Docket No. 112

GRESSANI-GYSEL CONSTRUCTION, INC.

OSHRC Docket No. 112

Occupational Safety and Health Review Commission

July 30, 1973

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, CHAIRMAN: On March 9, 1973, Review Commission Judge David G. Oringer issued a decision in this case. Thereafter, on April 12, 1973, pursuant to section 12(j) of the Act, that decision was ordered to be reviewed by the Commission.

Having examined the record in its entirety, the Commission finds no prejudicial error therein. Accordingly, it is ordered that the Judge's decision is hereby affirmed in all respects.

DISSENTBY: CLEARY

DISSENT:

CLEARY, COMMISSIONER, dissenting: I dissent from the majority opinion affirming the Judge's dismissal of the citation. The citation was dismissed because it charged respondent with a failure to comply with a standard requiring that floor hole openings be guarded. The Judge found that the Secretary had failed to prove the existence of a "floor," and therefore the cited standard inapplicable.

The Commission's Rules of Procedure provide that in the absence of a specific Commission Rule, the Federal Rules of Civil Procedure shall apply (section 2(b)). Rule 15(b) of the Federal Rules of Civil Procedure provides, in pertinent part,

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

The intent of this rule is to promote decisions on the merits of the case and not on technicalities of pleadings. Secretary of Labor v. Brisk Waterproofing Co., Securities and Exchange Commission v. Rapp, 304 F.2d 786 (2nd Cir. 1962). The Second Circuit has also held rule 15(b) to be ". . . mandatory and not merely permissive." n1 S.E.C. v. Rapp, supra.

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n1 The Fifth Circuit has stated: "Whether we would go so far as the Second Circuit that the effect of F.R. Civ. P. 15(b) 'is mandatory, not merely permissive' we are committed to' . . . a course of strong liberality in allowing amendments. To rule otherwise would be to frustrate the 'affirmative policy' of F.R. Civ. P. 15(b)." (Citations omitted). U.S. v. Stephens Brothers Line, 384 F.2d 118, 124 (1967).

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The Commission Judge concluded that "[T]he conditions that existed . . . where the accident took place constituted a well recognized hazard to any employee working down below." Indeed, to describe these conditions is to recognize them as a hazard.

The Judge stated in his decision that he ". . . will not determine whether the general duty clause [section 5(a)(1) of the Act] would have been applicable in the instant case inasmuch as that question is not before him." I disagree.

In Associated Home Builders v. N.L.R.B., 352 F.2d 745, 752-753 (9th Cir. 1965), the Court reversed a dismissal by the Board of a charge, stating:

The failure to mention [other sections] in the complaint should not have prevented the Board from considering their applicability. . . . In American Newspaper the Board held that the acts alleged in the complaint as constituting violations of § 8(b)(1)(A) did not come within the prohibition of that subsection of the Act. The court noted that the Board 'apparently was under the impression that, since the particular action alleged, was not alleged to be a violation of § 8(b)(3), it was required to dismiss this charge without passing upon the sufficiency of the proof. We think this action of the Board, in so dismissing the charge . . . constituted error.' . . . Thus in National Labor Relations Bd. v. Pecheur Lozenge Co., 2 Cir., 209 F.2d 393, 402, the Court said * * * 'We think it would not matter that the complaint failed to mention a specific section of the Act, if the alleged coduct was in fact violative of that section.'

In this case, there is sufficient evidence of record to infer that respondent violated section 5(a)(1) of the Act, and that the issue was tried without objection so as to deem the pleadings amended to conform to the evidence under the mandate of rule 15(b).

Formal amendment is necessary only when objection is made to the introduction of evidence as outside the pleadings. S.E.C. v. Rapp, supra.

As the Court said in Hopkins v. Metcalf, 435 F.2d 123, 124 (10th Cir. 1970),

In the instant case the facts . . . were received in evidence without pertinent objection. In such circumstances the issue is before the court for determination and the pleadings should be regarded as amended to conform to the evidence.

See also United States Fidelity and Guaranty Co. v. U.S., 389 F.2d 697 (10th Cir. 1968).

Professor Moore, in his treatise on Federal Practice, states:

Rule 15(b) has rejected any concept that such amendments are barred if they result in a change of the plaintiff's 'cause of action.' . . . [A]s a matter of practice issues tried by implied or express consent ordinarily do arise from the same general set of facts set forth in the complaint. Thus a plaintiff may sue on one [theory] and recover on [another]. . . . The fact that this involves a change in . . . the legal theory of the action is immaterial so long as the opposing party has not been prejudiced in presenting his case. Second Edition, Volume 3, section 15.12[2], pp. 984-985.

In Brisk Waterproofing Co., supra, the employer was cited for a violation of section 5(a)(1) and defended on the ground that the alleged violation was not a "recognized hazard." In his submissions following direction for review by the Commission, the Secretary conceded that he should have proceeded on the theory that the employer had violated section 5(a)(2) by failure to comply with a specific standard. He concluded that the complaint should be amended to conform to the evidence, absent prejudice to the employer.

The Commission allowed the amendment and found the employer in violation of section 5(a)(2) of the Act. This is totally consistent with the authorities cited above. Thus, in the Brisk Waterproofing case, the amendment changed the complaint to allege a violation of section 5(a)(2) by failure to comply with a specific standard where a violation of section 5(a)(1) was tried.

I believe it equally proper to amend a complaint in which a section 5(a)(2) violation is alleged so as to allege a violation of section 5(a)(1). However, in this situation, the utmost attention should be given to whether the issue of the existence of a "recognized hazard" was tried.

As Professor Moore has said regarding rule 15(b) amendments after judgment:

[I]t cannot be fairly said that there is any implied consent to try an issue where the parties do not squarely recognize it as an issue in the trial. . . . The test should be whether the [other party] would be prejudiced by the implied amendment, i.e., whether he had a fair opportunity to defend and whether he could offer any additional evidence if the case were to be retried on a different theory. Moore's Federal Practice, 2nd Edition, Volume 3, section 15.15[2], pp. 992-993.

Where, as here, it appears that respondent has little if any defense to an allegation that the condition for which it was cited is a recognized hazard, I would issue an Order to Show Cause why the complaint should not be so amended to charge a violation of section 5(a)(1) of the Act. If the issue is unclear, I would remand the case. Either action would present the parties an opportunity to be heard on the issue.

[The Judge's decision referred to herein follows]

ORINGER, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a Citation issued by the Complainant against the Respondent under the authority yested in Complainant by Section 9(a) of that Act. The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at Treatment Building No. 1, 500 Block, Cedar Street, Syracuse, New York 13210, and described as follows: "a-three story concrete block steel and brick building," the Respondent has violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor, pursuant to Section 6 thereof. The Respondent was issued a Citation and Notification of Proposed Penalty, on October 6, 1971, for the following alleged violations:

Public Law 91-54. Construction Safety Act. Subpart M-Sec. 1518.500(a) & (b)(1) -- Unguarded stairwell openings, Stairwell #1.

The Citation, which was issued on October 6, 1971, alleges that the violations contested by the Respondent result from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR 1518.500(a) & (b)(1).

The description of the alleged violations contested by the Respondent, contained in the said Citation, states as follows:

Unguarded stairwell openings, Stairwell #1.

The standards allegedly violated read as follows:

29 CFR 1518.500 Guardrails, handrails, and covers.

(a) General provision. This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways.

(b) Guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a standard railing and toe boards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.

A Notification of Proposed Penalty was issued on October 6, 1971. Pursuant to the provisions of Section 10(a) of the Act, the penalty set forth below was proposed by the Complainant, based on the above Citation:

Citation No.	Proposed Penalty
1	$500 00

The Respondent served notice of intention to contest the Citation and proposed penalty on the Secretary by letter dated October 20, 1971.

This cause was referred to the Occupational Safety and Health Review Commission pursuant to Section 10(c) of the Act on October 21, 1971. On November 11, 1971, the Regional Solicitor made a motion to consolidate this cause with the case of Secretary of Labor v. B. Heckerman Iron Works, Inc. (Case Docket No. 111), predicated upon the fact that both cases arose out of the same events at the same workplace, and on the same date. The Regional Solicitor further averred that a single trial will enable all parties to the accident to present the factual and legal issues upon which a full and complete adjudication can be effected. No opposition appearing to this motion, the case was consolidated by order of the Executive Secretary, dated December 7, 1971, and then assigned to Judge David G. Oringer for hearing and disposition, on December 9, 1971.

Pursuant to notice, a consolidated hearing was held on March 16, 1972, in the U.S. Post Office and Court House, 101 N. Clinton Street, Syracuse, New York. It was agreed, with no objections, that while cases were tried simultaneously, two separate decisions would be issued.

Having heard the testimony and observed the demeanor of the witnesses, and having considered the same, together with the Citation, Notification of Proposed Penalty, Notice of Contest, pleadings, representations and admissions of the parties, it is concluded that substantial evidence, on the record considered as a whole, supports the following

FINDINGS OF FACT

1. The Respondent, Gressani-Gysel Construction, Inc., is a New York Corporation with its principle office and place of business located at 128 Buffington Road, Syracuse, New York (T. 4).

2. The Respondent is engaged at its principle place of business and in other areas, in the building and construction of commercial, industrial and institutional facilities. Many of the materials, equipment and supplies used by the Respondent's corporation and its employees are manufactured without the State of New York (T. 5).

3. Employees of this Respondent were employed at the job site located at Treatment Building No. 1, 500 Block, Cedar Street, Syracuse, New York, on September 28, 1971 (T. 6).

4. An employee of the Secretary made an inspection of the work site on September 29, 1971, after receipt of information of an accident occurring thereon (T. 95, 98, 102).

5. In the accident previously referred to, a man working for a sub-contractor, B. Heckerman Company, Incorporated, one Robert Ross, was killed, and the death triggered the inspection and investigation from which flowed the Citation and Notification of Proposed Penalty contested by the Respondent herein (T. 6, 26, 27, 158).

6. Subsequent to the investigation and inspection of Respondent's workplace, the Respondent on or about October 6, 1971, was issued a Citation for a serious violation, together with a Notification of Proposed Penalty therefore (Complaint and Answer; Citation, and Notification of Proposed Penalty).

7. A Notice of Contest was timely filed by the Respondent on or about October 21, 1971 (T. 10).

8. The Citation in the instant cause dated October 6, 1971, alleges a violation of "Public Law 91-54, Construction Safety Act, Subpart M-Sec 1518.500(a) & (b)(1)" (sic) and the description of the alleged violation was as follows: "Unguarded stairwell openings, Stairwell #1" (Citation).

9. The Complaint alleges that on September 28, 1971, the Respondent violated the standards at 29 CFR Part 1518.500(a) & (b)(1), in that "the Respondent failed to provide a guard, covering all railings for a temporary floor opening, where there was danger of employees or materials falling through said opening . . ." (Complaint Paragraph IV).

10. The standards allegedly violated in the instant cause, then applicable, to wit, 29 CFR 1518.500(a) & (b)(1), applied to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof or wall openings, or from stairways or runways. The particular portion of the standard allegedly violated, that is, that part found at 29 CFR 1518.500(b)(1), entitled, "Guarding of floor openings and floor holes," provides that floor openings shall be guarded by a standard railing and toe boards or cover, as specified in paragraph (f) of this section, and in general, that railings shall be provided on all exposed sides, except at entrances to stairways (See 29 CFR 1518.500).

11. The section for which the Respondent was cited and which he allegedly violated, specifically pertains solely to floor openings and floor holes (See 29 CFR 1518.500).

12. It is necessary to have a floor, either temporary or permanent, in order to have a floor hole or floor opening (See 29 CFR 1518.502, Part (a) & Part (b)).

13. On the date that the violation is alleged to have occurred, to wit, September 28, 1971, there was no flooring existant at the third story elevation (T. 56, 57; 73, 79, 80, 82, 215, 216, 227).

14. The site of the accident referred to in the instant cause was under construction at the time of such accident and there were safety provisions that should have been taken, that were not taken. The failure however, to take such safety precautions did not come within the purview of the standards cited in the Citation involved herein.

OPINION

In the instant cause the Secretary cited the Respondent for an alleged violation of "Public Law 91-54, Construction Safety Act, Subpart M-Sec. 1518.500(a) & (b)(1), and described the alleged violation as Unguarded stairwell openings, Stairwell #1."

Unquestionably the Secretary's representative, when drawing the Citation, intended to charge a violation of that standard found at 29 CFR 1518.500(a) & (b)(1), and, in Paragraph IV, of his complaint, the Complainant so alleged. The description of the violation in this paragraph relates "In that the Respondent corporation failed to provide a guard, covering all railing for a temporary floor opening where there was a danger of employees or materials falling through said opening, . . . ."

The standard then found at 29 CFR 1518.500(a) relates to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways, and is a general provision alerting the reader to what the subpart applies to. The specific violation alleged was part (b)(1), part (b) reading, "Guarding of floor openings and floor holes," and part (b)(1) reading as follows: "(1) Floor openings shall be guarded by a standard railing and toe boards or cover, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways."

Webster's Seventh New Collegiate Dictionary defines a floor, inter alia, as follows:

1. The part of a room on which one stands.

2. The lower inside surface of a hollow structure.

3. A ground surface.

3a. A structure dividing a building into stories.

4. The surface of a structure on which one travels.

The Judge finds that in order to have a floor hole or floor opening, as the case may be, there must be a floor. In the instant cause the Secretary failed to prove that there was a floor at the third level, and accordingly, the violation reading "the floor opening shall be guarded . . ." is inapplicable to the condition found in the case at bar.

A Citation of the Secretary alleging a violation of a particular standard by a Respondent must fall if the proof of record discloses that the standard cited is inapplicable to such proof, even if violations of other standards not charged are proven. Secretary of Labor v. Pearl Steel Erection Co., OSAHRC Docket #1166 also entitled in Judge's Decision as Secretary of Labor v. J. W. Bounds, OSAHRC Docket #1166); Secretary of Labor v. Northwest Bridge Tank Company, OSAHRC OSAHRC Docket #1113; Secretary of Labor v. DeLuca Construction Company, OSAHRC Docket #1225.

Whether the chimney-like structure would come within the purview of Section (b)(3) reading, "hatchways and chute floor openings," will not be determined here inasmuch as this question is not before the Judge. Certainly the conditions that existed in the chimney-like structure where the accident took place constituted a well recognized hazard to any employee working down below. There was a steel beam being moved over an opening while men worked below with nothing to stop the materials from dropping on the heads of those working below, any part of the way down. This certainly constituted a very dangerous condition, particularly to the employees exposed. In addition thereto, there probably was some danger to the employees of the Respondent who were working on the top, manipulating the beam which eventually fell. However, any such hazard is not covered by the standard for which the Respondent was cited by the Secretary. The Judge will not determine whether the general duty clause would have been applicable in the instant cause inasmuch as that question is not before him. Certainly a recognized hazard existed which could have been discovered with reasonable diligence by this Respondent, however, inasmuch as the standard for which he was cited is herein inapplicable, the Judge must vacate the Citation and Proposed Penalty in the instant cause.

While it may seem unjust to allow hazardous practices as those utilized in this case to be unpenalized, nevertheless, the statute clearly prescribes the rights of the Secretary and the rights of the Respondent. Certainly the Respondent has a right to be correctly apprised of the statute or regulation that he is alleged by the Complainant to have violated. The standard alleged by the Secretary to have been violated by the Respondent in the instant cause is inapplicable in the facts as found in the case at bar, for reasons previously related. Accordingly the Citation and Proposed Penalty must fall.

The Judge finds that there is a total lack of proof on the part of the Secretary that a floor existed on September 28, 1971, when the standard was allegedly violated, and without a floor, no floor opening could have existed and the Citation and violation of 29 CFR 1518.500(b)(1) was thus inapplicable in the present case.

Based upon the foregoing, and the record in its entirety, the Judge makes the following

CONCLUSIONS OF LAW

1. At all of the times herein mentioned, the Respondent was an employer engaged in a business affecting commerce within the meaning of Section 3, of the Act.

2. At all of the times herein mentioned, the Respondent was subject to the provisions of the Occupational Safety and Health Act of 1970, and the regulations promulgated thereunder.

3. That standard, found at the time that the Citation was issued, at 29 CFR 1518.500(a) is a general provision and purely describes what that subpart applies to, to wit, to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways. There cannot be a violation of 29 CFR 1518.500(a), in and of itself.

4. That standard found at 29 CFR 1518.500(b)(1) applies solely to floor openings.

5. The Secretary failed to prove that a floor existed where the violation allegedly occurred, and accordingly there was no floor opening in the area where the alleged violation took place.

6. This Respondent was not in violation of the standard that was cited in the Citation, to wit, 29 CFR 1518.500(a) & (b)(1).

7. The Citation issued to the Respondent by the Complainant in the instant cause must be vacated.

8. In view of the Conclusions of Law above, the penalty proposed to be assessed against the Respondent, for the alleged violation contained in the Citation, is inappropriate and must be vacated, inasmuch as the Citation itself is being vacated.

In view of the foregoing, good cause appearing therefore, it is

ORDERED, that

1. The Complainant's Citation issued to this Respondent, alleging violation of 29 CFR Part 1518.500(a) & (b)(1), be, and the same, is herewith vacated.

2. The Complainant's Proposed Penalty for alleged violation of that standard found at 29 CFR Part 1518.500(a) & (b)(1), in the amount of $500, be, and the same, is hereby vacated.