“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15450 STRUCTURAL PAINTING CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 August 17, 1979DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.CLEARY, Chairman:??????????? A citationissued to respondent on October 9, 1975, alleged that respondent, StructuralPainting Corporation, committed a serious violation of the Act[1] by failing to comply withthe standard at 29 CFR ? 1926.104(b).[2] A penalty of $600 wasproposed. At the hearing on April 20, 1976, the Secretary of Labor moved toamend the citation to allege a failure to comply with the standard at 29 CFR ?1926.28(a).[3]Administrative Law Judge Abraham Gold granted the motion over respondent?sobjection. However, in his opinion, Judge Gold amended the citation to allegenoncompliance with a third standard, 29 CFR ? 1926.105(a).[4] The factual allegationsmade in support of the claim against respondent were not altered by eitheramendment. The judge affirmed the citation as amended and assessed a $300penalty. Respondent petitioned for review of the judge?s affirmation of thecitation. Pursuant to section 12(j) of the Act, Commissioner Barnako directedreview on two issues raised in the petition: whether the judge committed reversibleerror (1) by granting the Secretary?s motion to amend the citation, and (2) byamending the citation on his own motion. Former Commissioner Moran alsodirected review of the judge?s opinion without specifying which issues shouldbe addressed. The petition raised a third issue?whether the judge erred byfinding that the use of a safety belt by respondent?s employee would have beenpractical. In view of Commissioner Moran?s direction, and because respondentfiled its petition, with supporting argument, after that direction was filed,this issue will be addressed.[5] See Abbott-Sommer, Inc.,76 OSAHRC 21\/A2, 3 BNA OSHC 2032, 1975?76 CCH OSHD ?20,428 (No. 9507, 1976);Commission Policy Statement, 41 Fed. Reg. 53015 (December 3, 1976).??????????? Eightof respondent?s employees, including a foreman, were sandblasting and paintingthe structural steel on a bridge over the Mohawk River at Crescent, New York,when the worksite was inspected on October 2, 1975. The road surface on thebridge is 28 to 30 feet above the river. One of respondent?s employees wasworking at one end of the bridge from a one-foot wide structural beam locatedsix feet below the road surface. He was not wearing a safety belt.[6] The foreman testified thatthe unprotected employee should have been wearing a safety belt and that asecond employee standing on the opposite end of the same beam and performingthe same work as the unprotected employee was wearing a safety belt that wastied-off. The record is not developed sufficiently to permit us to decide whatthe belt was tied to, but we note that the compliance officer gave unrebuttedtestimony that the unprotected employee could have tied a lanyard to astructural member of the bridge or to the bridge railing. Upon being informedby the compliance officer that an employee was not protected against a fall,the foreman obtained a lifeline and belt and directed the employee to use them.Therefore, the judge correctly found that it would have been practical for theunprotected employee to have used a safety belt.??????????? Respondentclaims that the amendment to ? 1926.28(a) was improper because a defense hadbeen prepared only with respect to ? 1926.104(b). We disagree. Motions to amendshould be granted freely if the non-moving party will not be prejudiced in preparingor presenting his case. See, e.g., Southern Colorado Prestress Company v.OSHRC, 586 F.2d 1342, 1346?1347 (10th Cir. 1978); John & Ray Carlstrom,d\/b\/a Carlstrom Brothers Construction, 78 OSAHRC 96\/A2, 4 BNA OSHC 2101, 1978CCH OSHD ?23,155 (No. 13502, 1978). Respondent has neither produced evidencenor advanced argument in support of the claim of prejudice; nor did respondentrequest a continuance to prepare a new defense. Moreover, we are not persuadedthat respondent failed to receive fair notice of the thrust of the Secretary?sclaim. As stated above, the Secretary did not alter the factual basis of hisclaim. The allegation made in the citation is identical to that made in thecomplaint, which states, in pertinent part, ?. . . that an employee sandblastingthe steel 38 feet above the river (Mohawk) was not wearing a life line andbelt.? This alone provided sufficient notice. See International Ladies?Garment Workers? Union v. Donnelly G. Co., 121 F.2d 561, 563 (8th Cir.1941). Finally, because no fall protection was used, any defense respondent mayhave raised under ? 1926.104(b) would be equally applicable to ?\u00a01926.28(a).The amendment was, therefore, proper under Fed. R. Civ. P. 15(a).??????????? Anyconfusion[7] could have been dispelledby respondent?s foreman, to whom the compliance officer clearly specified thenature of the hazard. Knowledge of the nature of the charge obtained by anemployer?s representative during an inspection is imputable to the employer.[8]??????????? Respondentalso contends that the amendment to ? 1926.28(a) was improper because itamounted to the issuance of a new citation outside the six month limitationperiod contained in section 9(c) of the Act. While the amendment was made morethan six months after the inspection, it is obvious from the precedingparagraphs that the amendment did not raise a new charge. Amendments to claimsthat arise out of conduct set forth in the original pleadings relate back tothe date of those pleadings. Fed. R. Civ. P. 15(c); Southern ColoradoPrestress Company v. OSHRC, supra, at 1346?1347. The judge properly appliedthis rule in rejecting respondent?s contention.??????????? Thecitation should not have been amended further. The judge amended the citationto allege noncompliance with ? 1926.105(a). Because ? 1926.28(a) does notspecifically require the use of safety belts he held that ? 1926.105(a) was themore specifically applicable standard. He also noted that the Ninth Circuitheld ? 1926.28(a) to be void for vagueness. Hoffman Construction Co. v.OSAHRC, 546 F.2d 281 (9th Cir. 1976). Subsequent to the judge?s decision,however, the Commission reaffirmed its long-held position that ? 1926.28(a) isnot impermissibly vague, and, therefore, respectfully disagreed with the NinthCircuit?s decision. B & B Insulation, Inc., 77 OSAHRC 49\/A2, 5 BNAOSHC 1265, 1977?78 CCH OSHD ? 21,747 (No. 9985, 1977), rev?d. on othergrounds, 583 F.2d 1364 (5th Cir. 1978). Commission precedent is, of course,controlling unless reversed by the Supreme Court. See Grossman Steel &Aluminum Corp., 76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975?76 CCH OSHD ?20,691(No. 12775, 1976).??????????? Also,we decided recently that ? 1926.105(a) is not more specifically applicable tofall hazards than is ? 1926.28(a), regardless of the distance of the potentialfall, unless use of safety belts is impractical. Section 1926.105(a) requiresthat safety nets be provided where the use of ladders, scaffolds, catchplatforms, temporary floors, safety lines or safety belts is impractical. Theapplication of the standard is conditional. This standard is not morespecifically applicable than a standard requiring the use of one of the otherenumerated safety devices in the first instance. S & H Riggers andErectors, Inc., No. 15855 (April 13, 1979). The practicality of the use ofa safety belt by respondent?s unprotected employee is established on thisrecord. Moreover, the terms of ? 1926.105(a) are applicable only if an employeecould fall 25 feet or more. As noted above, the unprotected employee wasworking only 22 to 24 feet above the Mohawk River. Section 1926.105(a) is,therefore, inapplicable in this proceeding.??????????? Theonly remaining question is whether respondent failed to comply with ?1926.28(a). An employer is not in compliance with ? 1926.28(a) if an employeenot wearing a safety belt is exposed to a condition that a reasonable personfamiliar with the condition would recognize as a fall hazard warranting the useof a safety belt. S & H Riggers and Erectors, supra. It isundisputed that one of respondent?s employees was working more than twenty feetabove the Mohawk River without wearing a safety belt. Recognition of the hazardand the need for using a safety belt when exposed to such a hazard areestablished by respondent?s foreman?s testimony that the unprotected employeeshould have been wearing a safety belt, and that another employee who wasworking under the same conditions as the unprotected employee was wearing atied-off safety belt. We don?t rely solely on recognition of the foreman,however. We conclude that a reasonable person would recognize a hazardrequiring the use of personal protective equipment under the circumstances ofthis case, and that respondent failed to comply with ? 1926.28(a).??????????? Accordingly,the citation, as amended to allege serious failure to comply with the standardat 29 CFR ? 1926.28(a), and the $300 penalty assessed by the judge areaffirmed.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: AUG 17, 1979?BARNAKO, Commissioner, Concurring:??????????? Iagree with the majority that amendment to charge a violation of 29 C.F.R. ?1926.28(a) was proper pursuant to Fed. R. Civ. P. 15(a), that 29 C.F.R. ?1920.105(a) is not applicable to the cited conditions and that StructuralPainting violated 29 C.F.R. ? 1926.28(a). However, my rationale for concludingthat Structural Painting violated 29 C.F.R. ? 1926.28(a) differs from that ofmy colleagues.??????????? In S& H Riggers and Erectors, Inc., ___ OSAHRC ___, 7 BNA OSHC 1260, 1979CCH OSHD ?23,480 (No. 15855, 1979) (concurring opinion), I stated that I wouldaffirm a citation for violation of 29 C.F.R. ? 1926.28(a) only if the followingconditions were met: 1) evidence of record establishes Respondent?s employeeswere exposed to a hazard which a reasonable person familiar with the industrywould recognize as requiring the use of personal protective equipment, 2) theSecretary establishes a feasible means of protecting against the cited hazardand 3) reference to other standards in Part 1926 indicates the need for usingthe personal protective equipment which the Secretary asserts Respondent?semployees should have used.??????????? StructuralPainting was cited for a violation of 29 C.F.R. ? 1926.28(a) because itsemployees were not wearing safety belts while sandblasting and painting thestructural steel on a bridge. With respect to the first criteria set forthabove, as my colleagues note, the evidence establishes that StructuralPainting?s employees were exposed to a fall hazard and that a reasonable personwould recognize a hazard requiring the use of personal protective equipment.The second criteria noted above regarding a feasible means of abatement wasestablished through the unrebutted testimony of the compliance officer thatsafety belts should have been used and could have been tied to structuralmembers of the bridge. Additionally, Structural Painting?s foreman obtained a safetybelt while the compliance officer was on the site and directed one of theemployees on the bridge to use it, which creates a strong presumption that suchuse was feasible. Finally, as I stated in S & H Riggers and Erectors,Inc., 29 C.F.R. ?\u00a01926.104 places employers on notice that lifelines,lanyards, and safety belts are an appropriate means of protecting against fallhazards and therefore satisfies the third criteria set forth above.Accordingly, since the criteria I set forth in S & H Riggers and Erectors,Inc. have been satisfied, I would affirm the citation for violation of 29C.F.R. ? 1926.28(a).\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15450 STRUCTURAL PAINTING CORPORATION, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 December 6, 1976APPEARANCES:James A. Magenheimer, Esq., forComplainant\u00a0John F. Ganley, Jr., pro se, forRespondent?DECISION AND ORDER??????????? Thiscase arose under Section 10(c) of the Occupational Safety and Health Act of1970, 29 U.S.C. ? 659(c), and was heard on April 20, 1976, at Albany, New York.??????????? OnOctober 9, 1975, Respondent was issued nonserious Citation No. 1, containingthree items, and serious Citation No. 2 which charged a single violation. Apenalty of $45 was proposed by the Secretary of Labor for nonserious Item 1,$65 for Item 2, and $135 for the third item. The Secretary recommended $600 forthe serious charge. Respondent filed a notice of intent to contest all chargesand proposed penalties, but at trial withdrew his contest as to cited Items 2and 3, but continued his contest as to nonserious Item 1 and the seriouscitation, as well as all proposed penalties (Tr. 6).??????????? Byfailing to deny paragraphs II and III of the complaint, as amended at trial(Tr. 72), Respondent is deemed to have admitted[9] that it was incorporatedin the State of New York, with an office and place of business at Latham, NewYork, where at all times pertinent herein it was engaged in sandblasting andpainting activities; that many of the materials and supplies used by Respondentwere manufactured outside the State of New York; and that Respondent was and isengaged in a business affecting commerce, within the meaning of Sections 3(3)and 3 (5) of the Act. In light of the foregoing, it is concluded thatjurisdiction over the parties and the subject matter is vested in theCommission.??????????? 29U.S.C. ? 654(a)(2) requires that each employer comply with occupational safetyand health standards promulgated under the Act.??????????? Pursuantto 29 U.S.C. ? 666(b), an employer shall be assessed a civil penalty of up to$1,000 for each serious violation.??????????? Section666(c) provides that an employer may be assessed a civil penalty of up to$1,000 for each nonserious violation.??????????? 29U.S.C. ? 666(j) declares that a serious violation shall be deemed toexist in a place of employment if there is a substantial probability that deathor serious physical harm could result from a condition that exists, or from oneor more practices, means, methods, operations, or processes which have beenadopted or are in use, in such place of employment unless the employer did not,and could not with the exercise of reasonable diligence, know of the presenceof the violation.?Civil penalties shall be imposed only afterconsidering the size of the business of the employer, the gravity of theviolation, good faith of the employer, and history of previous violations. 29U.S.C. ? 666(i).??????????? OnOctober 2, 1975, a compliance officer of the Department of Labor inspected theTwin Bridges at Crescent, New York (Tr. 16) spanning the Mohawk River and Canal(Tr. 18), about 300?400 feet wide at that point (Tr. 17). One bridge carriesnorthbound traffic, the other southbound (Tr. 17). Respondent was sandblastingand repainting structural steel members of the southbound bridge (Tr. 16?17,19), and had eight employees, including a foreman, working at the site (Tr. 18,19, 20).??????????? NonseriousItem 1 alleges a violation of 29 C.F.R. ? 1926.106(d), which requires: ? 1926.106 Working over or near water.(d) At least one lifesaving skiff shall beimmediately available at locations where employees are working over or adjacentto water.???????????? Thecompliance officer observed an employee of Respondent engaged in sandblastingthe structural members on the side of the bridge (Tr. 21). He thought that theemployee was working from a platform suspended from the bridge rail, theemployee?s head at about the level of the road surface (Tr. 21). The officersaid that the platform is commonly referred to as a ?painter?s pick? (Tr. 27).The foreman testified that this employee was actually standing on a beam of thebridge, and not on a pick (Tr. 57, 58); that if he had been on a pick theofficer would not have been able to see the employee from the surface of thebridge (Tr. 61). I accept the foreman?s statement on this point.??????????? Accordingto the inspecting officer the bridge was 38 feet above the water, a figurewhich he claimed to have gotten from a map provided by architects and engineerswho were supervising the reconstruction of the bridge (Tr. 22). The foremanasserted that he measured the distance last fall, and again on the morning ofthe hearing; that it measured 28 feet the first time and 30 feet the second;that the difference was due to the variation in water level (Tr. 60). I regardthe foreman?s measurements as having greater probative value than theinspector?s calculation.??????????? Onthe day of the inspection Respondent had a skiff (light rowboat) in theequipment trailer on the bridge deck. The inspector described it as a 14-footaluminum boat. He testified that if an employee fell from the bridge into thewater, two men would have to be rounded up to carry the skiff from the trailer,and either throw it over the side of the bridge into the water, or put it on apickup truck to be driven off the bridge; that it would consume 10 minutes;that there is a very strong current in the area, and a person falling into thewater could be 200?300 feet downstream in a few minutes (Tr. 23?25, 32?33,47?48); and that unless someone were in the skiff to guide it to the fallenemployee in the water the boat might drift away (Tr. 49).??????????? Respondent?sforeman testified that it was his normal procedure each morning, within thefirst hour after arrival at the jobsite, to take one man with him to put theboat in the water at the shore line; but that on the day of the inspection itwas overcast and foggy, the start of work was delayed, there was quite a bit ofconfusion, and he forgot to follow this procedure (Tr. 56, 62, 63). Theinspector?s testimony is to the effect that the foreman told him that the skiffwas kept in the trailer rather than on the river bank was because boats hadbeen stolen at other sites; that when the inspector suggested that the boat bekept in a pickup truck parked at the river?s edge, the foreman thought that itwas a good suggestion and adopted this procedure (Tr. 33). On this point I relyon the inspector?s version.??????????? Ifind that the record establishes that on October 2, 1975, Respondent failed tohave a lifesaving skiff immediately available at the locations where employeeswere working over water and that nonserious Item 1 has been established.??????????? TheSecretary recommended a penalty of $45 for Item 1. The violation, in my view,is of a high level of gravity, but the likelihood of an accident is low.Respondent has 18 employees (Tr. 36). There is no evidence of previousviolations (Tr. 36). Respondent has no formal safety program, but does havepublished safety policies (Ex. R?1), and provides safety equipment for itsemployees (Tr. 62). Considering the criteria in 29 U.S.C. ? 666(i), it is foundthat a penalty of $45 is appropriate.??????????? Withrespect to nonserious Item 2, only the amount of penalty was contested.Respondent conceded a violation of Section 1926.106(c) for failure to providering buoys with at least 90 feet of line. Considering the four factors listedin Section 666(i), it is found that $65 is a reasonable penalty.??????????? Takingthe same criteria into account, I find that Respondent?s violation of1926.106(a) for failure to provide U.S. Coast Guard-approved life jackets orbuoyant work vests merits a penalty of $135.??????????? Theserious charge, which was contested by Respondent, originally claimed thatRespondent was in violation of Section 1926.104(b) because an employeesandblasting 38 feet above the Mohawk River ?was not wearing a life line andbelt.? That cited regulation states:? ? 1926.104 Safety belts, lifelines, andlanyards.(b) Lifelines shall be secured above thepoint of operation to an anchorage or structural member capable of supporting aminimum dead weight of 5,400 pounds.???????????? Attrial the Secretary moved to amend the citation and complaint (Tr. 8?10) tosubstitute the charge of Section 1926.28(a), based on the same factualallegations. The motion was granted (Tr. 12). Since the factual basis remainedthe same, Respondent was not in this instance prejudiced in his ability toprepare and present a defense. Respondent complained that the new charge waslodged over six months after the inspection (Tr. 13). However, this time lapseis no bar to amendment. Respondent has not shown that he was prejudiced in anymanner. Under Fed. R. Civ. P. 15(c) whenever a claim asserted in the amendedpleading arose out of the conduct or occurrence set forth in the originalpleading, the amendment relates back to the date of the original pleading;hence, the amendment is not proscribed by Section 9(c) of the Act, 29 U.S.C. ?658(c), which forbids the issuance of a citation after the expiration of sixmonths following the occurrence of any violation.Section 1926.28(a) reads:? ? 1926.28 Personal protective equipment.?(a) The employer is responsible forrequiring the wearing of appropriate personal protective equipment in alloperations where there is an exposure to hazardous conditions or where thispart indicates the need for using such equipment to reduce the hazards to theemployees.???????????? Thischarge is based on the fact that the employee who was sandblasting whilestanding on a beam was not wearing a safety belt attached to a lifeline (Tr.22). The inspector felt that a lifeline could have been secured to the bridgerailing or to the bridge structure (Tr. 28). He testified that when he informedthe foreman of the hazard, the foreman told him that the men had been providedwith safety belts and lifelines, and the foreman then went to the equipmenttrailer, obtained a belt and lifeline, gave them to the employee, and directedhim to use them (Tr. 28?29). The inspector added that he saw other employees ofRespondent painting the underside of the bridge but could not determine whetherthey were wearing safety belts (Tr. 31).??????????? Inhis testimony, the foreman said that every man on the job had been issued asafety belt, but he ?just couldn?t keep checking everybody? (Tr. 62); thatanother employee, who was sandblasting at the opposite end of the bridge (Tr.58), was wearing his safety belt (Tr. 61?62). He further stated that thesandblaster who was not wearing a safety belt stood on a beam which was aboutsix feet lower than the bridge deck (Tr. 68); that the beam was about a footwide (Tr. 59) and open on the outside edge (Tr. 68).??????????? Respondentalso used picks at the site; they were described by the inspector as anywherefrom 12 to 24 feet long, and approximately 30 inches wide, and having norailing (Tr. 27?28). According to the officer, the employee would be standingwithin six inches of the edge of the platform (Tr. 28), which was suspended byropes from the bridge railing (Tr. 42). The foreman declared that the picks atthe site were constructed of aluminum, and ranged from 16 to 28 feet in length,were 30 inches wide, and hung on steel cables or rested on cables which ranunder the bridge from one side of the bridge to the other (Tr. 58).??????????? Section1926.28(a) contains general wording. It does not specifically require the useof safety belts. Section 1926.105(a) does specify this protective device.Section 1910.5(c) provides that when a particular standard is specificallyapplicable, it shall prevail over any different general standard which mightotherwise apply. Moreover, since the date of the trial, Section 1926.28(a) hasbeen ruled ineffective as a standard due to its vagueness. HoffmanConstruction Co. v. OSHRC and Secretary of Labor, No. 75?1741, 9 Cir.,decided November 1, 1976. The Court reversed the Commission, holding that1926.28(a) ?created no specific standard, a violation of which would give riseto liability.???????????? 29C.F.R. ? 1926.105(a), which in my view applies specifically to the facts in theinstant case, declares:? ? 1926.105 Safety nets.(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, temporaryfloors, safety lines, or safety belts is impractical.???????????? Thispoorly worded regulation has been interpreted judicially as requiring anemployer to utilize one of the safety devices listed herein. Secretary of Laborv. Fiegen, 513 F. 2d 713 (8 Cir. 1975). Secretary of Labor v. SouthernContractors Service, 492 F. 2d 498, 501 (5 Cir. 1974). Secretary ofLabor v. The Verne-Woodrow Company, 494 F. 2d 1181 (5 Cir. 1974. Secretaryof Labor v. J.W. Bounds (Pearl Steel Construction Co.), 488 F. 2d 337 (5Cir. 1973).??????????? AlthoughRespondent was not charged with a violation of 1926.105(a), Respondent wasfully apprised of the factual issues and defended fully against them. Pursuantto Fed. R. Civ. P. 15(b), the pleadings are hereby amended to conform to theevidence, and the serious citation and complaint are therefore amended tocharge a violation of 29 C.F.R. ? 1926.105(a), in substitution for Section1926.28(a).??????????? Thestandard now cited in the serious charge requires safety nets if the use ofother listed protective devices is ?impractical.? Inasmuch as at least oneemployee of Respondent was using a safety belt and lifeline it is beyonddispute that such safety equipment was practical at the time and place underconsideration.??????????? Sincean employee of Respondent was working more than 25 feet above water surface andRespondent failed to see to it that this employee was wearing a safety beltattached to a lifeline, and the employee was not protected by any of the otherprotective measures listed in Section 1926.105(a), it is found that on October2, 1975, Respondent was not in compliance with that standard. I conclude thaton that date Respondent violated 29 U.S.C. ? 654(a)(2).??????????? It isalso found that there was a substantial probability that death or seriousphysical harm could have resulted from a fall caused by this safety violation,and that Respondent, through its foreman at the site, knew or with the exerciseof reasonable diligence could have known of the violative condition. On thisrecord it is concluded that the violation was of a serious nature, within thecontemplation of 29 U.S.C. ? 666(j).??????????? Theviolation was of a high level of gravity, but in my opinion the likelihood of afall was rather low. Considering the four factors in 29 U.S.C. ? 666(i), I findthat a penalty of $300 is appropriate.??????????? Accordingly,it is ordered that the three items in nonserious Citation No. 1 and seriousCitation No. 2, as amended, be affirmed; that the penalties proposed for thethree nonserious items be affirmed and that a penalty of $300 be assessed foramended serious Citation No. 2.?ABRAHAM GOLDJudge, OSHRCDated: December 6, 1976Boston, Massachusetts?\u00a0[1] The OccupationalSafety and Health Act of 1970, 29 U.S.C. ? 651 et seq.[2] The standardprovides:Lifelines shall be secured above the pointof operation to an anchorage or structural member capable of supporting aminimum dead weight of 5,400 pounds.[3] The standardprovides:The employer is responsible for requiringthe wearing of appropriate personal protective equipment in all operationswhere there is an exposure to hazardous conditions or where this part indicatesthe need for using such equipment to reduce the hazards to the employees.[4] The standardprovides: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, temporaryfloors, safety lines, or safety belts is impractical.[5] Respondent has nottaken exception to the judge?s characterization of the violation or to the $300penalty assessed for the violation, except to the extent that both would beimproper if the citation were vacated.[6] The complianceofficer and respondent?s foreman disagreed over the height of the bridge andthe location of the work station of the unprotected employee. The judgecredited the testimony of the foreman. The Commission usually defers to ajudge?s credibility findings. See Paul L. Heath Contracting Company, 75OSAHRC 84\/B2, 3 BNA OSHC 1551, 1975?76 CCH OSHD ? 20,006 (No. 5467, 1975). Wehave no reason to reject the judge?s finding in this case.[7] We find littlecause for respondent to have been confused. The standard at 29 CFR ?\u00a01926.104(b)on its face does not require the use of life lines and belts, it merelyspecifies certain conditions of use. Underhill Construction Corp., 76OSAHRC 130\/B7, 4 BNA OSHC 1772, 1976?77 CCH OSHD ?21, 151 (No. 8096, 1976).[8] Jerry BotchletMasonry Construction Company, 77 OSAHRC 95\/C3, 5 BNA OSHC 1506,1977?78 CCH OSHD ? 21,858 (No. 13135, 1977) appeal dismissed, No.77?1579 (10th Cir., July 26, 1977), appeal withdrawn, No. 77?2518 (5thCir., August 18, 1977), does not hold to the contrary. In that case, a dividedCommission held that the Secretary did not sustain his burden of proving thatthe employer had knowledge of a violation by proving that the employer?swalkaround representative had obtained knowledge of the violation during theinspection. The Commission reasoned that a contrary holding would tend to deteran employer from exercising the right (provided by section 8(e) of the Act) tobe represented during an inspection. The knowledge of the nature of the chargeimputed to respondent in this case is not the same as knowledge of a hazardouscondition which violates the Act. Where such knowledge is used to establishculpability the latter is forbidden by the Botchlet case. FormerCommissioner Moran identified additional benefits of section 8(e) relevanthere:The employer?s presence during theinspection makes possible better and more accurate identification of thetransgressions with which he may be charged. This will assist him to abate themis needed as well as permit him to adequately prepare his defense if acitation is issued which he chooses to contest [emphasis added].ChicagoBridge & Iron Co.,74 OSAHRC 92\/A2, 1 BNA OSHC 1086, 1971?73 CCH OSHD ?\u00a015,416 (No. 224,1973), aff?d 535 F.2d 371 (7th Cir. 1976).[9]Commission Rule 33(b)(2), 29 C.F.R. ? 2200.33(b)(2).”