“SECRETARY OF LABOR,Complainant,v.CENTRAL WISCONSIN STEEL BUILDINGERECTORS, INC.,Respondent.OSHRC Docket No. 84-0119_DECISION_Before: BUCKLEY, Chairman; WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).Employees of Central Wisconsin were installing insulation and metaldecking to form the roof of a single-story structural metal building.The roof was sloped 1 to 12, so that its height varied from 16 to 21feet. Administrative Law Judge Ramon M. Child found Central Wisconsin inviolation of 29 C.F.R. ? 1926.28(a) because its employees were notprovided with and were not using safety belts and lifelines to protectagainst the hazard of a fall. We reverse the judge’s decision.When originally promulgated, 29 C.F.R. ? 1926.28(a) provided as follows:? 1926.28 _Personal protective equipment_.* * *(a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions and where this part indicates the needfor using such equipment to reduce the hazards to the employees.[Emphasis added.]The standard was thereafter amended without notice and comment to changethe conjunctive \”and\” to the disjunctive \”or\” 37 Fed. Reg. 27510 (1972).After Judge Child issued his decision, the Commission ruled that theamendment was not properly promulgated and that the original wording ofthe standard remained in effect. _L.E. Myers Co._, 86 OSAHRC _____, 12BNA OSHC 1609, 1986 CCH OSHD ? 27,476 (No. 82-1137, 1986), _petition forreview filed_, No. 86-3215 (6th Cir. Mar. 14, 1986). Accordingly, toprove a violation of section 1926.28(a), the Secretary must establishboth that employees were exposed to a hazard and that some otherprovision of the Secretary’s construction standards refers to aparticular type of personal protective equipment as a practical andappropriate means of protection against that hazard. 12 BNA OSHC at1612, 1614, 1986 CCH OSHD at pp. 35,602-03, 35,604-05.Although other standards relating specifically to the hazard of fallinginclude safety belts as a form of fall protection, these standards donot indicate a need for fall protection under the conditions existing atCentral Wisconsin’s worksite. The fall protection standard set forth at29 C.F.R. ? 1926.105(a),[[1]] on which the Commission relied in _L.E.Myers_, speaks of safety belts but applies only to fall distancesgreater than 25 feet. The maximum fall distance here was only 21 feet.Section 1926.500(g) mentions the use of safety belts on low-pitchedroofs, such as that at issue here,[[2]] but it applies only to \”built-uproofing work,\” which by definition specifically excludes theconstruction of roof decks.[[3]] Central Wisconsin was building a roofdeck. The parties do not refer us to, nor does there appear to be, anyother standard that can be said to indicate a need for the use ofpersonal protective equipment in the circumstances presented here.[[4]]Other construction standards provide for protection from falls of lessthan the sixteen to twenty-one feet involved here but by guardrails,catch platforms, nets or other protective devices which are not_personal_ equipment (i.e., not \”worn\”) as called for by section1926.28(a). Accordingly, even if, as Judge Child found, CentralWisconsin’s employees were exposed to a falling hazard, the Secretaryfailed to satisfy his burden of proof under _L.E. Myers_.[[5]]Accordingly, item 1 of the Secretary’s citation[[6]] alleging aviolation of 29 C.F.R. ? 1926.28(a) is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: FEB 18 1987————————————————————————SECRETARY OF LABOR,Complainantv.CENTRAL WISCONSIN STEEL BUILDINGERECTORS, INC.,Respondent.OSHRC DOCKET NO. 84-0119APPEARANCES:For the complainant:Cyrus A. Alexander, Esq., Chicago, IllinoisFor the respondent:Thomas A. Schuesslar, Esq., Chicago, Illinois_DECISION AND ORDER_Child, R. M., Judge, OSHRC:_Statement of the Case_This matter is before the Occupational Safety and Health ReviewCommission (the Commission) pursuant to section 10(c) of theOccupational Safety and Health Act of 1970, 23 U.S.C. ? 651 _et_ _seq_.,(the Act). Respondent filed a Notice of Contest to Citation No. 1,issued to respondent December 20, 1983, charging two items of seriousviolation of section 5(a)(2) of the Act and the penalties proposedthereon. Respondent also contested Citation No. 2 charging one item ofrepeated violation of section 5(a)(2) of the Act and the penaltyproposed thereon.The parties have executed and filed herein a Partial SettlementAgreement which consensually disposes of all items with the exception ofitem 1 of Citation No. 1. Said agreement complies with the applicablerequirements of Rules 100(b) and 100(c) of the Commission’s Rules ofProcedure (29 C.F.R. ?2200.100(b) and ?2200.100(c)). No objectionshaving been received from affected employees, the said agreement isapproved and the terms thereof will be incorporated in the Order enteredherewith. (Tr. 10)The matter came on regularly for hearing at Madison, Wisconsin, June11th and 12th, 1985. Notice of hearing was duly given affectedemployees. Except as employees may have been produced as witnesses,there was no appearance by or on their behalf. (Tr. 8)The parties have submitted Post-Hearing Briefs in support of theirrespective positions. Complainant has submitted proposed Findings ofFact and Conclusions of Law. To the extent proposed findings, orconclusions are consistent with those entered herein they are accepted;to the extent they are not so consistent; they are rejected.Jurisdiction of the persons and of the subject matter has been admittedand is not at issue. (Respondent’s Answer, paragraph 1.)_THE ISSUES_:The issues tried and to be determined are:A. Was the respondent in violation of the standard at 29 C.F.R.1926.28(a)[[1\/]]?B. If the respondent was in violation, was that violation serious withinthe contemplation of the Act?C. What, if any, would be an appropriate penalty?_Statement of Facts_On December 7, 1983, Gerald J. Modeska, a compliance officer for thecomplainant (the C.O.) inspected respondent’s worksite which was asingle story metal building under construction. He observed employeeslaying down the roof which consisted of one layer of fiberglassinsulation covered by metal panel. The metal panel was screwed topurlins which ran lengthwise to the building generally on five footcenters. The purlins in turn were supported by rafters which theycrossed at right angles. (Tr. 36, 38, 39) Steel columns at 25 footintervals along the sides of the building supported the steel rafterswhich crossed the 100 foot width of the building providing a roof pitchof one inch per foot with a center peak. (Tr. 71; Exhibit R- 11) Theroof of the building was approximately 16 feet high at the eave and 21feet high at the center peak. (Tr. 40) The building dimensions were 100’x 200′.At the time of the inspection five employees were on the roof engaged inits installation. None were wearing personal protective equipment toprevent falling and there was no fall protection present such as safetynets, catch platforms or scaffolding. (Tr. 39, 41, 53, 144, 145, 166)Metal panels three feet wide and up to 40 feet in length would he placedon the exposed purlins preparatory to being put in place. A three footwide strip of insulation was rolled from the roof peak to the eaveadjacent to the last laid roofing. After stapling the freshly rolled outinsulation strip to the raw edge of the last laid strip protruding fromthe last laid panel, the workers would lean forward over the newlyplaced insulation, supporting themselves with one hand on the insulationcovered purlin and pull a metal panel toward themselves until it coveredthe strip of insulation and overlapped the last laid panel. At thatpoint the edge of the panel away from the roof opening would be fastenedto the purlins by means of an electric drill equipped with a screwdriving attachment utilizing self drilling screws. After the three footstrip of metal panels had been fastened the next strip of insulationwould be rolled from the peak to the cave and the operation repeated.(Tr. 200, 202, 209, 210, Exhibits C-3a, C-3c, R-1, R-2, R-3, R-4)_Discussion__Issue A_:Was the respondent in violation of the standard at 29 C.F.R. 1926.28(a)?To prove a violation of section 5(a)(2) of the Act the complainant mustprove by a preponderance of the evidence an employer’s noncompliancewith an applicable standard and employee exposure to the hazard createdby the violative condition. _Otis Elevator Co._, 78 OSAHRC 88\/E5, 6 BNAOSHC 2048, 1978 CCH OSHD ?23,135 (No. 16057, 1978). In addition to theforegoing, section 17(k) of the Act has been interpreted by theCommission as placing on the complainant the burden of proving that theemployer knew, or in the exercise of reasonable diligence could haveknown of the presence of the violative condition. _Prestressed Systems,Inc._, 81 OSAHRC 43\/D5, 9 BNA OSHC 1864, 1981 CCH OSHD ?25,358 (No.16147, 1981).Moreover, where a standard lacks specificity as to what precise conductmust be followed or avoided by the employer a majority of the Commissionhas ruled in interpreting 29 C.F.R. 1926.28(a):Nonetheless, the standard in this case is written in broad terms.Therefore, it is appropriate to place upon the Secretary the burden ofestablishing employee exposure to a hazardous condition requiring theuse of personal protective equipment and identifying the appropriateform of personal protective equipment to eliminate the hazard. (footnotereference deleted) _S & H Riggers and Erectors, Inc_. OSHRC Docket No.15855 (1979), 7 BNA OSHC 1260,1266.The better reasoning as to allocating the burden of proof in a generalstandard such as ?1926.28(a) would appear to be that set forth by formerCommissioner Barnako in his concurring opinion in _S & H Riggers_,_supra_, at pages 1270, 1271. However, we are here constrained to followthe burden established by the main opinion in _S & H Riggers_ as setforth above.Here the complainant proved: (1) that five employees of the respondentwhile installing the roof on a pre-engineered one story metal buildingwere exposed to the hazard of falling from the open edges of that roof adistance of from 16 feet to 21 feet to the ground below, (2) thatserious injury or death could result from such a fall, (3) that therespondent knew or in the exercise of reasonable diligence could haveknown of the presence of the hazard, (4) that safety belts and lanyardstied off to a lifeline would be the appropriate form of personalprotective equipment to be worn by the exposed employees, and (5) thatno fall protection whatsoever was provided by the respondent or requiredto be worn by the employees. Complainant thus made out a _prima_ _facie_case of serious violation by the respondent of the standard at 29 C.F.R.1926.28(a)._________________________The defendant raises several defenses as follows:_First-Defense_:\”Section 29 CFR 1926.28(a) does not apply because respondent was engagedin steel erection. Regulation of steel erection is governed exclusivelyby 29 CFR 1926.750-752 (Subpart R – Steel Erection).\”Respondent produced Michael W. Glover, Vice-President and GeneralManager of Glover Metal Building Erectors, Ltd. Mr. Glover has had manyyears of experience in the construction of pre-engineered metalbuildings. He testified that those engaged in metal buildingconstruction including single story buildings consider themselves underthe Steel Erection standards at Subpart R of 29 CFR 1926 and that nofall protection is required where the fall distance is less than 25feet. (Tr. 74, 75, 79) He testified that the practice in the industry isto require fall protection above 25 feet but not below and in the caseof one story buildings more than 25 feet high many companies still don’tprovide fall protection. (Tr. 85, 86) In Mr. Glover’s opinion, since noone in the metal building construction industry in Wisconsin uses fallprotection below 25 feet, the respondent met the standard in theindustry. (Tr. 104, 105)William Whirry, respondent’s job superintendent on the job site inquestion, has been with the respondent for four years and employed inthe construction of pre-engineered metal buildings for 17 years. Eightyto ninety per cent of the metal buildings he has worked on in those 17years have involved heights of less than 25 feet. He has never worn fallprotection on these jobs nor has other fall protection been provided. Hehas never seen anyone use safety belts and lanyards while installingroofs on these buildings and he has never worked on a metal buildingwhich had more than one story. (Tr. 195, 198, 199, 202, 215)William L. Hunter, owner, operator and manager of the respondent has 15years of experience in the construction of pre-engineered metalbuildings. In his opinion such construction including the installationof metal roofing is steel building erection. (Tr. 234, 235, 238) Tosupport his claim that installing the roof on metal one story buildingswas \”steel erection\” coming under subpart R of the standards found at 29CFR 1926, Mr. Hunter relied on the standard at 29 CFR 1926.752(f) whichprovides:\”Metal decking of sufficient strength shall be laid tight and secured toprevent movement.\”He then defined \”decking\” as any flat steel member bolted or fastened tothe secondary structure of the building, thus including roof panelingand panels affixed to the sides of the building. In his opinion the actof placing and fastening roof and side panels to the purlins using anelectric drill utilizing self drilling metal screws was the equivalentof \”fitting\”, \”bolting\” or \”riveting\” as those terms appear in subpart Rof the construction standards. (Tr. 240-245) Thus, Mr. Hunter testifiedthat no one in the industry of constructing pre-engineered metalbuildings uses safety belts and lanyards at heights under 25 feet. Heknew of no one in the industry providing fall protection consisting ofcatch platforms, safety nets or scaffolding at heights under 25 feet. Hestated that the standards at subpart R don’t require it and there is nolikelihood of injury working at heights below 25 feet, \”so we don’t useanything.\” (Tr. 266, 267)However, the complainant produced as a witness Martin Ballweg, who ispart owner of a company engaged in construction of pre-engineered singlestory metal buildings in the Wisconsin area and who had 17 years ofexperience in the industry. To eliminate the tall hazard to employeesworking on the roof of buildings under construction and at heightsbetween 10 and 25 feet, his company utilizes safety nets stretched toprovide fall protection to workers engaged in roof installation.Alternatively, his company has provided fall protection consisting ofcatch platforms, scaffolding and safety belts with lanyards tied off ondifferent jobs. He judged that the additional labor cost resulting fromutilizing safety nets on a 20,000 square foot roof would beapproximately $800.00. (Tr. 123,125,129, 130,132,136,138)Exhibit R-11, produced by the respondent to illustrate the componentsand nomenclature involved in a typical pre-engineered, one story, metalbuilding fails to utilize the word decking. Rather, it refers to \”roofpanel,\” \”side wall panels\” and \”end wall panel.\”Gerald J. Modjeska, who holds an engineering degree, has been acompliance officer with OSHA for 12 years. (Tr. 31, 32, 35) He testifiedthat roofing is not steel erection and would not be even if the roofwere being installed on a multi-tiered steel building. Rather, said he,\”Steel erection is the placing of structural members and bolting them upand plumbing them up and putting them in place.\” (Tr. 181, 185) Hetestified that in steel erection \”bolting,\” \”riveting\” \”plumbing\” and\”fitting\” have to do with placing the vertical and horizontal members ofthe skeleton steel. Such terms do not apply to roof panels merelybecause they happen to screw them to purlins. (Tr. 188, 189)A careful reading of sections 750, 751 and 752 (subpart R) of theconstruction standards found under 29 CFR 1926 compels one to theconclusion that the installation of metal roofing and siding onpre-engineered single story metal buildings is not \”steel erection\” ascovered by subpart R of the construction standards. The parties agreethat \”multi-tiered\” buildings referred to in subpart R are buildings ofmore than one story. (Tr. 105, 180, 311)_Tippins-Steel Erection Co., Inc_. 11 OSHC 1428, cited by respondentinvolved workers engaged in positioning and welding steel bar joists andbraces to form roof supports. The Commission agreed with respondent thatthe work in question was structural steel work involving joists, beamsand columns as well as the basic steel erection tasks of welding andbolting up. Since the work involved steel erection, section 1926.28(a)was held not to apply._McLean-Behm Steel Erectors, Inc_. 608 F.2d 580, cited by respondentinvolved steel erection and a fall hazard in excess of 25 feet. Since 29CFR 1926.750(b)(1)(ii) applied and was a specific standard it was heldto be error to have charged a violation under the general constructionstandard at section 1926.28(a) and that the judge erred in amending thecomplaint to allege a violation of the specific standard after the closeof the hearing. This was particularly so in the face of a refusal by theSecretary to so move and a protest by the employer that it had not andwas not prepared to defend against the specific standard provisions. Thecase is distinguished from the case before us. Here it is claimed thatthe activity observed was not steel erection and that no specificstandard applied._Builders Steel Co._ v. _Marshall_, 622 F.2d 367, cited by respondent ishelpful here only in standing for the proposition that employees engagedin skeleton steel erection in single story buildings are covered by thespecific steel erection standard at section 1926.750(b)(2)(i) andtherefore the general construction standard at section 1926.105(a) didnot apply. In the case now before us the activity involved was not theerection of skeletal steel structure, but rather the installation of aninsulated roof.The mere construction of a single story metal building does not make allwork activity involved therein \”steel erection\” so as to fall within thepurview of subpart R of the construction standards. Here the employeeswere not involved in erecting the skeletal steel framework nor were theyengaged in constructing a multi-tiered structure. The fact that theroofing being installed consisted of metal panels being fastened bymetal screws to purlins laid over the structural steel previouslyerected does not render that roofing activity \”steel erection.\”Respondent and others engaged in construction of metal buildings shoulddisabuse themselves of the belief that because they choose to define theconstruction of metal buildings as erection of same they are excusedfrom providing their employees a safe place to work. Constructionaccomplished with metal materials such as roof panels and siding panelsdoes not necessarily constitute steel erection and did not in thesituation with which we are here confronted.Since respondent’s employees were not engaged at the time in question insteel erection and since no specific standard applies, the generalconstruction standard at section 1926.28(a) here applies._Second defense_:\”A reasonable person familiar with the facts, including the facts uniqueto this particular industry, would not recognize a hazard warranting useof personal protective equipment.\”Respondent introduced Exhibit R-8 which is a sample of the backing onthe rolled fiberglass insulation. In doing so Mr. Hunter testified, \”Idon’t think I’d want to test it, but I think I could step on it withoutfalling.\” (Tr. 248) However, respondent’s job foreman, Mr. Whirry, oncross-examination testified that a person could fall through theinsulation and Mr. Glover, produced by respondent, testified that if aperson stepped on the rolled out insulation, he would fall through tothe ground. (Tr. 80, 213) Respondent further admitted that its employeeswere exposed to fall hazard of from 16 to 21 feet. (Tr. 85, 338)The compliance officer testified that if a fall of from 16 to 21 feetwere to occur, the likelihood was that serious injury or death couldresult and that at minimum a fracture would result. (Tr. 47, 48, 49)The respondent attempted to minimize the hazard since workers weretrained to recognize the danger and since they worked on their knees atthe opening and it is hard to fall off your knees. (Tr. 246, 247)Nevertheless, the photos introduced in evidence show three employees ontheir feet at the roof openings. Mr. Hunter testified it was evennecessary for him to \”yell at\” his foreman for some foolish thinginvolving safety and said \”we’re only human – we do make errors.\” (Tr.247; Exhibits C-3a, R-2, R-3)As the Commission ruled in _S & H Riggers_, _supra_,The crucial question in determining whether a hazardous condition existswithin the meaning of section 1926.28(a) is whether a reasonable personfamiliar with the factual circumstances surrounding the allegedlyhazardous condition, including any facts unique to a particularindustry, would recognize a hazard warranting the use of personalprotective equipment. [Citations omitted] Although industry custom andpractice are useful points of reference with respect to whether areasonable person familiar with the circumstances would recognize ahazard requiring the use of personal protective equipment, they are notcontrolling. _Id_. at 1263. (reversed 5th Circuit-1981, 659 F.2d 1273)Here the compliance officer observed employees of the respondent exposedto an obvious fall hazard. Respondent’s refusal to recognize thathazard, to minimize it as not likely to cause injury because the falldistance was under 25 feet and to do nothing to eliminate the hazard insimilar construction under-takings at any time is unreasonable. (Tr.267, 300)_Third defense_:\”The hazard resulting from the use of safety belts with lanyards tiedoff to a static line were greater than non-compliance.\”Here non-compliance means no fall protection of any kind where employeesare exposed to falling not to exceed 25 feet. That death or seriousinjury would likely result from such a fall has been established.Respondent produced evidence that an employee wearing a safety beltcould forget the presence of the lanyard connecting his belt to a staticline away from the roof opening and trip on that lanyard. It is clear,however, that a fall resulting from tripping on a lanyard or the staticline would more than likely result only in a fall to the roof surface.Should an employee wearing a safety belt and lanyard trip on the lanyardor on electrical cords that are present and fall into the roof opening,his fall would be stopped by the safety belt and lanyard within six feetof the roof. The possible tripping hazard is in no way as great as thehazard presented by an unrestrained fall of from 16 to 21 feet to theground below. Furthermore, alternative means of protecting employeesfrom falling to the ground were available in the form of safety nets andrespondent made no effort to apply for a variance as permitted undersection 6(d) of the Act. (Tr. 156, 250, 327) See _M. J. Lee ConstructionCo._, 79 OSAHRC 12\/A2 (No. 15094, 1979) 7 BNA OSHC 1140, 1979 CCH OSHD?23,330. Respondent has failed to prove a greater hazard defense._Fourth Defense_:\”Compliance with Section 1926.28(a) was impossible.\”In _M. J. Lee Construction Co._, _supra_, cited by respondent, theCommission held that in order to establish the affirmative defense ofimpossibility of performance, the employee must prove that: (1)compliance with the requirements of the cited standard would precludeperformance of required work, and (2) alternative means of employeeprotection are unavailable. Respondent failed to meet its burden ofproof as to either of the elements of this defense.Safety nets were available and customarily used by one of therespondent’s competitors on buildings of less than 25 feet in height.Several methods of installing a static line and tying it off damagingthe building’s outer shell were identified in the course of the hearing.Such methods included tying to the center beam at the peak of the roofbefore the final ridge panel is installed, (Tr. 330) tying to a cementblock weight on the ground at either side of the building (Tr. 282) andtying off to a winch on a truck on the ground at the side of thebuilding. (Tr. 283, 284)Respondent failed to meet its burden of proving defense of impossibilityof performance._Fifth and Sixth Defenses_:\”The use of Safety Belts and lanyards tied off to a static line wasneither technologically nor economically feasible.\”It is at this point that respondent’s major protest against compliancecomes into focus. In _S & H Riggers_, _supra_, a majority of theCommission required the Secretary in order to meet its burden of provinga violation of section 1926.28(a) to merely identify the appropriateform of personal protective equipment to eliminate the hazard. Theremaining member of the Commission reasoned that since the standard wasgeneral in tone the Secretary should have the burden of proving thefeasibility of the identified abatement method.Here the respondent denies the feasibility of the use of safety beltsand lanyards on the ground that there is no feasible method of tyingoff. Respondent claims that by the time they commence installing theroof, eave trim has been installed and the structural columns and beamsor rafters have been covered so that in order to reach them to anchorthe static line, it would be necessary to cut through the finished metalsurface which would be unacceptable to the purchaser or owner. (Tr. 96,98, 103, 111, 203, 204, 253, 271, 276, 277, 320)Complainant overcame this by establishing that (1) an anchor point forthe static line exists at the peak of the roof at all stages of theroofing installation since the ridge panel is the last piece to go on.If the insulation is pierced to secure the anchor, it could be repaired,(Tr. 330, 331) (2) anchor points for the static line could consist ofconcrete weights at the ground level at either side of the building, or(3) a truck or other piece of equipment possibly equipped with a winchcould be used as an anchor point for the static line. (Tr. 283, 284)Respondent further contended that to his knowledge no one in theindustry of constructing pre-engineered metal buildings uses safetybelts and lanyards, safety nets, catch platforms or scaffolding wherethe fall hazard Is under 25 feet (Tr. 266, 267) Since each method isattendant with increased cost, he would not be competitive if heutilized any such safety measure. (Tr. 263, 265, 269) The evidenceshowed that the use of catch platforms would add only about $1,000 tothe cost of installing a roof (Tr. 262) and that labor involved inutilizing safety nets would be about $800.00. (Tr. 136, 138) The use ofsuch alternative forms of fall protection would eliminate the hazard andsatisfy the requirements of the Act. They are reasonable in cost andshould be born by the employer and ultimately the consumer. Thisindustry should not be permitted to close its eyes to the need forproviding for the safety of its employees where methods of affordingthat safety exist. The claim that everyone else ignores the hazard is nodefense and complainant proved that at least one competitor does protectits employees from falling from heights under 25 feet. (Tr. 125) Itappears that intelligent effort expended upon the use of safety beltsand lanyards could produce a workable method at a reasonable price.Respondent has persisted in misinterpreting and misapplying the steelerection standards at subpart R of section 1526. (Tr. 267, 288) Suchmisapplication should not be countenanced. (Tr. 267)Respondent failed to meet its burden of proving infeasibility, ratherthe evidence preponderates in favor of a finding that personal tallprotection in the form of safety belts and lanyards and alternative fallprotection in the form of safety nets or catch platforms are bothtechnologically and economically feasible._Seventh Defense_:\”Respondent is here a victim of OSHA harassment and selective enforcement.\”Respondent’s evidence of \”harassment and selective enforcement\” was tothe effect it has been inspected by OSHA about three different timeswhile it knows of competitors who haven’t seen an OSHA inspector in fiveyears. Mr. Hunter knows of no one else being told to provide fallprotection below 25 feet and he stated that everyone lives by the 25foot standard. He feels sometimes he is singled out, but can’t prove it.(Tr. 287, 288, 298) Respondent cites no cases in support of his claim ofharassment and selective enforcement and the evidence introduced doesnot rise to the level necessary to support such a claim. See_International Harvester Company_ v. _Occupational Safety and HealthReview Commission_, 628 F. 2d 982, 985, 986, and cases there cited. Seealso _Secretary_ v. _Mato, Inc._, OSHRC Docket No. 84-1077 which dispelsrespondent’s claim that it is the only entity in the industry to becharged with failure to provide fall protection.Each of the respondent’s defenses have been here considered and found tobe without merit. Complainant made out a _prima_ _facie_ case and inaddition thereto a preponderance of the evidence supports a finding thatthe appropriate form of personal protective equipment identified by thecomplainant, to wit: safety belts and lanyards tied off to a staticline, is feasible.Since serious injury or death could result from a fall of from 16 feetto 21 feet, the violation was serious. Complainant gave dueconsideration to factors set forth in the Act in arriving at theproposed penalty of $300.00 which is appropriate. (Tr. 49-51)Now, having observed the demeanor of the witnesses and having weighedthe credibility thereof, there are here entered the following:_Findings of Fact_1. At all times material hereto Central Wisconsin Steel BuildingErectors, Inc. was a corporation with a place of business at at Route 1,Dalton, Wisconsin, and a worksite at the Glendale Commercial Building onAdvance Road, Madison, Wisconsin.2. At times pertinent hereto respondent was engaged in a businessaffecting interstate commerce and was engaged in handling goods whichhad been moved in interstate commerce.3. At times material hereto respondent employed five persons in itsbusiness at said worksite and was an employer within the meaning of the Act.4. Five of respondent’s employees were exposed to the hazard of fallingdistances of from 16 feet to 21 feet at the time of the inspectionherein and at all times when engaged in similar roof installing activities.5. Serious injury, broken bones or death were the likely harm that couldresult from the fall hazard to which respondent’s employees were exposed.6. Respondent had full knowledge of the fall hazard to which itsemployees were exposed while engaged in roof installation onpre-engineered single story metal buildings.7. Safety belts and lanyards tied off to a static line were theappropriate form of personal protective equipment to eliminate the hazard.8. Safety belts and lanyards tied off to a static line weretechnologically feasible.9. Safety belts and lanyards tied off to a static line were economicallyfeasible.10. No personal protective equipment was worn by its employees orprovided by respondent to eliminate the hazard of falling.11. No fall protection of any kind was provided by the respondent toprotect its employees from falling while engaged in roof installation.12. Respondent’s employees in installing roofing were exposed to thehazard of falling from the edge of the roof to the ground below and thishazard was apparent to respondent and to anyone engaged in the industryof constructing pre-engineered single story metal buildings.Respondent’s claim that the hazard was not recognized is not reasonable.13. The hazard of possible tripping on the lanyard connecting a worker’ssafety belt to a static line was not greater than the hazard of fallingfrom the roof to the ground where no fall protection was provided or worn.14. Alternative means of protecting employees from falling from the roofto the ground were available in the form of safety nets on catchplatforms and were economically feasible.15. Employees would not be precluded from performing the installation ofroofing by the wearing of safety belts and lanyards tied off to a staticline.16. The evidence does not disclose that respondent was the victim ofOSHA harassment or selective enforcement.17. An appropriate penalty is the sum of $300.00._Conclusions of Law_1. Respondent is an employer engaged in a business affecting commercewithin the meaning of the Act.2. Jurisdiction of the subject matter of this proceeding is conferredupon the Commission by section 10(c) of the Act and the Commission hasjurisdiction of the parties hereto.3. In accordance with the agreement of the parties items 2a and 2d ofSerious Citations No. 1, issued to respondent December 20, 1983, shouldbe affirmed and a combined penalty of $50.00 should be assessed.4. In accordance with the agreement of the parties item 1 of RepeatedCitation No. 2, issued to respondent December 20, 1983, should beaffirmed and a penalty of $25.00 should be assessed.5. The steel erection standards at subpart R of 29 CFR 1926.750 thru 752do not apply to the work activity in which respondent was engaged at thetime of the inspection.6. The standard at 29 CFR 1926.28(a) under which respondent was citedherein applies to the work activity in which respondent was engaged atthe time of the inspection.7. Item 1 of the aforesaid Serious Citation No. 1 should be affirmed anda penalty of $300.00 should be assessed._Order_1. Item 1 of Serious Citation No. 1, issued to respondent December 20,1983, is AFFIRMED and a penalty of $300.00 is ASSESSED.2. Items 2a and 2b of said Serious Citation No. 1 are AFFIRMED and acombined penalty of $50.00 is ASSESSED.3. Item 1 of Repeated Citation No. 2, issued to respondent December 20,1983, is AFFIRMED and a penalty of $25.00 is ASSESSED.R. M. ChildJudge, OSHRCDated: October 21, 1985FOOTNOTES:[[1]] This standard provides as follows:? 1926.105 _Safety nets_.(a) Safety nets shall be provided when workplaces are more 25 feet abovethe ground or water surface, or other surfaces where the use of ladders,scaffolds, catch platforms, temporary floors, safety lines, or safetybelts is impractical. [[2]] This standard states as follows:? 1926.500 _Guardrails, handrails, and covers_.(g) _Guarding low-pitched roof perimeters during the performance ofbuilt-up roofing work_– (5) _Roof edge materials handling areas and materials storage_. (iv) When safety belts systems are used, they shall not beattached to the hoist. (v) When safety belts systems are used they shall be rigged toallow the movement of employees only as far as the roof edge.A \”low-pitched roof\” is one having a slope no greater than 4 to 12.Section 1926.502(p)(3). The roof in this case was sloped 1 to 12. [[3]] \”Built-up roofing work\” is defined as follows:? 1926.502 _Definitions applicable to this subpart_.(p) For the purposes of paragraph (g) of ? 1926.500, the followingdefinitions shall apply:(1) \”Built-up roofing\”–a weatherproofing cover, _applied over roofdecks_. . . .(2) \”Built-up roofing work\”–the hoisting, storage, application, andremoval of built-up roofing materials and equipment, including relatedinsulation, sheet metal, and vapor barrier work, _but not including theconstruction of the roof deck_. [Emphasis added.] [[4]] The standards in Subpart R of Part 1926, 29 C.F.R. ??1926.750-.752, which apply specifically to steel erection, have nosafety belt provisions pertaining to the falling hazard alleged in thiscase. Central Wisconsin contends that the standards in Subpart R are theexclusive fall protection standards for the type of work its employeeswere performing and that therefore section 1926.28(a) is preempted.Judge Child rejected this contention, holding that Central Wisconsin wasnot engaged in steel erection work within the meaning of Subpart R.Review was directed on the preemption issue. However, whether JudgeChild correctly held that Central Wisconsin was not engaged in steelerection work, whether Subpart R does not apply to nontiered,single-story buildings, and whether Subpart R preempts 1926.28(a), neednot be reached in this case in view of our decision to vacate thesection 1926.28(a) charge on its merits. [[5]] At the close of the hearing the Secretary moved to amend thepleadings under Fed. R. Civ. P. 15(b), which permits pleadings to beamended when the parties try unpleaded issues by consent. The Secretarysought to allege in the alternative a violation of the Act’s \”generalduty clause,\” section 5(a)(1), 29 U.S.C. ? 654(a)(1). This provision ofthe Act requires an employer to take precautions against \”recognizedhazards that are causing or are likely to cause death or seriousphysical harm to his employees.\” Central Wisconsin objected to theSecretary’s motion, asserting that it would have tried the casedifferently had section 5(a)(1) originally been alleged. Judge Child didnot rule on the motion because he found Central Wisconsin in violationof 29 C.F.R. ? 1926.28(a). The Secretary has not filed a brief or reviewand does not otherwise suggest the motion should now be granted. Weconclude that the Secretary has abandoned the alternative section5(a)(1) allegation he sought to make before the judge. [[6]] The citation also alleged other violations which we do not review. [[1\/]] The Citation and the Standard read:_The Citation_29 CFR 1926.28(a): Appropriate personal protective equipment was notworn by employee(s) in all operations where there was exposure tohazardous conditions:Employees installing insulation and metal decking on the roof of thebuilding were exposed to the hazards of falling approximately 17 to 21feet in that fall protection such as life lines and safety belts,scaffolds, catch platforms, or other equivalent protection was not provided._The Standard_29 CFR 1926.28 Personal protective equipment.(a) The employer is responsible for requiring the wearing of appropriatepersonal protective equipment in all operations where there is anexposure to hazardous conditions or where this part indicates the needfor using such equipment to reduce the hazards to the employees.”