UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4172
DYE CONSTRUCTION COMPANY,
Respondent.

June 14, 1978

DECISION

BEFORE CLEARY, Chairman; BARNAKO, Commissioner.

Barnako, Commissioner:

An August 25, 1976 decision of Administrative Law Judge John J. Morris is before this Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970.[1] The Judge found that Respondent violated three safety standards and that the violation was of a serious nature. The issue is whether the trial Judge erred in amending the pleadings in accordance with Federal Rule of Civil Procedure 15(b) to find that the violation was serious.[2] For the reasons which follow, we affirm the Judge’s decision.

Respondent, a trenching contractor, was originally cited for a willful violation of the standards published at 29 C.F.R. 1926.651(c) (excavations creating a hazard from moving ground shall be guarded by shoring, sloping or some equivalent protection), 29 C.F.R. 1926.651(i) (materials shall be effectively stored and retained to prevent their falling into an excavation), and 29 C.F.R. 1926.652(h) (adequate means of exit from trenches four feet deep or more shall be provided). A penalty of $9,500 was proposed. It was stipulated that three of Respondent’s employees were working inside a trench box at the time of the inspection. The box was eight feet high and was located inside an excavation fifteen feet deep. It was located underneath the edge of a spoil pile eight feet in height. The spoil pile posed a hazard to the workers in the box due to its potential for collapse. A ladder which was readily available could have provided a means of exit, but it was not present in the trench box at the time of the inspection. The ladder was placed in the trench box immediately after the OSHA compliance officer notified the supervisor on the site. Additionally, the walls of the excavation above the trench box were sloped at an inadequate angle.

During the hearing, the compliance officer who inspected Respondent’s worksite was questioned concerning the types of injuries the violation would cause. The following exchange occurred:

Mr. Whiting (Secretary’s counsel): And if an accident did occur, what kinds of injuries would arise?

Mr. Armour (Respondent’s counsel): I object. He is asking for the wildest kind of speculation and I object to it.

Mr. Whiting: The Commission has time and time again indicated that gravity, i.e., the kinds of injuries that can occur as a result of an accident is an important consideration in assessing the penalty and as such, they have constantly asked that the Compliance Officer give his assessment of the situation and I would submit that under the circumstances that is a proper question.

Mr. Armour: I would speculate that if the Commission has said that, that they have ignored most of the established rules of evidence in the federal courts. I believe any witness can speculate as to what might happen in the future, but the only person who can give you a proper opinion is a duly qualified expert and certainly this witness isn’t one.

Judge Morris: I think the witness may testify as it goes to gravity.

Thereafter, the witness expressed his opinion that if an accident occurred, either extremely critical or fatal injuries would result. Upon cross-examination by Respondent’s counsel on the point, he reiterated his opinion that death or serious injury could result.

The Administrative Law Judge found the evidence insufficient to establish a willful violation and therefore vacated the citation and proposed $9,500 penalty. We affirmed the ruling that willfulness had not been established. However, we remanded the case for a determination as to whether the alleged violation had been established and, if so, whether it should be classified as serious or nonserious. Dye Construction Co., 4 BNA OSHC 1444, 1976-77 CCH OSHD para. 20,888 (No. 4172, 1976). Upon remand, the Judge ruled that the evidence established that a violation of the three cited standards had been proven and that the three violations in combination were serious.[3] He therefore amended the pleadings to conform to the proof in accordance with F.R.C.P. 15(b),[4] and assessed a penalty of $950.[5]

In reaching his conclusion that a serious violation was tried and proven, the Judge relied on Complainant’s introduction of evidence relating to likely injuries in the event of an accident and Respondent’s cross-examination of the witness offering such evidence. Respondent argues, however, that it did not consent to trial of the seriousness issue, pointing out that it objected to the evidence when it was first offered. It contends that its objection precludes a finding that it consented to trial of the issue.[6]

As we noted in our remand decision, when a willful violation is alleged and the violation is proven but the element of willfulness is not, a determination as to whether the violation is serious or nonserious must be made. See Graven Brothers and Co., 76 OSAHRC 40/A5, 4 BNA OSHC 1045, 1975-76 CCH OSHD para. 20,544 (No. 2538, 1976); Toler Excavating Co., 75 OSAHRC 76/C8, 3 BNA OSHC 1420, 1975-76 CCH OSHD para. 19,875 (No. 2637, 1975). Since both the citation and the complaint alleged willfulness only, a determination with respect to seriousness necessitates amendment of the pleadings. Where, as here, there is no timely motion to amend pursuant to F.R.C.P. 15(a), amendment of the pleadings may nonetheless be appropriate in accordance with F.R.C.P. 15(b). Rule 15(b) is divided into two parts. The first part mandates that issues tried by the express or implied consent of the parties shall be treated as if raised by the pleadings. The second part of the rule governs the situation where objection is raised at trial on the ground that the evidence is not within the pleadings. This part of the rule urges the trier of fact to permit the amendment if it will be helpful in deciding the case on the merits and where the objecting party fails to demonstrate countervailing prejudice. See Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902 (2d Cir. 1977).

Judge Morris did not state on which part of Rule 15(b) he was relying. Rather, he noted the evidence of record relating to the likelihood of serious injury and premised the result of his remand decision on the rule announced by the Review Commission cases in Graven Brothers, supra, and Toler Excavating, supra.[7] As the Judge noted, both of those cases held that when an employer is charged with a willful violation and the evidence establishes the existence of violation but fails to establish willfulness, a nonserious violation may ordinarily be affirmed but a serious violation may not be affirmed unless the parties have consented to trial of the seriousness issue.

We agree with the Judge’s result and would hold that amendment is proper under the first part of Rule 15(b) in that Respondent impliedly consented to evidence to support a serious violation. Although Respondent objected to the taking of evidence regarding the seriousness of injury, its objection was based solely on the witness’ lack of qualification and on the nature of the question in calling for speculation. The objection therefore was not related to the question of consent as that word is used in Rule 15(b) Respondent’s objection was not based on the evidence being outside the pleadings.[8] Indeed it was the type of objection that could be made to questions solely within the confines of the pleadings and unrelated to any possible amendment.

In answering the objection of Respondent’s counsel and explaining why a question concerning the types of injuries that could be sustained from the cited conditions was appropriate, Complainant’s counsel explained that compliance officers often give testimony regarding injuries for purposes of penalty assessment.[9] He also could have added, but did not, that the same question is asked and testimony given for purposes of establishing a serious violation. His failure to do so, however, is not relevant since the very nature of the question and the explanation given by Complainant’s counsel put Respondent on notice that the Secretary meant to litigate the nature of potential injuries.[10] After the Judge overruled the objection and on cross-examination, Respondent introduced evidence on the issue. We conclude therefore that Respondent was on notice that the nature of the risks posed by the alleged violation was being litigated, and impliedly consented to try the issue.

As we have previously noted, the second part of Rule 15(b) is not applicable because the objection was not the type specified by the rule. In any event, if we were to apply this part of the rule, we would still conclude that the amendment was proper. The second part of Rule 15(b) directs the court to permit an amendment of pleadings where the amendment will promote resolution of the case on the merits and the party raising the objection is unable to demonstrate that it will be prejudiced by the amendment. Respondent has not demonstrated the requisite prejudice in this case. It neither claimed surprise nor asked for a continuance. Additionally it has not asked for leave to present additional evidence nor has it informed this Commission of any significant evidence it would offer in rebuttal to the seriousness charge.

Respondent’s employees were working inside an eight-foot trench box located in a fifteen-foot trench and underneath the edge of a spoil pile eight feet in height. Because of the severity of likely injuries in the event of collapse, we have generally viewed trench violations of this type as serious. See e.g., Accu-Namics, Inc., 74 OSAHRC 35/A2, 1 BNA OSHC 1751, 1973-74 CCH OSHD para. 17,936 (No. 477, 1974), aff’d 515 F.2d 828 (5th Cir. 1975), cert. denied, 96 S. Ct. 1492 (1976); Colorado Pipe Lines, Inc., dba CPL Constructors, 75 OSAHRC 23/A2, 3 BNA OSHC 1865, 1975-76 CCH OSHD 20,251 (No. 2805, 1975). We therefore fail to see how Respondent was prejudiced by the amendment.

We have given consideration to the factors enumerated in Sections 17(b) and (j) of the Act, and determined that the assessment of a $950 penalty was appropriate in the circumstances. Accordingly, the Judge’s decision is hereby affirmed.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

Date: JUN 14, 1978

Commissioner COTTINE took no part in the consideration or decision of this case for the reasons set forth in his separate opinion.

SEPARATE OPINION

As a new member of the Commission, I must resolve the issue of my participation in pending cases. It is also necessary for me to set out the principles guiding my decision on this important issue.

In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received my commission on May 1, 1978. A decision was already in preparation when I assumed office. I have concluded that the wisest exercise of discretion is to decline to participate in this case even though a new Commission member has authority to participate in pending cases. It should be emphasized that by declining to participate I express no opinion on the procedural or substantive issues in this case or on the appropriateness of the accompanying order.

Discretion of Commission Members

As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action. In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating. The Court of Appeals rejected petitioner’s contention that the FTC can act in its adjudicatory capacity only when all members participate, except when there is a vacancy. The court ruled that official action can be taken by the majority of the requisite quorum. Also Frisher & Co. v. Bakelite Corp., 39 F.2d 247 (C.C.P.A. 1930) cited approvingly in FTC v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the Occupational Safety and Health Act, 29 U.S.C. § 661(e), provides:

For the purposes of carrying out its functions under this chapter, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members.

Thus, the unanimous decision already reached in this case satisfies the quorum and official action requirements of the Act and my participation is not necessary for the Commission to carry out its adjudicatory functions in this particular case.

However, it is also settled that a new member of an administrative agency may participate in pending cases. For example, a new member of the Civil Aeronautics Board who had not participated in previous proceedings was entitled to vote and break an existing tie where he had familiarized himself with the record. Western Airlines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960)[11]. In United the court indicated that, where a member voting with the majority without hearing oral argument ‘had the record before him and the benefit of briefs’, there was no abuse of discretion in his participation, 281 F.2d at 56. There are numerous other cases supporting this holding. The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):

The decisions of numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an administrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him. [footnotes omitted]

348 F.2d at 802.[12] See Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authority to participate in all cases pending before the Commission on assuming office.

Though a new member may participate in all pending cases, particularly those involving an impasse, the decision remains a matter of discretion since adjudicatory decision may be upheld on a majority of a quorum. In FTC v. Flotill prod., 389 U.S. 179 (1967) rev’g 358 F.2d 224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies, declined to participate because he had not heard the oral argument. Thus, three of the possible four Commissioners actually participated in the decision. As a result, the FTC issued a cease-and-desist order based on the affirmative vote of only two members. Despite its obvious impact on the number of members constituting a majority, the Court did not review the exercise of discretion by the new member. Instead, the Court accepted the abstention at face value and upheld the action of the two members of the FTC. See also La Preyre v. FTC, 366 F.2d 117 (5th Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition, administrative decisions involving two or more abstentions have been upheld by reviewing courts without question or comment on the grounds for these abstentions. All that was necessary to sustain the agency decision was a majority of the required quorum. E.G., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied 403 U.S. 923 (1971).

Decision Not to Participate

I decline to participate in this case because a majority of the Commission has reached agreement on the merits and my vote would have no effect on the outcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a unanimous decision, my participation would delay the issuance of decisions and conflict with the goal of a prompt and efficient decision-making process. See generally Atlas Roofing Co. Inc. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. § 555(b). Since abatement is stayed until the Commission enters a final order, 29 U.S.C. § 659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that a violation of the Act exists. That result would be inconsistent with the statutory purpose to assure so far as possible safe and healthful working conditions for every working man and woman. 29 U.S.C. § 651(b).

I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock. Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OSHC 1053, 1977-78 CCH OSHD ¶22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission’s administrative law judges. Moreover, these decisions also promote needless litigation in the U.S. Courts of Appeals to decide issues which should initially be determined by the Commission, because its members have specialized training, education, and experience in occupational safety and health. 29 U.S.C. § 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co. Inc. v. OSHRC, supra at 963-964. Administrative resolution of pending issues also promotes a more uniform application and development of occupational safety and health law. After reading the record, I will participate in the consideration and decision of these cases.

Conclusion

My decision not to participate in pending cases which have reached a unanimous decision by my colleagues, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases. It also assures the parties and the public of the full benefit of Commission review. Both of these results are essential in deciding cases affecting the lives, health and safety of American workers, the operation of American business, and the effective adjudication of cases by the administrative law judges.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4172
DYE CONSTRUCTION COMPANY,
Respondent.

FINAL ORDER DATE: August 24, 1976

DECISION AND ORDER (after remand)

John J. Morris, OSHRC Judge:

On July 12, 1976, the Commission remanded the above case to the undersigned to rule on whether a violation had in fact occurred. The parties filed briefs stating their respective positions.

The applicable rule of law is that when a respondent is charged with a willful violation and the evidence establishes that the violation is not willful, a nonserious violation may be affirmed but, ordinarily, a serious violation may not be affirmed. Secretary v. Gravens Brothers and Company, No. 2538, March, 1976; Secretary v. Toler Excavating Company, No. 2637, 19 OSHRC 492 (1975); Secretary v. Amulco Asphalt Company, No. 3258, 19 OSHRC 467 (1975). However, this case falls within the exception stated in Toler:

An exception to this rule exists when the issue of whether the violation is serious is tried by the express or implied consent of the parties. National Realty and Construction Co., Inc. v. OSAHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973); Fed. R. Civ. P. 15(b).

In this case complainant introduced evidence relating to the types of serious injuries and possible fatalities that could occur if the cave-in occurred; respondent cross-examined on the issue (Tr. 52–53, 70). A serious violation as defined by 29 U.S.C.A. 666(j) was clearly litigated. In accordance with Rule 15(b), F.R.C.P., the pleadings are amended to conform to the evidence.

Complainant in his brief argues that the respondent willfully violated the Act and that a serious violation existed.

Complainant’s initial argument has been heretofore adjudicated and it is again denied.

The total record persuasively convinces the undersigned that respondent violated the standards in issue.

Respondent’s contentions in his post remand brief that no violation occurred and that there was no trial of any other issue than ‘willfulness’ are denied.

The proposed civil penalty of $9500 is to be vacated. In assessing penalties the Congress in 29 U.S.C.A. 666(i) mandated that:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

The Commission has repeatedly ruled that of the four statutory factors bearing on the appropriateness of a penalty the gravity of the violation should be generally accorded the greatest weight. Secretary v. Baltz Brothers Packing Company, No. 91, 2 OSHRC 384, (1973).

In the instant case the gravity is apparent and respondent’s prior history is adverse (Tr. 114, 115, 131, 136–137, 142, 149–150). In respondent’s favor is the fact that he immediately abated the defective conditions (Tr. 53). On balance a civil penalty of $950 is appropriate.

FINDINGS OF FACT

1. Respondent is an employer engaged in a business affecting commerce within the meaning of 29 U.S.C.A. 651 et seq. (Facts relating thereto are as set forth in this Judge’s decision dated December 10, 1974, which fact are incorporated by reference herein.)

2. Three employees of respondent worked in a trench box 19 feet wide, 15 feet 11 inches long, and 7 feet high (Tr. 31–35, 44, 72, 90, 94; compl’s. ex. 1).

3. The trench box was located in an excavation 19 feet wide at one end, 40 feet long and 15 feet deep (Tr. 33, 44, 50, 51, 80, 86–87, 93–94).

4. The soil in the excavation consisted of silt and sand and it lacked cementation and adhesion; the presence of water increased the danger of moving ground (Tr. 46–47, 49, 95, 97).

5. The angle of repose of the trench was about 1/2 to 1; it should have been 2 to 1 and to the edge of the trench box (Tr. 47, 48, 80–81, 86, 88, 196).

6. Respondent’s superintendent was at the excavation (Tr. 53).

7. A 6 to 8 foot high spoil pile went to the edge of the excavation directly above the trench box (Tr. 34, 96).

8. The trench box did not have a ladder until after the inspection; prior thereto workers would grab the top of the trench box to jump out (Tr. 72, 194, 195).

CONCLUSIONS OF LAW

1. Respondent is subject to the Act (Facts 1).

2. Respondent violated 29 CFR 1926.651(c) and (i) (Facts 2–7).

3. Respondent violated 29 CFR 1926.652(h) (Facts 8).

4. Respondent’s superintendent at the jobsite should have known of the violation (Facts 6).

5. Citation 2 should be affirmed and the proposed civil penalty reduced to $900.

Based on the foregoing findings of fact and conclusions of law the undersigned enters the following:

ORDER

1. Citation 2 is affirmed as a serious violation.

2. The proposed civil penalty of $9500 is vacated and a civil penalty of $950 is assessed in lieu thereof.

John J. Morris

Judge, OSHRC

Dated: August 25, 1976

Denver, Colorado

[1] 29 U.S.C. 651 et seq., hereinafter ‘the Act.’

[2] Section 12(g) of the Act makes the Federal Rules of Civil Procedure applicable to Review Commission proceedings absent adoption of a different rule by the Commission.

[3] A serious violation, as defined in Section 17(k) of the Act, exists if the result of an accident resulting from the violation would likely be death or serious harm. See Southwestern Acoustics & Specialty, Inc., 77 OSAHRC 25/E7, 5 BNA OSHC 1091, 1977-78 CCH OSHD para. 21,582 (No. 12174, 1977); California Stevedore & Ballast Co., 73 OSAHRC 39/B5, 1 BNA OSHC 1305, 1973-74 CCH OSHD para. 16,520 (No. 14, 1973), aff’d 517 ,.2d 986 (9th Cir. 1975).

[4] F.R.C.P. 15(b) provides:

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. 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; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

[5] Both parties petitioned for review of the Judge’s remand decision. Former Commissioner Moran directed that the Judge’s decision be reviewed, but did not state specific issue(s) for adjudication. Both parties filed briefs on review.

The Secretary continues to argue that a willful violation should be found. Our prior decision held that willfulness was not shown, and is dispositive of that issue.

[6] There are two elements of a serious violation: 1) the probability of death or serious physical harm should an accident result from the violation and 2) the knowledge of the employer of the presence of the violative conditions. The second issue was tried and proven without objection in the trial of the willful violation and Respondent does not argue otherwise.

Only the first element is therefore relevant with respect to the amendment issue now before us.

[7] The Judge also cited Amulco Asphalt Co., 76 OSAHRC 76/A11, 3 BNA OSHC 1396, 1975-76 CCH OSHD para. 19,873 (No. 3258, 1975), but in that decision the Commission was equally divided on whether Respondent could properly be charged with a serious violation. Hence, the Judge’s decision finding a serious violation in that case was affirmed, but no precedential weight was attached to that aspect of our decision.

[8] The second part of Rule 15(b) specifically relates to objections based upon the evidence being outside the pleadings. Accordingly this part of the rule is inapplicable.

[9] Section 17(j) of the Act provides:

[10] The definition of seriousness under Section 17(k) of the Act has been previously set out, note 3 at 4. While gravity and seriousness are not synonymous, both the nature and likelihood of potential injury are factors which we have considered as elements of gravity for purposes of assessing an appropriate penalty. See e.g., Lipsky & Rosenthal, Inc., 74 OSAHRC 29/A8, 1 BNA OSHC 1736, 1973-74 CCH OSHD para. 17,814 (No. 690, 1974); California Stevedore & Ballast Co., 73 OSAHRC 39/B5, 1 BNA OSHC 1305, 1973-74 CCH OSHD para. 16,520 (No. 14, 1973), aff’d 517 F.2d 986 (9th Cir. 1975). See also National Realty and Construction Co., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD para. 15,188 (No. 85, 1972), rev’d on other grounds 489 F.2d 1257 (D.C. Cir. 1973). Among the elements of gravity are such items as ‘(1) the number of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against injury, if any; and (4) the degree of probability of occurrence of an injury.’ Id., 1 BNA OSHC at 1051.

[11] A Commissioner may vote simply to avoid an impasse. Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

[12] The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.) cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily required if a party requested it. 348 F.2d 798, n. 14.