L. E. MYERS COMPANY
OSHRC Docket No. 13575
Occupational Safety and Health Review Commission
October 28, 1977
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Bobbye D. Spears, Regional Solicitor, USDOL
W. Brand Bobosky, The L.E. Myers Co., for the employer
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Chairman:
The case is before us under section 12(j) of the Occupational Safety and Health Act, 29 U.S.C. § 661(i), to review the Secretary of Labor's exceptions to Administrative Law Judge Brady's decision vacating a citation alleging a violation for permitting its employees during power-line work to use a gripping device in a manner differing from the manufacturer's instructions, because the use was not a "recognized hazard" in the industry, the Secretary had not proved that the use of any other device would assure less slippage, and the employer could not anticipate the actions of the employees involved. The Secretary excepts to each of these conclusions. The Secretary also moved to amend his citation and complaint to specify that the employer failed to instruct properly its employees in the hazards of the gripping device and failed to enforce its rules about working within the bight of the line. The Secretary argues that the specified issues were [*2] tried by consent.
The linemen were "clipping-in" static wire, pulling it at about a 26-degree angle away from its original position attaching it to a pole some distance from the straight line. The task required removing about 3,800 pounds of tension from the static wire. In removing the tension, two gripping devices (preforms) were used on the wire. One of the preforms, and then the other, failed to hold thus causing the wire to snap back to its original position. One of the two employees was struck by the swinging wire, and flung to the ground some 80 feet below.
In Commissioner Barnako's view, Judge Brady fairly weighed the evidence, and his decision is supported by the record; Commissioner Barnako, therefore, will not reweigh the conflicting expert testimony. See, e.g., Zidell Explorations, Inc., 77 OSAHRC 74/A2, 5 BNA OSHC 1364, 1977-78 CCH OSHD para. 21,785 (No. 12408, 1977).
In addition, he would not grant the motion to amend. The motion seeks to inject new issues into the case after it has been tried, and these new issues raise different factual questions. Roanoke Iron & Bridge Works, Inc., 77 OSAHRC 74/D9, 5 BNA OSHC 1391 (No. 10411, 1977), petition [*3] for review docketed, No. 77-1858 (4th Cir., July 1, 1977); Roof Engineering Co., 77 OSAHRC 2/D11, 4 BNA OSHC 1942, 1976-77 CCH OSHD para. 21,416 (No. 6972, 1977). In the circumstances, Commissioner Barnako would conclude that respondent was not given fair notice that failure to protect its employees from the hazard of repeated use of preforms was in issue. National Roofing of Sioux City, Inc., 76 OSAHRC 98/E14, 4 BNA OSHC 1525, 1976-77 CCH OSHD para. 20,946 (No. 8275, 1976), and cases cited herein.
In particular, Commissioner Barnako notes that the Secretary's citation and case were predicated on the theory that preforms were not to be used for tensioning purposes. On review, he would change his theory to allege additionally that respondent allowed its employees to use the same preforms too many times in succession. The factual questions that this amendment would raise are obviously different from those on which the case was tried. But even if the amendment were allowed on a liberal view of the Federal Rules governing post-trial motions to amend, n1 Commissioner Barnako would not affirm the citation. Rather, he would adopt Judge Brady's findings that respondent's [*4] procedures are in accordance with industry practice and are at least as safe as other recognized methods; he would vacate the citation, therefore for failure of the Secretary to prove employer knowledge that repeated use of the preforms is hazardous. Green Construction Co. and Massman Construction Co., A Joint Venture, 76 OSAHRC 134/D9, 4 BNA OSHC 1808, 1976-77 CCH OSHD para. 21,235 (No. 5356, 1976).
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n1 Usery v. Marquette Cement Mfg. Co., No. 76-4083 (2d Cir., August 29, 1977).
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My conclusions are to the contrary. In my opinion, we should evaluate the crucial opinion testimony, even though the Judge's evaluation is entitled to weight. n2 The Secretary's expert witness, Mr. Finn, testified that the use of the preform as a "clipping-in" device is contrary to the manufacturer's instructions; that the product is not designed for pulling at an angle away from the cable, which decreases its holding power; and it is not designed for repeated use since this also results in a loss of gripping strength. Respondent's expert [*5] witness, Mr. Little, testified that the use of the preform as a "clipping-in" device was common, even though this use was not anticipated when the product was initially designed; and there was another product on the market that was more suitable for this use because it does not lose abrasive strength with repeated use.
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n2 Cf. Allis-Chalmers v. OSHRC, 542 F.2d 27 (7th Cir. 1976); D. Frederico, Inc. v. OSHRC, 558 F.2d 614 (1st Cir. 1977).
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There is uncontradicted testimony that the preform in question had been used six times; that it had been stored outdoors on a hook at the back of the truck and this manner of storage would lessen performance.
From this evidence and the manufacturer's instructions I conclude that the repeated use of the preforms as "clipping-in" devices constituted a "recognized hazard" within the meaning of section 5(a)(1). Accord Young Sales Corp., 77 OSAHRC 122/B1, 5 BNA OSHC 1564, 1977-78 CCH OSHD para. 21,883 (No. 8184, 1977). I would also grant the Secretary's motion to amend his [*6] specifications at least to the extent of alleging a failure by the employer to protect employees from repeated use of the preforms. This is a matter of conforming the pleadings to the evidence on an issue actually developed, even though the issue was not neatly presented in the pleadings. Rule 15(b) of FRCP, as applied in 29 CFR § 2200.2(b).
Inasmuch as the two members do not agree on a disposition, majority action is not possible. Thus, no official action modifying the Judge's decision can be taken. Section 12(f) of the Act, 29 U.S.C. § 661(e). Accordingly, the Judge's decision vacating the citation becomes the final action of the Commission. See Vappi and Co., 77 OSAHRC 72/D7, 5 BNA OSHC 1358, 1977-78 CCH OSHD para. 21,787 (No. 8282, 1977).
The Judge's decision has the significance of an unreviewed Judge's decision. Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976).