CARR ERECTORS, INC.
OSHRC Docket No. 7247
Occupational Safety and Health Review Commission
January 21, 1977
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
William S. Kloepfer, Assoc. Regional Solicitor
R. Larry Schneider, for the employer
OPINIONBY: BARNAKO
OPINION:
DECISION
BARNAKO, Chairman:
A February 5, 1975 decision of Judge Erwin L. Stuller is before this Commission for review pursuant to 29 U.S.C. § 661(i). Judge Stuller vacated items 1, 2, and 3 of a nonserious citation issued to Respondent. He affirmed item 4, and assessed a penalty of $400. On review, Complainant argues that the Judge improperly disposed of item 1, and Respondent contends that the Judge erred in affirming item 4 and in assessing a penalty in an amount greater than that proposed by Complainant. For the reasons which follow, we conclude that the Judge erred in his disposition of items 1 and 4. As no exception to his decision concerning items 2 and 3 has been taken, these items are not before us on review.
Item 1
Respondent was engaged in steel erection on a high-rise building under construction in Columbus, Ohio. The worksite was inspected by Complainant's compliance officer on March 7, 1974. At one point on the 13th level, there was a gap approximately [*2] twelve feet wide between two sections of the floor. On one side of the gap, a ladder led from the 12th to the 13th floor and rested against the edge of the floor. About four feet from this edge, the steel framework rose above the 13th floor. Thus, there was a four foot wide section of the 13th floor between the gap and the higher structural steel. At the time of the inspection, the "floor" of this section consisted of steel reinforcing bars atop steel framework. Ultimately, concrete would be poured in order to complete construction of the floor. No guardrail or other type of perimeter protection was installed at the edge of this section of the 13th floor.
Respondent's employees were working about thirty feet from the point where the ladder reached the 13th floor. In order to reach their work area, one possible means of access was to ascend the ladder and walk for some distance along the four foot wide section. A second ladder was in place which would have provided more convenient access to the work area. The compliance officer was, however, informed by Respondent's representative accompanying the inspection, that Respondent's employees used the first ladder. It is not clear [*3] from the record whether or not employees who used the second ladder would come into proximity with the unguarded edge of the 13th floor.
On these facts, Respondent was cited for violating 29 C.F.R. § 1926.500(b)(1), which requires the use of standard guardrails or covers to protect against the hazard of falling through floor openings. In vacating the citation, Judge Stuller found that "the evidence fails to indicate a floor hole or opening that required a toeboard or railing." On review, Complainant argues that, having made this finding, the Judge should have amended the citation to allege a violation of § 1925.500(d)(1), which requires a standard railing at the perimeter of each open-sided floor, and should have affirmed the citation as so amended. Complainant contends that the elements of violations of § 1926.500(b)(1) and (d)(1) are identical, and that whether the condition in this case should be classified as a floor opening or an open-sided floor is purely a matter of semantics.
Before the Judge, Respondent argued that the cited standard was inapplicable to the facts. Respondent contended that the applicable standard was 29 C.F.R. § 1926.750(b)(1)(iii). n1 We agree. We [*4] have held that this standard applies during the steel erection stage of construction before the installation of permanent flooring. n2 The Ashton Co., Docket No. 5111, BNA 3 OSHC 1968, CCH OSHD para. 20,351 (Jan. 29, 1976).
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n1 This standard provides:
(iii) Floor periphery - safety railing. A safety railing of 1/2 inch wire rope or equal shall be installed, approximately 42 inches high, around the periphery of all temporary-planked or temporary metal-decked floors of tier buildings and other multifloored structures during structural steel assembly.
n2 Having reached this conclusion, it is unnecessary to decide whether, had the permanent flooring been installed, § 1926.500(b)(1) or (d)(1) would have been more appropriately cited.
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The record establishes, however, that no perimeter protection was installed at the pertinent edge of the 13th floor. Thus, there was noncompliance with the standard which Respondent asserts is applicable to the facts. When faced with a similar situation in Pima Construction Co., [*5] n3 Docket No. 5221, BNA 4 OSHC 1620, CCH OSHD para. 20,998 (Aug. 17, 1976), we held that a violation of § 1926.750(b)(1)(iii) had been tried by the consent of the parties.
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n3 In Pima, the citation alleged a violation of § 1926.500(d)(1).
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This case is indistinguishable from Pima. In both cases there was a complete absence of perimeter protection along the edge of a section of floor consisting of reinforcing rods laid over steel framework, prior to the installation of permanent flooring. A violation of § 1926.750(b)(1)(iii) is accordingly established. As in Pima, we will amend the pleadings pursuant to Rule 15(b) of the Federal Rules of Civil Procedure to conform to the evidence, even though no party has moved for such an amendment. We will, however, stay the effective date of our order so that the parties will have an opportunity to show good cause why the pleadings should not be so amended.
Respondent also argued before the Judge that the record did not show that its employees were exposed to the unguarded [*6] floor perimeter. The record indicates that Respondent's employees did use the ladder leading to the unguarded section of the 13th floor. Accordingly, access to the hazard has been shown. Gilles & Cotting, Inc., Docket No. 504, BNA 3 OSHC 2002, CCH OSHD para. 20,448 (Feb. 20, 1976). See also Sletten Construction Co., Docket No. 11027, BNA 3 OSHC 1873, CCH OSHD para. 20,225 (1975).
Complainant proposed a penalty of $30 for this violation. The record shows that Respondent is a relatively small employer, with approximately 40 employees. It has no history of prior violations, and we have no reason to doubt its good faith. While a fall of 12 feet to the floor level below was possible, the record is not informative as to the actual degree of employee exposure. We conclude that the penalty proposed by Complainant is appropriate.
Item 4
This item concerns an employee of Respondent working on a platform in an elevator shaft at the seventh floor. The platform was two by eight feet in size, and was suspended from metal jacks attached to one wall a of the shaft. The employee was engaged in installing a beam at about chest level across the elevator shaft. At the time [*7] of the inspection, the beam was already in place. The vertical plane of the beam approximately bisected the platform, so that the employee was on a section of platform about two by four feet in size. On one side of the section was a wall of the shaft. On another side was the beam. The remaining two sides were open, such that an unbroken fall from either of them would have resulted in a drop of more than 100 feet.
The compliance officer observed a manila rope, twenty to thirty feet in length, on the platform. Although the employee informed the compliance officer that he was tied to the rope, the compliance officer did not ascertain whether this was true. Thus, the record does not reveal the manner, if any, in which the rope was tied to the employee or secured to any structural support. By holding the rope in his hand, the compliance officer determined that it was 3/8 inches in thickness, and observed that it was in a "weathered" condition. He also testified that Respondent's representative accompanying him on the inspection confirmed that the rope was 3/8 inch thick.
On these facts, Respondent was cited for violating 29 C.F.R. § 1926.500(d)(1), which requires perimeter guarding [*8] on open-sided floors. n4 At the close of his case, however, Complainant moved in the alternative to allege a violation of § 1926.104(c) and (d). Insofar as here relevant, these sections require that lifelines be a minimum of 3/4 inch manila or equivalent, with a minimum breaking strength of 5400 pounds, and that they be ried off to provide for a fall of no more than six feet. Judge Stuller allowed the amendment at the hearing, subject to reconsideration after the filing of briefs.
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n4 The platform on which the employee was working was clearly a scaffold rather than a permanent floor. See Ringland-Johnson, Inc., Docket No. 3028, BNA 4 OSHC 1343, CCH OSHD para. 20,801 (June 16, 1976). The citation accordingly should have specified a violation of the appropriate subsection of § 1926.451, pertaining to scaffolds, rather than § 1626.500.
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Respondent then presented its case. Its evidence showed that, because of the close quarters existing in the shaft and because the beam was being installed across the platform, [*9] installation of a guardrail would have been impossible. Additionally, a guardrail would have hindered access to and egress from the platform, requiring the employee to either crawl under or step over the railing. Both parties agreed that either of these alternatives would have been very hazardous. Respondent offered no evidence concerning the safety line in the presentation of its case. n5
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n5 Respondent's witness did state, in response to a question by the Judge, that it had provided the employee on the platform with a safety line.
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The Judge found that working conditions did not permit the installation of a standard guardrail, and therefore held that § 1926.500(d)(1) was not violated. He reaffirmed, however, his ruling granting the motion to amend to charge a violation of § 1926.104(c) and (d). In so doing, he specifically rejected Respondent's claim that it suffered surprise and prejudice due to the timing of the motion. The Judge noted that he had afforded Respondent an opportunity to object to the evidence [*10] regarding the safety line, but that Respondent had not availed itself of this opportunity, and had cross-examined the compliance officer concerning this point. Finding that the lifeline was not of the required strength because it was only 3/8 inch thick, and in a weathered condition, the Judge affirmed the citation as amended. n6
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n6 The Judge assessed a penalty of $400, although a penalty of $225 had been proposed by Complainant. One of the issues directed for review was whether the Judge erred in assessing a higher penalty than was proposed. Because of our disposition, we do not reach this issue.
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As noted in the discussion of item 1, supra, amendments to conform to the evidence pursuant to Rule 15(b) of the Federal Rules of Civil Procedure are permissible in our proceedings. Such amendments, however, must be of a nature, and made in a sufficiently timely manner, so as not to substantially prejudice the party against whom they are made. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331 [*11] (1971). In item 1, the amendment was proper because the pleadings placed the absence of perimeter protection at the particular section of the 13th floor in issue, and Respondent therefore had full opportunity to defend against the amended charge. As to item 4, however, the proffered amendment added entirely new issues to the case. Respondent was not on notice prior to the hearing that any violation pertaining to a safety line was in issue. It could not have known that evidence regarding the thickness of the line, the line's condition, or the manner in which the line may have been tied to the employee, might have been relevant. Accordingly, it did not have a fair opportunity to defend against the amended charges, and would be prejudiced if the amendment was allowed. n7 Rob't W. Setterlin & Sons Co., Docket No. 7377, BNA 4 OSHC 1214, CCH OSHD para. 20,682 (May 11, 1976).
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n7 For example, on the issue of the thickness of the line, part of the evidence introduced by Complainant was an admission by Respondent's representative during the inspection that the line was 3/8 inch thick. Since the amendment was made at the hearing, Respondent did not have an opportunity to present this representative as a witness to possibly rebut this testimony.
Even if the amendment was properly allowed, it is doubtful if the record shows that § 1926.104 was violated. On the critical issue of the streength of the line, the compliance officer, who was the only witness testifying on the point, admitted to having no expertise in determining the load which ropes would withstand. Accordingly, it cannot be concluded that the line had less than the required minimum breaking strength of 5400 pounds. Similarly, simply because the line was 20 to 30 feet in length does not prove that it was tied off so as to allow a fall of more than six feet. The evidence regarding the thickness of the line consists of a visual estimate made by the compliance officer coupled with an admission by Respondent's representative. We would be reluctant to credit such evidence when there has not been a fair opportunity for rebuttal evidence to be presented.
[*12]
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This conclusion is not altered by the fact that Respondent participated in the introduction of evidence concerning the existence of the safety line. Although introduction of evidence related to an unpleaded issue may show consent to trial of that issue, it does not show such consent unless the parties understood that the evidence was introduced for the purpose of trying the unpleaded issue, and not for another purpose. Marquette Cement Mfg. Co., Docket No. 4725, BNA 3 OSHC 1928, CCH OSHD para. 20,353 (Jan. 27, 1976), pet. for review filed, No. 76-4083 (2nd Cir., March 24, 1976). In this case, Respondent was cited for allegedly violating § 1926.500(d)(1) by failing to install guardrails on the platform. This standard speaks of guarding by "a standard railing, or the equivalent." Respondent defended against the allegation by showing that a railing could not have been used under the circumstances, a defense we have allowed under similar facts. Universal Sheet Metal Corp, 9 OSAHRC 742, BNA 2 OSHC 1061, CCH OSHD para. 18,163 (1974). Respondent further asserted that it participated in the introduction [*13] of evidence regarding the safety line under the theory that the line was the "equivalent" of a standard railing permitted by the standard. n8 We have since held that a safety line is not the equivalent of a standard railing within the meaning of § 1926.500(d)(1). Warnel Corp., Docket No. 4537, BNA 4 OSHC 1034, CCH OSHD para. 20,576 (March 31, 1976). But simply because we have rejected the argument does not mean that it was not made in good faith. We therefore have no reason to doubt Respondent's assertion that it participated in the introduction of evidence regarding the safety line as part of its defense to a charge of violation of § 1926.500(d)(1), and not to consent to trial of an alleged violation of of § 1926.104(c) and (d). n9
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n8 Simply because Respondent participated in the introduction of evidence relevant to whether the line provided fall protection equivalent to a standard railing does not mean that it thereby consented to try the distinct issues of the thickness of the line, its breaking strength, or whether it was tied off so as to limit the fall distance to six feet or less. Clearly, a line which has a breaking strength of less than 5400 pounds might provide fall protection equivalent to a standard railing, which must, pursuant to § 1926.500(f)(1)(iv), be able to withstand a force of 200 pounds.
n9 We also note that evidence concerning the safety line would be highly relevant to the gravity of the violation, and therefore to any penalty that should be assessed, had Respondent been found in violation of § 1926.500(d)(1) for failing to provide a standard railing.
[*14]
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Accordingly, concerning item 4, the Judge's order granting the motion to amend is reversed and the citation for violation of 29 C.F.R. § 1926.500(d)(1) is vacated. Concerning item 1, the citation is amended to allege a violation of 29 C.F.R. § 1926.750(b)(1)(iii) and as so amended, is affirmed unless within ten days of the receipt of this order either party shows good cause why the citation should not be so amended. A penalty of $30 is assessed. It is so ORDERED.
CONCURBY: MORAN (In Part); CLEARY (In Part)
DISSENTBY: MORAN (In Part); CLEARY (In Part)
DISSENT:
MORAN, Commissioner, Concurrirg in Part, Dissenting in Part:
I agree with the lead opinion's finding that the evidence does not establish that respondent failed to comply with the occupational safety standards cited in items 1 and 4 of the citation and, with the conclusion as to item 4, that respondent did not consent to a trial on the standards codified at 29 C.F.R. § 1926.104(c) and (d). I would, however, disallow the amendments to both charges and vacate both tiems 1 and 4 of the citation.
As I have previously indicated, a citation is different from the usual civil [*15] pleading. It is a unique creature of statute to which strict requirements for particularity have been attached pursuant to 29 U.S.C. § 658(a). The liberal amendment rules provided in Rule 15(b), Federal Rules of Civil Procedure, do not therefore apply to job safety citations. Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion); Secretary v. Pima Construction Company, OSAHRC Docket No. 5221, August 17, 1976 (concurring and dissenting opinion).
Since this decision does not address the trial judge's disposition of items 2 and 3, Judge Stuller's decision is attached hereto as Appendix A.
CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:
I agree with Chairman Barnako's lead opinion insofar as it affirms Item No. 1 of the citation by amending the pleadings to conform to the evidence, and concludes that respondent violated 29 CFR § 1926.750(b)(1)(iii). I dissent, however, from the vacation of Item No. 4 of the citation. In my opinion, Judge Stuller acted properly in granting the Secretary's motion to amend. His conclusion that the evidence establishes a violation of 29 CFR § 1926.104(c) should be affirmed.
First, it [*16] is my view that the Administrative Procedure Act, 5 U.S.C. § 551 et seq., [herein after "the APA"] made applicable to Commission proceedings by Section 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., provides the appropriate test against which motions to conform should be measured, and not the Federal Rules of Civil Procedure. n10 Marquette Cement Mfg. Co., 3 BNA OSHC 1928, 1975-76 CCH OSHD para. 20,353 (dissenting opinion), petition for review docketed, No. 76-4083, 2d Cir., March 24, 1976. Section 5(a)(3) of the APA, 5 U.S.C. § 554(b)(3), requires only that the parties be put on notice of the issues in controversy. Therefore, so long as respondent was apprised of the underlying facts on which the case rests, non-prejudicial shifts in legal theory are permissible. N.L.R.B. v. United Aircraft Corp., Hamilton Standard Div., 490 F.2d 1105, 1111-12 (2d Cir. 1973). If anything, the notice provisions of the APA are even less formal than those of Fed. R. Civ. P. 15(b). Kuhn v. C.A.B., 183 F.2d 839, 842 n.2 (D.C. Cir. 1950).
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n10 Commission Rule 2(b), 29 CFR § 2200.2(b), which reads:
In the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Procedure,
cannot be read to require a different result. The only reading of Rule 2(b) that is consistent with the governing statutes, is that 5 U.S.C. § 554(b)(3) is a "specific provision" applicable in this context.
[*17]
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As is discussed more fully below, it is clear that respondent had adequate notice that a violation of § 1926.104(c) was being tried and that respondent was not prejudiced by the granting of the motion to amend. The amendment, therefore, was consistent with the requirements of the APA and should not be reversed.
Second, assuming arguendo that Fed. R. Civ. P. 15(b) n11 is applicable to Commission proceedings, the requirements for a Rule 15(b) amendment are clearly met in this case. The lead opinion's refusal to amend the pleadings is bottomed on the dual grounds that: (1) respondent did not have a fair opportunity to defend against the amended allegation, and consequently would be prejudiced if the amendment were allowed, and (2) respondent did not consent to trial of the violation to which amendment was sought. An examination of the record suggests that both conclusions are wrong. Under either of the related tests of "prejudice" or "consent," the amendment must be granted. n12
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n11 Fed. R. Civ. P. 15(b), in pertinent part, provides:
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. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; . . .
n12 As is observed in 6 Wright & Miller, Federal Practice and Procedure § 1493, at 468 (1971):
It should be noted that the portion of Rule 15(b) dealing with amendments to conform to the evidence does not expressly refer to prejudice as a basis for denying an amendment to conform to issues that have been introduced without objection but only speaks of consent. Nonetheless, consideration of this factor is a valid exercise of the court's discretion and typically will be part of the court's analysis of whether there has been implied consent.
Indeed, as has been stated by the Tenth Circuit:
The test of consent should be whether the defendant 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.
Monod v. Futura, Inc., 415 F.2d 1170, 1174 (10th Cir. 1969). I agree. Paul Hutchinson & Sons, 4 BNA OSHC 1327, 1976-77 CCH OSHD para. 20,783 NO. 3301, 1976) (Cleary, concurring and dissenting); Robert W. Setterlin & Sons Co., 4 BNA OSHC 1214, 1974-75 CCH para. 19,817 (No. 7377, 1976) (dissenting opinion).
[*18]
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As stated in Rule 15(b), the consent to try an unpleaded issue can be either expressed or implied. Arguably, as passages quoted from the record will illustrate, respondent may have expressly consented to trial of the lifeline issue. There is no doubt, however, that respondent impliedly consented. On the nature of "implied consent" it has been stated:
Implied consent . . . seems to depend on whether the parties recognized that an issue not presented by the pleadings entered the case at trial. A party who knowingly acquiesces in the introduction of evidence relating to issues that are beyond the pleadings is in no position to contest a motion to conform. Thus, consent generally is found when evidence is introduced without objection, or when the party opposing the motion to amend himself produced evidence bearing on the issue (emphasis added).
6 Wright & Miller, supra note 12, § 1493, at 462-5 (1971). See also, 3 Moore's Federal Practice § 15.13[a], at 994 (2d ed.).
As illustrated by the following quotations from the record, not only was testimony concerning the use and size [*19] of the lifeline introduced without objection, respondent expressly declined an invitation to object:
SECRETARY: Q. Did you observe any safety line?
* * *
COMPLIANCE OFFICER: A. When I arrived at the seventh floor and took photos of the man in the elevator shaftway, I did not detect a safety valve -- or safety line attached to him. Upon discussing this with him, then man stated that he was tied off with a rope. He showed me the rope, and I seen the rope hanging. I couldn't ascertain that the rope was attached to him. However, the rope was three-eighths of an inch, manila fiber. It was weathered -- in a weathered condition.
The Federal standards state that a safety line attached to a safety belt --
JUDGE: Would you like to object?
COUNSEL FOR RESPONDENT: Your Honor, that's my whole case; that we're cited under the wrong section. He's making my case, so I'm not going to object (emphasis added). n13
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n13 Transcript at 48.
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Furthermore, on cross-examination respondent's counsel vigorously pursued the [*20] issue of the use and adequacy of the lifeline. For example:
COUNSEL FOR RESPONDENT: Q. . . . Now, then, there would not have been a violation, assuming that what you consider a proper life line was attached; is that correct?
COMPLIANCE OFFICER: A. Right.
COUNSEL: Q. That's correct. As a matter of fact, that was one of the remedies that you offered to solve this hazard; is that correct?
COMPLIANCE OFFICER: A. A proper life line as directed by the Federal standards, yes.
* * *
JUDGE: In other words, if the man there had a life line, then there would be no violation?
COUNSEL FOR RESPONDENT: Right.
JUDGE: And with this, of course, he can proceed to show whether or not he had a suitable life line. Is this the relevance?
COUNSEL: Well, yes, Your honor. I am saying that, number one --
JUDGE: I would like to know where you people are going from time to time.
COUNSEL: All right. Here's the direction I'm going. We've been cited under a specific statute --
COURT: Yes.
COUNSEL: -- for failure to provide guardrails. The testimony on cross and direct, as I understand it to have been, is that, number one, the witness is not sure, but he said that it is possible that [*21] something was attached to him, a rope or -- but may not have been suitable. Now that brings into the question, if we did have a rope attached, then we've been cited under the wrong section as not having a suitable rope, but we did have a rope (emphasis added). n14
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n14 Transcript at 63, 68-69. Subsequent to the compliance officer's testimony in this case, the Commission held that a lifeline is not an "equivalent" form ofrope under § 1926.500(d)(1). Warnel Corp., 4 BNA OSHC 1034, 1975-76 CCH OSHD para. 20,576 (No. 4537, 1976). The Secretary has not challenged the Judge's conclusion that compliance with § 1926.500(d)(1) was not possible. Nevertheless, the adequacy of the alternative form of protection actually used, i.e., a lifeline, remains the focal issue.
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Obviously, respondent's counsel was well aware of the fact that an issue not presented by the pleadings had entered the case. When the issue was first introduced, not only was no objection raised, respondent's counsel, expressly condoned the interjection [*22] of this issue and actively participated in the development of evidence relevant thereto. This constitutes consent under Rule 15(b). Having Consented to the introduction of evidence bearing on this issue, respondent must accept the consequence of its decision. It cannot later withdraw such consent when a motion to conform is based thereon. See 6 Wright & Miller, supra, § 1493, at 462-3.
Furthermore, in my view, that respondent's purpose in participating in the introduction of evidence concerning the use of a lifeline was to establish a defense to the violation originally alleged, i.e., § 1926.600(d)(1), does not preclude a finding of consent to try an alleged violation of the lifeline standard, as the lead opinion suggests. Where the record establishes a failure to comply with the very standard that the respondent asserts is applicable to the facts, an amendment is required. Indeed, this was the precise basis for the sua sponte amendment of Item No. 1 of the citation in this case.
I am also puzzled by the majority's conclusion that respondent did not have a fair opportunity to defend against the citation and complaint as amended. The record of the proceedings [*23] in this case clearly indicates that the Judge afforded respondent ample opportunity to respond and rebut the evidence establishing a violation of the lifeline standard at § 1926.104(c).
The motion to amend the pleadings was made at the hearing immediately upon the conclusion of the Secretary's case-in-chief. The motion was based on the grounds that the evidence establishes that a rope of insufficient strength and size was used as a lifeline. Respondent requested and was granted a recess to prepare a rebuttal. When the hearing reconvened, respondent presented its arguments opposing the motion. A number of arguments were made; only one, however, raised the issue of possible prejudice. Respondent made the general assertion that to grant the amendment would be prejudicial to its presentation and preparation n15 and, more specifically argued that tests could have been run to determine the stress capacity of the rope involved. n16
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n15 I note that vague or generalized fears of prejudice are not a sufficient demonstration. Cf. Roberts v. Williams, 456 F.2d 819, 825 (5th Cir.), cert. denied, 404 U.S. 866 (1971); Hodgson v. Colonnades, Inc., 472 F.2d 42, 47-8 (5th Cir. 1973) (second part of Rule 15(b)). "This prejudice must 'put the objecting party to some serious disadvantage,' and 'it is not enough that [the objecting party] advances an imagined grievance or seeks to protect some tactical advantage.'" Id. at 48, quoting 6 Wright & Miller, supra, § 1495 at 478 (1971).
n16 The relevant portion of § 1926.104(c) reads:
. . . For all other lifeline applications, a minimum of 3/4 inch manila or equivalent, with a minimum breaking strength of 5,400 pounds, shall be used (emphasis added).
The Secretary's uncontradicted evidence was that the rope involved was 3/8 inch manila in a "weathered" condition. The rope was, therefore, only one-half of the minimum diameter required under the standard if manila rope is used as a lifeline. Its use was a clear violation.
The lead opinion, in footnote 7, suggests that this rope would somehow satisfy the standard. It seems to suggest that a 3/8 inch manila rope might supply the required minimum breaking strength of 5,400 pounds. I take official notice of the fact that the average tensile strength of 3/8 inch manila rope is only 1,350 pounds, whereas the average tensile strength of 3/4 inch manila rope is the required 5,400 pounds. National Safety Council, Accident Prevention Manual for Industrial Operations, at 638 (6th ed. 1973). Therefore, 3/8 inch manila would not constitute an "equivalent" under § 1926.104(c).
[*24]
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The Judge weighed each party's arguments, and expressly ruled that he was granting the amendment. He also emphasized that respondent could reargue the point in its brief, at which time the motion would be reconsidered.
Hence, respondent was specifically apprised of the fact that an alleged violation of § 1926. 104(c) was in issue from the very outset of the presentation of its defense. Therefore, it did have a full opportunity to litigate any and all issues relevant to the alleged violation. Robert W. Setterlin & Sons Co., 4 BNA OSHC 1214, 1218, 1974-75 CCH OSHD para. 19,817 (No. 7377, 1976) (dissenting opinion).
If it was believed that additional preparation was needed in order to adequately defend against this alleged violation, a continuance could have been requested. 6 Wright & Miller, supra, § 1496 at 480-1 (1971). This was not done. Furthermore, respondent made no attempt whatsoever to refute or rebut the Secretary's evidence that the rope used as a lifeline did not meet the standard's specifications. Respondent called its field superintendent as a witness, but did not question [*25] him on the issue of the rope's diameter, even after it had been elicited from him on cross-examination that he had provided the lifeline to the employee involved. Nor has any suggestion been made in either the post-hearing brief or the brief to the Commission that the rope in fact met the standard's requirements.
Therefore, it can hardly be said that respondent was prejudiced by a lack of opportunity to defend against the amended citation and complaint. Respondent was given ample opportunity to respond. Instead of taking advantage of the opportunity, it chose to ignore the merits of the alleged lifeline violation that the Judge had ruled expressly was in issue. This deliberate refusal to participate in the trial of the § 1926.104(c) violation is now rewarded by the lead opinion's conclusion that the merits of the violation have not been tried.
This result in effect places the power to determine if a motion to conform is to be granted in the hands of the party against whom it is asserted. By choosing not to respond to an alleged violation that is in issue, a party can hope to benefit later from a ruling that the issue has not been tried. Such procedural gamesmanship is contrary [*26] to the usage of Rule 15(b). 6 Wright & Miller, supra, § 1493; 3 Moore's Federal Practice, § 15.13[a], at 994 (2d ed.).
In situations like the present, when the Administrative Law Judge has determined that an unpleaded issue has entered the case by the consent of the parties or that the party against whom the motion to conform is asserted will not be prejudiced by the grant thereof, and has accordingly amended the pleadings before the respondent's presentation of its case, the merits of the violations which the Judge has ruled are in issue must be addressed. The propriety of the action of the Judge in granting the amendment is properly challenged in review proceedings.
For these reasons, I believe that the Judge's decision affirming Item No. 4 of the citation, as amended, should not be disturbed.
Appendix A
DECISION AND ORDER
William E. Curphey, III, Office of the Solicitor, U.S. Department of Labor, for the Complainant
R. Larry Schneider, for the Respondent
On March 15, 1974, the Secretary of Labor issued a citation entitled Citation No. 2 charging that on March 7, 1974 the respondent failed to comply with certain regulations in violation of Section 654(a)(2) [*27] of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter referred to as "the Act"). A Notification of Proposed Penalty was issued to the respondent on March 15, 1974 proposing total penalties of $480. A timely Notice of Contest was filed by the respondent and this Commission thereby acquired jurisdiction over the subject matter under Section 659 of the Act. A hearing was head in Columbus, Ohio on May 8, 1974.
The alleged violations as shown in the complaint, the proposed penalties and the standards concerned are as follows:
Item No. 1
"Failure to provide a standard railing and toeboard at openings: at the northwest center section east of the north access ladder on the 13th floor." In violation of 29 C.F.R. 1926.500(b)(1). Proposed penalty: $30."
"§ 1926.500 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 toeboards or cover, as specified [*28] in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways."
Item No. 2
"Failure to guard open wall openings with a standard railing and toeboard or equivalent at No. 7 & No. 8 elevator shafts on the 7th floor." In violation of 29 C.F.R. 1926.500(c)(1). Proposed penalty: $225.
"(c) Guarding of wall openings. (1) Wall openings, from which there is a drop of more than 4 feet and the bottom of the opening is less than 3 feet above the working surface, shall be guarded as follows:
(i) When the height and placement of the opening an relation to the working surface is such that either a standard rail or intermediate rail will effectively reduce the danger of falling, one or both shall be provided;
(ii) The bottom of a wall opening, which is less than 4 inches above the working surface, regardless of width, shall be protected by a standard toeboard or an enclosing screen either of solid construction or as specified in paragraph (f)(7)(ii) of this section."
Item No. 3
"Failure to enforce the wearing of eye protection when machines or operations present a potential eye injury: welders' helper observed not wearing [*29] eye protection at the center section of the 13th floor." In violation of 29 C.F.R. 1926.102(a)(1). No penalty proposed.
"§ 1926.102 Eye and Face Protection.
(a) General. (1) Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents."
Item No. 4
"Failure to guard open-sided platforms with a standard railing or equivalent to protect employees from falling: employee was observed working on a platform inside the No. 7 and No. 8 elevator shafts at the 7th floor level." In violation of 29 C.F.R. 1926.500(d)(1). Proposed penalty: $225.
"(d) Guarding of open-sided floors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials [*30] could create a hazard."
During the trial the complainant amended the pleadings to conform to the evidence in regard to Item No. 4 by pleading in the alternative that the respondent was in violation of 29 C.F.R. 1926.104(c) and (d) which read as follows:
"§ 1926.104(c) Lifelines used on rockscaling operations, or in areas where the lifeline may be subjected to cutting or abrasion, shall be a minimum of 7/8-inch wire core manila rope. For all other lifeline applications, a minimum of 4/3-inch manila or strength of 5,400 lbs. shall be used."
"(d) Safety belt lanyard shall be a minimum of 1/2-inch nylon, or equivalent, with maximum length to provide for a fall of no greater than 6 feet. The rope shall have a nominal breaking strength of 5,400 pounds."
The parties entered into several stipulations that concluded that the respondent was an employer that was engaged in a business affecting interestate commerce; that the respondent had 40 employees including clerical employees and did an annual business in excess of a quarter of million dollars. The parties further stipulated that respondent had been previously inspected by the complainant on the 18th day of January 1974. Finally [*31] the parties stipulated that the proposed abatement periods were reasonable and therefore not in issue.
The evidence establishes that on the date of the inspection concerned herein, the respondent, who is in the construction business, was engaged in the erection of structural steel at the Ohio Bell Telephone Company project at 150 East Gay Street in Columbus, Ohio. On that day, the respondent had less than 10 employees at the worksite.
Earl A. Maxie, the compliance officer here, on March 7, 1974 conducted the inspection of the worksite. On arriving at the worksite, he presented his credentials to the general contractor. The compliance officer contacted Mr. Louis Burke, the job superintendent for the respondent. He also contacted Mr. Robert Buck, who is the union steward on the job and in addition, was the respondent's acting superintendent for this worksite. Both accompanied the compliance officer during the inspection.
The respondent argues that the compliance officer did not give the respondent or the employees an opportunity to have their representative accompany him during the inspection. The respondent contends that the employer and the employees have conflicting interests, [*32] and for this reason one individual cannot represent both groups during the walk-around inspection. The respondent acknowledges that this is a novel issue.
The respondent's argument is bankrupt. The respondent has standing only to raise issues concerning the employer. The evidence here clearly establishes that the employer was given an opportunity to have its representative accompany the compliance officer during the inspection and in fact, had two such representatives accompanying Mr. Maxie. The fact that one of the two representatives was also a representative of the affected employees does not vitiate the inspection.
In regard to Item 1, the credible evidence presented established the 13th floor of the worksite was an open-sided floor that was approximately 12 feet above the floor below and was reached by means of a ladder. The photographic evidence indicates that floor concened was temporary flooring mainly of planking. The standard alleged by the complainant to have been violated concerns floor holes or floor openings. The evidence fails to indicate a floor hole or opening that required a toeboard or railing. Therefore the alleged violation must be vacated.
The evidence [*33] concerning the violation alleged in Item No. 2 indicates that the wall opening to the elevator shafts 7 and 8 on the 7th floor of the building in question had been removed. This opening was approximately 15 feet wide and 7 feet high. The opening started at the floor level of the working surface concerned. This opening, of course, led to the elevator shaft. There was approximately 136 foot drop from the floor level to the bottom of the shaft. On the floor or working surface directly adjoining the wall opening was a great deal of debris on which an employee could trip or fall into the shaftway. The evidence indicates that the wall opening concerned had been kept closed until the time one of the respondent's employees was required to enter the elevator shaft to do some work there, and at that time the wall covering had been removed. Although there was some testimony that the job being done in the shaftway was normally a two-man job, one man working in the elevator shaft and another one outside the shaft handing him materials and tools, the evidence in this case failed to indicate that respondent had a second employee working on the floor concerned. It therefore appears that the [*34] only employee of the respondent concerned in this alleged violation was the man working in the shaftway. The possible hazard concerning that employee is merged into the hazard dealt with in Item No. 4. As it appears, that it was necessary to expose this wall opening so that an employee could enter the shaftway work area and as there is no evidence of exposure of another of the respondent's employees to the hazard, it must be concluded that the complainant has failed to prove a violation and therefore, Item 2 must be vacated.
Item 3 concerns the failure of one of the respondent's employees to where eye protection equipment. The credible evidence establishes that there was a welder working on the 13th floor and near him, there was a second man that the complainant described as a welder's helper, and that the respondent described as a burner. The compliance officer testified that the second man was working from 6 to 10 feet from the welder. When pressed with further questions, the compliance officer stated that he may have been working as close as 3 feet. Little credibility is given to his testimony concerning the second man working closer than 6 feet to the welder. From the [*35] credible evidence presented, it is concluded that there was no hazard to the second man, as a result of not wearing eye protection equipment at the distance of 6 or more feet from the welder. Therefore, the complainant has failed the burden of proof and the item must be vacated.
There is little dispute as to the evidence concerning Item No. 4. It appears that the respondent had an employee working in the previously mentioned elevator shaft at the 7th floor level. From the point where the employee was working in the shaft, there was a drop in excess of 100 feet to the ground below. A fall from this height would undoubtedly result in the death of the employee. The employee was working on a platform that was approximately 24 inches wide and 8 feet long attached at one end to metal jacks on the wall of the shaft, and at the other end, by the edge of the floor at the opening of the shaftway. It is the complainant's position that he did not have adequate protection. The compliance officer testified that he had seen a rope near the employee and that the employee had informed him that the rope was attached to the employee and the other end tied to a secured place. The compliance officer [*36] testified that the rope was made of manila fiber and was 3/8 of an inch thick. The evidence presented indicated that it would be virtually impossible to install a standard railing on the 24 inch platform on which the employee had been standing.
When evidence was first presented concerning the rope and the federal standard concerning safety lines, the respondent not only indicated that he would not object to such evidence, but stated:
"* * * That's my whole case * * *".
The complainant later amended his pleadings to conform to the evidence in regard to Item No. 4 by pleading in the alternative that the respondent was in violation of 29 C.F.R. 1926.104(c) and (d). The section concerned lifelines and safety belt lanyards.
Based on the evidence presented, it appears that the respondent was not guilty of violating the standard concerning the failure to install a railing on the platform.
The respondent contends that the complainant's motion to amend the pleadings and the citation must be overruled. He argues that before the provisions of Rule 15(b) of the Federal Rules of Civil Procedure can be held controlling, it must be established that no other provision of the Review Commission [*37] rules apply. He claims that Rule 33(a)(3) contemplates amendments of the citation by means of the complaint and therefore pursuant to Rule 2(b) of the Review Commission Rules, Rule 15(b) of the Federal Rules of Civil Procedure does not apply to these proceedings.
Decisions of the Review Commission have repeatedly indicated that Rule 15(b) of the Federal Rules of the Civil Procedure does apply to these cases.
The respondent next contends that it did not have adequate opportunity to prepare a defense against the amended charge, and therefore would be prejudiced in defending upon the merits. It is noted that early in the trial when evidence was first presented concerning the rope and the safety line standards, respondent was given an opportunity to object to the evidence. The respondent at that time indicated that they were specifically defending on the basis that the employee was adequately safeguarded by means of the safety line. That statement is inconsistent with their present claim of surprise and prejudice. Therefore, the respondent's objection is overruled. The credible evidence establishes that the safety line concerned was made of manila fiber 3/8 of an inch thickness [*38] and that the line was in a weathered condition. The credible testimony established that the rope did not have the strength required by the standards. Therefore, it appears that the respondent's employee was not adequately safeguarded from the hazard of falling.
After considering the previously mentioned evidence concerning the respondent's pevious history of violations, good faith, the size of the respondent's business, and the gravity of the hazard, it is concluded that the $225.00 penalty proposed for item 4 must be modifed to $400.00.
ORDER
It is therefore ORDERED that:
1. Items 1, 2 and 3 of the citation and the related proposed penalty are hereby VACATED;
2. Item 4 of the citation is AFFIRMED; and
3. The penalty for item 4 of the citation is ASSESSED in the amount of $400.00.
Erwin L. Stuller, Judge
Dated: February 5, 1975