FOSTER AND KLEISER

OSHRC Docket No. 77-632

Occupational Safety and Health Review Commission

June 24, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Kloepfer, Associate Regional Solicitor, USDOL

Preston Padden, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Paul L. Brady is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678.   Judge Brady vacated a citation alleging that Respondent, Foster and Kleiser, failed to comply with the standard at 29 C.F.R. §   1926.104(a) n2 in that it was not enforcing the use of lifelines, safety belts, and lanyards at its workplace in Akron, Ohio.   The Judge reasoned that section 1926.104(a) only specifies certain conditions that must be met when lifelines, safety belts, and lanyards are used, but does not require an employer to enforece the use of such equipment.

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n1 29 U.S.C. §   661(i).

n2 This standard provides:

§   1926.104 Safety belts, lifelines, and lanyards.

(a) Lifelines, safety belts, and lanyards shall be used only for employee safeguarding. Any lifeline, safety belt, or lanyard actually subjected to in-service loading, as distinguished from static load testing, shall be immediately removed from service and shall not be used again for employee safeguarding.

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The Secretary petitioned for review of the judge's decision.   In his petition, the Secretary did not pursue his original allegation that Respondent failed to comply with section 1926.104(a). n3 Instead, the Secretary moved to amend the citation to allege that Respondent's alleged failure to enforce the use of lifelines, safety belts, and lanyards constituted a failure to comply with the standard at 29 C.F.R. §   1926.28(a). n4 This motion was made under Rule 15(b) of the Federal Rule of Civil Procedure, which provides that, "[w]hen issues not raised by the pleadings are tried by express or implied censent of the parties, they shall be treated in all respects as if they had been raised in the pleading. . . ." The Secretary's petition for review was granted by Commissioner Branako.

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n3 We note that the judge's conclusion that §   1926.104(a) does not require an employer to enforce the use of personal protective equipment is consistent with Commission precedent.   Gulf Oil Co., 77 OSAHRC 216/B10, 6 BNA OSHC 1240, 1978 CCH OSHD P22,737 (No. 14281, 1977).

n4 This standard provides:

§   1926.28 Personal Protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

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Because the Secretary's motion to amend was made after the judge's decision was filed with the Commission, Judge Brady had no opportunity to rule upon the motion.   However, the principles to be applied and the factors to be considered in determining whether a motion under Rule 15(b) should be granted have been clearly set forth in our prior decisions.   E.g., Mississippi Power & Light Co., 79 OSAHRC    , 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979); Rodney E. Fossett, 79 OSAHRC    , 7 BNA OSHC 1915, 1979 CCH OSHD P23,989 (No. 76-3944, 1979); Bill C. Carroll Co., 79 OSAHRC    , 7 BNA OSHC 1806, 1979 CCH OSHD P23,940 (No. 76-2748, 1979).   Under these circumstances, we conclude that the most expeditious course of action is to remand the case to enable Judge Brady to resolve the issues presented by the Secretary's motion.

Accordingly, the case is remanded to Judge Brady, who should rule on the Secretary's motion to amend. He should grant the motion if he concludes that the amended charge was tried by the implied consent of the parties.   See Rodney E. Fossett, supra; [*4]   Bill C. Carroll Co., supra. However, if he concludes that Respondent would be rejudiced by the amendment because, for example, all of the issues relevant to the amended charge were not tried, then he should conclude that the amended charge was not tried by the implied consent of the parties and deny the amendment.   When an amendment under Fed. R. Civ. P. 15(b) is initially sought on review, the policy of achieving finality in adjudications militates against reopening a record to cure prejudice.   Accordingly, if prejudice would result from an amendment first sought on review, the amendment should be denied.   See Mississippi Power & Light Co., supra. Inasmuch as the Secretary's motion to amend in this case was first made before the Commission, the judge is to apply these principles to his consideration of this case.   If the judge grants the amendment, he should then determine whether Respondent violated the Act by failing to comply with 29 C.F.R. §   1926.28(a).   This determination should be made in light of Commission precedent interpreting that standard, n5 the record, and the arguments of the parties on review. n6

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n5 E.g., Forest Park Roofing Co., 80 OSAHRC    , 8 BNA OSHC 1181, 1980 CCH OSHD P24,344 (No. 76-1844, March 31, 1980); Morton Buildings, Inc., 79 OSAHRC    , 7 BNA OSHC 1702, 1979 CCH OSHD P23,861 (No. 15565, 1979); S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), appeal filed, No. 79-2358 (5th Cir. June 7, 1979).

n6 Commissioner Barnako's views on when a motion under Rule 15(b) should be granted differ from those of the Commission majority.   Thus, he would find implied consent to an amendment only if the parties squarely recongized the unpleaded charge was an issue in the trial.   McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978) (dissenting), Comm. dec. rev'd, 608 F.2d 580 (5th Cir. 1979) (Barnako rationale applied by circuit court).   See also, John and Roy Carlstrom, d/b/a Carlstrom Bros. Constr., 78 OSAHRC 96/A2, 6 BNA OSHC 2101, 1978 CCH OSHD P23,155 (No. 13502, 1978) (dissenting); Mississippi Power & Light Co., supra, 7 BNA OSHC at 2041 n.8, 1980 CCH OSHD at 29,342 n.8.

Commissioner Barnako's interpretation of 29 C.F.R. §   1926.28(a) also differs in some respects from that of the Commission majority.   S & H Riggers and Erectors, Inc., supra note 5 (concurring opinion).   Commissioner Barnako continues to adhere to the position set forth by him in S & H Riggers and Erectors.

Although Commissioner Barnako adheres to his positions concerning Rule 15(b) amendments and the proper interpretation of §   1926.28(a) as stated in his prior opinions, he recognizes that the orderly administration of the Act requires that the Commission's administrative law judges follow precedents established by the Commission.   Gulf & Western Food Products Co., 77 OSAHRC 72/A2, 4 BNA OSHC 1436 at 1439, 1976-77 CCH OSHD P20,886 at 25,067 (Nos. 6804 & 6805, 1976).   For this reason, he joins with his colleagues in their remand order.

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