“Docket No. 80-7330 SECRETARY OF LABOR,Complainant,v.COPPERWELD STEEL COMPANY,Respondent.OSHRC Docket No. 80-7330DECISIONBefore:\u00a0 BUCKLEY, Chairman and CLEARY Commissioner.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. See section 10(c) of the Act, 29 U.S.C. ? 659(c).Copperweld Steel Company (\”Copperweld\”) has petitioned for reviewof the decision of the administrative law judge finding Copperweld in violation of section5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1).\u00a0 The alleged violation involves anunguarded elevated runway in Copperweld’s plant.\u00a0 We conclude that section 5(a)(1)does not apply to the cited conditions, in light of the specific provisions of 29 C.F.R.? 1910.23(c)(2).[[2]]\u00a0 We remand the case to the judge to determine whether anamendment of the pleadings to charge a violation of section 1910.23(c)(2) would beappropriate, and, if so, to determine whether a violation of that standard has beenestablished.Copperweld operates a steel manufacturing plant in Warren, Ohio.\u00a0 Themelt shop, where molten metal pouring operations take place, is about 400 feet long.\u00a0 The runway in question runs parallel to tracks on which three cranes operate.\u00a0 The runway is bounded on one side by the shop’s wall.\u00a0 The other side,adjacent to the crane tracks and eight feet above the pouring platform, is open.\u00a0 Therunway is about 4 1\/2 feet wide except at the building support columns, where the width isreduced to 18 1\/4 inches.\u00a0 The runway provides the only access to the three cranes,which operate on the pouring platform.The primary purpose of the runway is to provide a means of escape for the hot metal craneoperators during an explosion or other emergency.\u00a0 It is undisputed that guardrailscannot be placed along the open side of the runway because they would block the operator’sescape in an emergency.\u00a0 However, crane operators also walk along the runway aboutonce or twice a week to enter and exit a crane when a shift change occurs during a lengthypour, and the crane cannot be moved to the point where the relieving crane operator entersthe runway.\u00a0 There is no evidence that the runway ever is used for any purpose otherthan entering and exiting the cranes.At the hearing, Copperweld moved to dismiss the Secretary’s case on theground that section 1910.23(c)(2) applies to the cited conditions and thus citation tosection 5(a)(l) is inappropriate.\u00a0 Copperweld further argued that the runway fellunder the \”special purpose\” exception in section 1910.23(c)(2) and thereforethat it was not required to have a guardrail on its open side.\u00a0 The Secretarycontinued to contend that section 5(a)(1) of the Act was the applicable provision. \u00a0The judge ruled that Copperweld did not use the runway exclusively for emergency escapeand concluded that this was a violation of section 5(a)(1) of the Act.The Secretary now agrees with Copperweld that section 1910.23(c)(2) appliesto the facts and that section 5(a)(1) does not.\u00a0 He argues that the judge should haveamended the pleadings sua sponte at the hearing after Copperweld had raisedthe standard’s applicability.\u00a0 He moves to have the Commission amend the citationunder Rule 15(b) of the Federal Rules of Civil Procedure to allege a violation of section1910.23(c)(2).\u00a0 Copperweld argues that a violation of section 1910.23(c)(2) was nottried below and argues that an amendment now would come too late.\u00a0 Copperweld statesthat it would be prejudiced by an amendment because it would have presented additionalevidence in defense if it had known that a violation of section 1910.23(c)(2) was beingtried.Because the elevated walkway is a runway [[3]] and is more that four feetabove the adjacent floor level (the pouring platform), section 1910.23(c)(2) applies hereand citation to section 5(a)(1) of the Act is inappropriate, as Copperweld and theSecretary agree.\u00a0 E.g., A. Prokosch & Sons Sheet Metal, Inc., 80OSAHRC 96\/A2, 8 BNA OSHC 2077, 1980 CCH OSHD ? 24,840 (No. 76-406, 1980).\u00a0 The nextquestion is whether the pleadings should be amended as the Secretary requests to chargenoncompliance with section 1910.23(c)(2).\u00a0 The judge did not rule on this issuebecause no motion to amend was made to him.\u00a0 We therefore remand the case to thejudge to determine initially whether an amendment of the pleadings under Rule 15(b) toallege a violation of that standard should be allowed.\u00a0 If the judge determines thatthe motion to amend should be granted, he is to decide whether Copperweld should bepermitted an opportunity to present further evidence regarding the amended charge, as itrequests, and he is to make appropriate findings and conclusions.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED:\u00a0 AUG 31 1984The 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]] Section 5(a)(1) provides:Each employer . . . shall furnish to each of his employees employment and aplace of employment which are free from recognized hazards that are causing or are likelyto cause death or serious physical harm to his employees.[[2]] ? 1910.23 Guarding floor and wall openings and holes(c) Protection of open-sided floors, platforms, and runways.(2) Every runway shall be guarded by a standard railing (or the equivalent .. . ) on all open sides 4 feet or more above floor or ground level.\u00a0 Wherever tools,machine parts, or materials are likely to be used on the runway, a toeboard shall also beprovided on each exposed side.Runways used exclusively for special purposes (such as oiling, shafting, orfilling tank cars) may have the railing on one side omitted where operating conditionsnecessitate such omission, providing the falling hazard is minimized by using a runway ofnot less than 18 inches wide.\u00a0 Where persons entering upon runways become therebyexposed to machinery, electrical equipment, or other danger not a falling hazard,additional guarding than is here specified way be essential for protection.[[3]] Section 1910.21(a)(5) provides:Runway.\u00a0 A passageway for persons, elevated above the surroundingfloor or ground level, such as a footwalk along shafting or a walkway between buildings.”