CONSTRUCTORA MAZA, INC.

OSHRC Docket Nos. 13680; 14509

Occupational Safety and Health Review Commission

January 16, 1978

[*1]

Before: CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Freddie Franco-Garcia, USDOL

Jorge M. Guillermety, for the employer

OPINION:

DECISION

BY THE COMMISSION: A decision of Review Commission Judge John S. Patton is before the Commission for review pursuant to section 12(j) of the Occupational Safety & Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"]. In his decision, the Judge disallowed an amendment of the citation in the complaint that sought to allege a willful rather than a repeated violation of 29 C.F.R. 1926.28(a) n1 in case docket No. 14509. n2 He affirmed the violation n3 and assessed an $800 penalty. n4

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n1 The standard provides as follows:

1926.28 Personal Protective Equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

n2 Docket No. 14509 was consolidated and tried with docket No. 13680. No party has taken exception to any of the Judge's findings in docket No. 13680. Consequently, the Commission will not review this case. See Abbott-Sommer Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD para. 20,428 (No. 9507, 1976).

n3 The Judge did not characterize the nature of the violation. He stated, however, that, "the violation could very well have resulted in the death of an employee." Because of this finding and complainant's alternative pleading of a "serious" violation, we regard the Judge as having affirmed a serious violation of 1926.28(a).

n4 In docket No. 14509, the Judge vacated alleged violations of 29 C.F.R. 1926.104 and 1926.500(c)(1). Inasmuch as the Secretary did not except to these rulings, they will not be reviewed by the Commission. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD para. 20,780 (No. 4136, 1976); Crane Co., 76 OSAHRC 37/A2, 4 BNA OSHC 1015, 1975-76 CCH OSHD para. 20,508 (No. 3336, 1976).

[*2]

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In July 1975, respondent was engaged in constructing the Segovia Condominium in Puerto Rico. An Occupational Safety & Health Administration compliance officer conducting an inspection observed two of respondent's employees performing masonry work on the abutment of a wall opening in which a window was to be installed on the sixteenth floor, 138 feet above the ground. The wall opening measured eight feet high by three feet wide. Respondent's employees were approximately eighteen to thirty-six inches from the edge of the unguarded wall. These employees were not wearing any personal protective equipment nor had they been issued such equipment.

The citation charged a repeated violation of 1926.28(a) for failure to wear personal protective equipment while plastering abutments 16 floors above ground. Respondent had received a previous citation for violation of the standard at another of its worksites, the Apartotel Melia. The earlier citation was issued after inspection of a fatal fall that occurred while an employee was erecting guardrails 14 feet above concrete without wearing a safety belt. A [*3] complaint was issued in this case in which the citation of 1926.28(a) was amended from repeated to willful in part because the prior citation on which the repeated violation was based had not become a final order. At no time has respondent objected to this amendment, and complainant adduced evidence as to the willful nature of the violation.

In his decision, Judge Patton denied complainant's motion to amend the citation, stating that a willful violation was an entirely different and much more serious charge than a repeated violation. The Judge stated that the allegation of a willful violation should have been made in the citation.

On review, complainant argues that the Judge erred in denying the amendment. Complainant states that the Judge's ruling is contrary to Commission decisions holding that amendments should be freely granted when the factual basis of the citation remains the same and prejudice is not shown by the opposing party. Furthermore, he argues that the Judge's ruling is inconsistent with Federal Rule of Civil Procedure 15(a), n5 which applies to Commission proceedings pursuant to section 12(g) of the Act and Commission Rule 2. n6 Complainant maintains that he [*4] has explained his reasons for amending as required by Commission Rule 33(a)(3). n7 Moreover, complainant argues that the Judge's ruling is inconsistent with precedent established by U.S. Circuit Courts of Appeals in Long Manufacturing Co. v. OSHRC, 554 F.2d 903 (8th Cir. 1977) and National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Finally, he contends that a repeated violation is not an entirely different charge from a willful violation inasmuch as they are closely related under the Act's enforcement scheme. Assuming the amendment is allowed, complainant argues that the violation is willful because respondent evinced careless disregard and plain indifference to the safety of its employees.

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n5 Federal Rule of Civil Procedure 15(a) provides in pertinent part that:

(a) AMENDMENTS. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

n6 Section 12(g) of the Act provides in pertinent part that:

Unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure.

Commission Rule 2 is set forth at 29 C.F.R. 2200.2. It provides that:

2200.2 Scope of rules; applicability of Federal Rules of Civil Procedure.

(a) These rules shall govern all proceedings before the Commission and its Judges.

(b) In the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Procedure.

n7 Commission Rule 33(a)(3) is set forth at 29 C.F.R. 2200.33(a)(3). It provides that:

2200.33 Employee contests.

(a) Complaint.

* * *

(3) Where the Secretary seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.

[*5]

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We modify the Judge's decision to grant the amendment alleging a willful rather than a repeated violation. The standard alleged to be violated is unchanged by the amendment, and the factual allegations as well as the means of abatement are the same under the original and the amended change. Amendment under these circumstances is consistent with Commission precedent. Coastal Pile Driving, Inc., No. 15043, November 29, 1977. Compare Schiavone Construction Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD para. 21,815 (No. 12767, 1977) with Roanoke Iron & Bridge Works, Inc., 77 OSAHRC 77/C9, 5 BNA OSHC 1391 (No. 10411, 1977). n8 Complainant made the amendment in good faith with no undue delay of the hearing of issues, and respondent never objected to the amendment at any time, although it had the opportunity to do so both in its answer and at hearing. Respondent never asserted or showed any prejudice. Accordingly, the amendment is granted. See Usery v. Marguette Cement Co., No. 76-4083 (2d Cir. August 29, 1977). n9

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n8 This decision has not been published by Commerce Clearing House.

n9 Commissioner Barnako would allow the amendment for the additional reason that in his view, the nature of a repeated violation is similar to that of a willful violation. See George Hyman Construction Co., 77 OSAHRC 67/C7, 5 BNA OSHC 1318, 1977-78 CCH OSHD para. 21,774 (No. 13559, 1977). Chairman Cleary would grant the amendment for the reasons stated above and because the amendment should be granted as a matter of course under Fed. R. Civ. P. 15(a), inasmuch as the amendment was requested before the hearing. See Kaw Roofing & Sheet Metal, Inc., 77 OSAHRC 159/B8, 5 BNA OSHC 1724, 1977-78 CCH OSHD para. 22,087 (No. 14774, 1977).

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With respect to the issue of willfulness, the test that the Commission has set for determining whether a violation is willful is whether the respondent has consciously, deliberately, intentionally, and voluntarily violated the Act, or has acted in careless disregard of employee safety. Ford Motor Co., 77 OSAHRC 167/A2, 5 BNA OSHC 1765, 1977-78 [*7] CCH OSHD para. 22,106 (No. 13682, 1977); Georgia Electric Co., 77 OSAHRC 30/A2, 5 BNA OSHC 1112, 1977-78 CCH OSHD para. 21,613 (No. 9339, 1977), appeal docketed, No. 77-1916 (5th Cir. May 3, 1977); Kent Nowlin Construction Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-78 CCH OSHD para. 21,550 (Nos. 9483 et al., 1977), appeal docketed, No. 77-1258 (10th Cir. April 18, 1977).

Respondent's foreman (Caban) knew of the hazardous condition encountered by respondent's employees engaged in plastering abutments 138 feet above ground level. The foreman knew it was the customary procedure for employees to remove railings in order to finish the abutments, and that employees would then be required to work adjacent to unguarded wall openings high above the ground. Nevertheless, the foreman did not issue safety belts or instruct employees to use safety belts.

The conduct of respondent's foremen establishes a careless disregard for the safety of respondent's employees, and this conduct is imputed to respondent. An employer is only excused from responsibility for its foremen's action if it shows that such acts contravened a consistently and adequately enforced work rule. [*8] Western Waterproofing, Inc., 77 OSAHRC 25/A2, 5 BNA OSHC 1064, 1977-78 CCH OSHD para. 21,572 (No. 9225, 1977), appeal docketed, No. 77-1324 (8th Cir. April 20, 1977). In this case, although there was a company rule requiring the use of safety belts, it was not followed. Safety meetings were held with the foremen and the safety engineer to discuss respondent's safety program. Indeed, respondent's safety engineer conducted a safety meeting one week before the inspection, at which he discussed with supervisory personnel the safety risks that its employees had been taking, especially in regard to working near unguarded wall openings without wearing safety belts. On five occasions at the Apartotel Melia worksite memoranda had been distributed to respondent's project managers from its safety engineer concerning employees' failure to use safety belts and foremen's failure to issue and require the use of safety belts. Although foremen had been disciplined for failure to enforce company safety rules, no foreman had ever been suspended and no disciplinary action had been taken against a non-supervisory employee despite the repeated instances of employees' failure to wear safety [*9] belts. Merely holding safety meetings had obviously proved inadequate to achieve compliance with the safety belt rule, yet further action was not taken by respondent. Under these circumstances, respondent has failed to show that the enforcement of its work rule was adequate. n10

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n10 Some of the safety engineer's efforts to require the use of safety belts were taken in response to the accident in which an employee of respondent suffered a fatal fall two months prior to the violation alleged in this case. This earlier accident should have suggested to respondent that further steps to enforce its work rules were necessary.

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Accordingly, the Judge's decision in docket No. 14509 is reversed as to the denial of the amendment, a willful-serious violation of 29 C.F.R. 1926.28(a) is found, and a penalty of $800 is assessed. The Judge's decision in docket No. 13680 is affirmed because no party has taken any exception to it.

SO ORDERED.