“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15565 MORTON BUILDINGS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September 7, 1979DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.COTTINE, Commissioner:??????????? A decisionof 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 etseq. (?the Act?). The judge ruled that the Respondent, Morton Buildings, Inc.(?Morton?), was in serious violation of the construction safety standardpublished at 29 C.F.R. ? 1926.28(a)[1] for failing to require itsemployees to use safety belts and lines while installing purlins during polebuilding construction.[2] The direction for reviewissued by former Commissioner Moran failed to specify issues to be consideredby the Commission. However, Morton filed a brief on review in which it objectedto the judge?s decision.[3]I??????????? Mortonconstructs pole buildings used primarily for animal enclosures and equipmentstorage. The method of constructing these buildings is described by theRespondent:Morton shares the common buildingcharacteristics of other pole-building manufacturers. Morton?s buildings arelaid out basically nine-foot on center . . . . Holes are dug into the groundaround the perimeter of the building. Then the poles which comprise thesupporting structure are placed in these holes. The framework made up of 2 x 6lumber is then nailed all around the perimeter with provisions made for doorways.After this has been accomplished the trusses[4] which are nine-foot oncenter are applied, truss ties are added, purlins[5] installed, and thecovering of sheet metal is then attached. [Footnote omitted]???????????? Thecitation was issued following the investigation of a fatal fall from the roofof a pole building by one of Morton?s employees who was engaged in installingpurlins. The deceased employee fell from a pole building that was approximately30 feet wide, and 150 to 200 feet long. The roof, which was peaked, wassupported by a series of trusses connected by purlins that were 20 to 24 inchesapart. The distance from the bottom of a truss to the peak of the roof was 5feet. The deceased employee fell 21 feet?the distance from the bottom of atruss to the ground.??????????? Theforeman of the work crew to which the deceased belonged and Morton?s supervisortestified about the installation procedure for purlins. The purlins are madeavailable for installation in two ways. Either one employee on the ground handsthe purlins to another employee who is nailing them to the truss or an employeeleans the purlins against the truss, ascends the truss, and pulls the purlinsup to the truss for nailing. The employee working on the truss installs purlinsfrom the bottom to the top of a truss so that nailed purlins are beneath theemployee 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 andsits on the purlin he has just nailed. To ascend, he moves from purlin topurlin on his knees.??????????? It iscontrary to Morton?s rules for an employee to move onto the part of a purlinunsupported by a truss because the purlins alone are not strong enough tosupport a man?s weight. After nailing a complete section of purlins an employeedescends the roof on his hands and knees. Morton also introduced evidence thatits methods for installing purlins are in general use by other manufacturers ofpole buildings and that other pole building manufacturers do not require theiremployees to use personal protective equipment.??????????? Thecompliance officer who conducted the investigation[6] testified that it is arecognized hazard in the construction industry ?to allow an employee to workapproximately 21 feet above the ground level on a truss? without fallprotection such as a scaffold or a safety belt and lanyard.II??????????? JudgeGoldstein 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 21feet above ground level with no protection. As a consequence, he held thatMorton was in violation of the standard because its safety practices did notinclude providing and requiring the use of personal protective equipment.Moreover, Judge Goldstein found that the record did not support theRespondent?s contention that the deceased employee had been working in a mannercontrary to its safety practices. Furthermore, he ruled that ?the Secretaryestablished the feasibility and likely utility? of using safety belts andlines, and rejected Morton?s contentions that using belts and lines would beimpossible and would be more hazardous than following Morton?s usualprocedures. Finally, the judge concluded that, even if the added costs ofcompliance would put the Respondent at an economic disadvantage, it mustnevertheless comply with the standard. A proposed penalty of $600 was assessed.III??????????? Onreview Morton contends that there is no fall hazard to purlin installers aslong as they follow its required procedures. The Respondent argues that thestructure formed by the purlins and trusses is similar to a job made ladder andprovides similar protection.[7] Morton further maintainsthat the fatal fall occurred because the employee failed to follow Morton?sprocedure.[8] We conclude that it isimmaterial whether the deceased employee failed to follow Morton?s work rulesbecause the purlin installers were exposed to a hazardous condition within theterms of the standard even when complying with Morton?s safety practices.??????????? In S& H Riggers & Erectors, Inc., 79 OSAHRC ??, 7 BNA OSHC 1260, 1979CCH OSHD ?23,480 (No. 15855, 1979), appeal filed, No. 79?2358 (5th Cir.June 7, 1979), we ruled,The crucial question in determiningwhether a hazardous condition exists within the meaning of ? 1926.28(a) iswhether a reasonable person familiar with the factual circumstances surroundingthe allegedly hazardous condition, including any facts unique to a particularindustry, would recognize a hazard warranting the use of personal protectiveequipment . . .. Although industry custom and practice are useful points ofreference with respect to whether a reasonable person familiar with thecircumstances would recognize a hazard requiring the use of personal protectiveequipment, they are not controlling . . ..\u00a0The failure of an industry to dealadequately with abatable hazards does not excuse an employer?s failure toexercise that degree of care which the law requires. Compliance may requiremethods of employee protection of a higher standard than industry practice . …?7 BNA OSHC at 1263, 1979 CCH OSHD at p. 28,436. Weconclude that the reasonable person would find that the Respondent?s purlininstallers were exposed to an obvious fall hazard ?warranting the use ofpersonal protective equipment.? S & H Riggers & Erectors, Inc.,supra; PPG Industries, Inc., 77 OSAHRC 196\/E5, 6 BNA OSHC 1050, 1977?78CCH OSHD ? 22,344 No. 15426, 1977), pet. denied, No. 77?2608 (3d Cir.Sept. 11, 1978).??????????? Morton?scontention that the configuration of the trusses and purlins is similar to aladder is correct. However, the working surface of the pole building from whichthe employee fell differed from a ladder in several significant respects.First, portable ladders must be used at a steep incline and cannot be used ?ina horizontal position as platforms, runways, or scaffolds.?[9]The purlin and trussstructure was gradually inclined. It was in essence used as a platform orscaffold. Moreover, even accepting Morton?s contention that the purlin andtruss structure constituted a job made ladder, the roof assembly failed to meetminimum safety requirements for ladders. Construction requirements for job madeladders are provided at 29 C.F.R. ? 1926.450(b). However, job made ladders areeither portable or fixed in nature and the purlins and trusses failed to meetthe safety requirements of either type of ladder. See 29 C.F.R. ?1926.450(a)(5), American National Standards Institute, A14.3 1.1.2.1 and1.1.2.2. (provides that the preferred pitch for fixed ladders is 75 to 90 degreeswith the horizontal and that fixed ladders are substandard if installed with apitch of 60 to 75 degrees). Moreover, the openings created by the intersectionof the trusses and purlins were 20 to 24 inches wide and approximately 9 feetlong?much larger than the openings formed by the rungs and sides of either aportable or fixed ladder. See ANSI A14.1 (1975); ANSI A14.3 (1974). Thepossibility of an employee falling through one of these openings is obvious.??????????? Moreover,the failure of pole building manufacturers to use fall protection does notmandate a finding that there was no hazard under the standard. ?[I]ndustrycannot be permitted to set its own standards for protecting employees whenthose standards fail to adequately protect employees exposed to safety andhealth 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.[10]The Secretary establishedthat Morton?s employees were exposed to a hazardous condition within the meaningof the standard.IV??????????? Mortonfurther objects to the judge?s affirmance of the citation, claiming that theuse of safety belts and lanyards was ?unworkable, impractical and patentlyunsafe.? It contends that the Secretary did not prove the feasibility of usingbelts and lines to prevent the type of accident that occurred. Morton alsoargues that it is more hazardous for purlin installers to use belts and lines thanto follow its procedures.[11]??????????? Bothparties submitted extensive evidence on the feasibility and safety of usingsafety belts and lines for purlin installation.[12] The compliance officertestified that a safety belt and lanyard would be the appropriate form ofpersonal protective equipment for an employee working on a truss. He indicatedthat the employee would attach his belt to a truss, and ?[a]ll he had to do iswrap the lanyard around the frame of the truss. . . . If he had to move hecould move right along without even loosening up the knot, or he could justunravel it and wrap it around again when he got to his next position.? If theemployee desired to use a lifeline, he could attach it ?[f]rom one end of thetruss to another end of the truss.???????????? Thesupervisor of several of Morton?s work crews testified that the use of safetybelts and lanyards would create problems while installing purlines. As theemployee moves from purlin to purlin, the employee ?would have to unhook therope to move it ahead of the [webbing[13] to move up again.? Healso testified that when pulling up a purlin the lanyard would get in the wayand the purlins could get tangled in the lanyard. Upon further questioning bythe Secretary?s attorney, however, the witness admitted that this problemprobably could be avoided. He also stated that he was not certain when thelanyard would get tangled. Furthermore, he objected to the use of lanyardsbecause an employee would be unprotected while securing his lanyard.??????????? Morton?ssafety director testified that Morton had conducted a feasibility study forusing belts and lanyards. Specifically the Respondent had constructed a steelbracket for attaching a crewman?s lanyard to a truss. The witness consideredthe use of belts, lanyards, and brackets to be infeasible. He noted severalobjections to their use: work was slowed because of the necessity of moving thebrackets, employees were required to lean far forward in an awkward position inorder to attach the brackets several purlins ahead, the crewmen were?unbalanced? when carrying the heavy brackets, and workers became entangled inexcess rope when working close to the bracket. On cross-examination he statedthat it would be possible to dispense with the bracket and to form the lanyardinto a noose. However, he considered use of the bracket necessary, for therewas no way to insure that the noose would remain above the point of operation,as required by 29 C.F.R. ? 1926.104.[14]??????????? Onredirect examination the compliance officer testified that an employee couldinstall purlins with no interference if he used a safety belt with a snaphookand a 6 to 7-foot-long lanyard formed into a noose. The employee could push thenoose 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 alreadyin place, the employee could unsnap the line and reattach it on the fartherside of the purlin. The noose could be secured so that it would not slide downthe truss. Moreover, there was little likelihood that the noose would slidebecause of the low pitch of the roof. Following this procedure, the lanyardwould remain secured above the point of operation. The compliance officerfurther testified that he has observed carpenters on steel erection structuresusing a lanyard formed into a noose and that they had experienced no difficultiespushing the nooses ahead of them.??????????? Onthe basis of its witnesses? testimony, Morton submits that the use of safetybelts and lanyards is infeasible. In S & H Riggers & Erectors, Inc.,supra, we ruled that to establish a prima facie violation of ? 1926.28(a) theSecretary must establish employee exposure to a hazardous condition requiringthe use of personal protective equipment and must identify the appropriate formof personal protective equipment to abate the hazard. It is not the burden ofthe Secretary to prove the feasibility of his suggested means of abatement. Wefurther ruled that an employer may affirmatively defend by proving that it isimpossible to use the suggested means of abatement,[15] or by proving a ?greaterhazard? defense. See Russ Kaller, Inc., T\/A Surfa Shield, supra.??????????? Inthis case the Secretary?s prima facie case has been established and Morton hasfailed to sustain an affirmative defense. There is no support for a conclusionthat the use of belts and lines was impossible. In fact, the record clearlyestablishes that the use of safety belts and lanyards formed into nooses wouldprovide feasible protection against the fall hazard. We also reject Morton?scontention that the use of lanyards formed into nooses is infeasible becausethey might not remain above the point of operation, as required by ? 1926.104.The requirement of ?\u00a01926.104 that the lines be secured above the point ofoperation applies only to lifelines, not lanyards.[16] Moreover, the complianceofficer testified that if his suggestions were followed the lanyards wouldremain above the point of operation.??????????? Inaddition, the Respondent has not sustained a ?greater hazard? defense under RussKaller, Inc., T\/A Surfa Shield, 76 OSAHRC 130\/F10, 4 BNA OSHC 1758, 1976?77CCH OSHD ? 21,152 (No. 11171, 1976). See note 11, supra. It did not prove thatthe hazards of complying were greater than the hazards of not complying?theprimary element of the defense. Morton?s factual assertions are based primarilyon the difficulties it encountered with the bracket. However, with the use of anoose the employee could move the lanyard ahead of him, thereby eliminating anyneed for extensive stretching. In addition, the testimony of the Respondent?switnesses does not show that interference with the webbing would beconsiderable. Moreover, the compliance officer?s testimony indicates that thedanger of entanglement would be insubstantial. Even if there were some hazardof entanglement that could result in a fall, an employee protected by a tiedoff safety belt would not fall to the ground below. The Respondent?s lastfactual assertion regarding the need to fasten and unfasten the lanyard is alsobased on its experiment with the brackets. However, frequent unhooking wouldnot be necessary with the noose. Finally, even if some fastening andunfastening were required thereby resulting in momentary gaps in the fallprotection and an extended working time on the beam, this fall hazard is notgreater than continuous exposure to a 21 to 26 foot fall. Cf. Jake HeatonErecting 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).[17]??????????? Wealso reject Morton?s argument that the third element of Russ Kaller(involving the inappropriateness of a variance application) does not apply. TheRespondent?s procedures for purlin installation are a standard constructiontechnique accepted by pole building manufacturers. In S & H Riggers& Erectors, Inc., supra, we noted that when a standard constructiontechnique is involved in a case, ?it is likely that a variance would havewidespread application for the employer and would provide more relief than itmight for more transitory construction activities.? 7 BNA OSHC at 1267 n. 24,1979 CCH OSHD at p. 28,440 n. 24.V??????????? Accordingly,we find Morton?s objections to the judge?s decision to be unmeritorious. Thejudge?s decision affirming the citation and assessing the proposed $600 penaltyis affirmed.?IT IS SO ORDERED.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: SEP 7, 1979?BARNAKO, Commissioner, dissenting:??????????? Iwould vacate the citation because I do not agree that a reasonable personfamiliar with the industry would have perceived that Morton?s employees whowere installing purlins were exposed to a fall hazard.??????????? Mortonis engaged in the construction of pole buildings, which are low, rectangular,metal-roofed structures that are primarily used for animal enclosures andequipment storage in rural areas. They are a distinct type of building andutilize a different framework and construction method than those found in otherbuildings, such as houses or high-rise office buildings. The distinctiveness ofpole buildings is underscored by the fact that certain companies, such asMorton, construct only pole buildings and these companies have their own tradeassociation, the National Frame Builders? Association (NFBA).??????????? Likemost pole buildings, the building Morton was erecting in Crete, Illinois, whenit was inspected by an OSHA compliance officer, had triangular trusses spacednine feet apart, the upper members of which ran from the edge of the roof tothe peak. The upper portion of each truss was joined to the next truss by a setof two-by-fours, called purlins, running at right angles to the trusses andplaced at intervals of 20 inches to two feet. To install the purlins, a Mortonemployee started from the outside edge of a truss, nailed the end of the firstpurlin to the truss and, straddling the truss, moved forward to nail eachsuccessive purlin. As he proceeded, he not only braced himself on the truss butalso used the secured purlins for support. Once he reached the peak of theroof, he backed down the side he had just completed; he did not go over thepeak and work down the other side because on the other side he would not havehad secured purlins under him.??????????? In anamended complaint, the Secretary charged that Morton violated 29 C.F.R. ?\u00a01926.28(a)because an employee who was installing purlins was not using a safety belt andlifeline equipped with a lanyard. The cited standard requires the use ofpersonal protective equipment only in ?operations where there is an exposure tohazardous conditions or where . . . [Part 1926] indicates the need for usingsuch equipment.???????????? In S& H Riggers and Erectors, Inc., 79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979CCH OSHD ? 23,480 (No. 15855, 1979), appeal docketed, No. 79?2358 (5thCir. June 7, 1979), the Commission held that ?the crucial question indetermining whether a hazardous condition exists within the meaning of ?1926.28(a) is whether a reasonable person familiar with the factualcircumstances surrounding the allegedly hazardous condition, including anyfacts unique to a particular industry, would recognize a hazard warranting theuse of personal protective equipment.? The Commission also stated thatindustry custom and practice are importantreference points in determining whether a reasonable person familiar with thefacts unique to a particular industry would recognize a hazard necessitatingthe 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 myconcurring opinion in S & H Riggers and Erectors, Inc., I did nottake issue with these statements.[18] I also found that areasonable person familiar with the industry would have recognized a hazardrequiring the use of protective equipment with respect to the cited conditions.In that case four employees engaged in building construction were working nearthe open edge of a building?s fourth floor 40 feet above the ground and werenot wearing tied-off safety belts. I based my conclusion concerning recognitionof the hazard on the fact that it was so obvious that employees could fall overthe edge that it could not be denied that a reasonable person familiar with theindustry would have perceived a hazard as such. This was despite testimony bythe employer that employees performing the tasks that were being done by theworkers on the fourth floor never used safety belts.??????????? I amconfronted with a different situation in the present case. Here the fall hazardis not so clear. Employees installing purlins on Morton?s pole building andworking at a height of about 21 feet constantly straddled a truss and hadbeneath them a substantial framework, consisting of a truss and securedpurlins.[19]Therefore unlike the employees in S & H Riggers and Erectors, Inc.,who were completely unprotected against a fall hazard, the employees herereceived some protection against falls from the network of supports formed by thetrusses and purlins on which they worked. In such circumstances, I would notconclude that a falling hazard is obvious.??????????? Becausethe fall hazard is not obvious, it is not readily apparent whether a reasonableperson familiar with the industry would recognize the hazard. In order to makethis determination, it is appropriate to look to the standard of care in theindustry and hence place heavy reliance on industry custom and practice.[20]??????????? Onthis point, Morton?s witnesses were far more persuasive than the Secretary?s.Three of Morton?s witnesses presented knowledgeable and uncontradictedtestimony that no pole building construction firm recognized a dangerwarranting its employees to use safety belts or other fall protection equipmentwhen installing purlins.??????????? FreemanD. Burkholder, who was a past president and director of the National FrameBuilders? Association and headed a pole building company, testified that he hadbeen involved in the pole building industry for 14 years and had observed 250to 300 pole buildings under construction. He stated that over that period hehad not known of any employer in the pole building industry using any equipmentsuch as scaffolds, safety nets, life lines or lanyards for employees installingpurlins. He added that as an active member of the NFBA, he would have known ifan employer was using such equipment during purlin installation.??????????? JosephH. Shaw, who was Morton?s general superintendent, testified that there was nopole builder in the country who required employees installing purlins to usesafety belts, nets, lanyards, or other safety equipment. Thomas Statlen, whosupervised several crews of Morton employees, also testified that he knew of nopole building construction firm which had employees use safety belts, lanyards,safety nets, or other fall protection equipment while installing purlins.??????????? Theonly testimony that working on a truss presented a recognized fall hazard camefrom OSHA?s compliance officer, Charles T. Schultz, who estimated that he hadinspected, at most, four pole buildings in his career. He could recall theparticulars of only one prior inspection of a pole building and he could notremember seeing the installation of purlins on that occasion. His conclusionthat working on a truss presented a recognized fall hazard was based on hisexperience in the construction industry in general, not his experience with theconstruction of pole buildings. He stated that on a building under constructionhe had observed iron workers wearing safety belts while welding beams on steeltrusses although he did not indicate whether purlins were present on thebuilding at that time. Thus, neither on the basis of the pole building industrynor on the basis of the construction industry in general was the complianceofficer able to cite any instances of employees wearing safety belts whileinstalling purlins.??????????? Accordingly,the Secretary introduced no evidence of customary procedures in the polebuilding industry. Morton, on the other hand, introduced evidence to show thatemployers in the industry would have performed the work in the same manner asit had done. Therefore, since the evidence does not demonstrate that the hazardwas obvious or that Morton?s conduct fell below industry practice, I would findthat a reasonable person familiar with the industry would not recognize ahazard presented by Morton?s installation of purlins which warrant the use ofpersonal protective equipment. Thus, I would vacate the citation.wherethe hazard is not obvious. Indeed in those situations, it is only by looking tothe practice in the industry that it can be determined what a ?reasonableperson familiar with the industry? would view as a hazard.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15565 MORTON BUILDINGS, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 December 1, 1976?DECISION??????????? Thisaction under Section 10(c) of the Occupational Safety and Health Act of 1970 isbrought by the Secretary of Labor against the Morton Buildings Corporation(sometimes hereinafter referred to as the Respondent) to enforce a Citationissued to it by the Occupational Safety and Health Administration.??????????? TheCitation alleged that:The employer failed to furnish hisemployees working in the south end of the building under construction,employment and a place of employment which was free from recognized hazardsthat were causing or were likely to cause death or serious physical harm to hisemployees in that an employee was working approximately 21 feet above theground level installing purloins from truss to truss, working east to westwithout a working platform or safety belts & lanyard.?in violation of Section 5(a)(1) of the Act whichprovides that:Each employer shall furnish to each of hisemployees employment and a place of employment which are free from recognizedhazards that are causing or are likely to cause death or serious physical harmto his employees;???????????? In anamended Complaint, the Secretary also charged that the Respondent:Failed to require the wearing of personalprotective equipment in an operation where there is exposure to a hazardouscondition in that respondent failed to require the use of a safety belt and alifeline equipped with a lanyard to an employee working approximately 21 feetabove the ground level, installing purlins from truss to truss, working east towest.?in violation of the standard found at 29 CFR1926.28(a) which reads as follows:PERSONAL PROTECTIVE EQUIPMENT. Theemployer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employee.???????????? TheRespondent?s Notice of Contest to the Citation and Answer to the Complaintdenied any violations of the Act or regulations. Pursuant to the pleadings,hearings were held in Joliet and Peoria, Illinois.??????????? Thesalient facts establish that the Respondent is engaged in the manufacture anderection of pole type buildings used primarily for animal enclosures andequipment storage in an agricultural setting. In this specialized field, holesare dug in the ground around the building perimeter, poles are placed therein,and the framework nailed around the building. When this construction phase iscompleted, trusses, truss ties, and purlins, which consist of 2 x 4 lengths oflumber, are installed, and a steel sheet covering is attached.??????????? OnSeptember 9, 1975, two employees of the Respondent, Messrs. Benson and Bass,were working on the truss structure of a building under construction in theCrete, Illinois vicinity. They were installing purlins on the roof whichslanted from 20 to 25 feet high. In this work they supported themselves bysitting 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 ortheir 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 theyreached the top. They were then to return to the ground, proceed to theopposite end of the building, and ascend to the truss section where theyrepeated the process. They were instructed always to work upwards, never fromthe top down.??????????? Mr.Benson was a newer employee, but (redacted)wasconsidered to be experienced, competent, and careful. He had never beenreprimanded for failure to obey company safety rules. At approximately 1:15p.m. on September 9, 1975, Mr. Benson shouted to other employees that . Mr.Hiller, who was the supervisor on the job and (redacted)whowas working in another area of the building, immediately left his position andcame to the accident scene where he saw (redacted).??????????? ACompliance Officer for the Administration visited the scene a few days afterthe accident and ascertained that the Respondent did not furnish its employeessafety belts, lanyards, scaffolding, ladders, or any other type of personalsafety equipment when they worked on heights up to 25 feet. This Officer in hiswork experience had investigated many construction sites (although very few inthe specialized pole type construction area) and he had observed that employeesworking at various heights were protected by ladders, scaffolds, or safetybelts secured by lanyards. In his opinion there was a recognized hazard in theconstruction industry for an employee to work 21 feet above ground withoutprotection, and Respondent?s employees could have utilized safety belts withlanyards, scaffolding or ladders when nailing purlins.??????????? Othertestimony in the record is to the effect that the pole type buildingconstruction industry is a highly competitive business, and even small additionalexpenses may mean the difference between obtaining or losing a contract. Oneofficial of the Respondent estimated it would cost between three and fourhundred dollars to equip crews with lanyards. In addition, the time for theinstallation of purlins (1\/12 of total construction time) would be increasedabout thirty percent. While some Company officials were of the opinion that nosafety measures were feasible and knew of no other firm in the field whichutilized the suggestions of the Compliance Officer, at least one supervisorcould not state whether or not the purlin installation work could be performedwith the use of safety equipment.??????????? TheCompany Safety Director tested a purlin installation work crew on a job withand without safety equipment. From this trial run, he concluded that safetyitems 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.??????????? Documentaryevidence in the record includes a Foreman?s Accident Report, disclosing thatthe deceased employee was nailing purlins when one broke approximately twoinches 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 anddefective purlin.??????????? Anotheraccident report for workmen?s compensation insurance purposes was prepared by asecretary of the Respondent on the date of the accident. It was there statedthat the employee was nailing purlins at the time of the accident when one ofthem he was leaning on broke, causing him to fall.??????????? AnOSHA Preliminary Fatality\/Catastrophe Event Report records that Mike Morrison,Comptroller, Morton Buildings, Inc., described the event as ?walking ontruss?truss broke employee fell.???????????? Insummary, we have a situation where employees of the Respondent were permittedto work at heights of approximately 21 feet with no protection from a possiblefall. In such a situation the Secretary contends that this work arrangement wasin 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 Actrelating to personal protective equipment.??????????? Onthe other hand, the Respondent maintains that there was no violation of the Actor regulations; that the Secretary is in error in seeking to apply the personalprotective standard to the installation of purlins in the pole buildingindustry; and that the deceased employee worked in an unsafe manner. TheRespondent further asserts that, inasmuch as no other company in the industryuses scaffolds, safety nets, lanyards, or life lines, the suggested safetyequipment would place it at a competitive disadvantage. It adds that there wasno previous accident in purlin work.??????????? Aspreviously noted, the standard in question provides that the employer isresponsible for requiring the wearing of appropriate personal protectiveequipment 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 tothe employee. There can be no quarrel with the proposition that an employee isplaced in a hazardous work setting if he is working on a roof of a buildingwith nothing to protect him from a fall of 21 feet or more as in the instantcase. While the Respondent urges that the Secretary is in error in applying thepersonal protective equipment regulation to the installation of purlins or tothe erection of pole buildings, there is no exception in either the statute orstandards for this phase of the construction industry.??????????? Itherefore conclude that the Respondent was in violation of the regulation foundat 29 CFR 1910.28(a) when it allowed construction crew members to work on polebuilding roofs twenty or more feet above the ground without personal protectiveequipment of any kind, and that the pole building industry is not exempt fromthis requirement.??????????? Anotherargument advanced by the Respondent for the vacation of the Citation is thatthe deceased worker was nailing purlins in an unsafe manner, but the recorddoes not support this position. To recapitulate, the evidence disclosed thatMr. Bass was a four year employee with an excellent safety record, wasconsidered safety conscious, and had no demerits to his employment journal onthis score. With no eyewitness to the mishap at the hearing, there is onlyspeculation on the part of the Respondent that Mr. Bass worked unsafely. Thisconclusion is buttressed by the documentary evidence in this case revealingthat the employee was nailing purlins when one of them broke, causing him tofall 21 feet to a concrete floor. Not a single written accident report suggeststhat the deceased was nailing in contravention of company safety practices.??????????? Ifthe record discloses any discrepancy between speculation on this point at thehearing and the prior written and oral statements transmitted to theAdministration by Respondent?s employees, I am placing more reliance upon thelatter because the Foreman?s Accident Report stating the mishap was due to abroken purlin was prepared immediately following the incident when he had anopportunity to verify the facts with eyewitnesses; because immediately afterthe mishap, a secretary for the Respondent reported that a faulty piece oflumber was to blame for the accident; because a company report to theAdministration mentioned that the employee feel off a truss when it broke;because the deceased employee had an unblemished safety record; because thedeceased employee?s supervisor considered him to be safety conscious; andbecause the events took place prior to the time any litigation on this issuearose.??????????? Inthis connection the critical issue is not whether the employee violated safetyinstructions, but whether the Respondent complied with the regulation requiringpersonal protective equipment. Inasmuch as the Respondent did not supply andrequire the use of personal protective equipment where there was an employeeexposure to hazardous conditions, the standard was violated and the Citationwas in order.??????????? Norcan the fact that there was no previous accident due to the lack of safetyequipment assist the Respondent in this regard. As stated many times by theReview Commission and the Courts, the purpose of the Act and the regulationsadopted thereunder is to avoid the first accident.??????????? Withrespect to the safety equipment itself, the Compliance Officer suggested thatlanyards and life lines were feasible and could be utilized in the installationof purlins. The Respondent disparaged this proposal and complained that theOfficer had little experience with pole type construction. Although true thatthe Compliance Officer had limited contact with pole type buildings, he hadextensive exposure to similar situations where employees worked on roofs andother elevations. It is, of course, not necessary that an Officer have a widebackground in a particular industry in order to recommend a Citation. It issufficient to sustain a Citation where a standard promulgated under the Actrequires protection if a hazard is present; where the employer has failed toprovide safety measures; and where it is possible to work with the suggestedequipment. Furthermore, the Respondent actually conducted a trial run with theuse of the recommended safety measures, an experiment which disclosed that itwas possible to nail purlins while wearing lanyards, life lines, or safetybelts.??????????? Whilesympathetic to the Respondent?s plea that the added costs of personalprotective equipment would place it at a financial disadvantage, the reply tothis objection was stated by the Court in Industrial Union DepartmentAFL-CIO et al v. Hodgson, Secretary of Labor, U. S. (App. D. C. 1973) 499F.2d 467:There can be no question that OSHArepresents a decision to require safeguards for the health of employees even ifsuch measures substantially increase production costs. * * *?. . . Standards may be economicallyfeasible even though, from the standpoint of employers, they are financiallyburdensome and affect profit margins adversely * * *\u00a0??????????? Acase similar to the one at bar is United States Steel Corporation v. OSAHRCand Secretary of Labor, (3d Cir. 1976) 537 F.2d 780. There a corporationiron worker lost his balance while connecting a girder on the 109th floor ofthe Sears Tower in Chicago and fell to his death. The Occupational Safety andHealth Administration issued a Citation for Serious Violation of the Act inthat the corporation was in violation of a regulation which provided thatsafety nets shall be provided when workplaces are more than 25 feet aboveground and where the use of other safety devices was impractical. The consensusof witnesses was that temporary floors, scaffolds, ladders, and catch platformswere not feasible on the job site. Opinion concerning the feasibility of safetylines and belts was more diverse, but these devices also were not employed.??????????? UnitedStates Steel asserted two defenses to the application of safety netrequirements. First, it alleged that it was impossible to erect safety nets andstill continue to construct the building. Second, it argued that erectingsafety nets would have created hazards to the men erecting the nets, and thaton balance more employees would be exposed to more danger than if the nets werenot erected.??????????? TheAdministrative Law Judge held that, although it would have been awkward to workwith safety nets, it was possible to do so. Upon appeal the Company attackedthis conclusion, pointing out that the Compliance Officer was unworthy ofcredence as against the Steel Company?s better-qualified witnesses. Inaffirming the decision of the Law Judge the Court noted:Our conclusion in this regard obviates anynecessity to consider the question whether the ALJ might properly haveprecluded the greater hazard defense as a matter of law because of USS?sfailure to resort to the available statutory variance procedure, 29 U.S.C. ?655(d). This question, vigorously pressed at oral argument, is raised at bestobliquely by the briefs, coming into focus only in USS?s Reply Brief. We expressno opinion on the matter.???????????? Althoughthe United States Steel case involved safety nets and a fall of over 25feet and the case under consideration concerns personal protective equipmentand a fall of 21 feet, the principle involved is basically identical. Thus, onthe authority of the United States Steel case, the Citation should beaffirmed.??????????? Finally,a very recent pronouncement of the Review Commission in the case of RussKaller, Inc. T\/A Surfa-Shield, CCH OSHD 21152, October 7, 1976, summarizesits position regarding the defense that compliance would create greater hazardsthan noncompliance with regulations. Before such a defense may be recognized:* * * The record must show that thehazards of compliance are greater than the hazards of noncompliance * * *; thatalternative means of protecting employees are unavailable * * *; and that avariance application under Section 6(d) of the Act would be inappropriate. * **???????????? Insummary, therefore, with respect to the merits of the case, I find:??????????? 1.That the Respondent permitted employees to work at heights twenty feet and overwithout personal protective equipment;??????????? 2.That the Respondent has not established that the hazards of compliance aregreater than the hazards of noncompliance;??????????? 3.That the Respondent has not established that the deceased employee failed toobey Company safety rules when installing purlins on a building constructionsite in Crete, Illinois, on September 9, 1975; and??????????? 4.That the Secretary established the feasibility and likely utility of theparticular personal protective equipment the Respondent could have used tocomply with Regulation 29 CFR 1926.28(a).??????????? Inview of the conclusions reached with respect to the specific regulation1926.28(a), it is not necessary to address the question of a violation ofSection 5(a)(1) of the Act.??????????? Thequestion of penalty received some attention during the hearing. The ComplianceOfficer went into considerable detail concerning the penalty recommendation. Ibelieve them to be reasonable and in keeping with the statutory criteria forpenalty assessment. Accordingly, the proposed penalty of $600 should not bedisturbed.??????????? It istherefore concluded that the Occupational Safety and Health Review Commissionhas jurisdiction over the parties and subject matter; that the Respondent is anemployer as defined in Section 3 of the Occupational Safety and Health Act of1970; and that the Respondent was in violation of the regulation promulgatedthereunder found at 29 CFR 1926.28(a).??????????? Basedupon the foregoing findings of fact and conclusions of law, it is herebyordered that the Citation dated October 6, 1975, and the proposed penaltytherefor, be affirmed.?Sidney J. Goldstein,Judge, OSHRCDated: December 1, 1976\u00a0[1] ? 1926.28 Personalprotective equipment.(a)The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.[2] The citation andcomplaint 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 Mortonwas in serious violation ?in that an employee was working approximately 21 feetabove the ground level installing [purlins] from truss to truss, working eastto west without a working platform or safety belts and lanyards.? An amendedcomplaint, issued prior to hearing, alternatively alleged that Morton failed tocomply with ? 1926.28(a). Morton contends that it was error for the judge toallow the amendment. It asserts that it was not informed until the hearing thatthe Secretary?s primary theory of liability would be that it was in violationof ? 1926.28(a) by failing to require the use of belts and lines. It arguesthat defending the charge was burdensome.All pleadings alleged that Mortonfailed to use belts and lines. The record also indicates that Morton was notprejudiced in the preparation and presentation of its case and that it was ableto defend itself vigorously against the charges. There was no change in thecause of action because the amended charge arose out of the same conduct as theoriginal charge. We conclude that the judge?s ruling was consistent with ourapplication 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); SouthernPrestress Co., 76 OSAHRC 107\/D8, 4 BNA OSHC 1638, 1976?77 CCH OSHD ? 21,034 (No. 3035, 1976); California Stevedore and Ballast Co., 75 OSAHRC47\/C4 3 BNA OSHC 1080, 1974?75 CCH OSHD ?19,527 (No. 1483, 1975).[3] Morton alsocontends that it was denied its rights under various provisions of the UnitedStates Constitution. The Commission is not statutorily authorized to initiallydecide issues regarding the constitutionality of its enabling legislation. See BuckeyeIndustries, 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 casescited in that opinion. However, two of Morton?s contentions?that it was deniedprotections guaranteed by the sixth amendment and, alternatively, that it wasdenied its right to a jury trial under the seventh amendment?must be rejectedon the basis of the decision of the United States Supreme Court in AtlasRoofing Co., Inc. v. OSHRC, 430 U.S. 442 (1977). In that case the Courtspecifically held that no right to a jury trial under the seventh amendmentattaches in adjudicatory proceedings under the Act, 430 U.S. at 450, andrejected the application of the sixth amendment jury trial requirement to theseproceedings. 430 U.S. at 460 n. 15, citing with approval, Muniz v. Hoffman,422 U.S. 454 (1975).[4] A truss is atriangular support structure. Those used by Morton were constructed of wood.[5] Purlins lieperpendicular to the trusses and provide support for the roof. Morton used 2 x4 lumber as purlins.[6] Morton attacksthe competency of the compliance officer on the basis that he did not haveintimate knowledge of the pole building industry. However, the complianceofficer?s testimony is credible based on his knowledge regarding the use offall protection in the construction industry generally.[7] Morton excepts toa 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 theemployees were not protected by any personal protective equipment as requiredby ? 1926.28(a). This statement is not contrary to a determination that apurlin and truss structure provides some protection.[8] Morton submittedextensive evidence which it contends establishes that the employee did notfollow instructions. It excepts to the judge?s ruling that the record as awhole does not support Morton?s contention.[9] 29 C.F.R. ?1926.450(a)(7).[10] In GeneralDynamics 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 theCommission in S & H Riggers. It agreed that the Commission had properlyinterpreted the court?s earlier decision in Cape & Vineyard Div. of NewBedford Ga; v. OSHRC, 512 F.2d 1148 (1st Cir. 1975), and added that, in thecontext of a ? 5(a)(1) violation ?. . . we cannot accept a standard for theprecautions which should be taken against such a hazard which is any less thanthe maximum feasible.?[11] The judge reliedon the Commission decision in Russ Kaller, Inc., T\/A Surfa Shield, 76OSAHRC 130\/F10, 4 BNA OSHC 1758, 1976?77 CCH OSHD ?21,152 (No. 11171, 1976), inrejecting Morton?s contention that use of safety belts and lines would be morehazardous. The decision in Russ Kaller held that, in order to prove a?greater hazard? defense, the record must show that the hazards of complianceare greater than the hazards of noncompliance, that alternative means ofprotecting employees are unavailable, and that a variance application undersection 6(d) of the Act would be inappropriate. On review Morton essentiallyargues that it proved the first two elements of the affirmative defense andalso argues that the variance requirement of Russ Kaller does not applybecause the Secretary did not prove that there was any hazard to employees whenthey follow the Respondent?s procedures.[12] The parties alsosubmitted evidence regarding the feasibility of scaffolds, ladders, and safetynets. Morton makes several contentions regarding that evidence. Inasmuch asMorton 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 torequire the use of belts and lines. Therefore, it is not necessary to make anydetermination with respect to Morton?s contentions regarding other suggestedmeans of abatement.[13] Although therecord testimony does not completely define the term ?webbing?, the exhibitsindicate that webbing is the cross-bracing that supports the triangular truss.[14] Section 1926.104sets forth specific requirements for safety belts, lifelines, and lanyards.Section 1926.104(b) provides, ?Lifelines shall be secured above the point ofoperation to an anchorage or structural member capable of supporting a minimumdead weight of 5,400 pounds.?[15] We reiterated along-standing holding that an employer?s proof that a suggested means ofabatement is impractical or inconvenient is insufficient to sustain an?impossibility? defense:Furthermore,in order to sustain its affirmative defense, an employer must not onlyestablish that compliance with the requirements of the cited standard wasfunctionally impossible, it must demonstrate that alternative means of employeeprotection were unavailable.? S &H Riggers & Erectors, Inc., supra, 7 BNA OSHC at 1266, 1979 CCH OSHD atp. 28,439.[16] Impossibility ofcompliance with ? 1926.104 is not a defense to a citation for noncompliancewith ? 1926.28(a). Frank Briscoe Co., 76 OSAHRC 125\/D7, 4 BNA OSHC 1706,1976?77 CCH OSHD ? 21,191 (No. 12136, 1976).[17] Morton?s relatedargument that use of belts and lanyards would not prevent this type of accidentis based on its assertions that the deceased did not follow its work rules andthat an experienced employee who cannot be made to follow Morton?s work rulewould also fail to use belts and lanyards. We find no support for Morton?sassertion that it would not be able to enforce the use of belts and lanyards.[18] I did, however,note that I would formulate the reasonable person test in terms of ?areasonable person familiar with the industry,? which I considered to be thesame test as that of the majority.[19] Since the purlinswere two feet or less apart and the worker continually straddled a truss, therewere always fairly substantial supports beneath him (as readily shown byMorton?s photographic exhibits).[20] Several courts ofappeals have applied some form of the reasonable person test to the generalindustry or construction industry personal protective equipment standards (29C.F.R. ??\u00a01910.132(a) and 1926.28(a), respectively) or to the Act?sgeneral duty clause, 29 U.S.C. ?\u00a0654(a)(1). Two circuits appear to haveheld that whether a hazard is recognized by reasonable persons familiar withthe 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 & BInsulation, Inc. v. OSAHRC, 583 F.2d 1364, 1370?71 (5th Cir. 1978); AmericanAirlines, Inc. v. Secretary of Labor, 578 F.2d 38 (2d Cir. 1978). The othercourts which have considered the question have held that, if not entirelydeterminative, industry custom and practice in most instances will establishthe standard of conduct. Bristol Steel & Iron Works, Inc. v. OSAHRC,7 BNA OSHC 1462 (4th Cir. June 25, 1979); General Dynamics Corp., QuincyShipbuilding 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); Brennanv. Smoke-Craft, Inc., 530 F.2d 843, 845 (9th Cir. 1976). While I do notagree that an industry should fail to protect against hazards which areobvious, I would not disregard industry custom”