“Docket No. 80-5868 SECRETARY OF LABOR,Complainant, v.MCWILLIAMS FORGE COMPANY, INC., Respondent.OSHRC Docket No. 80-5868DECISIONBefore:\u00a0 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 and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 The Commission is anadjudicatory agency, independent of the Department of Labor and the Occupational Safetyand Health Administration.\u00a0 It was established to resolve disputes arising out ofenforcement actions brought by the Secretary of Labor under the Act and has no regulatoryfunctions.\u00a0 See section 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor has moved, pursuant to Federal Rule of Civil Procedure15(b),[[1]] to amend a citation issued to McWilliams Forge Company to allege violations ofthree occupational safety and health standards.\u00a0 The citation now alleges violationsof the general duty clause, section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1).[[2]] TheSecretary concedes that the citation should not have alleged violations of the generalduty clause because there are specifically applicable standards.McWilliams Forge Company produces alloy forgoings at a plant in Rockaway, NewJersey.\u00a0 On June 22, 1980, two of its employees were cleaning a pump in a pit with asolvent alleged to be forty percent trichloroethylene.\u00a0 This work was performed on aSunday afternoon when the plant was not operating and when the nearest person was asecurity guard at the plant entrance.\u00a0 While cleaning the pump, the employees lostconsciousness and remained in the pit for about four hours.\u00a0 The atmosphere in thepit had not been tested and the employees had not been wearing respirators.Item one of the citation now alleges that a qualified person did not test theatmosphere in the pit before and during the cleaning operation to determine whether therewere \”concentrations of toxic contaminants or a deficiency or excess of oxygen thatwere hazards to life or health.\”\u00a0 The Secretary moves to amend this item toallege a \”failure to test the atmosphere in the pit\” in alleged violation of theoccupational health standard at 29 C.F.R. ? 1910.134(b)(8).\u00a0 That standard statesthat \”[a]ppropriate surveillance of work area conditions and degree of employeeexposure 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 such emergencyassistance as may have been required.\”\u00a0 The abatement requirement of the itemincluded training the employee in emergency rescue procedures, supplying him with the\”applicable\” personal protective equipment, and requiring him to remain in the vicinity of the confined space until replaced.\u00a0 The Secretary moves toamend this item to allege a violation of section 1910.134(e)(3)(i), which provides:? 1910.134 Respiratory Protection. (e) Use of respirators.(3) Written procedures shall be prepared covering safe use of respirators indangerous atmospheres that might be encountered in normal operations or in emergencies.\u00a0 Personnel shall be familiar with these procedures 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 one additional man shall bepresent.\u00a0 Communications (visual, voice, or signal line) shall be maintained betweenboth or all individuals present.\u00a0 Planning shall be such that one individual will beunaffected by any likely incident and have the proper rescue equipment to be able toassist 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 by the nature ofthe atmosphere contaminants.\”\u00a0 The Secretary moves to amend this item to allegea violation of section 1910.134(a)(1), which provides:(a) Permissible practice.\u00a0 (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 objective shall be to prevent atmosphericcontamination.\u00a0 This shall be accomplished as far as feasible by accepted engineeringcontrol measures (for example, enclosure or confinement of the operation, general andlocal ventilation and substitution of less toxic materials).\u00a0 When effectiveengineering controls are not feasible, or while they are being instituted, appropriaterespirators shall be used pursuant to the following requirements.The Secretary maintains that a post-hearing amendment is proper under Rule15(b) if the amendment adds only a new legal theory, not new questions of fact, and if theparty opposing the amendment either introduced or failed to object to evidence relevant tothe unpleaded issues and would not be prejudiced if the amendment were granted.\u00a0 TheSecretary also maintains that prejudice can be found only if the party opposing amendmentlacked a fair opportunity to defend or could have offered additional evidence \”if thecase had been tried under the amended charge.\”\u00a0 The Secretary points to thesurface resemblances between the pleaded and unpleaded charges and states that \”[n]oadditional evidence could have been offered by [McWilliams Forge] to rebut the Secretary’sevidentiary case if a 29 C.F.R. ? 1910.134 theory had 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 or implied consent of theparties, they shall be treated in all respects as if they had been raised in thepleadings.\u00a0 Such amendment of the pleadings as may be necessary to cause them toconform to the evidence and to raise these issues may be made upon motion of any party atany time, even after judgment; but failure so to amend does not affect the result of thetrial of these issues.[2] If evidence is objected to at the trial on the ground that it is not within the issuesmade by the pleadings, the court may allow the pleadings to be amended and shall do sofreely when the presentation of the merits of the action will be subserved thereby and theobjecting party fails to satisfy the court that the admission of such evidence wouldprejudice him in maintaining this action or defense upon the merits.\u00a0 The court maygrant a continuance to enable the objecting party to meet such evidence.\u00a0 (Bracketednumbers added.)\u00a0 The text of the rule makes plain that an amendment under the firsthalf of Rule 15(b) is proper only if two findings can be made–that the parties tried anunpleaded issue and that they consented to do so.\u00a0 If amendment is proper under thefirst half of Rule 15(b), a remand for further trial on the merits of the action ispointless, because under the rule, if amendment is allowed, the unpleaded issues havealready been tried by consent.Trial by consent may be found only when the parties knew, that is, squarelyrecognized,[[4]] that they were trying an unpleaded issue.\u00a0 This does not mean thatthe party against whom the amendment is offered must have expressly consented to trial ofthe unpleaded issue.\u00a0 Consent may also be implied by the parties’ words and conduct,even if neither party openly voices his consent. For example, the second half of Rule15(b) suggests that the admission without objection of evidence that is not relevant to apleaded issue is some evidence of consent.\u00a0 Conversely, consent is not implied by a party’s failure to object to evidencethat is relevant to both pleaded and unpleaded issues, at least in the absence of someobvious attempt to raise the unpleaded issue.\u00a0 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).\u00a0 \”[A] court may not base its decision upon an issuethat was tried inadvertently.\u00a0 Implied consent to the trial of an unpleaded issue isnot established merely because evidence relevant to that issue was introduced withoutobjection.\u00a0 At least it must appear that the parties understood the evidence to beaimed at the unpleaded issue.\”\u00a0 MBI Motor Co. v. Lotus\/East, Inc., 506 F.2d 709,711 (6th Cir. 1974), quoted with approval in Consolidated Data Terminals v. AppliedDigital Data Systems, 708 F.2d 385, 397 (9th Cir. 1983); see also, e.g., McLeod v.Stevens, 617 F.2d 1038, 1040-41 (4th Cir. 1980); Cook v. City of Price, 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., 338 F.2d 254, 258 (3d Cir. 1964).[[5]]\u00a0 The record convincesus that neither party 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.\u00a0 That this evidence was not objected todoes not suggest or imply consent to try the unpleaded issues.\u00a0 MBI Motor Co., 506F.2d at 711.\u00a0 Nor was there an obvious attempt to raise these issues.\u00a0 On thecontrary, the circumstances of the hearing reveal that neither party consented to thetrial of these unpleaded matters.\u00a0 During cross-examination of the industrialhygienist who conducted the inspection resulting in the citation, McWilliams Forgeelicited much testimony as to whether the general duty clause was preempted by OSHAstandards in section 1910.134.\u00a0 The industrial hygienist maintained that the citationto the general duty clause was proper. On re-direct examination, the Secretary did notattempt to prove that specific standards were applicable and had been violated. Instead,he attempted to make the opposite point:\u00a0 that the standards did not preempt thegeneral duty clause because the standards did not apply.\u00a0 The parties neitherconsented to litigate nor squarely recognized that they were litigating violations ofsections 1910.134(a)(1), (b)(8) and (e)(3)(i).The issues raised by the original general duty clause allegations may havesome similarity to those raised by the Secretary’s allegations that McWilliams violatedthe standards.\u00a0 However, elements of proof and defenses to general duty clausecitations differ substantially from those which are raised by citations for section5(a)(2) violations.\u00a0 In the instant case, defenses which could have been raised torebut alleged violations of the standards (but were not necessary to defend the generalduty 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 to life or health\”in the pit before and while McWilliams Forge employees worked there.\u00a0 The Secretarynow alleges that the employer violated section 1910.134(b)(8) by its \”failure to testthe atmosphere in the pit.\”\u00a0 The standard states that \”[a]ppropriatesurveillance of work area conditions and degree of employee exposure or stress shall bemaintained.\”\u00a0 At trial under the standard the parties might have litigated anumber of issues not raised by the 5(a)(1) allegation, including the meaning of thecritical phrases \”appropriate surveillance,\” \”work area conditions,\”and \”degree of employee exposure or stress.\”\u00a0 These issues were not tried.\u00a0Indeed, it is not clear, and we have found no Commission or court decisionssuggesting, that \”appropriate surveillance\” necessarily includes atmospherictesting.What we have said for item one applies as well to the other items.\u00a0 Withrespect to item three, for example, the parties might have litigated additional issuessuch as whether the Secretary cited the most specifically applicable standard.\u00a0 TheSecretary suggests at one point in his review brief that McWilliams Forge should haveequipped its employees with \”self-contained breathing apparatus;\” at anotherpoint he suggests an \”air-supply respirator.\”\u00a0 Yet, there are separateprovisions covering standby assistance where these devices are used.\u00a0 See 29 C.F.R.?? 1910.134(e)(3)(ii) (self-contained breathing apparatus) and (iii) (air linerespirators); see also OSHA Industrial Hygiene Technical Manual V-22, Table V-1 (March1984), reprinted in 2 BNA OSHR Reference File 77:8001, 77:8210 (June 1984), CCH Employ.\u00a0 Safety & Health Guide No. 680 (May 1984).Item four of the citation alleged originally that \”employees did not useapplicable respiratory protective equipment as required by the nature of the atmosphericcontaminants.\”\u00a0 Section 1910.134(a)(1), the standard that the Secretary nowclaims was tried by the parties, requires that \”appropriate respirators shall be usedpursuant to the following requirements.\”\u00a0 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.\”\u00a0 As the Secretary recognizesin his brief, this provision arguably is susceptible to a vagueness attack, which mighthave caused the parties to litigate whether the standard was valid as applied–an issuethat was not tried.We find that the parties did not consent to try the unpleaded allegations and that issuesrelevant to the unpleaded allegations were not tried.\u00a0 The Secretary’s motion must bedenied.\u00a0 We recognize that the result of this ruling is that the Secretary’sallegations against McWilliams Forge will not be resolved on the merits and that theconsiderable time and attention paid by the parties and the judge to the allegations willhave been wasted.\u00a0 To avoid a recurrence of this situation, we suggest that theSecretary’s attorneys follow a course which has been suggested in other cases:\u00a0 Whenit is claimed or suggested that a standard preempts the general duty clause, (or is morespecifically applicable), move to amend to allege in the alternative a violation of thatstandard.\u00a0 E.g., Henkels & McCoy, 76 OSAHRC 143\/C2, 4 BNA OSHC 1502, 1976-77 CCHOSHD ? 20,944 (No. 8842, 1976); Sun Shipbuilding & Drydock Co., 73 OSAHRC 44\/A9, 1BNA OSHC 1381, 1973-74 CCH OSHD ? 16,725 (No. 161, 1973) (concurring opinion); Cf. J.L.Manta Plant 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 be addressed.\u00a0 In the past, parties have submitted motions in appeal briefs, in petitions fordiscretionary review, and even in footnotes to briefs and petitions.\u00a0 In thisinstance, the motion for an amendment was made in the Secretary’s appeal brief.\u00a0 Wewill no longer accept this as a matter of course.\u00a0 The Commission believes that it isthe better practice to require parties to file motions in separate documents as is thepractice in the federal courts. See Fed.R.Civ.P. 7(b)(1) and Fed.R.App.P. 27(a).\u00a0 This will, we believe, ensure that motions are more carefully made andsupported.[[6]]Accordingly, the motion to amend is denied.\u00a0 The judge’s decision isreversed and the citation is vacated.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 JUL 20 1984CLEARY, Commissioner, dissenting:I dissent from the majority view of this case and would allow an amendmentand remand.\u00a0 The gravamen of the violation with which the Respondent was charged in thiscase, regardless of whether it was brought under section 5(a)(1) or the standard found at29 C.F.R. ? 1910.134 is the failure to test the confined atmosphere for toxic substancesbefore employees were permitted to enter, a failure to maintain any type of surveillancefor the protection of employees, and a failure to provide respirators where so required.\u00a0 The relevant factual issues have been litigated.\u00a0 As to the first allegation,section .134(b)(8) contemplates surveillance of work conditions and degree of employeeexposure.\u00a0 This should alert an employer that he not be cognizant of a possibleexposure of employees to toxic substantives, particularly when entering confinedareas.\u00a0 However, I agree that Respondent was not made aware of the Secretary’s intentto amend his charge to ? 1910.134 until it was raised on appeal, and then at a time whenRespondent might not have had an opportunity to object.[[1]]\u00a0 Thus, I would remandthe case to allow the Respondent to indicate whether he was prejudiced, and raise anydefenses he might have to 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 amendment from section 5(a)(1)to a standard on the grounds that the majority can visualize some grounds that may bestated as objections to the application of a particular standard.\u00a0 In so doing,however, they are reversing longstanding precedent and running contra to several CircuitCourts of Appeals which have addressed this issue.This Commission has frequently permitted amendments of pleadings.\u00a0 Pleadings havenever been considered a serious obstacle to reaching the merits of a case, whether theamendments were from one standard to another or from an alleged 5(a)(1) violation to analleged violation of a standard:\u00a0 see Mabry, J. L. Grading, Inc., 74 OSAHRC 37\/A14, 1BNA OSHC 1211, 1974-1975 CCH OSHD ? 15,141; Bethlehem Steel Corp., 1975 OSAHRC 44\/A2, 2BNA OSHC 1732, 1975-76 CCH OSHD ? 16,956; California Stevedore & Ballast Co., 75OSAHRC 47\/C4, 3 BNA OSHC 1080, 1975-76 CCH OSHD ? 16,798; Konkolville Lumber Co., Inc.,76 OSAHRC 147\/A2, 3 BNA OSHC 1796, 1976-77 CCH OSHD ? 18,296; Southern Colorado PrestressCo., 76 OSAHRC 107\/D8, 4 BNA OSHC 1638, 1976-77 CCH OSHD ? 17,881; Claude Neon FederalCo., 77 OSAHRC 104\/A2, 5 BNA OSHD 1546, 1977-78 CCH OSHD ? 20,279; McKee Wellman PowerGas, 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, theFourth Circuit considered a case presenting similar issues to McWilliams.\u00a0 TheSecretary alleged a violation of a standard which was determined to be inapplicable by theAdministrative Law Judge and by the Commission.\u00a0 2 BNA OSHC 1552.\u00a0 However, theFourth Circuit decided the case as follows:Uriel Ashworth was cited by the Secretary of Labor for a serious violation ofthe Occupational Safety and Health Act of 1970 [[1]] and was assessed a $600 fine.\u00a0Ashworth contested this citation and succeeded in persuading the Administrative Law Judgewho heard his case that the specific provision he was cited under (Sec. 5(a)(2) of theAct) did not proscribe the conduct attributed to him.\u00a0 This determination was upheldby the Occupational Safety and Health Review Commission [2 OSHC 1552], and the Secretaryappealed to this court.\u00a0 We affirm the decision below insofar as it holds thatAshworth is not guilty of violating Sec. 5(a)(2) of the Act; however, we remand the casein order to allow the Secretary 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 accepted procedurein an administrative law context.\u00a0 Administrative tribunals, as well as courts, haveoften heeded one commentator’s advice that \”[t]he most important characteristic aboutpleadings in the administrative process is their unimportance.\” 1 K. Davis,Administrative Law 523 (1958).\u00a0 Federal Rule of Civil Procedure 15(b) allows foramendment of pleadings not only after issues have been tried by express or impliedconsent, but also when such amendment will facilitate the presentation of the merits ofthe action and the objecting party fails to demonstrate prejudice.[[1]]\u00a0 As thisCourt recently noted in Mineral Industries & Heavy Construction Group v. OccupationalSafety and Health Review Commission, 639 F.2d 1289 [9 OSHC 1387] (5th Cir. 1981),\”Rule 15(b) is designed to ensure that poor foresight on the part of scriveners isnot converted into tunnelvision on the part of judges.\u00a0 The amendment processprevents ‘technicalities’ in pleading from impeding the just resolution of the merits ofthe 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 charged should be givenan opportunity to fully respond to the new theories presented.\”\u00a0 It then went onto say that \”The Commission should remand cases in which amendment of pleadings isallowed so that the party cited will have a full opportunity to present its defense to thealtered charge.\u00a0 Where amendment of pleadings is permitted on the basis of the secondhalf of Fed.R.Civ.P. 15(b), the Commission may not deny the petitioner the opportunity topresent new defenses…\”Thus, the majority overlooks the fact that Respondent would have theopportunity in this case to raise any defenses to ? 1910.134, which it may not haveraised before the administrative law judge previously.In Brown & Root, Inc. v. OSAHRC and Marshall, 9 BNA 1387, (again, the 5thCir.), 639 F.2d 1289, the Court said,To effectuate the policy underlying Rule 15(b), and in recognition of thespirit of the Federal Rules of Civil Procedure, this Circuit has pursued \”a course ofstrong liberality *** in allowing amendments.\”\u00a0 United States v. StephenBrothers Line, supra, 384 F.2d at 124-125 (quoting Hall v. National Supply Co., 270 F.2d379, 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 that administrativepleadings are \”liberally construed\” and \”easily amended.\” NLRB v. FantMilling Co., 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243 (1959); Usery v. Marquette CementManufacturing Co., 568 F.2d 902, 903, [5 OSHC 1793, 1796] (2nd Cir. 1977); National Realtyand Construction Co., Inc. v. Occupational Safety and Health Review Commission, 489 F.2d1257, 1264 [1 OSHC 1422, 1426] (D.C. 1973)…As one commentator has noted \”The mostimportant characteristic of pleadings in the administrative process is their unimportance.\u00a0And experience shows that unimportance of pleadings is a virtue.\”\u00a0 1 K.Davis, Administrative Law Treatise, ? 8.04 at 523 (1958).The majority concludes an amendment is not proper where the Respondent couldraise some objection to an amendment to charge a violation of a standard such as thevalidity of promulgation of the standard, it is void for vagueness, etc.\u00a0 But thiswill always be true, and this statement can only construed as a conclusion by the majoritythat they will never allow an amendment under Fed.R.Civ.P. 15(b).\u00a0 The majority hassaid that the Secretary can’t amend from a 5(a)(1) charge to a standard because there aredifferent elements of proof and methods of trial.\u00a0 For this reason, he couldn’t amendfrom a standard to 5(a)(1).\u00a0 Also, there can be no amendment from one standard toanother because the majority can suggest a challenge to the validity of promulgation ofthe substitute standard, or its vagueness.\u00a0 There is no possibility of amendmentleft.\u00a0 With one stroke the majority has eliminated Fed.R.Civ.P. 15(b) from Commissionproceedings, reversed years of precedent, put this agency out of step with otheradministrative courts, and ignores 38 years, more or less, in the development ofadministrative law.I also dissent from the majority’s sua sponte decisional rulemaking thatreverses without just cause almost 14 years of precedent, that motions may no longer beincorporated in briefs.\u00a0 This is not reflected in the Commission’s Rules ofProcedure, and is a matter more appropriately handled by an amendment to the proceduralrules with concomitant notice and opportunity for comment.\u00a0 Rule 30(a) of theCommission Rules says, \”[E]xcept as provided herein, there are no specificrequirements as to the form of any pleading.\”\u00a0 Moreover, in the instant case,the relevant portion of the Secretary’s brief was clearly labeled a motion to amend, and Isee no reason to require him to submit two separate documents.\u00a0 The Secretary could,of course, have styled his submission as a \”Brief of the Secretary, and Motion toAmend,\” but certainly no one was misled in this case, particularly since theamendment issue was directed for review.The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation 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 the Commission has notprescribed a different rule on the point. See section 12(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 employment which are free fromrecognized hazards that are causing or are likely to cause death or serious physical harmto 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.2d 888(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 not raised by thepleadings unless that fact is specifically brought to his attention.\” 6 Wright andMiller, Federal Practice & Procedure: Civil ? 1493 at 466-7 (1971). To the extentthat Commission cases hold or intimate that prejudice to the party opposing the motiondetermines whether amendments will be allowed under the first half of Rule 15(b) withoutregard to whether implied consent to try the issues was present, e.g., CrawfordConstruction Co., 82 OSAHRC 16\/A2, 10 BNA OSHC 1522, 1525, 1982 CCH OSHD ? 25,984, p.32,605 (No. 79-928, 1982), rev’d without published opinion, No. 82-3350 (6th Cir. Aug. 10,1983), they are overruled.\u00a0 Reliance on prejudice necessarily requires the Commissionto rest its ruling entirely on speculation about how the parties might have presentedtheir claims and defenses if they had recognized that an unpleaded issue was being tried.Aside from the practical difficulties of predicting what might have been, reliance onprejudice would be inconsistent with the text of the first half of Rule 15(b) and its veryhypothesis–that unpleaded issues were tried by the parties’ consent. Where there isevidence sufficient to demonstrate implied consent to try an unpleaded issue, the partyopposing the motion may show that amendment nevertheless is inappropriate by showingprejudice.[[6]] A party opposing a motion has ten days under Commission Rule 37, 29C.F.R. ? 2200.37, to file a response in opposition to the motion.\u00a0 Without leave ofthe Commission, parties have no right to file reply briefs, however.\u00a0 See CommissionRule 93(b)(4), 29 C.F.R. 2200.93(b)(4).\u00a0 A party opposing a motion made in ananswering brief may therefore 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 do so, and may gounnecessarily through the extra trouble and expense of filing a motion for leave to file areply brief to respond to the motion.\u00a0 Here, however, the amendment was suggested inthe direction for review, and respondent had ample opportunity to brief the issue even ifit did not respond to the motion.\u00a0 Here, however, the amendment was suggested in thedirection for review, and respondent had ample opportunity to brief the issue even if itdid not respond to the motion in 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).”