“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5991 PENROD DRILLING COMPANY \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September 9, 1976DECISIONBEFORE BARNAKO, Chairman;MORAN and CLEARY, Commissioners.MORAN, Commissioner:Adecision of Review Commission Judge Henry F. Martin, Jr., dated December 3,1974, is before this Commission for review pursuant to 29 U.S.C. ? 661(i). Bythat decision respondent was held not to be in violation of 29 U.S.C. ?654(a)(1).[1] For the reasons set forth below,we affirm.Thecitation described the violation of 29 U.S.C. ? 654(a)(1) in the followingmanner:The employerfailed to furnish his employee working on a derrick . . . a place of employmentwhich was free from recognized hazards that were causing or were likely tocause death or serious physical harm to his employees in that the employerfailed to require his employees to wear a safety belt when rigging the bridleto put it in position for the rigging down operation, from approximately 125feet above the ground . . .\u00a0TheJudge concluded that the evidence failed to establish the existence of acondition or practice which was recognized as hazardous by either therespondent involved or its industry. We agree with that conclusion for thereasons assigned in the Judge?s decision which is attached hereto as AppendixA.[2] Complainant thereforefailed to sustain his burden of proving an essential element of his allegation.See Brennan v. OSAHRC and Vy Lactos Laboratories, Inc., 494 F.2d 460(8th Cir. 1974); National Realty and Construction Company, Inc. v. OSAHRC,489 F.2d 1257 (D.C. Cir. 1973). Accordingly, the citation was properly vacated.Onreview, complainant has moved for the first time to amend the charge to allegethat the respondent violated 29 U.S.C. ? 654(a)(1) by failing to provide safetynets or, in the alternative, to allege that respondent violated 29 U.S.C. ?654(a)(2) by failing to comply with the occupational safety standard codifiedat 29 C.F.R. ? 1926.28(a). Respondent opposes these motions. We conclude thatit would be improper to allow either amendment at this late stage of theproceedings.Complainantcontends that the issue of respondent?s failure to provide safety nets wastried by respondent?s implied consent. He bases that contention on the factthat his inspector at one point in his testimony referred in general to the useof a safety net as another possible means of protection. We do not construerespondent?s failure to object to this innocuous testimony as implying that itwas consenting to a trial on its failure to provide a safety net. Secretaryv. Marquette Cement Manufacturing Company, OSAHRC Docket No. 4725, January27, 1976. Furthermore, neither the citation nor the complaint refers to safetynets. It is a completely new charge. Therefore, it would be improper to allowthis amendment because respondent was not put on notice that its failure toprovide a safety net would be an issue at the hearing. Secretary v. P. &M. Sales, Inc., OSAHRC Docket No. 3443, May 3, 1976.Themotion to amend to allege noncompliance with 29 C.F.R. ? 1926.28(a) is alsoinappropriate. The standards contained in 29 C.F.R. Part 1926 apply only wherean employer has employees who are ?engaged in construction work.? 29 C.F.R. ?1910.12(a). The evidence in this case does not establish that respondent?semployees were so engaged. As the citation indicates, respondent?s activitiesinvolved dismantling an oil derrick.Forthe foregoing reasons, complainant?s motions to amend are denied, and theJudge?s decision is affirmed. It is so ordered.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: SEP 9, 1976CLEARY, Commissioner,DISSENTING:Beforesetting forth my reasons for disagreeing with the majority?s disposition ofthis case, a statement of the essentially undisputed facts will be useful.OnNovember 18, 1973, Penrod Drilling Company (Penrod) was preparing todisassemble the derrick of a rotary drilling rig in order to move it to anotherlocation. This operation, referred to in the drilling industry as ?riggingdown? the derrick, required three employees to ascend the derrick for thepurpose of attaching a bridle to the upper portion of the derrick so that thederrick could eventually be lowered into a horizontal position. In order toattach the bridle, the employees were required to stand on a girder that wasabout eight-feet long and one-foot wide. The girder was 125 feet above theground and 95 feet above the derrick floor. None of the three employees wasequipped with safety belts and lanyards so as to enable them to tie-off to thederrick. Indeed, Penrod did not require the wearing of personal protectiveequipment during the performance of this operation even though safety belts andlanyards were available for use.The?rigging down? of the derrick was to be accomplished using a bull line andbridle that were attached to a block and sling. As the bridle was raised, itbecame apparent that the bridle lines were too short to be handled by theemployees from their positions on the girder. One of the employees stepped ontothe block and sling assembly to ride it up. The sling broke, for reasons unexplainedin the record, and the employee riding the sling fell to his death. Thisaccident precipitated the Secretary of Labor?s (Secretary) investigation ofPenrod that ultimately led to the issuance of a citation alleging a violationof section 5(a)(1) of the Act.[3]Followinga hearing on the merits, Judge Martin issued a decision vacating the citation.He held that the Secretary had failed to prove that the cited hazardouscondition was ?recognized? within the meaning of section 5(a)(1) of the Act.The majority adopts the Judge?s decision. I would not because in my opinion theJudge?s analysis does not comport with applicable precedent.Inframing the issue of whether the hazard was ?recognized?, Judge Martin statedas follows:In order toestablish a violation of the general duty clause, [section 5(a)(1) of the Act],it is necessary to prove that the hazard in question was ?recognized?. It mustbe a hazard recognizable in the industry or it must be shown that the employerhimself has actual knowledge of a hazardous condition.?Applyingthis analysis to the evidence adduced at the hearing, the Judge concluded thatthe Secretary had not proved that the hazard was ?recognized.?Itwas concluded that the drilling industry did not recognize the hazardous natureof the cited working condition. The Judge noted that the evidence showed thatthe drilling industry did not require the wearing of safety belts for allemployees whose tasks required them to ascend the derrick. Only ?derrick men?were required to wear personal protective equipment. This was because ?derrickmen? remain aloft for extended periods of time and must use both their handswhile performing their duties. Employees engaged in ?rigging down? the derrick,however, were not required to wear safety belts because they had a free handwith which to rely upon for support, and remained aloft for shorter periods oftime than derrick men.TheJudge noted two additional reasons advanced within the industry for notrequiring the wearing of safety belts in the cited operation. First, it wasshown that members of the industry regarded the use of safety belts during theoperation as inconvenient because the safety lines might become tangled andhinder the employees? performance of their tasks. Second, it was urged that theindustry did not generally require the use of safety belts in any operationthat requires constant movement within the derrick. In support of this practicethe Judge noted the applicability of a proposed occupational safety and healthstandard drafted by the Texas State Department of Health. This proposed rulereads as follows:Every employee,when engaged in work at 10 feet or more above the derrick floor, shall wear asafety belt with an attached lanyard properly secured, except when thework being performed requires constant movement within the derrick (emphasisadded).?Inreaching his conclusion that the cited hazard was not ?recognized,? JudgeMartin apparently accepted Penrod?s assertion that the cited activity fellwithin the proposed rule?s exception. He noted that the deceased employee was?within the derrick? at the time of the fatal accident. It was also noted that,according to testimony of a safety expert testifying for Penrod, the citedoperation required ?considerable moving around,? and thus fell within theproposed rule?s exception. Basedupon the above, Judge Martin concluded that the existence of a ?recognized?hazard was not established. He never squarely addressed the issue of whetherPenrod itself actually knew whether the condition was hazardous. PresumablyJudge Martin regarded Penrod?s reasons for either not recognizing or knowing ofthe hazard as corresponding to the reasons advanced within the industry for notrequiring the use of safety belts during the cited operation.TheCommission recently issued a decision in Cormier Well Service, 4 BNAOSHC 1085, 1975?76 CCH OSHD para. 20,583 (No. 8123, April 5, 1976), in which weaffirmed a violation of section 5(a)(1) of the Act involving an alleged failureof an employer to require the wearing of safety belts by certain employeesrequired to ascend an oil derrick. The principles of law applied in Cormierregarding the question of whether the hazard was ?recognized? within themeaning of section 5(a)(1) are applicable to the instant case. The analysis in Cormierreveals the error of Judge Martin?s analysis here. Indeed, in Cormier werejected the very arguments of the employer that the Judge relied upon in theinstant case.Theviolative condition found to exist in Cormier involved the employer?spractice of allowing trainees for the job of ?derrick man? to remain on aworking platform on the derrick without the protection of a safety belt.Specifically, the trainee stood 55 feet above the ground on a 5-inch-wide steelrail. We rejected the employer?s assertion that this work practice was nothazardous. In so doing we quoted with approval, Judge Risteau?s observationthat:A person standing55 feet above ground on a 4 ? to 5 inch wide steel rail and relying for supporton a handhold to another rail is subjected to a significant falling hazardwhether or not an accident actually occurs.?Cormier Well Service, supra (footnote omitted).?Theabove quotation suggests that the condition in the instant case must also beconsidered as posing a significant falling hazard. Penrod permitted threeemployees to depend solely upon a handhold while standing on a one-foot-widegirder that was 125 feet above ground. Thus, as in Cormier, theexistence of a significant hazard likely to cause death or serious physicalharm is obvious.InCormier, despite the obvious nature of the hazard, the employermaintained that the practice was not a ?recognized hazard? because it wascustomary in the oil-drilling industry for trainees to remain unprotected whileon the derrick. We rejected this type of argument in Cormier, and shouldreject Penrod?s similar argument here.Inboth Cormier and the instant case, evidence adduced at the hearingsindicated the existence of a patently hazardous working condition that was not,however, regarded as hazardous within the drilling industry. Moreover, bothrecords contain evidence indicating that oil industry practices require the useof safety belts and lifelines at heights above ten feet.[4] In Cormier westated that such evidence showed that ?. . . the industry has recognized ahazard to those employees required to perform duties at heights.? CormierWell Service, supra (footnote omitted). It follows logically that it shouldbe concluded in the instant case that Penrod?s industry has recognized hazardsto employees required to work at heights.Viewedfrom this perspective it is clear, therefore, that the drilling industryperceives the obvious dangers attendant to the performance of duties on an oilderrick, but for various ?practical? reasons chooses not to protect employeesthat are required to perform certain tasks at great heights on the derrick.Contrary to the Judge?s reasoning, however, this fact does not mean that thehazard in the instant case is not ?recognized? within the meaning of section5(a)(1) of the Act.Thatindustry practices or customs do not require the abatement of a patentlyhazardous condition only means that an obvious hazard is unremedied. It doesnot mean that the hazard is not ?recognized.? Indeed, when faced with ahazardous condition as obvious as the one in the instant case, it is error toattach any significance to an industry custom of not remedying the conditioneven though the means of abatement are readily available.[5]Nevertheless,this is precisely the result arrived at by Judge Martin. In affirming theJudge, the majority is apparently adopting a rule of law that countenancesintra-industry concerted refusals to remedy patently hazardous conditions. Mycolleagues are placing too much emphasis upon safety precautions actually takenwithin a particular industry.Safetyprecautions relative to a specific hazard need not find general usage within anindustry before their absence gives rise to a violation of section 5(a)(1) ofthe Act. National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d1257, 1265 n.37 (D.C. Cir. 1973). Industry practices will not always establishan acceptable standard of conduct under the general duty clause. An employermay be held to a higher standard of conduct than that accepted within hisindustry if his industry fails to take reasonable precautions against hazards.[6] cf. Cape & VineyardDiv. of the New Bedford Gas v. O.S.H.R.C., 512 F.2d 1148, 1152 (1st Cir.1975).Clearly,this possibility of holding an employer to a higher standard of care than thatobserved within his industry must be applied where, as here, the employer?sindustry chooses to ignore an obvious hazard than can be easily corrected.Accordingly, I would reverse the Judge and find a ?recognized hazard? cognizableunder the general duty clause.Inany event, the factors relied upon by the Judge to negate the existence of a?recognized hazard? were erroneous. In the first place, he apparently acceptedPenrod?s contention that the employees were ?protected? because they had a freearm with which they could hold onto the derrick. We, however, rejected this?handhold? argument in Cormier Well Service, supra as an acceptable method ofabating an obvious hazard.JudgeMartin also seemed to accept Penrod?s contention that the short time involvedin the ?rigging down? operation cuts against the use of safety belts andlanyards. I would not. The employees were aloft in one position for at leastten minutes and could have easily tied off to the derrick. For this reason Ialso would reject Penrod?s arguments that the constant movement required duringthe process of hooking-up the bridle rendered the use of protective equipmentinfeasible. Similarly Penrod?s argument that safety belts and lanyards were notfeasible because they ?might? become tangled should have been rejected by theJudge. When balanced against the potential for a 125 foot fall, any possibleinconvenience flowing from the use of fall protection is outweighed by theseverity of the hazard and should not serve to lessen a requirement of usingsafety belts and lanyards.Finally,the Judge improperly assessed the probative value of the proposed occupationalsafety and health standard drafted by the Texas State Department of Health. TheSecretary asserts that this standard should not be given any weight in thismatter because it was merely a proposed rule that was not certified asacceptable by the Secretary inasmuch as the Texas State plan, at the time ofthe hearing, had not been approved under section 18 of the Act. I would not goas far as the Secretary. The proposed standard may have some probative value onthe limited issue of industry recognition of the hazard, but not very much.Theevidence showed that the cited working condition?working without protection froman exterior girder on the derrick?did not fall within the language of theproposed rule?s exception from the safety belt requirement ?when the work beingperformed requires constant movement within the derrick (emphasis added).? Itis clear that the Judge improperly focused upon the actions of the deceasedemployee in reaching his conclusion that the draft exception applied to thecited hazard. While it is true that the deceased employee was moving within thederrick at the time of his fatal fall, the two surviving employees, however,remained standing on the ten-foot long exterior girder. Clearly, at least as tothese two employees, the draft exception would not apply.Accordingly,I would reverse the Judge and affirm a violation of section 5(a)(1) of the Act.I would not reach the issue relating to the Secretary?s request for anamendment in the event a violation of the general duty clause was not found. I,therefore, express no opinion on the majority?s disposition of the amendmentissues presented in this case.?APPENDIX A\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 5991 PENROD DRILLING COMPANY \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE: January2, 1975DECISIONAND ORDERAppearances:Mr. Robert A FitzUSDOL, Office of the Solicitor Room 7C52, Federal Building Dallas, Texas 75202Attorney for Complainant\u00a0Mr. MarshallBallard 1010 Commons Street New Orleans, Louisiana 70112 Attorney forRespondent\u00a0MARTIN, Judge:Thisis a proceeding brought pursuant to section 10(c) of the Occupational Safetyand Health Act of 1970 (29 USC 651 et seq.), hereinafter referred to as theAct, contesting a citation issued by complainant on December 12, 1973, againstrespondent under authority set forth in section 9(a) of the Act. The citationalleges that respondent violated section 5(a)(1) of the Act as the result of aninspection on November 20, 1973, of a work place under the operation andcontrol of respondent located on FM 2050, approximately 10-miles north ofBruni, Texas, on drilling rig No. 6. The alleged serious violation wasdescribed in the citation as follows:\u00a0 Standard Abatement Description Date Section 5(a)(1) of the Occupational Safety and Health Act of 1970 The employer failed to furnish his employee working on a derrick, FM 2050, approximately 10 miles North of Bruni, Texas, a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm to his employees in that the employer failed to require his employees to wear a safety belt when rigging the bridle to put it in position for the rigging down operation, from approximately 125 feet above the ground from a girder, on Fig #6. \u00a0 Immediately upon receipt of this citation. \u00a0 \u00a0OnDecember 12, 1973, respondent was notified by means of a notification ofproposed penalty from Thomas T. Curry, Area Director of the Occupational Safetyand Health Administration, Houston, Texas, whereby it was proposed that a civilpenalty of $550 be assessed for the aforementioned alleged violation. OnDecember 27, 1973, respondent, through its safety director, filed a notice ofcontest with reference to the alleged violation of section 5(a)(1) and also contestedthe proposed penalty.[7]Followingthe filing of the notice of contest, complainant filed a formal complaint inthis matter, setting forth substantially the same information as that containedin the citation. Following the answer submitted by respondent?s safetydirector, this matter was scheduled for hearing in Dallas, Texas, on May 20,1974. Appearing for complainant was Mr. Robert Fitz, of the Regional Solicitor?sOffice in Dallas. Respondent was represented by its safety director, Mr. GeorgeSparkman, and its attorney, Mr. Marshall Ballard, of New Orleans, La. No otherperson entered an appearance or sought to intervene in this proceeding.Following the hearing counsel for both parties submitted briefs for theundersigned Judge?s consideration.Theinvestigation which resulted in the issuance of this citation was precipitatedby a work related accident on a drilling rig, Penrod 6, which occurred on November18, 1973. Respondent had a new and modern rotary drilling rig, Penrod 6, andemployees of respondent were getting ready to move it to a new location. In theprocess of doing so it is necessary to lay the derrick down in a horizontalposition. In order to lower the derrick workmen are required to go up on agirder which is 8 or 10 feet long and 1 foot wide and about 90 feet above thederrick floor, or approximately 125 feet above ground level. Three ofrespondent?s employees were on the girder in order to perform a hook up of thebridle preparatory to laying the derrick down. The employees were J. C.Valdras, the derrick man, Daniel E. Kubala, the driller, and the deceased,Fernando Hernandez, the motor man. None of these employees were wearing asafety belt, however, Mr. Valdras did have on a climbing belt which was notattached to the derrick. The three employees were standing on the girder some30 feet or so below the crown of the derrick. A sling was attached from theblock to the bridle. As the bridle was raised it was discovered that the bridlelines were too short for Kubala or Valdxas to be able to place the disengagedbridle lines in the proper pin holes. At this point the deceased, FernandoHernandez, stepped on the bridle which was approximately 2 feet x 4 feet insize and rode it up slowly until it reached a point about 4 feet above thegirder where he had been standing. At this particular moment the sling holdingthe bridle to the block broke and Hernandez fell to the ground. Subsequentinvestigation failed to disclose the reason the sling broke.Thequestion to be determined herein is whether in the language of section 5(a)(1)of the Act respondent met the requirement that he furnish to each of hisemployees employment and a place of employment which was free from ?recognizedhazards? that are causing or are liable to cause death or serious physical harmto his employees. As previously indicated, complainant has charged respondentwith violating section 5(a)(1) of the Act, generally referred to as the?general duty clause,? in that the employer did not require the use of safetybelts while an employee was on a girder approximately 125 feet above the groundwhile rigging the bridle to put it in position for the rigging down operationof Penrod 6.Followingthe fatal accident the compliance officer, Mr. Bobbie Lee Perry, visited thedrilling site in question and conducted his investigation, which included theinterviewing of respondent?s safety director and two of the employees who wereon the derrick, Valdras and Kubala. It was ascertained that none of the threeemployees were wearing safety belts at the time they were on the girder to performthe rigging down operation.[8] Mr. Perry testified thatin his opinion there was a recognized hazard and that in the event of a fallfrom such a height death or serious physical injury would occur. He stated thatthis could have been prevented by the use of safety belts and lanyards or somesort of boatswain?s chair. He further indicated that a net or a catch platformcould have been utilized.Oncross examination Mr. Perry stated that he had some experience with drillingoperations involving smaller derrick structures while he was employed by aninsurance company as well as with OSHA and indicated that he had seen derricksraised and lowered by means of the bridle. He indicated, however, that he hadnot seen safety belts used in this operation, stating that it was normally a?one hand? operation. He advised that he did not recommend safety belts to theinsurance carrier. Mr. Perry advised that there would be very little differencein the result of a fall from an 80 foot derrick or from a 125 foot derrick. Mr.Perry indicated that he had not has any experience on rotary drilling rigs aslarge as the Penrod 6. When questioned about the practices of the motormen,drillers, and derrick men with reference to wearing safety belts and lanyards,Mr. Perry stated as follows:?It?s anon-practice, sir. As I have found, it has been a non-practice within thedrilling industry and service industry to wear the safety belts. Even sometimesthe derrick men working on his board up there, he feels that he doesn?t needit.?But we don?t havespecific standards for the?to my knowledge, for the drilling industry. Andwe?re called on to use their particular standards and get familiar with theirindustry and what?s called for in their industry.?I have seen asafety belt used to do certain operations, to make some inspections, or to makesome repairs up by the crown at the top of the derrick structure. I have seenthe derrick man using the safety belt and lanyard while working at his stationon the derrick floor, racking pipe and bringing pipe out of the rack to put inthe hole. I have seen it used, sir. But not all of the other men.?No, sir, I haven?tseen them using a safety belt or lanyard, unless they were performing somespecific job as far as repair, or performing something that they had to go upand kinds hang on for a period of time, or something like this.?Other than that,no, sir. Not for going up and making an inspection, or making a check, no,sir.? (Tr. 66, 67)?Thegist of Mr. Perry?s testimony was that a hazard existed on the Penrod 6 derrickand that safety belts and lanyards should have been worn by employees while workingon the derrick girders when performing the bridle hook up operation, it beinghis opinion that it would be necessary for them to work on the ?inside? of thederrick. He felt that it would be easier for employees to fall inside thederrick on such a large rig because the structural members for holding on werefurther apart than on smaller rigs and because the bridle assembly had to bepushed or moved. He stated that although a man might perform the ?hooking on?operation from the girder on the outside of the derrick, he was informed thatthe deceased stepped on to the bridle inside the derrick because of theshortness of the bridle lines.Mr.Daniel Kubala, the driller, testified that he and the other two employees werepreparing to lay the derrick down in order to move it to a new location. Hestated that none of the three employees had on safety belts, although Mr.Valdras had on a climbing belt. He advised that the ?laying down? operationwould normally consume approximately 5 minutes or so. It was his testimony thatMr. Hernandez was ?riding? the bridle and that the sling line broke, causinghim to fall. He stated that this was not a unusual procedure, however. Headvised that everything looked ?fine? to him and that he would have ridden thebridle himself as they had never had any trouble with it or found anythingunsafe about connecting or disconnecting the bridle. He stated that there wasno suggestion of any unsafe condition which would warrant the wearing of safetybelts while on the girders. It was his opinion it is better to walk on thegirders without safety belts because the lines might get tangled up. He statedthat there was no requirement that workmen on the derrick wear safety belts andthat he had never worked for a company that required safety belts to be worn onthe derrick other than when working with pipe.Mr.Joe C. Valdras testified substantially the same as Mr. Kubala, stating that he,Hernandez, and Kubala were engaged in rigging down the derrick. He stated thathe had no reason to suspect that anything was wrong and that as far as he knewno other drilling contractors or companies had ever required safety belts forthe rigging down operation. He did indicate, however, that derrick men would beexpected to wear one while performing those duties.[9] It was Mr. Valdras?conclusion that no recognized hazard was present on Penrod 6 on November 18th.It was also his opinion that all work could have been performed from theoutside of the derrick if it hadn?t been for the shortness of the bridle lines.Mr.Cecil Jenkins, vice president in charge of engineering, Lee C.MooreCorporation, Tulsa, Oklahoma, testified that his company developed the Penrod 6type of derrick and that safety was always a factor to be considered indesigning derricks. He indicated that he had never experienced any problemswith the bridle apparatus. He testified that he had never seen safety beltsused in the ?rigging down? operation. Mr. Jenkins stated that due to the designof the bridle that it is not necessary to exert any force on the bridle or topush or shove it. Relative to the rigging down operation it was Mr. Jenkins?view that employees could make the necessary connections and perform therigging down operation from the outside of the derrick rather than having tomove to the inside.Mr.Ellis T. Hammett of Dallas, Texas, safety director for the InternationalAssociation of Drilling Contractors, testified that he had some 37 years ofexperience in the oil fields as a drilling engineer and production engineer.[10] He testified that in hispresent job he is responsible for such matters as safety and standards. Hestated that he has been around drilling rigs for over 20 years and that he hasnot heard of an employee ever falling off of the girder in a rigging down procedure.He stated that men are ?used to that sort of thing,? that is, being up inderricks without safety belts. He pointed out, however, that it is appropriatefor the derrick man to wear a safety belt because he is ?up there? for a longperiod. Mr. Hammett stated that the reason the derrick man should be tied on isbecause he has to reach out with both hands to pull an object in, such as apiece of pipe. In other words, the derrick man would not have an opportunity touse one arm like the others in order to hold on to a structural member.Incontending that the employer failed to furnish a place of employment free fromrecognized hazards likely to cause death or serious physical harm, complainanthas cited a provision from the accident prevention manual (p. 38) of theInternational Association of Drilling Contractors which provides in part asfollows:?A safety belt andlife line should be provided for each employee and the employee should wear thesafety belt and keep the life line secured to a derrick member or other supportwhen working on a walking beam and in or on a derrick or mast at an elevation10 feet or more above the derrick or mast floor.?\u00a0Complainantcontends that this provision applies to the more modern rotary type derricks.However, there is no evidence in the record to this effect.Mr.Hammett testified that the accident prevention manual was prepared in 1950 andhas been modified very little since then?the last revision having occurred in1968. He stated that the fact that the term ?walking beam? is used indicatesthat it was drafted to apply to the old type derricks (cable tool derricks) andnot to large rotary type derricks which do not have ?walking beams.? He statedthat with the cable tool derricks workmen would rarely, if ever, go up in thederrick except to repair something and that most of the work was performed atthe ?walking beam? level.[11]Mr.Hammett testified further that the process of bridle hook up requires movingaround on the derrick and that the short time involved in such a process woulddictate against the use of safety belts and lanyards. According to Mr. Hammettthere is a clear distinction between cable tool derricks and rotary derricks inthat the former requires very little work on the derrick whereas with rotaryrigs it is common practice to perform some work in the derrick itself.Complainanthas also referred to a proposed occupational safety standard promulgated by theTexas State Department of Health which provides as follows:?Every employee,when engaged in work at 10 feet or more above the derrick floor, shall wear asafety belt with an attached lanyard properly secured, except when the workbeing performed requires constant movement within the derrick.??Itis clear from Mr. Hammett?s testimony that the rigging down operation, asconducted on November 18th, was one requiring considerable moving around whichwould in his opinion fall within the exception to the aforementioned proposedstandard. It appears that the unfortunate accident which occurred here was the resultof an isolated and unforeseen situation. This derrick was being lowered for thefirst time and it was then discovered that the bridle lines were too short,resulting in Mr. Hernandez riding the bridle to complete the hook up. There isno indication that the project supervisor had any knowledge that this riggingoperation would make it necessary for any employee to go ?inside? the derrick.Mr.Kubala and Mr. Valdras (the brother-in-law of the deceased) were of the opinionthat safety belts and lanyards would not be helpful when performing the type ofoperation which was undertaken on November 18th. It was their view that safetybelie and lanyards might hinder the performance of their tasks and that suchsafety devices should be required only of employees who are working inpotentially dangerous areas for long periods of time. It was Mr. Jenkins?opinion that safety belts are not necessary in performing the bridle hook upoperation; that the derrick was designed so that no great amount of force hasto be exerted to engage in this operation and, further, that this rigging downoperation is customarily done from the outside of the derrick. There is noevidence in this record to show that any employees on Penrod 6 would ordinarilyhave to step from the girder outside the derrick on to the bridle to workinside the derrick, or to push or move equipment in the derrick, except underthe circumstances which occurred on November 18th where the bridle lines werefound to be too short to be reached from the outside.Inorder to establish a violation of the general duty clause, it is necessary toprove that the hazard in question was ?recognized?. It must be a hazardrecognizable in the industry or it must be shown that the employer himself hasactual knowledge of a hazardous condition. There is no evidence in the recordto show that accidents, similar to the one which occurred here, have happenedbefore. It is noted that although oil drilling operations have been conductedfor many years, there is no safety standard which would cover this precisesituation. However, it is customary in the drilling industry for derrick men towear safety belts and lanyard while in the derrick performing their usualduties because they are there for long periods of time. It has also been pointedout that the proposed standard, previously referred to, does not provide forsafety belts and lanyards where a particular job requires constant moving aboutin the derrick.Whilethe compliance officer felt that a recognized hazard was present here, it is ofinterest to note that when he was previously employed by an insurance companyand witnessed drilling operations where oil drillers did not wear safety beltsand lanyards, he admittedly made no recommendation that they do so. His presentview is undoubtedly influenced by the fact that the Penrod 6 is a much largerdrilling rig. Safety director Hammett testified that he had never seen workmenwith safety belts on when they were putting the bridle on. The two coworkers ofthe deceased did not view the rigging down operation as a hazardousundertaking. It was their feeling that it might be better to walk on thegirders without belts because of the possibility of entanglement. They sawnothing unsafe about their working conditions on November 18th.Aftercarefully considering all of the testimony, exhibits and pleadings herein, itmust be concluded that complainant has failed to establish by a preponderanceof reliable and probative evidence that a recognized hazard existed on November18, 1973, and therefore respondent was not in violation of the general dutyclause in section 5(a)(1) of the Act.Respondenthas also contended that complainant?s charging and penalizing respondent for aviolation of the general duty clause cannot be allowed to stand since itviolates the legislative intent of that section and all notions ofconstitutional due process. There is no merit to respondent?s contention inthis regard.FINDINGSAND CONCLUSIONSTheentire record herein supports the following findings of fact and conclusions oflaw.1.On November 18th, 1973, respondent, Penrod Drilling Company, was engaged in arigging down operation on its derrick, Penrod 6, at its work place on FM 2050,10 miles north of Bruni, Texas, and respondent had approximately 21 employees workingat said location.2.On the aforesaid date respondent was an employer engaged in a businessaffecting commerce within the meaning of the Act and is subject to thejurisdiction of the Review Commission.3.Three employees were engaged in the rigging down operation of Penrod 6 at aheight of approximately 125 feet above the surface and one employee, whileriding the bridle and attempting to hook up the bridle or sling linepreparatory to lowering the derrick, fell to his death when the sling holding thebridle to the block broke for some unexplained reason. Said employees were notwearing safety belts or lanyards while engaging in this procedure.4.From the evidence presented it is concluded that it is not customary forworkmen in rotary type derricks to wear safety belts and lanyards whenperforming the rigging down operation.5.It has not been established by a preponderance of reliable and probativeevidence that respondent failed to provide its employees with a place ofemployment free from a recognized hazard likely to cause death or seriousphysical harm and consequently respondent did not violate section 5(a)(1) ofthe Act.ORDERInaccordance with the foregoing findings and conclusions it is ORDERED that thecitation for serious violation and the notification of proposed penalty be andthe same are hereby vacated.?HENRY F. MARTIN, JR.JUDGE, OSHRCDated: December 3, 1974\u00a0[1] That section ofthe Occupational Safety and Health Act of 1970 (29 U.S.C. ? 651 et seq.), theso-called general duty clause, provides that:Each employer . .. shall furnish to each of his employees employment and a place of employmentwhich are free from recognized hazards that are causing or are likely to causedeath or serious physical harm to his employees.[2] Chairman Barnakodoes not agree to this attachment.[3] The OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651 et seq. [hereinafter cited as?the Act?]. For the text of section 5(a)(1), see note 1 supra in themajority opinion.[4] In Cormierthis evidence of industry practice consisted of expert testimony of acompliance officer who had five years of oil industry experience. CormierWell Service, supra n.6 and accompanying text.\u00a0In the instantcase this evidence took the form of a provision in ?The Accident PreventionManual? of the International Association of Drilling Contractors. Thisprovision was read into evidence by the Secretary. It provides as follows:A safety belt andlife line should be provided for each employee and the employee should wear thesafety belt and keep the life line secured to a derrick member or other supportwhen working on a walking beam and in or on a derrick or mast at an elevationof ten feet (10\u2032) or more above the derrick or mast floor.\u00a0[5] There was littledispute on this record that, absent insurmountable practical difficulties,Penrod could have protected its employees with safety belts and lanyards. Thisrecord clearly indicates that ?. . . there were feasible steps that theemployer could have taken to avoid the situation.? Cormier Well Service,supra (citation omitted).\u00a0[6] I submit that theJudge?s interpretation of the duty imposed on employers by section 5(a)(1) ofthe Act renders the section meaningless. If the concerted failure of anindustry to take feasible steps to abate an obvious hazard establishes that thehazard is not ?recognized? within that industry, then the Secretary can neverrequire members of the industry to upgrade safety precautions taken within theindustry unless he promulgates a specific standard to cover the hazard. Thereis in effect a delegation of legislative authority to the industry which is initself of questionable legality. This result merely serves to preserve thestatus quo within an industry. This is alarming inasmuch as Congress in passingthe Act obviously found that the efforts of American industry in the field ofsafety and health were insufficient to meet the Nation?s ?on-the-job health andsafety crisis.? H.R. Rep. No. 91?1291, 91st Cong., 2d Sess. 14 (1970).[7] The citation alsoalleged a nonserious violation of section 29 CFR 1910.151(b) relating to firstaid supplies, however, the same was not disputed by respondent and this itemhas become final. Respondent?s letter of December 27, 1973, indicated, however,that standard had been fully complied with.[8] The actualdrilling operation had been completed.[9] When questionedabout wearing belts, Mr. Valdras stated, ?When I work derricks, I wear a safetybelt setting pipe but during that kind of operation (rigging down) you neveruse a safety belt.? (Tr. 105).[10] Mr. Hammetttestified that he set the standards and helped write the safety manual forSinclair back in the early forties.[11] In the forewordto the accident prevention manual it is noted that the provisions therein aretermed suggestions and recommendations and further that the same should not beconsidered as setting up arbitrary minimum or maximum standards and furtherthat the hand book should not be deemed to establish a legal standard ofconduct or legal duty.”