“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3035 SOUTHERN COLORADO PRESTRESS COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 August 24, 1976DECISIONBEFORE BARNAKO, Chairman; MORAN and CLEARY,Commissioners.BARNAKO, Chairman:Pursuant to 29 U.S.C. Sec. 661(i) wereview whether Judge John A. Carlson properly allowed a serious citation to beamended to allege a violation of the standard set forth at 29 C.F.R. Sec.1926.105(a) and (b),[1] and whether he properlyfound that the Respondent had violated that standard. For the reasons thatfollow we affirm his decision.Respondent was engaged in the erection ofa three-story prestressed concrete building. During an inspection, one of theSecretary?s compliance officers observed an employee of the Respondent standingon a foot-wide perimeter beam at the third floor level. He was using a pry barto seat the end of a floor slab. The employee was about 27 feet above theground. Neither safety nets, scaffolds, nor platforms were present or used toprotect the employee. The employee was not wearing a safety belt or utilizingany other device designed to prevent him from falling. As a result, a seriouscitation alleging violation of the standard published at 29 C.F.R.1926.750(b)(1)(ii)[2]was issued to the Respondent. Respondent contested the citation.Some six months later, after an informalpre-hearing conference before the Judge and about two weeks prior to theevidentiary hearing in the case, the Secretary filed a motion to amend his citationand complaint to additionally allege violations of the standards at 29 C.F.R.1926.28(a) and (b) and 105(a) and (b). On the hearing date, the motion wasargued and granted only insofar as the additional 105(a) and (b) charge wasconcerned.After the close of both the Secretary?sand the employee representative?s case, the Respondent moved for dismissal ofthe 105(a) and (b) charge. It argued that the practicality of safety devicesmentioned in the standard as alternatives to safety nets had been established.Commission precedent[3] clearly called for thedismissal of the charge in such cases even if none of the safety devices wereactually utilized as was the case here. Accordingly, the Judge granted themotion.Respondent then put in its proofs relativeto the 1926.750(b)(1)(ii) charge made in the original citation. The Judge tookthe case under advisement at the conclusion of the hearing. However, before heissued his decision the U.S. Court of Appeals for the Fifth Circuit issued itsdecision in Brennan v. Southern Contractors Service, 492 F.2d 498 (5thCir. 1974). The court rejected the Commission?s reasoning as to theconstruction of 1926.105(a). It held, essentially, that where the standard isapplicable an employee must be protected either by means of a safety net, ifnone of the other safety devices are practical, or by means of one of the othersafety devices if the practicality of any such device is established. Thefailure to use any device at all creates the violation, said the Court.Relying on the Court?s holding, the Judgeissued an order vacating his earlier dismissal of the amended 1926.105(a) and(b) charge and ordered the hearing reopened to permit the Respondent to presentdefenses under that standard. Respondent?s counsel declined, stating there wasno need for expanding the evidentiary record. As a result, the reopened hearingwas cancelled.We hold that the Judge acted properly inallowing the amendment. The amendment did not change the factual basis for thecharge (failure to use safety nets); it only changed the standard alleged tohave been violated. The motion to amend was made fourteen days prior to theevidentiary hearing, and Respondent fully participated in the trial of allissues relevant to the alleged 1926.105(a) and (b) violations. In fact, it isapparent that the Respondent felt it had developed the issues adequatelybecause it subsequently declined to present further evidence when given theopportunity. Under these circumstances, the amendment was clearly notprejudicial and, therefore, properly allowed.We also adopt the Judge?s finding that1926.105(a) and (b) were violated. The employee was standing on a beam that was27 feet above the ground surface; fall protection was not provided. A steadywind of about forty miles per hour was blowing at the time. The record is clearthat safety nets could be and were not rigged to protect the employee. Also,all parties were in substantial agreement that the use of ladders would not behelpful and that catch platforms should not be considered. Scaffolds too wereimpractical.Finally, evidence was presented as to theutility of a ?clothesline? cable, running between the building?s verticalcolumns, to which safety lines could be attached. The evidence also made itclear, however, that this arrangement could not have been utilized in the areasof the building above where floor slabs had been placed. That is because thevertical columns upon which the cable would have to be strung had not yet beenerected.We, therefore, adopt the Judge?s decisionas to the 1926.105(a) and (b) violations, as to the areas of the building wherethe evidence showed it was impractical to use any of the devices set forth inthe standard as alternatives to safety nets. Judge Carlson also properlyconcluded that the portion of the citation alleging a violation of1926.750(b)(1)(ii) be vacated. The standard requires the use of safety nets,under certain circumstances, in steel erection work. But Respondent here, ofcourse, was engaged in prestressed concrete construction.?Accordingly, the Judge?s decision is affirmed. SoORDERED.?BY THE COMMISSION:?WILLIAM S. McLAUGHLINEXECUTIVE SECRETARYDATE: AUG 24, 1976?CLEARY, Commissioner, CONCURRING:I concur in the result which is consistentwith the cited Commission precedent. My own view, however, is that theAdministrative Law Judge?s reading of section 1926.105(a) in a mannerconsistent with the Fifth Circuit?s decision in Southern Contractors Serviceis more sound.?MORAN, Commissioner, Dissenting:I agree with my colleagues? conclusionthat 29 C.F.R. ? 1926.750(b)(1)(ii), the occupational safety standard underwhich respondent was originally charged, is not applicable to the work in whichrespondent was engaged. I disagree however with their affirmance of a ?\u00a01926.105(a)and (b) violation on the basis that complainant?s motion to amend the citationwas properly allowed. Since that motion was untimely made, the citation shouldbe vacated.The alleged violation was detected duringan inspection by complainant of respondent?s worksite on April 19, 1973. Sincecomplainant did not move to amend the citation until November 1, 1973, morethan six months after the inspection, the motion was barred by the Act?sstatute of limitations (29 U.S.C. ? 658(c)), which provides that:?No citation may be issued under thissection after the expiration of six months following the occurrence of anyviolation.??Furthermore, this conclusion is notaltered by the provision in Rule 15(c), Federal Rules of Civil Procedure, whichpermits an amendment to relate back to the date of an original pleading whenthe claim asserted in an amended pleading arose out of the occurrence set forththerein.A citation, unlike traditional pleadings,is a unique creature of statute to which requirements for particularity havebeen attached. The Act states in no uncertain terms:?Each citation shall be in writing andshall describe with particularity the nature of the violation, including areference to the provision of the chapter, standard, rule, regulation, or orderalleged to have been violated.? 29 U.S.C. ? 658(a) (emphasis added).Thus, Congress required that thecomplainant inform employers of the fundamental aspects of the charge in thecitation itself. It is imperative that this information be supplied in thecitation so that an employer will know, inter alia, how to accomplish abatementwhere appropriate and be able to make an informed judgment about the crucialand irrevocable decision of whether or not to contest.[4]The legal significance and statutoryrequirements for a citation are therefore in sharp contrast to what is commonlyknown as ?notice pleading? under Rule 8 of the Federal Rules of CivilProcedure. When pleading under the Federal Rules, a claimant is not required toset out in detail the facts upon which he bases his claim (Conley v. Gibson,355 U.S. 41, 47 (1957)), nor to allege the particular law or theory under whichrecovery is sought (Misco Leasing, Inc. v. Keller, 490 F.2d 545, 548(10th Cir. 1974)). Quite obviously, Congress did not intend for the Secretaryof Labor to have such flexibility when it set forth specific requirements forcitations. Therefore, those requirements are not superseded by the FederalRules, and my colleagues err in allowing an amendment to the citation in relianceon those rules.[5]Because Judge Carlson?s decision isnecessary for a full understanding of the issues presented in this case, it isattached hereto as Appendix A.?APPENDIX A\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 3035 SOUTHERN COLORADO PRESTRESS COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0December 6, 1974DECISION AND ORDERAppearances:Ronald G. Whiting, Esq. of Denver,Colorado, for the Complainant.\u00a0Robert G. Good, Esq. and Kenneth R.Stettner, Esq. of Denver, Colorado, for the Respondent.\u00a0Jonathan Wilderman, Esq. of Denver,Colorado for the Employees? Representative.?STATEMENT OF THE CASEJohn A. Carlson, Judge, OSAHRC.This is a proceeding under 29 U.S.C.659(c) for an adjudication under the Occupational Safety and Health Act of 1970(29 USC 651, et seq, sometimes hereinafter ?the Act?) of a contest of analleged violation of ? 654(a)(2). It arose from a citation issued bycomplainant to respondent on April 27, 1973 as the result of the inspection ofa workplace in Colorado Springs, Colorado where respondent was engaged in theerection of a prestressed concrete building. The citation as issued charged abreach of the standard set forth at 29 CFR 1926.750(b)(1)(ii). The violationwas described in these words:?The employer did not provide scaffoldingor safety nets for an employee who was working at the extreme edge of an opensided, horizontal prestressed concrete and steel beam which was higher than 25feet above the ground.??The cited standard reads:?(b) Temporary flooring?skeleton steelconstruction in tiered buildings.?(1)(ii) On buildings or structures notadaptable to temporary floors, and where scaffolds are not used, safety netsshall be installed and maintained whenever the potential fall distance exceedstwo stories or 25 feet. The nets shall be hung with sufficient clearance toprevent contacts with the surface of structures below.??Abatement was called for immediately uponreceipt of the citation. By notification issued the same day as the citation acivil penalty of $600 was proposed. The citation was timely contested byrespondent and Carpenters Union, Local 362, an authorized employees?representative, thereafter asserted its right of party status through counsel.The ensuing procedural history of theproceeding tends to be somewhat complex and will be reviewed here. Followingthe granting of an initial motion for continuance filed by complainant (ex.J?7) a stipulation was filed by all parties requesting an informal pre-hearingconference on October 24, 1973, immediately prior to hearing on the merits. Thestipulation embraced an understanding that the formal hearing might not proceedbeyond preliminary matters on that date.Upon representations made at theconference it appeared likely that the hearing could not proceed to its conclusionin the two days set aside for it and in view of the pendency of a writtenmotion by respondent (ex. J?11) for a postponement in order to secureadditional demonstrative evidence, it was agreed that the record would beopened briefly on October 24th and the evidentiary portion of the hearingadjourned over until November 19, 1973 at which time respondent would have theevidence it lacked and the entire matter could be tried to its conclusion (Tr.5?8). Certain stipulations were entered upon the record by the parties and, atthe request of the judge, counsel for each briefly stated its theory of thecase pursuant to Commission Rule 66(k). The parties were specifically advisedthat amendments to the pleadings, if any, were to be submitted expeditiously(Tr. 18).Thereafter, on November 1, 1973complainant filed a motion received on November 5, 1973 to amend his citationand complaint (ex. J?17) to additionally allege violation of 29 CFR 1926.28(a)and (b) and 29 CFR 1926.105(a) and (b). Specifically, complainant sought to addthe following language in description of the violation:Employer did not assure the wearing ofappropriate personal protective equipment in operations where there was anexposure to hazardous conditions and where Suppart E indicates a need for usingsuch equipment, such as safety nets, to reduce the hazards to the employees,including, but not limited to, 29 C.F.R 1926.105 (a) and (b).?\u00a0The pertinent standard provides:? 1926.105 Safety nets.(a) Safety nets shall be provided when workplacesare more than 25 feet above the ground or water surface, or other surfaceswhere the use of ladders, scaffolds, catch platforms, temporary floors, safetylines, or safety belts is impractical.??(b) Where safety net protection isrequired by this part, operations shall not be undertaken until the net is inplace and has been tested.\u00a0Respondent, within the time permitted forresponse by Commission Rule 37, filed a motion for judgment on the pleadingsreceived November 13, 1974 seeking dismissal of the entire action on thegrounds, inter alia, that complainant was attempting to issue a new citationafter more than six months from the occurrence of violation, contrary tosection 9(c) of the Act (29 USC ? 658(c)).Owing to his absence on the trial of othermatters this judge had no opportunity to rule upon either motion in advance ofthe adjourned hearing date. The motions were taken up at the outset of thehearing and after extensive arguments by all parties were here (Tr. 24?51),respondent?s motion was denied and complainant?s amendment was permitted in arestricted form, eliminating any direct reference to Subpart E and limiting theadditional charge to 29 CFR 1926.105(a) and (b). (Tr. 47?49)A voluminous record upon the merits wasthen made. After the close of both complainant?s and the employeerepresentative?s case respondent moved, inter alia, for dismissal of thatportion of the charge based upon alleged violation of 29 CFR 1926.105(a) and(b) on the grounds that the evidence adduced by complainant and the employees?representative had affirmately established the ?practicality? of the use of thesafety devices or means mentioned as alternatives for nets in such standard.Under the then precedent of Secretary v. Drake-Willamette Joint Ventures,2 OSAHRC 1216 and Secretary v. Verne Woodrow Company, OSAHRC Docket No.1607, the complainant was bound to prove the ?impracticality? of the non-netmeans, whether or not they were in use, before the standard could be heldapplicable. In view of the state of the evidence the motion was granted (Tr.329?332). Respondent that put on its case relative to the question of violationof the steel erection standards cited, 29 CFR 1926.750.Following the hearing the three partiesfiled extensive briefs and the case was taken under advisement. Prior todecision, however, on April 12, 1974 the United States Court of Appeals for theFifth Circuit issued its decision in Brennan v. Southern Contractors Serviceand Occupational Safety and Health Review Commission, 492 F. 2d 498, whichspecifically rejected the Commission?s reasoning as to the construction of 29CFR 1926.105(a). It was held, in essence, that where the standard is applicablean employee must use either a safety net or one of the other devices described;and that failure to use any device creates a violation.In view of the Court?s holding, this Judgeon April 29, 1974 issued an order (ex. J?28) vacating the dismissal of theamended 29 CFR 1926.105(a) and (b) charge and ordered the hearing reopened onMay 24, 1974 ?to permit respondent to present evidence relating to any defensesor otherwise pertinent? to such standard. Thereafter, all counsel on May 23,1974 joined in representing through counsel for respondent that no need existedfor the expanding of the evidentiary record as to the alleged violation 29 CFR1926.105. The hearing was cancelled and the parties were granted leave to filesupplemental briefs (ex. J?29). The respondent and employees? representativedid so.ISSUESThe major issues presented for resolutionare:(1) Whether respondent violated 29 CFR1926.750(b)(1)(ii) relating to use of safety nets or scaffolding in steelerection.(2) Whether complainant could properlyamend to alternatively charge violation of 29 CFR 1926.105(a) and (b).(3) Whether, if such amendment wereotherwise proper, the provisions of section 9(c) of the Act (29 USC ? 658(c))prohibiting the issuance of citations more than 6 months after the occurrenceof violation, impose a statutory bar to amendment either in the nature of astatute of limitations, or otherwise.?(4)Whether complainant satisfied the requirements of section 9(a) of the Act (29USC ? 658(a)) relating to specificity of citations.(5) Whether, if respondent violated anystandard properly charged, such violation was ?serious? within the meaning ofsection 17(k) of the Act (29 USC ? 666(j)); and what civil penalty, if any,would then be appropriate.FINDINGS OF FACTThe following material facts are found tobe sustained upon the entire record:(1) Respondent, Southern ColoradoPrestress Company, is a division or Prestress Concrete of Colorado, Inc., whichdivision has principal offices at Colorado Springs, Colorado and a principalmanufacturing or production facility in Pueblo, Colorado, where it engages inthe production and sale of precast and prestressed concrete (Stip.-Joint Ex.1).?(2)Respondent itself employs an average of 62?70 persons and during the averagebusiness year ships approximately $100,000 worth of goods to points outside ofColorado and purchases goods of the same value from sources outside such state.Respondent?s net worth for the fiscal year ending December 31, 1972 was$600,000. It ranks approximately third in size among the five similarcompetitive producers within the area which includes the State of Colorado.(Stip.-Joint Ex. 1).(3) On April 19, 1973 respondent wasengaged in the erection of a three-story prestressed concrete building at alocation in Colorado Springs, Colorado and was on that date inspected by Mr.Harry C. Hutton, a compliance officer working for complainant (Tr. 54).(4) The weight bearing structural membersof the building and the flooring (above the ground-floor level) consistedentirely of prestressed concrete (photos?entire transcript). Prestressedstructural members are made by pouring concrete over stretched steel cables(Tr. 325). All those involved in the present case were manufactured off site ata plant in accordance with engineer?s or architect?s specifications andtransported to the building location for erection and assembly (Tr. 547?552,entire record).(5) The basic structural components of thebuilding here in question consisted of vertical prestressed columns, L-shapedhorizontal perimeter beams, and twin-T floor slabs which are designed to restupon the ledge or horizontal leg of the L-beams (Tr. 60, 83, photo?compl?s. ex.3).(6) All lifting for the erection processis done by crane and final positioning of the structural components is done byan erection crew consisting of from 3 to 6 of respondent?s employees (Tr. 143).The vertical columns are first lifted into place, plumbed, and bolted topreviously laid bases. These uprights have projecting corbels near the variousfloor levels. The perimeter beams are positioned upon and secured to thecorbels. Next in the structural sequence the floor slabs are positioned betweenthe parallel perimeter beams with their double-T legs resting upon the ledge ofthe perimeter beam. (Tr. 73, 83, 148?149, 154?160, 206?207; photos?compl?s.ex?s. 1?3)(7) There are many broad similarities,including a falling hazard to connectors or erection crews, between the processof skeletal steel erection and the prestressed erection process shown to beused in the instant case (Tr. 134, 245, 255, 326); but the differences in thematerials and technique are far more significant. Dissimilarities include thefacts that concrete pieces for a given strength are many times more bulky thansteel; that concrete members are uniformly smooth and lack the ?web?configuration of the conventional steel beam; that prestressed members can bealtered in size only by chipping, rather than cutting as is possible withsteel; that concrete erection cranes routinely work from outside the structure,whereas steel erection cranes often work from erection floors from within; andthat ?pure? prestress work involves use of a permanent original floor slabbing,whereas steel frame structures commonly involve use of temporary decking (Tr.343, 450, 590).(8) At the time of compliance officerHutton?s inspection an employee of respondent, one Stanko, an erection crewmember, was standing on a perimeter beam approximately 12 inches wide, at thethird floor level using a pry bar in an attempt to seat the stem or end of adouble-T floor slab, still attached to the crane, which slab had become lodged(Tr. 10, 56?60, 348, 365, photos?compl?s. ex?s. 2 and 3). He was there forapproximately 5 to 10 minutes (Tr. 59, 189). A short time earlier, twounidentified employees were similarly positioned on the beam (Tr. 57,photo?compl?s. ex. 1).(9) The place where Stanko was standingwas 27 feet above the ground surface (Tr. 60). No safety nets were present, norwere scaffolds or catch platforms. Stanko was not wearing a safety belt norline nor was there any other device, implement, barrier or surface present orin use which would prevent or interrupt an outward fall to ground surfaceshould Stanko have slipped or in some manner have been dislodged from hisposition (Tr. 61, 65). A steady wind of about 40 miles per hour was blowing atthe times in question (Tr. 58, 124).(10) Had Stanko fallen the probableconsequence would have been severe physical injury or death (Tr. 66, 72).?(11)The particular operation in which Stanko was engaged was the seating of a floorslab between the perimeter beams on either side of the third floor level. Thesebeams formed a bay between vertical columns which was approximately 32 feetlong and was designed to accommodate four floor slabs (Tr. 314). The beams inquestion were on the shorter side of the rectangular building structure (Tr.560). The slabs were eight feet in width, 35 feet in length and weighedsomewhere between 6,000 to 11,000 pounds (Tr. 74, 189, 350). They were hoistedby a crane rigged with a ?spreader? whose cable ends were attached to the slabby four lifting rings cast into the upper surface of the slab (Tr. 154?160,photos-compl?s. ex?s. 2 and 3).?(12)The installation technique involved bringing the crane-suspended slabs in?sideways?, 90? from their ultimate resting position in order to avoid hittingthe vertical columns (Tr. 206, 360). Erection crew members standing on thepreviously laid slab guided each new slab in (Tr. 206?207). Crew members thenaided by hand in shoving and swiveling the slab 90?>> so that it could bebrought to rest on the perimeter beams. On the building here in question it wasalso necessary to move the end of the slab out over the edge of the perimeterbeam where Stanko was shown standing and then to swing it back in. This maneuverwas done in order to avoid striking an exterior precast wall which had alreadybeen mounted on the other side of the structure. (Tr. 207, 372)(13) The ordinary position of the menseating floor slabs is not on the perimeter beams, but on previously laid slabsat about 3 feet from the outer edge of the structure (Tr. 362, 369). The slabsare engineered with a planned tolerance of from 1\/2 to 1 inch from the inneredge of the perimeter beam piece (Tr. 400). Often slabs are positioned withoutthe necessity of going on to the perimeter beam (Tr. 364). With reasonablefrequency, however, the slabs either lodge as shown in the Stanko photos andwith considerable frequency require use of a pry bar to obtain proper toleranceor spacing (Tr. 154?160, 403, 536?537).(14) On rare occasions when slabs arebeing positioned they may ?jerk up? for small distances (Tr. 221?213, 229).(15) In addition to the lifting rings castinto the floor slabs hereinbefore referred to, structural beams have similarrings serving as a means to lift them out of casting beds and also for erectionpurposes. They further have metal welding points and vertical columns may haveintegral bolts imbedded to facilitate mounting of additional verticals at theirtops (Tr. 348?352, 591).(16) In order to afford protection fromfalls to the exterior of the structure, nets supported by struts, stiff legs,or outriggers projecting from the vertical columns can be affixed to suchcolumns by means of clamped-on strap brackets (Tr. 92, 248?249, 254). The netsthemselves may be raised by a crane and fastened by workers on the structurewithout significant exposure to hazards of falling (Tr. 249, 285?288, 292).Such use of nets is a known safety technique (Tr. 254). Nets need not beinstalled at each floor level where the distances between upper levels, as inthe instant case, is 12 feet, in order to prevent falls in excess of 25 feet(Tr. 253, 29 CFR 1926.105(c)(1)). Erection of nets would require approximately30 minutes for each bay in the building which was the subject of citation (Tr.292?310).(17) To lay floor slabs in the area whereStanko was working?and assuming ideal conditions with no problems such as aslab?s lodging?would take about 30 minutes (Tr. 545?555). Problems with lodgingor wedging would obviously require more time than the ideal or optimum. Theprocess could take as long as four hours (Tr. 314). The time involved in theerection of nets would increase labor costs and would further increase cranerental expense (Tr. 385).(18) No temporary floors were used in thestructure in question. No party contended that ladders or catch platforms wereworthwhile safety devices with respect to the laying of floor slabs (Tr.318?319, entire record).OPINIONIThe record herein will not support aconclusion that the activities of respondent toward which the citation wasdirected fell within the reach of 29 CFR 1926.750(b)(1)(ii). Complainant and theemployee?s representative urge that the hazards of falling encountered by steel[6] erection crews aresubstantially the same as those demonstrated to exist in prestress concreteerection and that many of the construction techniques used are similar. Where aworker is positioned at the edge of an elevated surface without the presence ofsome means or device to prevent or limit an accidental fall, the hazard and itspotential consequences are essentially the same irrespective of what thesurface is or why the worker is there. But it surely does not then follow thatany random standard designed to prevent falls from the edges of high placeswould be applicable for enforcement purposes under the Act.If it were not sufficiently obviouswithout it, the evidence in this case shows that substantial differences inherentbetween both the means and materials of construction used in putting upprestressed concrete buildings, as opposed to skeletal steel buildings. To citebut a single example, the bulk and weight to strength ratios of steel andprestressed concrete differ greatly, as do the necessary sizes of structuralmembers.In the interpretation of administrativerules, as well as statutes, the intent of the drafters, if ascertainable, mustgovern. Not a phrase or a word anywhere within Subpart R, ?Steel Erection?,suggests that such Subpart was meant to pertain to anything but skeletal steelstructures. Where the drafters, as they did, referred only to ?steel? and tothe assembly, decking, and other techniques associated with steel erection,their words used must be accorded their known and ordinary signification. If wewere to expand the literal terms of the cited portion of the standard toinclude a material as different from steel as prestressed concrete, we could aswell conclude that Subpart R was intended to apply where workers are exposed tofalls from upper levels of multi-story structures of wood framing or masonryconstruction. The language of the standard is clear and will not permit such aresult.[7]IISubsequent to the ruling reopening thecase, owing to the Fifth Circuit holding in Southern Contractors Service,supra, respondent in its supplemental brief made strenuous objection tothis Judge?s determination permitting complainant to amend to allege violationof 29 CFR 1926.105(a) and (b). The general question of amendment has proved anettlesome one, but appears to me to have been substantially laid to rest byCommission decisions. The Act itself in section 12(g) (29 USC ? 661(f))provides in pertinent part:Unless the Commission has adopted adifferent rule, its proceedings shall be in accordance with the Federal Rulesof Civil Procedure.\u00a0There is no contrary Commission rule. TheCommission has in a number of cases made apparent its inclination to follow theliberal amendment philosophy embodied in Federal Rule 15. As was said in Secretaryv. W. B. Meredith, II, Inc., OSAHRC Docket No. 810 (June 7, 1974),The law is clear and Commission precedentwell settled that administrative proceedings under the Act are liberally construedand very easily amended.\u00a0See, also, Secretary v. J. L. MaybryGrading, Inc., OSAHRC Docket No. 285 (April 27, 1973). The Commission hasthus not chosen to be guided by those common law or code principles ofamendment forbidding ?substantial changes in causes of action? and generallyfreezing litigants into original pleading postures. Such principles were longago repudiated with the adoption of the Federal Rules.[8] Without dwelling uponwhether ?administrative? pleadings before the Commission are more easilyamended than those before the Federal District Courts, it is clear that theyare as easily amendable. The second portion of Federal Rule 15(a) isinterpreted by a host of cases to entrust to the discretion of the trial judgea policy which favors a liberal allowance of amendments, including those at thecommencement of, during, and even after trial.[9]4 The keystone to theexercise of discretion in determining the propriety of amendment is the extentto which prejudice may be visited upon the opposing party through permittingthe amendment. United States v. Hougham, 364 U.S. 310 (1960); Hansonv. Hunt Oil Company, 398 F. 2d 578 (8th Circ. 1968). In the present case,for reasons which will later be detailed, the amendment is permitted since nosubstantial prejudice is apparent.A brief observation will suffice as towhether the pleading of the additional standard in this case should be regardedas alternative in character. Under Federal Rule 8(e)(2) pleading in thealternative is permitted in absolute terms. Under the facts herein respondentcould not be in violation of both 29 CFR 1926.1750 and 29 CFR 1926.105 sincethe former, if applicable, is far more specific than the latter and would henceprevail to the exclusion of the latter. See 29 CFR 1910.5(c)(1); Secretaryv. Sun Shipbuilding and Drydock Company, OSAHRC Docket No. 161 (October 3,1973); Secretary v. Ohio Urethane Specialists, OSAHRC Docket No. 1807(August 21, 1973).IIIRespondent maintains that no amendment waspermissible in this case because of section 9(c) of the Act (29 USC ? 658(c))which provides:No citation may be issued under thesection after the expiration or 6 months following the occurrence of anyviolation.\u00a0Respondent?s argument[10]5 must be rejected sinceany consideration of 9(c) is essentially subsidiary to the question of whetheramendment was properly allowable. Federal Rule 15(c) provides in explicit termsthat any amendment so long as ?. . . the claim or defense asserted . . . aroseout of the conduct, transaction or occurrence set forth or attempted to be setforth in the original pleading relates back to the date of the originalpleading . . ..? The original conduct described in the present case involved anemployee working without fall protection at a height above 25 feet. Theprinciple of relation back applies with full force where amendments involve achange to a statute different from that originally alleged so long as bothrelate to the same allegedly wrongful conduct. Tiller v. Atlantic Coast LineR. R., 323 U. S. 574 (1945); Mach v. Pennsylvania R. R., 198 F.Supp. 471 (1960). What would be true for statutes is also true for regulations.IVAn associated question is whether section 9(a) of theAct (29 USC ? 658(a)) as it relates to ?particularity? of citationscircumscribes in any way the freedom with which amendment should otherwise begranted under Federal Rule 15. The pertinent portion of 9(a) provides:?Eachcitation should be in writing and shall describe with particularity the natureof the violation, including a reference to the provision of the Act, standard,rule, regulation or order alleged to have been violated.?\u00a0An indirect answer is provided by those Commissiondecisions previously referred to which have allowed amendments, absentprejudice, under either Federal Rule 15(a) or (b). These cases alone show thatthe ?particularity? requirements does not render the charge as originally castin the citation immutable; nor do they limit amendment to such trifling mattersas correction of clerical errors. The purpose of the particularity requirementof 9(a) is well defined in National Realty and Construction Company, Inc. v.O.S.A.H.R.C., 489 F.2d 1257, 1264 (n.31)(1973) as follows:Allowing subsequent amendment of acitation?s charges will not disturb the central function of the citation, whichis to alert a cited employer that it must contest the Secretary?s allegation orpay the proposed fine. In the typical case, the more inaccurate or unhappilydrafted is a citation, the more likely an employer will be to contest it. But acitation also serves to order an employer to correct the cited condition orpractice, and a failure to so correct is a punishable violation. 29 U.S.C. ?666(d). Obviously an employer cannot be penalized for failing to correct acondition which the citation did not fairly characterize. Thus, beforepenalizing a failure to correct a cited violation, the Commission must satisfyitself that the citation defines the ?uncorrected? violation with particularity.29 U.S.C. ? 658(a).\u00a0Where a citation is contested as toviolation there can obviously be no ?penalizing? until litigation ends and afinal order issues. Abatement is tolled until such time under 29 USC ?\u00a0659(b).Where the hazardous occurrence, event,condition or practice believed to constitute a violation has been initiallyidentified by complainant, the respondent in a contested case cannot be heard tocomplain that prejudice is established by the mere fact that complainant isallowed, through amendment, to charge either in the alternative or bysubstitution a standard which may have the most specific applicability to thehazardous situation described. In a contested case the ?particularity?requirement does not per se circumscribe the ability to amend.VIn its supplemental brief respondentstrenuously urges that the permission given to complainant to amend wasprejudicial. Much of what respondent contends may be summarized with itscharacterization of the offering of the amendment as ?dirty pool?. The analogyto games is significant as it serves to underscore what this Judge views as theweakness of respondent?s position. As has been said by the Supreme Court:The Federal rules reject the approach thatpleading is a game of skill . . . and accept the principle that the purpose ofpleading is to facilitate a proper decision on the merits.[11]As previously emphasized, the allowance ofpermission to amend is entrusted to the discretion of the trial judge andshould be freely granted in the absence of prejudice. In granting the instantamendment this judge considered the time which elapsed before the motion toamend was made, but in balancing this against the rather obvious problem facedby complainant owing to the then prevailing restrictive interpretations of 29CFR 1926.105, no basis for inferring bad faith could be found. As to theoverriding issue of prejudice, it is first noteworthy that when the motion seekingamendment was argued at trial prior to the taking of evidence the onlyobjection ultimately pressed by respondent went to the statute of limitationsissue (respondent?s supplemental brief at page 3, Tr. 25?51). For reasonsearlier specified herein, that objection was not well founded. At that point inthe proceeding, although respondent had had approximately two weeks? notice ofthe written motion to amend and had filed its own motion in response, counselmade no specific point as to actual prejudice in terms of case preparation oravailability of evidence which would serve as a basis of delay in the taking oftestimony. The subsequent record bears out that factual considerationsconcerning virtually every conceivable facet of the use (or non-use) ofalternative safety devices was explored by all parties in exhaustive detail.When the supplemental hearing was scheduled on the 29 CFR 1926.105 issue,occasioned by the Fifth Circuit?s rejection of the commission?s priorconstruction of that standard, respondent had every opportunity to bring forthany additional evidence or matters relating to that issue. This the respondentaffirmatively declined to do, choosing to rest upon the previous record. Withregard to that decision respondent merely states in its supplemental brief:?Subsequent to the order to reopen, Respondentconcluded that the record and evidence therein was all that could be developedat trial and that additional evidence was not available.?Respondent then proceeded to make in itssupplemental brief extensive protestations of prejudice. In the light of therecord these protestations, while colorfully worded, must be regarded asgeneralizations lacking in true substance. It would have been simple forrespondent to identify specific ways in which its ability to defend had been orwas impeded; and to explain why such specific problems could not have beencured by subsequent hearing. As the record stands the case deserves to bedetermined upon the merits based upon the applicability of 29 CFR 1926.105.VIWe now turn to a consideration upon themerits as to whether respondent violated 29 CFR 1926.105(a) and (b). I mustconclude that the violation was established. Such determination is based solelyupon the hazards encountered in laying the floor slabs as exemplified by theactivities of Mr. Stanko. No attempt can properly be made here to consider whatmeasures or standards may or may not have been applicable during other phasesof the erection process, though certain of the background evidence did touchupon such other phases.It is undisputed, of course, that Stankowas working on a perimeter beam without fall protection of any sort. Respondentcontends that the nature of the prestressed erection process is such thatexposure of this type cannot be avoided?at least not by means referred to in 29CFR 1926.105(a) and (b). Certain of these means are ruled out by the evidence.All parties are in substantial agreement that no temporary floors are involved;that the use of ladders would not be helpful; and that catch platforms shouldnot be considered.As to nets, safety lines and scaffolds,respondent, through Mr. Cooper the safety and training director of the parentcompany, presented much testimony aimed at establishing the use of nets,scaffolds, or safety lines would (1) in fact increase the hazard to employeesand (2) effectively preclude the employees from accomplishing their work.[12] In addition, there arethe related suggestions that the state of the art, as it were, in theprestressed industry does not yet permit the use of safety devices untiluprights, beams and flooring are all in; and that use of nets in particularwould be prohibitively expensive in terms of man hours and equipment time.All of these contentions have beencarefully considered and were ultimately rejected. The preponderance of thecredible evidence satisfies me that the nature of the floor slab positioningjob frequently requires erection crew members to go on the perimeter beamswhere they involve themselves in strenuous maneuvers to seat or space floorslabs. Respondent maintains that for the spacing tolerance operation crewmembers could stand on the floor slab, not the beam, to use a pry (Tr. 575).Curiously, however, there is no indication that this procedure was ever suggestedto any worker or foreman. Even if the men stood as Mr. Cooper suggested, theywould be close enough to the edge to be exposed to a patent danger of falling.Apropos of nets, respondent maintains thatworkers would be exposed to an equal or greater danger in putting up or takingdown such devices than if they continued to work without them. In this regard Iaccept the validity of the views of complainant?s and employees? representativewitnesses, and particularly Mr. Jerome J. Williams, Area Director of OSHA, thatnets could be set up at either end of the building?the place where the evidenceshows that employees were exposed to falling?without significant exposure toemployees, particularly when contrasted to the exposure existing without nets(Tr. 317).The record abounds in competingcalculations by witnesses of the parties as to how long it would take to set upnets compared to the length of time required to raise and position floor slabs.Ultimately, however, using the figures most favorable to respondent by assumingthat the two levels of bays were floored in the optimum of 30 minutes each?thatis to say that each slab went in without a hitch?the ratio of slab laying timeto net erection time would be 60\/60. This would increase cost in terms of cranerental fees and labor, but would surely not ?take approximately twice as longto erect the building? as Mr. Cooper somewhat rashly suggested at one point(Tr. 384). He later retreated rather far from this position (Tr. 555?565). Similarly,respondent?s expert maintained that the use of bands and clamps around theuprights in order to support nets would pose a danger because of the closetolerances within which floor slabs must be placed to uprights. The danger heforesaw was that the presence of bands or clamps would increase the possibilityof an incoming slab striking a column and imperiling the entire structure. Helater retreated from this position, too (Tr. 405, 539, 541). Logic surely dictatedthat he do so, since the steel bands would not be at the floor level where itwas agreed that tolerances between floor slabs and perimeter beams were an inchor less. If positioning slabs to such close fits posed a genuine threat to thebuilding?s remaining upright, then the whole erection procedure would arguablypresent unacceptable perils.Also, respondent?s Mr. Cooper assertedthat the presence of nets extending out eight feet beyond the edges of thebuilding would make the job of lifting slabs up to the desired position morehazardous because of the greater clearance required. He explained that forreasons of economy and convenience prestressed pieces are usually unloadedclose to the exterior of the structure (Tr. 375). This is undoubtedly true. Buthe acknowledged that because of the swing radius of cranes the presence of netswould only somewhat complicate the task of hoisting slabs or other members (Tr.402). Logic dictates that the possible danger of hitting a net in lifting aslab past it would pose no significantly greater hazard to any structural memberalready in place then would lifting the same piece from a resting place closeto the base of the building. It must further be noted that in the particularbuilding with respect to which this contest arose, floor slabs came in from the?long? side of the structure where erection crews did not work in positioningof slabs. No net would obstruct that side except, perhaps, to a certain extentat the corners.It is thus held that the affirmativeevidence of record convincingly demonstrates that nets could effectively beused in compliance with 29 CFR 1926.105 to reduce the hazards of falls oferection crew members whose duties take them to the perimeter of the structureduring the laying of floor slabs without substituting comparable hazard to theemployees and without preventing them from performing their work.8[13] Respondent was inviolation of the standard as its requirements were defined by the Court in SouthernConstractors Service, supra.It should be noted that the force ofrespondent?s safety director?s assertions that no safety devices could be usedwas diminished by what this Judge regarded as indications of a less thanprofound commitment to safety principles?at least where workers at heights wereconcerned. Mr. Cooper?s philosophy was at one point expressed as follows:As I mentioned before, the employees onthe erection crew are very self-conscious about safety. They?re the ones thatget hurt. So they are the ones that are looking out for a situation like this,and they are the ones who generally do not put themselves in this position.(Tr. 373?374).?The same convictions were earlier stated,though less explicitly (Tr. 364). Further, there is an acknowledgement that nodirectives had ever been given to employees on the subject of working atheights laying floor slabs in high winds, the subject having been left up to?their discretion? (Tr. 531?532).Doubtless there is a measure of validityto respondent?s position that erecting nets would be time consuming and wouldincrease total construction costs. One would go unnecessarily far to suggestthat a situation could never arise where cost considerations alone would notjustify noncompliance with a safety or health standard. Within the context ofthe present case, however, the principle enunciated in Secretary v. DivescoRoofing and Insulation Co., OSAHRC Docket No. 345 (August 13, 1973) to theeffect that increased cost factors, even large ones, do not justify disregardof essentially rational safety requirements, is controlling. Moreover, theevidence shows that the prestressed structures of respondent are designed withconsiderable ingenuity to be erected quickly at the building site. It showsthat prestressed members are fitted at the time of manufacture with cast-inrings either for the purpose of lifting them out of molds or lifting them intoposition for installation or both. Other cast-in fittings include weldingpoints and can include bolts in the top of vertical columns to facilitatemounting of higher uprights. Thus, it seems wholly likely that respondent, withthe same resourcefulness used in the general design of its product, couldmanage to devise brackets for net fittings which would considerably decreasethe time and cost of net erection over that required for a clamp and strapmethod.The matter of the possible use of safetybelts and lines or external scaffolds should be touched upon briefly. Under theevidence efficacy of either of these means was less apparent than for nets.Hence, the conclusion as to nets is regarded as determinative of the issue ofviolation. Witnesses for complainant and the employee?s representativepresented essentially persuasive proof as to the utility of a ?clothesline?cable, running between vertical columns, to which safety lines could beattached. Such a scheme would, despite respondent?s many objections appearworkable at the level where Stanko was located, but could not be employed onthe level above where the photographs show floor (or roof) slabs already inplace, since no verticals are present above that point to which a clotheslinecould be attached. External, ground-standing scaffolds pose problems because ofthe presence of excavations around the building footings to accommodateplumbers and other mechanical contractors, and because of the height involved (Tr.385?387).VII29 USC ? 666(j) provides:For purposes of this section, a seriousviolation shall be deemed to exist in a place of employment if there is asubstantial probability that death or serious physical harm could result from acondition which exists, or from one or more practices, means, methods,operations, or processes which have been adopted or are in use, in such placeof employment unless the employer did not, and could not with the exercise ofreasonable diligence, know of the presence of the violation.?The evidence herein amply demonstratesthat should an employee have fallen 27 feet from near the edge of a floor slabor from a perimeter beam to the outside of the structure the likelyconsequences of the fall would have been serious. This was not disputed byrespondent. As to the knowledge requirement contained in the above citedsection it is clear that persons in authority for respondent, including theindividual responsible for the company?s safety program, were aware of exposureof employees, but took the fundamental position that no feasible means wereavailable to protect against such exposure. This position having been rejectedand violation found, it follows that the violation must be classified asserious.VIIIWe next consider the question of penalty.Jurisdiction to exact civil monetary penalties lies exclusively with theCommission. In the case of serious violations 29 USC 666(b) makes mandatory theassessment of a penalty. Section 666(i) requires that consideration be given tothe size of the employer, the gravity of the violation, the employer?s goodfaith and its history of previous violations. This provision has beenextensively construed by the Commission in such cases as Secretary v. NaciremaOperating Co., Inc., 1 OSAHRC 33 (1972) and Secretary v. Baltz BrothersPacking Co., 2 OSAHRC 384 (1973). The former case indicates that the?gravity? of the violation will ordinarily be accorded the greatest weight. Thelatter indicates that the number of employees exposed; the duration ofexposure; the precautions taken against injury; and the degree of probabilityof occurrence of an accident should be considered in gauging gravity.In his testimony herein complainant?scompliance officer indicated that in proposing an ultimate penalty of $600 hegave attention to the statutory criteria as interpreted by his superiors andused specifically formulated guidelines as incorporated in a ?penaltyassessment worksheet? (compl?s. ex. 4; Tr. 66). An unadjusted penalty of $1,000was reduced by a ?maximum? allowable 20% for respondent?s prior good history;and was further reduced a ?maximum? 10% for size based upon the fact that 6employees were at the site. As to ?good faith? 10% of a ?maximum? of 20%allowable under complainant?s guidelines was allowed. The compliance officerindicated that he did not allow a full 20% because no means of protection ofemployees were in evidence, but he allowed 10% because of prompt abatement inthat (presumably) employees were ordered out of the danger area. Under thecriteria adopted by the Commission the lack of any means of protection foremployees would appear to go more to gravity than good faith; but as earliermentioned the safety program of respondent, with its apparent heavy reliance onemployees? instinct for self preservation as a substitute for substantivesafety measures or direction is not of a quality commensurate with respondent?ssize and resources. The safety director had direct responsibility for ninecompanies, including respondent, operating in several states (Tr. 338, 424)with a total of 1,400 employees including plant workers and constructionworkers (Tr. 512). His staff consisted of a secretary, a nurse and a nightwatchman (Tr. 519). The typical contact with erection crews appears to have beenin the form of machine-reproduced copies of various safety handouts frominsurance companies and the newspaper, mailed to foreman (Tr. 426, 511, 514).The gravity of the violation must beregarded as moderately high since the evidence shows that erection crews duringfloor slab installation were required to be at the edge of the structure withreasonable frequency with no significant steps being taken to guard againstfalls?even to the extent of forbidding their working in 40 mile an hour winds.In regard to respondent?s ?size? thereasoning used by the compliance officer appears to be at odds with Secretaryv. Jasper Construction, Inc., OSAHRC Docket No. 119 (August 1, 1973)wherein it was held that an employer?s size should be determined by considerationof its gross dollar volume and the total number of persons employed (not simplythose at the cited workplace). Respondent is not a small employer.On balance, however, it is my independentjudgment that consideration of the evidence in the light of ? 666(i) warrantsthe imposition of a $600 penalty.CONCLUSIONS OF LAWUpon the entire record herein it isconcluded:1. That at all times material heretorespondent was an ?employer? engaged in a ?business affecting commerce? withinthe meaning of the Act and was subject to the jurisdiction of this Commission.2. That the evidence fails to establishthat respondent was in violation of 29 CFR 1926.750(b)(1)(ii) relating to useof safety devices in steel erection since the proofs disclose that respondentwas not engaged in steel erection.3. That the citation was properly amendedto alternatively charge violation of 29 CFR 1926.105(a) and (b).4. That the provisions of 29 USC ? 658(c)did not inhibit such amendment since it properly related back to the time ofthe original pleading.5. That complainant satisfied therequirements of 29 USC ? 658(a) relating to specificity of citations.6. That on April 19, 1973 respondent wasin violation 29 CFR 1926.105(a) and (b).7. That such violation was ?serious?within the meaning of 29 USC ? 666(k).8. That giving due consideration to thecriteria set forth at 29 USC ? 666(i), a civil penalty of $600 is reasonableand appropriate for the above specified serious violation.ORDERIn accordance with the foregoing it ishereby ORDERED:1. That the citation for serious violationas amended to alternatively charge violation of 29 CFR 1926.105(a) and (b) ishereby affirmed.2. That a civil penalty in the sum of $600is hereby assessed in connection with such violation.?John A. CarlsonJudge, OSAHRCDEC 6, 1974[1] The standard reads:(a) Safety nets shall be provided whenworkplaces are more than 25 feet above the ground or water surface, or othersurfaces where the use of ladders, scaffolds, catch platforms, temporary floors,safety lines, or safety belts is impractical.(b) Where safety net protection isrequired by this part, operations shall not be undertaken until the net is inplace and has been tested.\u00a0[2] The standard reads:(b) Temporary flooring-skeleton steel constructionin tiered buildings (i)(ii). On buildings or structures not adaptable totemporary floors, and where scaffolds are not used, safety nets shall beinstalled and maintained wherever the potential fall distance exceeds twostories or 25 feet. The nets shall be hung with sufficient clearance to preventcontacts with the surface of structures below.\u00a0[3] Drake-WillametteJoint Ventures, 2 OSAHRC 1216, BNA 1 OSHC 1181, CCH OSHD para. 15,655 (1973);Southern Contractors Service, 3 OSAHRC 234, BNA 1 OSHC 1240, CCH OSHD para.15,801 (1973).[4] Employers must decide within 15working days of receipt of the notification of proposed penalties whether ornot to contest the action. 29 U.S.C. ? 659(a). If no notice of contest is filedwithin that time, employers are normally precluded from obtaining any hearingon the matter.\u00a0[5] For other cases in which I havestated additional reasons for this position, see my separate opinions in Secretaryv. Warnel Corp., OSAHRC Docket No. 4537, March 31, 1976, and Secretaryv. California Stevedore and Ballast Company, 16 OSAHRC 800, 806 (1975).[6] [Placement of this footnote notindicated in original text; it appeared in the range of text starting here, upto where footnote 2 is indicated.] This decision in no way purports to dealwith the applicability of the steel erection standards to ?hybrid? structuresutilizing both prestressed members and steel members.? The building in question in this case waswholly prestressed.? Neither is itnecessary to decide whether, as respondent urges, 29 CFR 1926.750(b)(1)(ii) wasintended to apply only to inward falls within the structure.[7]Extensivetestimony (Tr. 440?502) was given by Mr. Robert D. Gidel, former Director ofProgram Operations for OSHA as to the genesis and lineage of complainant?sconstruction safety and health standards, with the particular emphasis onSubpart R. It is to be noted that since this Judge?s decision relative to theinapplicability of Subpart R is based on the literal meaning of the standard,the testimony of this witness which was addressed primarily to the ?legislativehistory?, as it were, did not play a part in the determination. Resort to suchhistory is unnecessary where a regulation is free of ambiguity. GeneralElectric Co. v. Southern Construction Company, 383 F.2d 135 (5th Cir. 1967,cert. den. 390 U.S. 955). Beyond that, it is highly questionable whether theunofficial, non-contemporaneous recitals of an official associated with the compilationof the standards should be entitled to weight. N. C. Freed Co., Inc. v.Board of Governors of Federal Reserve System, 473 F.2d 1210, 1217 (2d Cir.1973); National School of Aeronautics v. United States 142 F. Supp. 933(1956).[8] Moore?s Federal Practice,?15.08[2].\u00a0[9] See Wright & Miller, FederalPractice and Procedure: Civil ?? 1484, 1488.[10] Respondent insists that 9(c) is astatute of limitations. In my view it is more than a mere bar to the bringingof an action, raisable as an affirmative defense. It is instead a specificstatutory termination of the existence of the right to commence an enforcementaction. See Goodwin v. Townsend, 197 F.2d 970 (3rd Cir. 1952).[11] United States v.Hougham, supra,at 317, citing Conley v. Gibson, 355 U. S. 41.[12] The validity ofsuch defenses has been recognized by the Commission. See, respectively, Secretaryv. Industrial Steel Erectors, Inc., OSAHRC Docket No. 703 (January 10,1974); Secretary v. Consolidated Engineering Company, Inc., & OtisElevator Company, OSAHRC Docket Nos. 394 and 471 (October 17, 1944).[13] In both Industrial Steel Erectors,supra, and Consolidated Engineering Company, supra, the defenses of ?greaterhazard? or ?work impossibility? are affirmative in character with the burden ofproof resting upon respondent. No consideration of the question of burden ofproof was necessary herein. The preponderant weight of the evidence from all sourcescompels the conclusion that nets were an appropriate means of fall protection.”