UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 15565
MORTON BUILDINGS, INC.,
September 7, 1979
Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
A decision of Administrative Law Judge Sidney J. Goldstein is before the Commission under § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (‘the Act’). The judge ruled that the Respondent, Morton Buildings, Inc. (‘Morton’), was in serious violation of the construction safety standard published at 29 C.F.R. § 1926.28(a) for failing to require its employees to use safety belts and lines while installing purlins during pole building construction. The direction for review issued by former Commissioner Moran failed to specify issues to be considered by the Commission. However, Morton filed a brief on review in which it objected to the judge’s decision.
Morton constructs pole buildings used primarily for animal enclosures and equipment storage. The method of constructing these buildings is described by the Respondent:
Morton shares the common building characteristics of other pole-building manufacturers. Morton’s buildings are laid out basically nine-foot on center . . . . Holes are dug into the ground around the perimeter of the building. Then the poles which comprise the supporting structure are placed in these holes. The framework made up of 2 x 6 lumber is then nailed all around the perimeter with provisions made for doorways. After this has been accomplished the trusses which are nine-foot on center are applied, truss ties are added, purlins installed, and the covering of sheet metal is then attached. [Footnote omitted]
The citation was issued following the investigation of a fatal fall from the roof of a pole building by one of Morton’s employees who was engaged in installing purlins. The deceased employee fell from a pole building that was approximately 30 feet wide, and 150 to 200 feet long. The roof, which was peaked, was supported by a series of trusses connected by purlins that were 20 to 24 inches apart. The distance from the bottom of a truss to the peak of the roof was 5 feet. The deceased employee fell 21 feet—the distance from the bottom of a truss to the ground.
The foreman of the work crew to which the deceased belonged and Morton’s supervisor testified about the installation procedure for purlins. The purlins are made available for installation in two ways. Either one employee on the ground hands the purlins to another employee who is nailing them to the truss or an employee leans the purlins against the truss, ascends the truss, and pulls the purlins up to the truss for nailing. The employee working on the truss installs purlins from the bottom to the top of a truss so that nailed purlins are beneath the employee at all times. Morton considered it unsafe to work from top to bottom. Under Morton’s procedure a crewman generally straddles a truss for support and sits on the purlin he has just nailed. To ascend, he moves from purlin to purlin on his knees.
It is contrary to Morton’s rules for an employee to move onto the part of a purlin unsupported by a truss because the purlins alone are not strong enough to support a man’s weight. After nailing a complete section of purlins an employee descends the roof on his hands and knees. Morton also introduced evidence that its methods for installing purlins are in general use by other manufacturers of pole buildings and that other pole building manufacturers do not require their employees to use personal protective equipment.
The compliance officer who conducted the investigation testified that it is a recognized hazard in the construction industry ‘to allow an employee to work approximately 21 feet above the ground level on a truss’ without fall protection such as a scaffold or a safety belt and lanyard.
Judge Goldstein ruled that § 1926.28(a) is applicable to the facts of the case, ruling that it was hazardous for employees such as purlin installers to work 21 feet above ground level with no protection. As a consequence, he held that Morton was in violation of the standard because its safety practices did not include providing and requiring the use of personal protective equipment. Moreover, Judge Goldstein found that the record did not support the Respondent’s contention that the deceased employee had been working in a manner contrary to its safety practices. Furthermore, he ruled that ‘the Secretary established the feasibility and likely utility’ of using safety belts and lines, and rejected Morton’s contentions that using belts and lines would be impossible and would be more hazardous than following Morton’s usual procedures. Finally, the judge concluded that, even if the added costs of compliance would put the Respondent at an economic disadvantage, it must nevertheless comply with the standard. A proposed penalty of $600 was assessed.
On review Morton contends that there is no fall hazard to purlin installers as long as they follow its required procedures. The Respondent argues that the structure formed by the purlins and trusses is similar to a job made ladder and provides similar protection. Morton further maintains that the fatal fall occurred because the employee failed to follow Morton’s procedure. We conclude that it is immaterial whether the deceased employee failed to follow Morton’s work rules because the purlin installers were exposed to a hazardous condition within the terms of the standard even when complying with Morton’s safety practices.
In S & H Riggers & Erectors, Inc., 79 OSAHRC ——, 7 BNA OSHC 1260, 1979 CCH OSHD ¶23,480 (No. 15855, 1979), appeal filed, No. 79–2358 (5th Cir. June 7, 1979), we ruled,
The crucial question in determining whether a hazardous condition exists within the meaning of § 1926.28(a) is whether a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment . . .. Although industry custom and practice are useful points of reference with respect to whether a reasonable person familiar with the circumstances would recognize a hazard requiring the use of personal protective equipment, they are not controlling . . ..
The failure of an industry to deal adequately with abatable hazards does not excuse an employer’s failure to exercise that degree of care which the law requires. Compliance may require methods of employee protection of a higher standard than industry practice . . ..
7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436. We conclude that the reasonable person would find that the Respondent’s purlin installers were exposed to an obvious fall hazard ‘warranting the use of personal protective equipment.’ S & H Riggers & Erectors, Inc., supra; PPG Industries, Inc., 77 OSAHRC 196/E5, 6 BNA OSHC 1050, 1977–78 CCH OSHD ¶ 22,344 No. 15426, 1977), pet. denied, No. 77–2608 (3d Cir. Sept. 11, 1978).
Morton’s contention that the configuration of the trusses and purlins is similar to a ladder is correct. However, the working surface of the pole building from which the employee fell differed from a ladder in several significant respects. First, portable ladders must be used at a steep incline and cannot be used ‘in a horizontal position as platforms, runways, or scaffolds.’The purlin and truss structure was gradually inclined. It was in essence used as a platform or scaffold. Moreover, even accepting Morton’s contention that the purlin and truss structure constituted a job made ladder, the roof assembly failed to meet minimum safety requirements for ladders. Construction requirements for job made ladders are provided at 29 C.F.R. § 1926.450(b). However, job made ladders are either portable or fixed in nature and the purlins and trusses failed to meet the safety requirements of either type of ladder. See 29 C.F.R. § 1926.450(a)(5), American National Standards Institute, A14.3 126.96.36.199 and 188.8.131.52. (provides that the preferred pitch for fixed ladders is 75 to 90 degrees with the horizontal and that fixed ladders are substandard if installed with a pitch of 60 to 75 degrees). Moreover, the openings created by the intersection of the trusses and purlins were 20 to 24 inches wide and approximately 9 feet long—much larger than the openings formed by the rungs and sides of either a portable or fixed ladder. See ANSI A14.1 (1975); ANSI A14.3 (1974). The possibility of an employee falling through one of these openings is obvious.
Moreover, the failure of pole building manufacturers to use fall protection does not mandate a finding that there was no hazard under the standard. ‘[I]ndustry cannot be permitted to set its own standards for protecting employees when those standards fail to adequately protect employees exposed to safety and health hazards recognized by the reasonable person familiar with the facts.’ S & H Riggers, supra, 7 BNA OSHC at 1266, 1979 CCH OSHD at p. 28,439.The Secretary established that Morton’s employees were exposed to a hazardous condition within the meaning of the standard.
Morton further objects to the judge’s affirmance of the citation, claiming that the use of safety belts and lanyards was ‘unworkable, impractical and patently unsafe.’ It contends that the Secretary did not prove the feasibility of using belts and lines to prevent the type of accident that occurred. Morton also argues that it is more hazardous for purlin installers to use belts and lines than to follow its procedures.
Both parties submitted extensive evidence on the feasibility and safety of using safety belts and lines for purlin installation. The compliance officer testified that a safety belt and lanyard would be the appropriate form of personal protective equipment for an employee working on a truss. He indicated that the employee would attach his belt to a truss, and ‘[a]ll he had to do is wrap the lanyard around the frame of the truss. . . . If he had to move he could move right along without even loosening up the knot, or he could just unravel it and wrap it around again when he got to his next position.’ If the employee desired to use a lifeline, he could attach it ‘[f]rom one end of the truss to another end of the truss.’
The supervisor of several of Morton’s work crews testified that the use of safety belts and lanyards would create problems while installing purlines. As the employee moves from purlin to purlin, the employee ‘would have to unhook the rope to move it ahead of the [webbing to move up again.’ He also testified that when pulling up a purlin the lanyard would get in the way and the purlins could get tangled in the lanyard. Upon further questioning by the Secretary’s attorney, however, the witness admitted that this problem probably could be avoided. He also stated that he was not certain when the lanyard would get tangled. Furthermore, he objected to the use of lanyards because an employee would be unprotected while securing his lanyard.
Morton’s safety director testified that Morton had conducted a feasibility study for using belts and lanyards. Specifically the Respondent had constructed a steel bracket for attaching a crewman’s lanyard to a truss. The witness considered the use of belts, lanyards, and brackets to be infeasible. He noted several objections to their use: work was slowed because of the necessity of moving the brackets, employees were required to lean far forward in an awkward position in order to attach the brackets several purlins ahead, the crewmen were ‘unbalanced’ when carrying the heavy brackets, and workers became entangled in excess rope when working close to the bracket. On cross-examination he stated that it would be possible to dispense with the bracket and to form the lanyard into a noose. However, he considered use of the bracket necessary, for there was no way to insure that the noose would remain above the point of operation, as required by 29 C.F.R. § 1926.104.
On redirect examination the compliance officer testified that an employee could install purlins with no interference if he used a safety belt with a snaphook and a 6 to 7-foot-long lanyard formed into a noose. The employee could push the noose ahead of him to the other side of the purlin that he was about to nail. He would only have to reach an arm’s length to do so. If the purlin was already in place, the employee could unsnap the line and reattach it on the farther side of the purlin. The noose could be secured so that it would not slide down the truss. Moreover, there was little likelihood that the noose would slide because of the low pitch of the roof. Following this procedure, the lanyard would remain secured above the point of operation. The compliance officer further testified that he has observed carpenters on steel erection structures using a lanyard formed into a noose and that they had experienced no difficulties pushing the nooses ahead of them.
On the basis of its witnesses’ testimony, Morton submits that the use of safety belts and lanyards is infeasible. In S & H Riggers & Erectors, Inc., supra, we ruled that to establish a prima facie violation of § 1926.28(a) the Secretary must establish employee exposure to a hazardous condition requiring the use of personal protective equipment and must identify the appropriate form of personal protective equipment to abate the hazard. It is not the burden of the Secretary to prove the feasibility of his suggested means of abatement. We further ruled that an employer may affirmatively defend by proving that it is impossible to use the suggested means of abatement, or by proving a ‘greater hazard’ defense. See Russ Kaller, Inc., T/A Surfa Shield, supra.
In this case the Secretary’s prima facie case has been established and Morton has failed to sustain an affirmative defense. There is no support for a conclusion that the use of belts and lines was impossible. In fact, the record clearly establishes that the use of safety belts and lanyards formed into nooses would provide feasible protection against the fall hazard. We also reject Morton’s contention that the use of lanyards formed into nooses is infeasible because they might not remain above the point of operation, as required by § 1926.104. The requirement of § 1926.104 that the lines be secured above the point of operation applies only to lifelines, not lanyards. Moreover, the compliance officer testified that if his suggestions were followed the lanyards would remain above the point of operation.
In addition, the Respondent has not sustained a ‘greater hazard’ defense under Russ Kaller, Inc., T/A Surfa Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976–77 CCH OSHD ¶ 21,152 (No. 11171, 1976). See note 11, supra. It did not prove that the hazards of complying were greater than the hazards of not complying—the primary element of the defense. Morton’s factual assertions are based primarily on the difficulties it encountered with the bracket. However, with the use of a noose the employee could move the lanyard ahead of him, thereby eliminating any need for extensive stretching. In addition, the testimony of the Respondent’s witnesses does not show that interference with the webbing would be considerable. Moreover, the compliance officer’s testimony indicates that the danger of entanglement would be insubstantial. Even if there were some hazard of entanglement that could result in a fall, an employee protected by a tied off safety belt would not fall to the ground below. The Respondent’s last factual assertion regarding the need to fasten and unfasten the lanyard is also based on its experiment with the brackets. However, frequent unhooking would not be necessary with the noose. Finally, even if some fastening and unfastening were required thereby resulting in momentary gaps in the fall protection and an extended working time on the beam, this fall hazard is not greater than continuous exposure to a 21 to 26 foot fall. Cf. Jake Heaton Erecting Co., Inc., 78 OSAHRC 33/B6, 6 BNA OSHC 1536, 1978 CCH OSHD ¶ 22,701 (No. 15892, 1978); C. Kaufman, Inc., 78 OSAHRC 3/C1, 6 BNA OSHC 1295, 1977–78 CCH OSHD ¶ 22,481 (No. 14249, 1978); Carpenter Rigging & Contracting Corp., 75 OSAHRC 32/D13, 2 BNA OSHC 1544, 1974–75 CCH OSHD ¶ 19,252 (No. 1399, 1975).
We also reject Morton’s argument that the third element of Russ Kaller (involving the inappropriateness of a variance application) does not apply. The Respondent’s procedures for purlin installation are a standard construction technique accepted by pole building manufacturers. In S & H Riggers & Erectors, Inc., supra, we noted that when a standard construction technique is involved in a case, ‘it is likely that a variance would have widespread application for the employer and would provide more relief than it might for more transitory construction activities.’ 7 BNA OSHC at 1267 n. 24, 1979 CCH OSHD at p. 28,440 n. 24.
Accordingly, we find Morton’s objections to the judge’s decision to be unmeritorious. The judge’s decision affirming the citation and assessing the proposed $600 penalty is affirmed.
IT IS SO ORDERED.
FOR THE COMMISSION:
Ray H. Darling, Jr.
DATED: SEP 7, 1979
BARNAKO, Commissioner, dissenting:
I would vacate the citation because I do not agree that a reasonable person familiar with the industry would have perceived that Morton’s employees who were installing purlins were exposed to a fall hazard.
Morton is engaged in the construction of pole buildings, which are low, rectangular, metal-roofed structures that are primarily used for animal enclosures and equipment storage in rural areas. They are a distinct type of building and utilize a different framework and construction method than those found in other buildings, such as houses or high-rise office buildings. The distinctiveness of pole buildings is underscored by the fact that certain companies, such as Morton, construct only pole buildings and these companies have their own trade association, the National Frame Builders’ Association (NFBA).
Like most pole buildings, the building Morton was erecting in Crete, Illinois, when it was inspected by an OSHA compliance officer, had triangular trusses spaced nine feet apart, the upper members of which ran from the edge of the roof to the peak. The upper portion of each truss was joined to the next truss by a set of two-by-fours, called purlins, running at right angles to the trusses and placed at intervals of 20 inches to two feet. To install the purlins, a Morton employee started from the outside edge of a truss, nailed the end of the first purlin to the truss and, straddling the truss, moved forward to nail each successive purlin. As he proceeded, he not only braced himself on the truss but also used the secured purlins for support. Once he reached the peak of the roof, he backed down the side he had just completed; he did not go over the peak and work down the other side because on the other side he would not have had secured purlins under him.
In an amended complaint, the Secretary charged that Morton violated 29 C.F.R. § 1926.28(a) because an employee who was installing purlins was not using a safety belt and lifeline equipped with a lanyard. The cited standard requires the use of personal protective equipment only in ‘operations where there is an exposure to hazardous conditions or where . . . [Part 1926] indicates the need for using such equipment.’
In S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ¶ 23,480 (No. 15855, 1979), appeal docketed, No. 79–2358 (5th Cir. June 7, 1979), the Commission held that ‘the crucial question in determining whether a hazardous condition exists within the meaning of § 1926.28(a) is whether a reasonable person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts unique to a particular industry, would recognize a hazard warranting the use of personal protective equipment.’ The Commission also stated that
industry custom and practice are important reference points in determining whether a reasonable person familiar with the facts unique to a particular industry would recognize a hazard necessitating the use of personal protective equipment.
7 BNA OSHC at 1264, 1979 CCH OSHD at 28,436. However, it held that industry custom and practice are not controlling on this point.
In my concurring opinion in S & H Riggers and Erectors, Inc., I did not take issue with these statements. I also found that a reasonable person familiar with the industry would have recognized a hazard requiring the use of protective equipment with respect to the cited conditions. In that case four employees engaged in building construction were working near the open edge of a building’s fourth floor 40 feet above the ground and were not wearing tied-off safety belts. I based my conclusion concerning recognition of the hazard on the fact that it was so obvious that employees could fall over the edge that it could not be denied that a reasonable person familiar with the industry would have perceived a hazard as such. This was despite testimony by the employer that employees performing the tasks that were being done by the workers on the fourth floor never used safety belts.
I am confronted with a different situation in the present case. Here the fall hazard is not so clear. Employees installing purlins on Morton’s pole building and working at a height of about 21 feet constantly straddled a truss and had beneath them a substantial framework, consisting of a truss and secured purlins. Therefore unlike the employees in S & H Riggers and Erectors, Inc., who were completely unprotected against a fall hazard, the employees here received some protection against falls from the network of supports formed by the trusses and purlins on which they worked. In such circumstances, I would not conclude that a falling hazard is obvious.
Because the fall hazard is not obvious, it is not readily apparent whether a reasonable person familiar with the industry would recognize the hazard. In order to make this determination, it is appropriate to look to the standard of care in the industry and hence place heavy reliance on industry custom and practice.
On this point, Morton’s witnesses were far more persuasive than the Secretary’s. Three of Morton’s witnesses presented knowledgeable and uncontradicted testimony that no pole building construction firm recognized a danger warranting its employees to use safety belts or other fall protection equipment when installing purlins.
Freeman D. Burkholder, who was a past president and director of the National Frame Builders’ Association and headed a pole building company, testified that he had been involved in the pole building industry for 14 years and had observed 250 to 300 pole buildings under construction. He stated that over that period he had not known of any employer in the pole building industry using any equipment such as scaffolds, safety nets, life lines or lanyards for employees installing purlins. He added that as an active member of the NFBA, he would have known if an employer was using such equipment during purlin installation.
Joseph H. Shaw, who was Morton’s general superintendent, testified that there was no pole builder in the country who required employees installing purlins to use safety belts, nets, lanyards, or other safety equipment. Thomas Statlen, who supervised several crews of Morton employees, also testified that he knew of no pole building construction firm which had employees use safety belts, lanyards, safety nets, or other fall protection equipment while installing purlins.
The only testimony that working on a truss presented a recognized fall hazard came from OSHA’s compliance officer, Charles T. Schultz, who estimated that he had inspected, at most, four pole buildings in his career. He could recall the particulars of only one prior inspection of a pole building and he could not remember seeing the installation of purlins on that occasion. His conclusion that working on a truss presented a recognized fall hazard was based on his experience in the construction industry in general, not his experience with the construction of pole buildings. He stated that on a building under construction he had observed iron workers wearing safety belts while welding beams on steel trusses although he did not indicate whether purlins were present on the building at that time. Thus, neither on the basis of the pole building industry nor on the basis of the construction industry in general was the compliance officer able to cite any instances of employees wearing safety belts while installing purlins.
Accordingly, the Secretary introduced no evidence of customary procedures in the pole building industry. Morton, on the other hand, introduced evidence to show that employers in the industry would have performed the work in the same manner as it had done. Therefore, since the evidence does not demonstrate that the hazard was obvious or that Morton’s conduct fell below industry practice, I would find that a reasonable person familiar with the industry would not recognize a hazard presented by Morton’s installation of purlins which warrant the use of personal protective equipment. Thus, I would vacate the citation.
where the hazard is not obvious. Indeed in those situations, it is only by looking to the practice in the industry that it can be determined what a ‘reasonable person familiar with the industry’ would view as a hazard.
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 15565
MORTON BUILDINGS, INC.,
December 1, 1976
This action under Section 10(c) of the Occupational Safety and Health Act of 1970 is brought by the Secretary of Labor against the Morton Buildings Corporation (sometimes hereinafter referred to as the Respondent) to enforce a Citation issued to it by the Occupational Safety and Health Administration.
The Citation alleged that:
The employer failed to furnish his employees working in the south end of the building under construction, employment and a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees in that an employee was working approximately 21 feet above the ground level installing purloins from truss to truss, working east to west without a working platform or safety belts & lanyard.
in violation of Section 5(a)(1) of the Act which provides that:
Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
In an amended Complaint, the Secretary also charged that the Respondent:
Failed to require the wearing of personal protective equipment in an operation where there is exposure to a hazardous condition in that respondent failed to require the use of a safety belt and a lifeline equipped with a lanyard to an employee working approximately 21 feet above the ground level, installing purlins from truss to truss, working east to west.
in violation of the standard found at 29 CFR 1926.28(a) which reads as follows:
PERSONAL PROTECTIVE EQUIPMENT. 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 employee.
The Respondent’s Notice of Contest to the Citation and Answer to the Complaint denied any violations of the Act or regulations. Pursuant to the pleadings, hearings were held in Joliet and Peoria, Illinois.
The salient facts establish that the Respondent is engaged in the manufacture and erection of pole type buildings used primarily for animal enclosures and equipment storage in an agricultural setting. In this specialized field, holes are dug in the ground around the building perimeter, poles are placed therein, and the framework nailed around the building. When this construction phase is completed, trusses, truss ties, and purlins, which consist of 2 x 4 lengths of lumber, are installed, and a steel sheet covering is attached.
On September 9, 1975, two employees of the Respondent, Messrs. Benson and Bass, were working on the truss structure of a building under construction in the Crete, Illinois vicinity. They were installing purlins on the roof which slanted from 20 to 25 feet high. In this work they supported themselves by sitting on the upward slanting truss, one and five-eighths (1–5/8) inches wide, with their feet resting on the bottom part of the truss at the lowest part or their legs straddling the truss in a scissors-like hole on its upper parts. Their instructions were to work upwards from the bottom of the truss until they reached the top. They were then to return to the ground, proceed to the opposite end of the building, and ascend to the truss section where they repeated the process. They were instructed always to work upwards, never from the top down.
Mr. Benson was a newer employee, but (redacted) was considered to be experienced, competent, and careful. He had never been reprimanded for failure to obey company safety rules. At approximately 1:15 p.m. on September 9, 1975, Mr. Benson shouted to other employees that . Mr. Hiller, who was the supervisor on the job and (redacted) who was working in another area of the building, immediately left his position and came to the accident scene where he saw (redacted).
A Compliance Officer for the Administration visited the scene a few days after the accident and ascertained that the Respondent did not furnish its employees safety belts, lanyards, scaffolding, ladders, or any other type of personal safety equipment when they worked on heights up to 25 feet. This Officer in his work experience had investigated many construction sites (although very few in the specialized pole type construction area) and he had observed that employees working at various heights were protected by ladders, scaffolds, or safety belts secured by lanyards. In his opinion there was a recognized hazard in the construction industry for an employee to work 21 feet above ground without protection, and Respondent’s employees could have utilized safety belts with lanyards, scaffolding or ladders when nailing purlins.
Other testimony in the record is to the effect that the pole type building construction industry is a highly competitive business, and even small additional expenses may mean the difference between obtaining or losing a contract. One official of the Respondent estimated it would cost between three and four hundred dollars to equip crews with lanyards. In addition, the time for the installation of purlins (1/12 of total construction time) would be increased about thirty percent. While some Company officials were of the opinion that no safety measures were feasible and knew of no other firm in the field which utilized the suggestions of the Compliance Officer, at least one supervisor could not state whether or not the purlin installation work could be performed with the use of safety equipment.
The Company Safety Director tested a purlin installation work crew on a job with and without safety equipment. From this trial run, he concluded that safety items slowed the process and was more of a problem then the safety it provided. He added that in general employees were opposed to the use of safety equipment, but it could be utilized.
Documentary evidence in the record includes a Foreman’s Accident Report, disclosing that the deceased employee was nailing purlins when one broke approximately two inches from the end and causing him to fall twenty-one feet to concrete floor. The unsafe condition or act which caused the accident is listed as a bad and defective purlin.
Another accident report for workmen’s compensation insurance purposes was prepared by a secretary of the Respondent on the date of the accident. It was there stated that the employee was nailing purlins at the time of the accident when one of them he was leaning on broke, causing him to fall.
An OSHA Preliminary Fatality/Catastrophe Event Report records that Mike Morrison, Comptroller, Morton Buildings, Inc., described the event as ‘walking on truss—truss broke employee fell.’
In summary, we have a situation where employees of the Respondent were permitted to work at heights of approximately 21 feet with no protection from a possible fall. In such a situation the Secretary contends that this work arrangement was in violation of Section 5(a)(1) of the Act, the so-called general duty clause, and the regulation (1926.28(a)) adopted under Section 5(a)(2) of the Act relating to personal protective equipment.
On the other hand, the Respondent maintains that there was no violation of the Act or regulations; that the Secretary is in error in seeking to apply the personal protective standard to the installation of purlins in the pole building industry; and that the deceased employee worked in an unsafe manner. The Respondent further asserts that, inasmuch as no other company in the industry uses scaffolds, safety nets, lanyards, or life lines, the suggested safety equipment would place it at a competitive disadvantage. It adds that there was no previous accident in purlin work.
As previously noted, the standard in question provides that the employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions, especially if there is a need for using such equipment to reduce the hazards to the employee. There can be no quarrel with the proposition that an employee is placed in a hazardous work setting if he is working on a roof of a building with nothing to protect him from a fall of 21 feet or more as in the instant case. While the Respondent urges that the Secretary is in error in applying the personal protective equipment regulation to the installation of purlins or to the erection of pole buildings, there is no exception in either the statute or standards for this phase of the construction industry.
I therefore conclude that the Respondent was in violation of the regulation found at 29 CFR 1910.28(a) when it allowed construction crew members to work on pole building roofs twenty or more feet above the ground without personal protective equipment of any kind, and that the pole building industry is not exempt from this requirement.
Another argument advanced by the Respondent for the vacation of the Citation is that the deceased worker was nailing purlins in an unsafe manner, but the record does not support this position. To recapitulate, the evidence disclosed that Mr. Bass was a four year employee with an excellent safety record, was considered safety conscious, and had no demerits to his employment journal on this score. With no eyewitness to the mishap at the hearing, there is only speculation on the part of the Respondent that Mr. Bass worked unsafely. This conclusion is buttressed by the documentary evidence in this case revealing that the employee was nailing purlins when one of them broke, causing him to fall 21 feet to a concrete floor. Not a single written accident report suggests that the deceased was nailing in contravention of company safety practices.
If the record discloses any discrepancy between speculation on this point at the hearing and the prior written and oral statements transmitted to the Administration by Respondent’s employees, I am placing more reliance upon the latter because the Foreman’s Accident Report stating the mishap was due to a broken purlin was prepared immediately following the incident when he had an opportunity to verify the facts with eyewitnesses; because immediately after the mishap, a secretary for the Respondent reported that a faulty piece of lumber was to blame for the accident; because a company report to the Administration mentioned that the employee feel off a truss when it broke; because the deceased employee had an unblemished safety record; because the deceased employee’s supervisor considered him to be safety conscious; and because the events took place prior to the time any litigation on this issue arose.
In this connection the critical issue is not whether the employee violated safety instructions, but whether the Respondent complied with the regulation requiring personal protective equipment. Inasmuch as the Respondent did not supply and require the use of personal protective equipment where there was an employee exposure to hazardous conditions, the standard was violated and the Citation was in order.
Nor can the fact that there was no previous accident due to the lack of safety equipment assist the Respondent in this regard. As stated many times by the Review Commission and the Courts, the purpose of the Act and the regulations adopted thereunder is to avoid the first accident.
With respect to the safety equipment itself, the Compliance Officer suggested that lanyards and life lines were feasible and could be utilized in the installation of purlins. The Respondent disparaged this proposal and complained that the Officer had little experience with pole type construction. Although true that the Compliance Officer had limited contact with pole type buildings, he had extensive exposure to similar situations where employees worked on roofs and other elevations. It is, of course, not necessary that an Officer have a wide background in a particular industry in order to recommend a Citation. It is sufficient to sustain a Citation where a standard promulgated under the Act requires protection if a hazard is present; where the employer has failed to provide safety measures; and where it is possible to work with the suggested equipment. Furthermore, the Respondent actually conducted a trial run with the use of the recommended safety measures, an experiment which disclosed that it was possible to nail purlins while wearing lanyards, life lines, or safety belts.
While sympathetic to the Respondent’s plea that the added costs of personal protective equipment would place it at a financial disadvantage, the reply to this objection was stated by the Court in Industrial Union Department AFL-CIO et al v. Hodgson, Secretary of Labor, U. S. (App. D. C. 1973) 499 F.2d 467:
There can be no question that OSHA represents a decision to require safeguards for the health of employees even if such measures substantially increase production costs. * * *
. . . Standards may be economically feasible even though, from the standpoint of employers, they are financially burdensome and affect profit margins adversely * * *
A case similar to the one at bar is United States Steel Corporation v. OSAHRC and Secretary of Labor, (3d Cir. 1976) 537 F.2d 780. There a corporation iron worker lost his balance while connecting a girder on the 109th floor of the Sears Tower in Chicago and fell to his death. The Occupational Safety and Health Administration issued a Citation for Serious Violation of the Act in that the corporation was in violation of a regulation which provided that safety nets shall be provided when workplaces are more than 25 feet above ground and where the use of other safety devices was impractical. The consensus of witnesses was that temporary floors, scaffolds, ladders, and catch platforms were not feasible on the job site. Opinion concerning the feasibility of safety lines and belts was more diverse, but these devices also were not employed.
United States Steel asserted two defenses to the application of safety net requirements. First, it alleged that it was impossible to erect safety nets and still continue to construct the building. Second, it argued that erecting safety nets would have created hazards to the men erecting the nets, and that on balance more employees would be exposed to more danger than if the nets were not erected.
The Administrative Law Judge held that, although it would have been awkward to work with safety nets, it was possible to do so. Upon appeal the Company attacked this conclusion, pointing out that the Compliance Officer was unworthy of credence as against the Steel Company’s better-qualified witnesses. In affirming the decision of the Law Judge the Court noted:
Our conclusion in this regard obviates any necessity to consider the question whether the ALJ might properly have precluded the greater hazard defense as a matter of law because of USS’s failure to resort to the available statutory variance procedure, 29 U.S.C. § 655(d). This question, vigorously pressed at oral argument, is raised at best obliquely by the briefs, coming into focus only in USS’s Reply Brief. We express no opinion on the matter.
Although the United States Steel case involved safety nets and a fall of over 25 feet and the case under consideration concerns personal protective equipment and a fall of 21 feet, the principle involved is basically identical. Thus, on the authority of the United States Steel case, the Citation should be affirmed.
Finally, a very recent pronouncement of the Review Commission in the case of Russ Kaller, Inc. T/A Surfa-Shield, CCH OSHD 21152, October 7, 1976, summarizes its position regarding the defense that compliance would create greater hazards than noncompliance with regulations. Before such a defense may be recognized:
* * * The record must show that the hazards of compliance are greater than the hazards of noncompliance * * *; that alternative means of protecting employees are unavailable * * *; and that a variance application under Section 6(d) of the Act would be inappropriate. * * *
In summary, therefore, with respect to the merits of the case, I find:
1. That the Respondent permitted employees to work at heights twenty feet and over without personal protective equipment;
2. That the Respondent has not established that the hazards of compliance are greater than the hazards of noncompliance;
3. That the Respondent has not established that the deceased employee failed to obey Company safety rules when installing purlins on a building construction site in Crete, Illinois, on September 9, 1975; and
4. That the Secretary established the feasibility and likely utility of the particular personal protective equipment the Respondent could have used to comply with Regulation 29 CFR 1926.28(a).
In view of the conclusions reached with respect to the specific regulation 1926.28(a), it is not necessary to address the question of a violation of Section 5(a)(1) of the Act.
The question of penalty received some attention during the hearing. The Compliance Officer went into considerable detail concerning the penalty recommendation. I believe them to be reasonable and in keeping with the statutory criteria for penalty assessment. Accordingly, the proposed penalty of $600 should not be disturbed.
It is therefore concluded that the Occupational Safety and Health Review Commission has jurisdiction over the parties and subject matter; that the Respondent is an employer as defined in Section 3 of the Occupational Safety and Health Act of 1970; and that the Respondent was in violation of the regulation promulgated thereunder found at 29 CFR 1926.28(a).
Based upon the foregoing findings of fact and conclusions of law, it is hereby ordered that the Citation dated October 6, 1975, and the proposed penalty therefor, be affirmed.
Sidney J. Goldstein,
Dated: December 1, 1976
 § 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.
 The citation and complaint alleged that Morton was in violation of 29 U.S.C. § 654(a)(1), the ‘general duty clause’ of the Act. The citation specifically charged that Morton was in serious violation ‘in that an employee was working approximately 21 feet above the ground level installing [purlins] from truss to truss, working east to west without a working platform or safety belts and lanyards.’ An amended complaint, issued prior to hearing, alternatively alleged that Morton failed to comply with § 1926.28(a). Morton contends that it was error for the judge to allow the amendment. It asserts that it was not informed until the hearing that the Secretary’s primary theory of liability would be that it was in violation of § 1926.28(a) by failing to require the use of belts and lines. It argues that defending the charge was burdensome.
All pleadings alleged that Morton failed to use belts and lines. The record also indicates that Morton was not prejudiced in the preparation and presentation of its case and that it was able to defend itself vigorously against the charges. There was no change in the cause of action because the amended charge arose out of the same conduct as the original charge. We conclude that the judge’s ruling was consistent with our application of Fed. Rule Civ. Proc. 15(a) to Commission proceedings. See P.A.F. Equipment Co., Inc., 79 OSAHRC ——, 7 BNA OSHC 1209, 1979 CCH OSHD ¶ 23,421 (No. 14315, 1979), appeal filed, No. 79–1398 (10th Cir. May 7, 1979); Southern Prestress Co., 76 OSAHRC 107/D8, 4 BNA OSHC 1638, 1976–77 CCH OSHD ¶ 21, 034 (No. 3035, 1976); California Stevedore and Ballast Co., 75 OSAHRC 47/C4 3 BNA OSHC 1080, 1974–75 CCH OSHD ¶19,527 (No. 1483, 1975).
 Morton also contends that it was denied its rights under various provisions of the United States Constitution. The Commission is not statutorily authorized to initially decide issues regarding the constitutionality of its enabling legislation. See Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975–76 CCH OSHD ¶ 20,239 (No. 8454, 1975), aff’d 587 F.2d 231 (5th Cir. 1979), and cases cited in that opinion. However, two of Morton’s contentions—that it was denied protections guaranteed by the sixth amendment and, alternatively, that it was denied its right to a jury trial under the seventh amendment—must be rejected on the basis of the decision of the United States Supreme Court in Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442 (1977). In that case the Court specifically held that no right to a jury trial under the seventh amendment attaches in adjudicatory proceedings under the Act, 430 U.S. at 450, and rejected the application of the sixth amendment jury trial requirement to these proceedings. 430 U.S. at 460 n. 15, citing with approval, Muniz v. Hoffman, 422 U.S. 454 (1975).
 A truss is a triangular support structure. Those used by Morton were constructed of wood.
 Purlins lie perpendicular to the trusses and provide support for the roof. Morton used 2 x 4 lumber as purlins.
 Morton attacks the competency of the compliance officer on the basis that he did not have intimate knowledge of the pole building industry. However, the compliance officer’s testimony is credible based on his knowledge regarding the use of fall protection in the construction industry generally.
 Morton excepts to a statement in the judge’s decision that employees were working with ‘nothing’ to protect them. We view the judge’s statement as a determination that the employees were not protected by any personal protective equipment as required by § 1926.28(a). This statement is not contrary to a determination that a purlin and truss structure provides some protection.
 Morton submitted extensive evidence which it contends establishes that the employee did not follow instructions. It excepts to the judge’s ruling that the record as a whole does not support Morton’s contention.
 29 C.F.R. § 1926.450(a)(7).
 In General Dynamics Corp. v. OSHRC, No. 78–1348 (1st Cir. May 23, 1979), the U.S. Court of Appeals for the First Circuit endorsed this view expressed by the Commission in S & H Riggers. It agreed that the Commission had properly interpreted the court’s earlier decision in Cape & Vineyard Div. of New Bedford Ga; v. OSHRC, 512 F.2d 1148 (1st Cir. 1975), and added that, in the context of a § 5(a)(1) violation ‘. . . we cannot accept a standard for the precautions which should be taken against such a hazard which is any less than the maximum feasible.’
 The judge relied on the Commission decision in Russ Kaller, Inc., T/A Surfa Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976–77 CCH OSHD ¶21,152 (No. 11171, 1976), in rejecting Morton’s contention that use of safety belts and lines would be more hazardous. The decision in Russ Kaller held that, in order to prove a ‘greater hazard’ defense, the record must show that the hazards of compliance are greater than the hazards of noncompliance, that alternative means of protecting employees are unavailable, and that a variance application under section 6(d) of the Act would be inappropriate. On review Morton essentially argues that it proved the first two elements of the affirmative defense and also argues that the variance requirement of Russ Kaller does not apply because the Secretary did not prove that there was any hazard to employees when they follow the Respondent’s procedures.
 The parties also submitted evidence regarding the feasibility of scaffolds, ladders, and safety nets. Morton makes several contentions regarding that evidence. Inasmuch as Morton failed to provide any means of fall protection to the purlin installers, the judge properly found Morton in violation of § 1926.28(a) for failing to require the use of belts and lines. Therefore, it is not necessary to make any determination with respect to Morton’s contentions regarding other suggested means of abatement.
 Although the record testimony does not completely define the term ‘webbing’, the exhibits indicate that webbing is the cross-bracing that supports the triangular truss.
 Section 1926.104 sets forth specific requirements for safety belts, lifelines, and lanyards. Section 1926.104(b) provides, ‘Lifelines shall be secured above the point of operation to an anchorage or structural member capable of supporting a minimum dead weight of 5,400 pounds.’
 We reiterated a long-standing holding that an employer’s proof that a suggested means of abatement is impractical or inconvenient is insufficient to sustain an ‘impossibility’ defense:
Furthermore, in order to sustain its affirmative defense, an employer must not only establish that compliance with the requirements of the cited standard was functionally impossible, it must demonstrate that alternative means of employee protection were unavailable. S & H Riggers & Erectors, Inc., supra, 7 BNA OSHC at 1266, 1979 CCH OSHD at p. 28,439.
 Impossibility of compliance with § 1926.104 is not a defense to a citation for noncompliance with § 1926.28(a). Frank Briscoe Co., 76 OSAHRC 125/D7, 4 BNA OSHC 1706, 1976–77 CCH OSHD ¶ 21,191 (No. 12136, 1976).
 Morton’s related argument that use of belts and lanyards would not prevent this type of accident is based on its assertions that the deceased did not follow its work rules and that an experienced employee who cannot be made to follow Morton’s work rule would also fail to use belts and lanyards. We find no support for Morton’s assertion that it would not be able to enforce the use of belts and lanyards.
 I did, however, note that I would formulate the reasonable person test in terms of ‘a reasonable person familiar with the industry,’ which I considered to be the same test as that of the majority.
 Since the purlins were two feet or less apart and the worker continually straddled a truss, there were always fairly substantial supports beneath him (as readily shown by Morton’s photographic exhibits).
 Several courts of appeals have applied some form of the reasonable person test to the general industry or construction industry personal protective equipment standards (29 C.F.R. §§ 1910.132(a) and 1926.28(a), respectively) or to the Act’s general duty clause, 29 U.S.C. § 654(a)(1). Two circuits appear to have held that whether a hazard is recognized by reasonable persons familiar with the industry is determined by industry custom and practice. Cotter & Co. v. OSAHRC, 7 BNA OSHC 1510 (5th Cir. July 10, 1979); Power Plant Div., Brown & Root, Inc., 590 F.2d 1363, 1365 (5th Cir. 1979); B & B Insulation, Inc. v. OSAHRC, 583 F.2d 1364, 1370–71 (5th Cir. 1978); American Airlines, Inc. v. Secretary of Labor, 578 F.2d 38 (2d Cir. 1978). The other courts which have considered the question have held that, if not entirely determinative, industry custom and practice in most instances will establish the standard of conduct. Bristol Steel & Iron Works, Inc. v. OSAHRC, 7 BNA OSHC 1462 (4th Cir. June 25, 1979); General Dynamics Corp., Quincy Shipbuilding Div. v. OSAHRC, 599 F.2d 453 (1st Cir. 1979); Cape & Vineyard Div. of New Bedford Gas v. OSAHRC, 512 F.2d 1148 (1st Cir. 1975); Brennan v. Smoke-Craft, Inc., 530 F.2d 843, 845 (9th Cir. 1976). While I do not agree that an industry should fail to protect against hazards which are obvious, I would not disregard industry custom