  The employee depicted in Exhibit C-7 was in
close enough proximity to the structure so as to be exposed to possible head injury from
impact or from falling or flying objects.

25.  The employee depicted in Exhibit C-7 was
"working" for the purposes of 29 C.F.R. 1926.100(a), even though he is
momentarily inactive.

26.  The complaints were anonymous and,
therefore, it is unknown whether the complaints were made by employees, non-employees, or
both.

27.  Both anonymous complaints and subsequent
inspections are routine and common.

28.  The Secretary has broad authority to
inspect under Section 8(a) of the Act.

29.  Respondent has an excellent safety record
in the past and is participating in employee safety protection.

CONCLUSIONS OF LAW

1.  Adams Steel Erection, Inc., comes within the
jurisdiction of Section 10(c) of the Occupational Safety and Health Act of 1970.

2.  Citation No. 1 was amended to reduce the
proposed penalty of the two items from $800 to $420 each.

3.  Citation No. 2 was amended to reduce the
proposed penalty from $2,000 to $840.

4.  Citation No. 2 was amended to be classified
as "Serious" instead of "Repeated."

5.  The Secretary of Labor has validly exercised his authority under Section 8(a)(2)
"to inspect and investigate during regular working hours. . . and within reasonable
limits and in a reasonable manner ..." places of employment.  Inspections of the
Adams Steel construction sites are authorized by the Act and were reasonable and valid as
performed thereunder.

6.  The Commission is not an Article 3 court and
cannot rule on constitutional issues.

7.  Section 8(f) of the Act is inapplicable to
the facts of this case since it is unknown who made the complaints and an employee
provision cannot be applied based on an unfounded assumption.  Section 8(a)'s general
inspection authority is the applicable statute governing the inspections.

8.  Local custom and practice in an industry or
trade does not prevail as against a specific Federal standard.

9.  Adams Steel has violated 29 C.F.R. 1926.750
(b)(1)(iii) by failing to supply a safety railing around the periphery of the third
floor.  The standard is applicable to the facts of this case and compliance is
feasible.

10.  Adams Steel has violated 29 C.F.R.
1926.500(b)(2) by failing to protect workers from the dangers of an open ladderway by
supplying standard railings and standard toeboards.  Employees had access to the
hazard and Respondent failed to comply with the standard which is applicable under the
facts of this case.

11.  Adams Steel is not in violation of 29
C.F.R. 1926.28(a) requiring personal protective equipment where there is exposure to
hazardous working conditions because the installation and use of static lines or lanyards
are rendered infeasible by the dangers to which installation and use would subject
workers.  Tying off not only was impractical, it would have created a greater hazard
than the risks involved in nonuse.  Under the facts, tying off to a beam, relief
angle, bolt hole, or static line are all infeasible.

12.  Adams Steel has violated 29 C.F.R.
1926.105(a) by failing to install safety nets which is Respondent's duty in view of the
infeasibility of the use of personal protective equipment.  Section 1926.105(a)
requires safety nets to be provided when work places are more than 25 feet above the
ground and Adams Steel has clearly failed to meet this requirement, subjecting its workers
to possible unprotected falls of 50 feet.

13.  Adams Steel has violated 29 C.F.R.
1926.100(a) because an employee of Respondent while working was observed not wearing a
hard hat and was exposed to danger from being struck by falling materials.

ORDER

1.  Serious Citation No. 1, Item 1, alleging a
29 C.F.R. 1926.750(b)(1)(iii) violation, is affirmed.

2.  Respondent is assessed a penalty of $420 for
the 29 C.F.R. 1926.750(b)(1)(iii) violation.

3.  Serious Citation No. 1, Item 2, alleging a
29 C.F.R. 1926.500(b)(2) violation, is affirmed.

4.  Respondent is assessed a penalty of $420 for
the 29 C.F.R. 1926.500(b)(2) violation.

5.  Serious Citation No. 2 is partially vacated
and partially affirmed.  The serious violation of 29 C.F.R. 1926.28(a) is vacated;
the alternative serious violation of 29 C.F.R. 1926.105(a) is affirmed.

6.  Respondent is assessed a penalty of $50 for
the 29 C.F.R. 1926.105(a) violation.

7.  Other-than-Serious Citation No. 3, alleging
a 29 C.F.R. 1926.100(a) violation, is affirmed.

8.  Respondent is not assessed a penalty for the Other-than-Serious violation of 29
C.F.R. 1926.100(a).

HENRY F. McQUADE

Judge, OSHRC

Dated:  April 25, 1979

Hyattsville, Maryland

FOOTNOTES:

[[1]] Commissioner Wall would additionally find that the general contractor consented to
the inspection and that its consent was binding on Adams Steel.  The compliance
officer informed the general contractor of the purpose of his inspection; he presented his
credentials and a copy of the transcribed safety complaint.  The response of the
general contractor was to gather together the inspection party.  Commissioner Wall
therefore infers that the general contractor gave its voluntary consent to the inspection.
  See Daniel Construction Co. of Alabama , 81 OSAHRC 71/A2, 9 BNA OSHC
2002, 2004 n.3, 1981 CCH OSHD � 25,553, p. 31,861 n.3 (No. 13874, 1981)(voluntary consent
found where employer had no intent to object to entry at time of inspection and OSHA did
not misrepresent itself or coerce the employer).  That consent bound Adams Steel.
 The relationship between these two employers was the typical general
contractor/subcontractor relationship common to nearly all of the multiple-employer,
construction-worksite cases the Commission has adjudicated.  Adams Steel's work area
was not a discrete or private area.  Instead, it was an open area consisting of the
third-floor decking and structural steel above the third floor.  Commissioner Wall
therefore finds that the general contractor shared authority with Adams Steel over the
area in question so that it could give effective consent to an inspection of this area.
  See Donovan v. A.A. Beiro Construction Co ., 746 F.2d 894 (D.C. Cir.
1984) (general contractor's consent binding on subcontractor.)

[[2]] Section 8(f)(1) of the Act, 29 U.S.C. �
657(f)(1), provides as follows:

(f)(1) Any employees or representative of employees
who believe that a violation of a safety or health standard exists that threatens physical
harm, or that an imminent danger exists, may request an inspection by giving notice to the
Secretary or his authorized representative of such violation or danger.  Any such
notice shall be reduced to writing, shall set forth with reasonable particularity the
grounds for the notice, and shall be signed by the employees or representative of
employees, and a copy shall be provided the employer or his agent no later than at the
time of inspection, except that, upon the request of the person giving such notice, his
name and the names of individual employees referred to therein shall not appear in such
copy or on any record published, released, or made available pursuant to section (g) of
this section.  If upon receipt of such notification the Secretary determines there
are reasonable grounds to believe that such violation or danger exists, he shall make a
special inspection in accordance with the provision, of this section as soon as
practicable, to determine if such violation or danger exists.  If the Secretary
determines there are no reasonable grounds to believe that a violation or danger exists he
shall notify the employees or representative of the employees in writing of such
determination.

[[3]] Section 8(a) of the Act, 29 U.S.C. � 657(a),
provides as follows:

(a) In order to carry out the purposes of this Act,
the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in
charge, is authorized--

(1) to enter without delay and at reasonable times any factory, plant, establishment,
construction site, or other area, workplace or environment where work is performed by an
employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times,
and within reasonable limits and in a reasonable manner, any such place of employment and
all pertinent conditions, structures, machines, apparatus, devices, equipment, and
materials therein, and to question privately any such employer, owner, operator, agent or
employee.

[[4]] OSHA uses the term "non-formal
complaints" to refer to safety and health complaints that do not meet the
"formality requirements" of � 8(f)(1), note 2 supra .  At the
hearing in Adams Steel I , OSHA Regional Administrator Rhone identified the
following "formality requirements" for a � 8(f)(1) complaint:  (a) it must
be submitted by an employee or an employee representative, (b) it must describe its
allegations with sufficient particularity, and (c) it must be signed.  Paragraph 3(f)
of FIM 76 20 lists the following examples of "non-formal complaints": 
complaints that do not state with reasonable particularity the nature of the violation,
unsigned complaints, anonymous complaints, complaints received by telephone, and
complaints filed by anyone other than an employee or an employee representative.

[[5]] Specifically, Adams Steel requested admissions
that the complaint in this case had been made by Donald Gardner, who was neither an
employee of Adams Steel nor a representative of its employees, and that this same person
had also made an earlier complaint that led to the inspection of the L.B. Foster Building
project.  The Secretary admitted that the complainant in this case was neither an
employee nor an employee representative.  However, he further asserted that he did
not know the identity of the complainant and that he therefore could neither admit nor
deny that this complainant had filed other complaints or that this complainant was Donald
Gardner.  The record contains no other references to Donald Gardner.

[[6]] The Secretary's regulation at � 1910.5 is
captioned "Applicability of standards."  It instructs employers as to which
standards they must comply with when a situation appears to be governed by more than one
standard.  The provision relied upon by Adams Steel states:

(c)(1) If a particular standard is specifically
applicable to a condition, practice, means, method, operation, or process, it shall
prevail over any different general standard which might otherwise be applicable to the
same condition, practice, means, method, operation, or process . . . .

[[7]] The Secretary cites to the following provision
of his regulations, which is also found in � 1910.5(c):

(2) On the other hand, any standard shall apply
according to its terms to any employment and place of employment in any industry, even
though particular standards are also prescribed for the industry...to the extent that none
of such particular standards applies....

[[8]] The case was tried before the judge on
alternative theories, i.e., that the two employees should have been protected by tied-off
safety belts under � 1926.28(a) or that they should have been protected by perimeter
safety nets under � 1926.105(a).  The judge upheld only the charge under �
1926.105(a).  He vacated the � 1926.28(a) charge on the basis of his finding that it
would have been impractical for the two employees to tie off.  The Secretary has not
taken exception to the judge's disposition of the � 1926.28(a) charge.

[[1/]] That section is set forth for reference
purposes:

(f)(1) Any employees or representative of employees
who believe that a violation of a safety or health standard exists that threatens physical
harm, or that an imminent danger exists, may request an inspection by giving notice to the
Secretary or his authorized representative of such violation or danger.  Any such
notice shall be reduced to writing, shall set forth with reasonable particularity the
grounds for the notice, and shall be signed by the employees or representative of
employees, and a copy shall be provided the employer or his agent no later than at the
time of inspection, except that, upon the request of the person giving such notice, his
name and the names of individual employees referred to therein shall not appear in such
copy or on any record published, released, or made available pursuant to subsection (g) of
this section.  If upon receipt of such notification the Secretary determines there
are reasonable grounds to believe that such violation or danger exists, he shall make a
special inspection in accordance with the provisions of this section as soon as
practicable, to determine if such violation or danger exists.  If the Secretary
determines there are no reasonable grounds to believe that a violation or danger exists he
shall notify the employees or representative of the employees in writing of such
determination.

[[2/]] Paragraph 3(c) of the Field Information
Memorandum No. 76-20, superceded December 1, 1977, requires "(w)henever information
comes to the attention of the Area Director without regard to its source and without
regard to whether it meets the formality requirements of Section 8(f), an inspection shall
be conducted . . . ."

[[3/]] Section 11(c) of the Act provides that
employees may not be discharged or discriminated against because they have
"instituted or caused to be instituted any proceeding" under the Act.
 "Any proceeding" includes inspections the "cause" of which may
be anonymous complaints by employees.

Section 11(c) of the Act reads:

(c)(1) No person shall discharge or in any manner
discriminate against any employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding or because of the exercise by such
employee on behalf of himself or others of any right afforded by this Act.