“SECRETARY OF LABOR,Complainant,v.MCWILLIAMS FORGE COMPANY, INC.,Respondent.OSHRC Docket No. 80-5868_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners:BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor has moved, pursuant to Federal Rule of CivilProcedure 15(b),[[1]] to amend a citation issued to McWilliams ForgeCompany to allege violations of three occupational safety and healthstandards. The citation now alleges violations of the general dutyclause, section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1).[[2]] TheSecretary concedes that the citation should not have alleged violationsof the general duty clause because there are specifically applicablestandards.McWilliams Forge Company produces alloy forgoings at a plant inRockaway, New Jersey. On June 22, 1980, two of its employees werecleaning a pump in a pit with a solvent alleged to be forty percenttrichloroethylene. This work was performed on a Sunday afternoon whenthe plant was not operating and when the nearest person was a securityguard at the plant entrance. While cleaning the pump, the employeeslost consciousness and remained in the pit for about four hours. Theatmosphere in the pit had not been tested and the employees had not beenwearing respirators.Item one of the citation now alleges that a qualified person did nottest the atmosphere in the pit before and during the cleaning operationto determine whether there were \”concentrations of toxic contaminants ora deficiency or excess of oxygen that were hazards to life or health.\” The Secretary moves to amend this item to allege a \”failure to test theatmosphere in the pit\” in alleged violation of the occupational healthstandard at 29 C.F.R. ? 1910.134(b)(8). That standard states that\”[a]ppropriate surveillance of work area conditions and degree ofemployee exposure or stress shall be maintained.\”[[3]]Item three of the citation now alleges that \”an employee within voice orvisual range was not available in the immediate vicinity to render suchemergency assistance as may have been required.\” The abatementrequirement of the item included training the employee in emergencyrescue procedures, supplying him with the \”applicable\” personalprotective equipment, and requiring him toremain in the vicinity of the confined space until replaced. TheSecretary moves to amend this item to allege a violation of section1910.134(e)(3)(i), which provides:? 1910.134 _Respiratory Protection_.(e) _Use of respirators_.(3) Written procedures shall be prepared covering safe use ofrespirators in dangerous atmospheres that might be encountered in normaloperations or in emergencies. Personnel shall be familiar with theseprocedures and the available respirators.(i) In areas where the wearer, with failure of the respirator, could beovercome by a toxic or oxygen-deficient atmosphere, at least oneadditional man shall be present. Communications (visual, voice, orsignal line) shall be maintained between both or all individualspresent. Planning shall be such that one individual will be unaffectedby any likely incident and have the proper rescue equipment to be ableto assist the other(s) in case of emergency.Item four of the citation now alleges that the two employees in the pit\”did not use applicable respiratory protective equipment as required bythe nature of the atmosphere contaminants.\” The Secretary moves toamend this item to allege a violation of section 1910.134(a)(1), whichprovides:(a) Permissible practice. (1) In the control of those occupationaldiseases caused by breathing air contaminated with harmful dusts, fogs,fumes, mists, gases, smokes, sprays, or vapors, the primary objectiveshall be to prevent atmospheric contamination. This shall beaccomplished as far as feasible by accepted engineering control measures(for example, enclosure or confinement of the operation, general andlocal ventilation and substitution of less toxic materials). Wheneffective engineering controls are not feasible, or while they are beinginstituted, appropriate respirators shall be used pursuant to thefollowing requirements.The Secretary maintains that a post-hearing amendment is proper underRule 15(b) if the amendment adds only a new legal theory, not newquestions of fact, and if the party opposing the amendment eitherintroduced or failed to object to evidence relevant to the unpleadedissues and would not be prejudiced if the amendment were granted. TheSecretary also maintains that prejudice can be found only if the partyopposing amendment lacked a fair opportunity to defend or could haveoffered additional evidence \”if the case had been tried under theamended charge.\” The Secretary points to the surface resemblancesbetween the pleaded and unpleaded charges and states that \”[n]oadditional evidence could have been offered by [McWilliams Forge] torebut the Secretary’s evidentiary case if a 29 C.F.R. ? 1910.134 theoryhad been tried initially.\”Rule 15(b) provides:(b) _Amendments to Conform to the Evidence._[1] When issues not raised by the pleadings are tried by express orimplied consent of the parties, they shall be treated in all respects asif they had been raised in the pleadings. Such amendment of thepleadings as may be necessary to cause them to conform to the evidenceand to raise these issues may be made upon motion of any party at anytime, even after judgment; but failure so to amend does not affect theresult of the trial of these issues.[2] If evidence is objected to at the trial on the ground that it is notwithin the issues made by the pleadings, the court may allow thepleadings to be amended and shall do so freely when the presentation ofthe merits of the action will be subserved thereby and the objectingparty fails to satisfy the court that the admission of such evidencewould prejudice him in maintaining this action or defense upon themerits. The court may grant a continuance to enable the objecting partyto meet such evidence. (Bracketed numbers added.) The text of the rulemakes plain that an amendment under the first half of Rule 15(b) isproper only if two findings can be made–that the parties tried anunpleaded issue and that they consented to do so. If amendment isproper under the first half of Rule 15(b), a remand for further trial onthe merits of the action is pointless, because under the rule, ifamendment is allowed, the unpleaded issues have already been tried byconsent.Trial by consent may be found only when the parties knew, that is,squarely recognized,[[4]] that they were trying an unpleaded issue. This does not mean that the party against whom the amendment is offeredmust have expressly consented to trial of the unpleaded issue. Consentmay also be implied by the parties’ words and conduct, even if neitherparty openly voices his consent. For example, the second half of Rule15(b) suggests that the admission without objection of evidence that isnot relevant to a pleaded issue is some evidence of consent. Conversely, consent is not implied by a party’s failure to object toevidence that is relevant to both pleaded and unpleaded issues, at leastin the absence of some obvious attempt to raise the unpleaded issue. McLean-Behm Steel Erectors v. OSHRC, 608 F.2d 580, 582 (5th Cir. 1979),rev’g 79 OSAHRC 93\/A9, 6 BNA OSHC 2081, 1978 CCH OSHD ? 23,139 (No.15582, 1978). \”[A] court may not base its decision upon an issue thatwas tried inadvertently. Implied consent to the trial of an unpleadedissue is not established merely because evidence relevant to that issuewas introduced without objection. At least it must appear that theparties understood the evidence to be aimed at the unpleaded issue.\” MBI Motor Co. v. Lotus\/East, Inc., 506 F.2d 709, 711 (6th Cir. 1974),quoted with approval in Consolidated Data Terminals v. Applied DigitalData Systems, 708 F.2d 385, 397 (9th Cir. 1983); see also, e.g., McLeodv. Stevens, 617 F.2d 1038, 1040-41 (4th Cir. 1980); Cook v. City ofPrice, 566 F.2d 699, 702 (10th Cir. 1977); Standard Title Insurance Co.v. Roberts 349 F.2d 613, 620-22 (8th Cir. 1965); Niedland v. U.S., 338F.2d 254, 258 (3d Cir. 1964).[[5]] The record convinces us that neitherparty consented to try the unpleaded allegation that McWilliams Forgeviolated sections 1910.134(a)(1), (b)(8) and (e)(3)(i).All the evidence cited by the Secretary in support of the amendment wasoffered as relevant to the pleaded issues. That this evidence was notobjected to does not suggest or imply consent to try the unpleadedissues. MBI Motor Co., 506 F.2d at 711. Nor was there an obviousattempt to raise these issues. On the contrary, the circumstances ofthe hearing reveal that neither party consented to the trial of theseunpleaded matters. During cross-examination of the industrial hygienistwho conducted the inspection resulting in the citation, McWilliams Forgeelicited much testimony as to whether the general duty clause waspreempted by OSHA standards in section 1910.134. The industrialhygienist maintained that the citation to the general duty clause wasproper. On re-direct examination, the Secretary did not attempt to provethat specific standards were applicable and had been violated. Instead,he attempted to make the opposite point: that the standards did notpreempt the general duty clause because the standards did not apply. The parties neither consented to litigate nor squarely recognized thatthey were litigating violations of sections 1910.134(a)(1), (b)(8) and(e)(3)(i).The issues raised by the original general duty clause allegations mayhave some similarity to those raised by the Secretary’s allegations thatMcWilliams violated the standards. However, elements of proof anddefenses to general duty clause citations differ substantially fromthose which are raised by citations for section 5(a)(2) violations. Inthe instant case, defenses which could have been raised to rebut allegedviolations of the standards (but were not necessary to defend thegeneral duty clause violations) were not made.For example, item 1 of the citation originally alleged that a \”qualifiedperson\” did not \”test the atmosphere\” for \”concentrations of toxiccontaminants or a deficiency or excess of oxygen that were hazards tolife or health\” in the pit before and while McWilliams Forge employeesworked there. The Secretary now alleges that the employer violatedsection 1910.134(b)(8) by its \”failure to test the atmosphere in thepit.\” The standard states that \”[a]ppropriate surveillance of work areaconditions and degree of employee exposure or stress shall bemaintained.\” At trial under the standard the parties might havelitigated a number of issues not raised by the 5(a)(1) allegation,including the meaning of the critical phrases \”appropriatesurveillance,\” \”work area conditions,\” and \”degree of employee exposureor stress.\” These issues were not tried. Indeed, it is not clear, andwe have found no Commission or court decisions suggesting, that\”appropriate surveillance\” necessarily includes atmospheric testing.What we have said for item one applies as well to the other items. Withrespect to item three, for example, the parties might have litigatedadditional issues such as whether the Secretary cited the mostspecifically applicable standard. The Secretary suggests at one pointin his review brief that McWilliams Forge should have equipped itsemployees with \”self-contained breathing apparatus;\” at another point hesuggests an \”air-supply respirator.\” Yet, there are separate provisionscovering standby assistance where these devices are used. See 29 C.F.R.?? 1910.134(e)(3)(ii) (self-contained breathing apparatus) and (iii)(air line respirators); see also OSHA Industrial Hygiene TechnicalManual V-22, Table V-1 (March 1984), reprinted in 2 BNA OSHR ReferenceFile 77:8001, 77:8210 (June 1984), CCH Employ. Safety & Health GuideNo. 680 (May 1984).Item four of the citation alleged originally that \”employees did not useapplicable respiratory protective equipment as required by the nature ofthe atmospheric contaminants.\” Section 1910.134(a)(1), the standardthat the Secretary now claims was tried by the parties, requires that\”appropriate respirators shall be used pursuant to the followingrequirements.\” The standard that follows, 29 C.F.R. ? 1910.134(a)(2),states that respirators shall be provided \”when such equipment isnecessary to protect the health of the employee.\” As the Secretaryrecognizes in his brief, this provision arguably is susceptible to avagueness attack, which might have caused the parties to litigatewhether the standard was valid as applied–an issue that was not tried.We find that the parties did not consent to try the unpleadedallegations and that issues relevant to the unpleaded allegations werenot tried. The Secretary’s motion must be denied. We recognize thatthe result of this ruling is that the Secretary’s allegations againstMcWilliams Forge will not be resolved on the merits and that theconsiderable time and attention paid by the parties and the judge to theallegations will have been wasted. To avoid a recurrence of thissituation, we suggest that the Secretary’s attorneys follow a coursewhich has been suggested in other cases: When it is claimed orsuggested that a standard preempts the general duty clause, (or is morespecifically applicable), move to amend to allege in the alternative aviolation of that standard. E.g., Henkels & McCoy, 76 OSAHRC 143\/C2, 4BNA OSHC 1502, 1976-77 CCH OSHD ? 20,944 (No. 8842, 1976); SunShipbuilding & Drydock Co., 73 OSAHRC 44\/A9, 1 BNA OSHC 1381, 1973-74CCH OSHD ? 16,725 (No. 161, 1973) (concurring opinion); Cf. J.L. MantaPlant Services Co., 82 OSAHRC 61\/A2, 10 BNA OSHC 2162, 1982 CCH OSHD ?26,303 (No. 78-4923, 1982)(invalidity).A final matter raised by the proceedings in this case should beaddressed. In the past, parties have submitted motions in appealbriefs, in petitions for discretionary review, and even in footnotes tobriefs and petitions. In this instance, the motion for an amendment wasmade in the Secretary’s appeal brief. We will no longer accept this asa matter of course. The Commission believes that it is the betterpractice to require parties to file motions in separate documents as isthe practice in the federal courts. See Fed.R.Civ.P. 7(b)(1) andFed.R.App.P. 27(a). This will, we believe, ensure that motions aremore carefully made and supported.[[6]]Accordingly, the motion to amend is denied. The judge’s decision isreversed and the citation is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JUL 20 1984CLEARY, Commissioner, dissenting:I dissent from the majority view of this case and would allow anamendment and remand. The gravamen of the violation with which the Respondent was charged inthis case, regardless of whether it was brought under section 5(a)(1) orthe standard found at 29 C.F.R. ? 1910.134 is the failure to test theconfined atmosphere for toxic substances before employees were permittedto enter, a failure to maintain any type of surveillance for theprotection of employees, and a failure to provide respirators where sorequired. The relevant factual issues have been litigated. As to thefirst allegation, section .134(b)(8) contemplates surveillance of workconditions and degree of employee exposure. This should alert anemployer that he not be cognizant of a possible exposure of employees totoxic substantives, particularly when entering confined areas. However,I agree that Respondent was not made aware of the Secretary’s intent toamend his charge to ? 1910.134 until it was raised on appeal, and thenat a time when Respondent might not have had an opportunity toobject.[[1]] Thus, I would remand the case to allow the Respondent toindicate whether he was prejudiced, and raise any defenses he might haveto the application of ? 1910.134 to these facts.The decision of the majority in this case would essentially prohibitamendment of pleadings in Commission cases, in this case an amendmentfrom section 5(a)(1) to a standard on the grounds that the majority canvisualize some grounds that may be stated as objections to theapplication of a particular standard. In so doing, however, they arereversing longstanding precedent and running contra to several CircuitCourts of Appeals which have addressed this issue.This Commission has frequently permitted amendments of pleadings. Pleadings have never been considered a serious obstacle to reaching themerits of a case, whether the amendments were from one standard toanother or from an alleged 5(a)(1) violation to an alleged violation ofa standard: see Mabry, J. L. Grading, Inc., 74 OSAHRC 37\/A14, 1 BNAOSHC 1211, 1974-1975 CCH OSHD ? 15,141; Bethlehem Steel Corp., 1975OSAHRC 44\/A2, 2 BNA OSHC 1732, 1975-76 CCH OSHD ? 16,956; CaliforniaStevedore & Ballast Co., 75 OSAHRC 47\/C4, 3 BNA OSHC 1080, 1975-76 CCHOSHD ? 16,798; Konkolville Lumber Co., Inc., 76 OSAHRC 147\/A2, 3 BNAOSHC 1796, 1976-77 CCH OSHD ? 18,296; Southern Colorado Prestress Co.,76 OSAHRC 107\/D8, 4 BNA OSHC 1638, 1976-77 CCH OSHD ? 17,881; ClaudeNeon Federal Co., 77 OSAHRC 104\/A2, 5 BNA OSHD 1546, 1977-78 CCH OSHD ?20,279; McKee Wellman Power Gas, 77 OSAHRC 133\/A2, 5 BNA OSHC 1592,1977-78 CCH OSHD ? 20,142.In Dunlop v. Uriel G. Ashworth, CA 4 (1976) 538 F.2d 562, 3 BNA 2065,the Fourth Circuit considered a case presenting similar issues toMcWilliams. The Secretary alleged a violation of a standard which wasdetermined to be inapplicable by the Administrative Law Judge and by theCommission. 2 BNA OSHC 1552. However, the Fourth Circuit decided thecase as follows:Uriel Ashworth was cited by the Secretary of Labor for a seriousviolation of the Occupational Safety and Health Act of 1970 [[1]] andwas assessed a $600 fine. Ashworth contested this citation andsucceeded in persuading the Administrative Law Judge who heard his casethat the specific provision he was cited under (Sec. 5(a)(2) of the Act)did not proscribe the conduct attributed to him. This determination wasupheld by the Occupational Safety and Health Review Commission [2 OSHC1552], and the Secretary appealed to this court. We affirm the decisionbelow insofar as it holds that Ashworth is not guilty of violating Sec.5(a)(2) of the Act; however, we remand the case in order to allow theSecretary to amend his pleadings to allege a violation of Sec. 5(a)(1),the so-called General Duty Clause.In Morgan & Culpepper, Inc. v. OSAHRC and Donovan, CA 5 (1982), 676 F.2d1065, 10 BNA 1629, it was said,Liberal construction and easy amendment of pleadings are acceptedprocedure in an administrative law context. Administrative tribunals,as well as courts, have often heeded one commentator’s advice that\”[t]he most important characteristic about pleadings in theadministrative process is their unimportance.\” 1 K. Davis,Administrative Law 523 (1958). Federal Rule of Civil Procedure 15(b)allows for amendment of pleadings not only after issues have been triedby express or implied consent, but also when such amendment willfacilitate the presentation of the merits of the action and theobjecting party fails to demonstrate prejudice.[[1]] As this Courtrecently noted in Mineral Industries & Heavy Construction Group v.Occupational Safety and Health Review Commission, 639 F.2d 1289 [9 OSHC1387] (5th Cir. 1981), \”Rule 15(b) is designed to ensure that poorforesight on the part of scriveners is not converted into tunnelvisionon the part of judges. The amendment process prevents ‘technicalities’in pleading from impeding the just resolution of the merits of the cases.\”The Court then said that \”While it is true that amendments to pleadingsshould be freely granted, it is just as certain that the company chargedshould be given an opportunity to fully respond to the new theoriespresented.\” It then went on to say that \”The Commission should remandcases in which amendment of pleadings is allowed so that the party citedwill have a full opportunity to present its defense to the alteredcharge. Where amendment of pleadings is permitted on the basis of thesecond half of Fed.R.Civ.P. 15(b), the Commission may not deny thepetitioner the opportunity to present new defenses…\”Thus, the majority overlooks the fact that Respondent would have theopportunity in this case to raise any defenses to ? 1910.134, which itmay not have raised before the administrative law judge previously.In Brown & Root, Inc. v. OSAHRC and Marshall, 9 BNA 1387, (again, the5th Cir.), 639 F.2d 1289, the Court said,To effectuate the policy underlying Rule 15(b), and in recognition ofthe spirit of the Federal Rules of Civil Procedure, this Circuit haspursued \”a course of strong liberality *** in allowing amendments.\” United States v. Stephen Brothers Line, supra, 384 F.2d at 124-125(quoting Hall v. National Supply Co., 270 F.2d 379, 383 (5th Cir.1959)); see Wansor v. George Hantscho Co., Inc., 570 F.2d 1202, 1208(5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978).More importantly for the present case, it is well settled thatadministrative pleadings are \”liberally construed\” and \”easily amended.\”NLRB v. Fant Milling Co., 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243(1959); Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 903,[5 OSHC 1793, 1796] (2nd Cir. 1977); National Realty and ConstructionCo., Inc. v. Occupational Safety and Health Review Commission, 489 F.2d1257, 1264 [1 OSHC 1422, 1426] (D.C. 1973)…As one commentator hasnoted \”The most important characteristic of pleadings in theadministrative process is their unimportance. And experience shows thatunimportance of pleadings is a virtue.\” 1 K. Davis, Administrative LawTreatise, ? 8.04 at 523 (1958).The majority concludes an amendment is not proper where the Respondentcould raise some objection to an amendment to charge a violation of astandard such as the validity of promulgation of the standard, it isvoid for vagueness, etc. But this will always be true, and thisstatement can only construed as a conclusion by the majority that theywill never allow an amendment under Fed.R.Civ.P. 15(b). The majorityhas said that the Secretary can’t amend from a 5(a)(1) charge to astandard because there are different elements of proof and methods oftrial. For this reason, he couldn’t amend from a standard to 5(a)(1). Also, there can be no amendment from one standard to another because themajority can suggest a challenge to the validity of promulgation of thesubstitute standard, or its vagueness. There is no possibility ofamendment left. With one stroke the majority has eliminatedFed.R.Civ.P. 15(b) from Commission proceedings, reversed years ofprecedent, put this agency out of step with other administrative courts,and ignores 38 years, more or less, in the development of administrativelaw.I also dissent from the majority’s sua sponte decisional rulemaking thatreverses without just cause almost 14 years of precedent, that motionsmay no longer be incorporated in briefs. This is not reflected in theCommission’s Rules of Procedure, and is a matter more appropriatelyhandled by an amendment to the procedural rules with concomitant noticeand opportunity for comment. Rule 30(a) of the Commission Rules says,\”[E]xcept as provided herein, there are no specific requirements as tothe form of any pleading.\” Moreover, in the instant case, the relevantportion of the Secretary’s brief was clearly labeled a motion to amend,and I see no reason to require him to submit two separate documents. The Secretary could, of course, have styled his submission as a \”Briefof the Secretary, and Motion to Amend,\” but certainly no one was misledin this case, particularly since the amendment issue was directed forreview.————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Federal Rule 15 applies to Commission proceedings because theCommission has not prescribed a different rule on the point. See section12(g) of the Act, 29 U.S.C. ? 661(f); Commission Rule 2(b), 29 C.F.R. ?2200.2(b).[[2]] Section 5(a)(1) of the Act states that \”[e]ach employer shallfurnish to each of his employees employment and place of employmentwhich are free from recognized hazards that are causing or are likely tocause death or serious physical harm to his employees[.]\”[[3]] Item two of the citation was withdrawn by the Secretary on review.[[4]] International Harvester Credit Corp. v. East Coast Truck, 547 F.2d888 (5th Cir. 1977); 3 Moore’s Federal Practice ? 15.13[2] at 15-171,15-172 (1980).[[5]] \”The reasoning behind this view is sound since . . . the opposingparty may not be conscious of [the evidence’s] relevance to issues notraised by the pleadings unless that fact is specifically brought to hisattention.\” 6 Wright and Miller, Federal Practice & Procedure: Civil ?1493 at 466-7 (1971). To the extent that Commission cases hold orintimate that prejudice to the party opposing the motion determineswhether amendments will be allowed under the first half of Rule 15(b)without regard to whether implied consent to try the issues was present,e.g., Crawford Construction Co., 82 OSAHRC 16\/A2, 10 BNA OSHC 1522,1525, 1982 CCH OSHD ? 25,984, p. 32,605 (No. 79-928, 1982), rev’dwithout published opinion, No. 82-3350 (6th Cir. Aug. 10, 1983), theyare overruled. Reliance on prejudice necessarily requires theCommission to rest its ruling entirely on speculation about how theparties might have presented their claims and defenses if they hadrecognized that an unpleaded issue was being tried. Aside from thepractical difficulties of predicting what might have been, reliance onprejudice would be inconsistent with the text of the first half of Rule15(b) and its very hypothesis–that unpleaded issues were tried by theparties’ consent. Where there is evidence sufficient to demonstrateimplied consent to try an unpleaded issue, the party opposing the motionmay show that amendment nevertheless is inappropriate by showing prejudice.[[6]] A party opposing a motion has ten days under Commission Rule 37,29 C.F.R. ? 2200.37, to file a response in opposition to the motion. Without leave of the Commission, parties have no right to file replybriefs, however. See Commission Rule 93(b)(4), 29 C.F.R.2200.93(b)(4). A party opposing a motion made in an answering brief maytherefore be misled into believing that he is not entitled as of rightto respond to the motion, may not notice the short time in which to doso, and may go unnecessarily through the extra trouble and expense offiling a motion for leave to file a reply brief to respond to themotion. Here, however, the amendment was suggested in the direction forreview, and respondent had ample opportunity to brief the issue even ifit did not respond to the motion. Here, however, the amendment wassuggested in the direction for review, and respondent had ampleopportunity to brief the issue even if it did not respond to the motionin the Secretary’s brief.[[1]] I note that the issue of whether to amend was in the Direction forReview and should have alerted Respondent to this question.[[1]] 29 U.S.C. Sec. 651 et seq. (1970).[[1]] The Federal Rules of Civil Procedure are made applicable to theproceedings of the Occupational Safety and Health Review Commission(OSHRC) by Rule 2(b) of the OSHRC’s Rules of Procedure, 29 C.F.R. ?2002.2(b).”