COASTAL PILE DRIVING, INC.

OSHRC Docket No. 15043

Occupational Safety and Health Review Commission

November 29, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall Harris Regional Solicitor

Robert C. Adams, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

An April 27, 1976 decision of Administrative Law Judge Joyce Capps is before this Commission pursuant to Section 12(j) of the Occupational Safety and Health Act of 1970. n1 The issue is whether the trial Judge erred in permitting the Secretary to amend his citation so as to allege in the alternative that Respondent violated two separate safety standards. The citation at issue alleged a violation of the standard at 29 C.F.R. 1926.500(d)(2) which requires guarding of open-sided runways. n2 In his complaint, the Secretary amended the citation to allege a violation of 29 C.F.R. 1926.500(d)(2) or, in the alternative, a violation of the standard at 29 C.F.R. 1926.28(a). The latter standard makes employers responsible for the wearing of personal protective equipment by employees exposed to hazardous conditions.

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n1 29 U.S.C. 651 et seq., hereinafter "the Act."

n2 The standard provides in pertinent part:

"Runways shall be guarded by a standard railing, or the equivalent, . . . on all open sides, 4 feet or more above floor or ground level . . ."

n3 The standard provides:

"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."

[*2]

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The trial Judge held that the steel beams in question did not constitute runways within the meaning of 29 C.F.R. 1926.500(d)(2), as defined by 29 C.F.R. 1926.502(f). The Judge noted that the employees were on the beams for the purpose of performing their jobs and not for the purpose of using the beams as a passageway or as a means of access to a work area. Therefore, the violation found by the trial judge was entirely premised on the standard at 29 C.F.R. 1926.28(a)

The amendment to which Respondent takes exception did not vary the Secretary's substantive allegations. Although the citation specifically referenced the standard at 29 C.F.R. 1926.500(d)(2) only, the violation was described as follows:

"The steel beams being used as a runway approximately 25 feet above the excavated area, . . . were not guarded by a standard railing or equivalent protection such as safety belts or lanyards." (emphasis added).

Respondent thus had fair notice from the original citation that it was charged with failure to require the wearing of personal protective gear. Amendments are routinely permissible [*3] where, as here, they merely add an alternative legal theory but do not alter the essential factual allegations contained in the citation. 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 74/C9, 5 BNA OSHC 1391 (No. 10411, 1977). Respondent's contention that the amendment was prejudicial is not persuasive. Respondent had several months between the time the complaint was filed and the time of the hearing to seek any necessary clarification and to prepare its defense. In fact, the trial Judge did clarify the alternative allegations at the beginming of the hearing, and Respondent proceeded to defend against the alternative theory. Respondent cannot validly claim unfair surprise. See National Realty and Construction Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973).

The only other exception taken by Respondent concerns its claim that it lacked sufficient knowledge of the violative conditions to be held responsible because the Judge did not make a finding of fact that Respondent's President knew or should have known of the violation. This contention [*4] is without merit. Respondent's foreman was aware of the exposure of the employees to hazardous conditions and of their failure to use personal protective gear. Even assuming that the company President lacked actual knowledge, the knowledge of supervisory personnel is imputable to the employer absent a showing by the employer that it took all necessary precautions to prevent the occurrence of the violation. Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD para. 20,167 (No. 5811, 1975), aff'd No. 76-1060 (4th Cir. Aug. 2, 1977).

Accordingly, the Judge's decision is hereby affirmed.