TRI-STATE ROOFING AND SHEET METAL COMPANY

OSHRC Docket No. 16121

Occupational Safety and Health Review Commission

November 30, 1977

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall Harris, Regional Solicitor

Ira J. Smotherman, Jr., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Commissioner:

The issue is whether Judge Ben D. Worcester erred in denying the Secretary's motion to amend his citation, thereby vacating the citation. The Commission members are divided on the question. In order to fulfill the statutory purpose of expeditious adjudication, and in light of the absence of a third member since April 28, 1977, the members agree to resolve their impasse by affirming the Judge's decision, according it the precedential value of an unreviewed Judge's decision. See Life Science Products Co., No. 14910 (Nov. 11, 1977).

The Secretary cited the respondent (Tri-State) for allegedly violating 29 C.F.R. 1926.500(d)(1) n1 in that an:

open-sided floor located at the southwest section of the roof area, which is more than six feet above the adjacent ground, was not guarded by a standard railing.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 This standard provides:

Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . . on all open sides. . . .

[*2]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In his complaint, the Secretary moved to amend the citation:

to plead in the alternative that Respondent violated 29 C.F.R. 1926.28(a) n2 in that. . . Respondent's employees were working on the open-sided floor at the southwest section of the roof area -- without the use of personal protective equipment, such as safety belts.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n2 This 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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Judge Worcester held that the standard at 1926.500(d)(1) is not applicable to flat roofs, and the Secretary does not dispute that holding. n3 The Secretary does, however, take exception to the Judge's denial of the motion to amend to allege a violation of 1926.28(a).

- - - - - - - - - - - - - - - - - -Footnotes- - [*3] - - - - - - - - - - - - - - - -

n3 Since the Judge issued his decision, the Commission has held that 1926.500(d)(1) does not apply to flat roofs, reversing its prior contrary precedent. Central City Roofing Co., 76 OSAHRC 61/A2, 4 BNA OSHC 1296, 1976-77 CCH OSHD para. 20,761 (No. 8173, 1976).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

A similar question was presented in Kaw Roofing & Sheet Metal, Inc., 77 OSAHRC 159/B8, 5 BNA OSHC 1724, 1977-78 CCH OSHD para. 22,087 (No. 14774, 1977). n4 In Kaw, the Commission members were divided on the question of whether the motion to amend should be granted; Chairman Cleary would have granted the motion, and I would have denied it.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Kaw involved a motion to amend to allege a violation of 29 C.F.R. 1926.105(a) rather than 1926.28(a). The distinction, however, is insignificant. See All-State Industries, 77 OSAHRC 5/A2, 5 BNA OSHC 1853, 1977-78 CCH OSHD para. 22,174 (No. 15522, 1977).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Since our divided decision [*4] in Kaw was issued, the Second Circuit decided Marquette Cement Mfg. Co. v. OSHRC, No. 76-4083 (2nd Cir., August 29, 1977), unofficially reported 5 BNA OSHC 1793. The court, in a comprehensive opinion, held that the Commission abused its discretion in denying a motion to amend made by the Secretary. The court stated:

that pleadings are not an end in themselves, but are only a means to the proper prosecution of a case; that at all times they are to assist, not deter, the disposition of litigation on the merits. 5 BNA OSHC at 1795, quoting from 3 Moore's Federal Practice, para. 15.02(1), at 813 (2d ed. 1974).

I have reconsidered the views I expressed in Kaw in light of the court's decision in Marquette. I continue to believe that motions of this type should be denied, and do not think that Marquette necessitates an opposite result.

In Marquette, the Secretary did not seek to change the language describing the conditions alleged to be in violation; he only sought to allege that the employer violated section 5(a)(1) of the Act n5 as opposed to a specific standard. Such amendments are consistent with the particularity requirement of 29 U.S.C. 658(a), and I [*5] agree that they should normally be allowed in order to promote the disposition of cases on their merits, i.e., to permit a determination of whether the employer violated the Act in the manner alleged in the citation. See Kaiser Aluminum & Chemical Corp., 77 OSAHRC 39/E8, 5 BNA OSHC 1180, 1977-78 CCH OSHD para. 21,692 (No. 3685, 1977), pet. for review filed. No. 77-2280 (9th Cir., June 10, 1977).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 The Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

In this case the amendment did change the description of the alleged violation; it introduced the absence of safety belts, as well as of a standard guardrail, as an element of the charge. I cannot agree that an allegation of failure to use safety belts is fairly included in a charge of failing to erect a guardrail. n6

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 In a case initiated by a notice of contest, the Commission's jurisdiction is limited to matters fairly within the scope of that notice. 29 U.S.C. 659. Compare Florida East Coast Properties, Inc., 74 OSAHRC 5/C7, 1 BNA OSHC 1532, 1973-74 CCH OSHD para. 17,272 (No. 2354, 1974) with Turnbull Millwork Co., 75 OSAHRC 16/A13, 3 BNA OSHC 1781, 1975-76 CCH OSHD para. 20,221 (No. 7413, 1975). A notice of contest can only be directed at subjects included within the scope of a citation. Thus, an amendment to a citation cannot validly enlarge the scope of the violation alleged in the citation.

[*6]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The amendment sought by the Secretary makes it appear as if Tri-State, after receiving the citation, had the option of either erecting a standard railing or using safety belts to protect its employees working on the roof. That is not, however, the case. The standard at 1926.500(d)(1) is clearly more specific than that at 1926.28(a), and therefore takes precedence. 29 C.F.R. 1910.5(c). Thus, if it had not contested the citation, and if 1926.500(d)(1) did in fact apply to flat roofs, Tri-State would have had to erect a guardrail. If it had sought to protect its employees by using safety belts, it would have been subject to potential daily penalties for failing to abate the 1926.500(d)(1) violation. 29 U.S.C. 666(d).

This is not merely an academic possibility. In other cases, employers who have attempted to protect employees from falling by means of safety belts have been cited for failing to provide other types of fall protection allegedly required by more specific standards. See, e.g., McKee Wellman Power Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1977-78 CCH OSHD para. 21,972 (No. 12618, 1977). [*7] Daniel Construction Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD para. 21,521 (No. 7734, 1977). It is true that such citations are usually issued because the safety belts were not tied off by employees and thus provided ineffective fall protection. But an employer who is cited for failing to provide a form of protection required by a specific standard cannot successfully defend by saying it provided an alternative form of protection, particularly when the means it chose has proven ineffective. See Akron Brick and Block Co., 76 OSAHRC 2/E2, 3 BNA OSHC 1876, 1975-76 CCH OSHD para. 20,302 (No. 4859, 1976).

Furthermore, even if safety belts are used effectively, guardrails and safety belts are not simply interchangeable forms of fall protection. Guardrails are intended to protect all employees who have access to a fall hazard. Public Improvements, Inc., 76 OSAHRC 140/E8, 4 BNA OSHC 1864, 1976-77 CCH OSHD para. 21,326 (No. 1955, 1976). Safety belts are useful for protection of employees who are actually exposed to a possible fall. Thus, even if Tri-State used safety belts to protect its employees while they worked near the edge of the roof, it could have [*8] been penalized for failing to abate a guardrail violation if other employees who were not working near the perimeter nevertheless had access to the perimeter.

Thus, when he cited Tri-State for violating 1926.500(d)(1), the Secretary intended that employees on flat roofs should be protected by guardrails, not safety belts. Now that the Commission has held that 1926.500(d)(1) does not apply on flat roofs (see fn. 3, supra), however, the Secretary has discovered that Tri-State's real offense was its failure to provide a means of fall protection, safety belts, which the Secretary would have considered inadequate at the time he issued the citation.

As noted above, I agree that amendments should be freely permitted so that cases can be tried on their merits rather than being disposed of on the basis of technicalities. In this case, the citation presented the issue of whether Tri-State was required to erect a standard guardrail. The Secretary intended that Tri-State provide such protection when he issued the citation, and Tri-State contested the citation on the basis that it was not required to provide such protection. Thus, the "merits" of the case involve guardrails, not safety [*9] belts. Allowing the amendment now sought by the Secretary will not promote a resolution of this issue, but would merely subject Tri-State to being penalized for failing to do what even the Secretary, when he issued the citation, would not have considered adequate. In my opinion, such an amendment would not promote the objectives of the Act, and I would deny it. n7

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 I also note that the problem in this and many similar cases (See Kaw Roofing, supra, 5 BNA OSHC at 1726, n. 7) could be avoided if the Secretary would respond to the repeated suggestions from this Commission that he adopt a comprehensive standard governing fall protection in the construction industry. Warnel Corp., 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD para. 20,576 (No. 4537, 1976); Drake-Willamette Joint Ventures, 73 OSAHRC 13/C10, 1 BNA OSHC 1181, 1182, n. 2, 1971-73 CCH OSHD para. 15,655 (No. 117, 1973).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Chairman Cleary would grant the amendment for the reasons stated in his separate opinion.

Accordingly, the Judge's [*10] decision vacating the citation for violation of 1926.500(d)(1) and denying the Secretary's motion to amend is affirmed.

CLEARY, Chairman:

I conclude that the Administrative Law Judge erred in granting respondent's motion to dismiss complainant's amendment of the citation alleging a violation of 29 CFR 1926.28(a) in the alternative.

The citation, issued on December 4, 1975, stated that an inspection had been conducted on November 24, 1975 and that an "open-sided floor located at the southwest section of the roof area . . . was not guarded by a standard railing" in contravention of the requirement of 1926.500(d)(1). On December 30, 1975, the Secretary filed a complaint alleging an alternative violation of 29 CFR 1926.28(a) because respondent's employees were not using personal protective equipment such as safety belts.

On April 26, 1976, Judge Worcester issued his decision in this case granting the motion to dismiss the amendment to the citation, holding that the alleged violation of 1926.500(d)(1) could not be "changed to an entirely different factual allegation." At the same time, he granted respondent's motion for summary judgment under the 500(d)(1) allegation reasoning [*11] that this standard does not apply to flat roofs, which was the position subsequently adopted by the Commission in Central City Roofing Co., supra note 3.

In my opinion, there is no real problem in any amendment before a hearing so long as there is ample time for the parties to prepare their case. In any event there should be no problem when the amendment pertains to the same safety hazard. The amendment should be allowed if the pleadings are to perform their true function which is to facilitate the disposition of the case on its merits. Here, that hazard was a possible fall from a roof. Commission rule 33(a)(3), 29 CFR 2200.33(a)(3), specifically permits the amendment of the citation in the complaint. It states:

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.

The Secretary stated in his complaint that, "The reason for the amendment is that the working conditions constituted a violation of one or more of the cited standards." The Secretary clearly complied with Rule 33(a)(3) in supplying reasons for his amendment to the citation. [*12] n8 The amendment introduces an alternate theory of the case before hearing. It does not change the factual predicate of the case and accordingly it should be granted. Schiavonne Construction Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD para. 21,815 (No. 12767, 1977). Moreover, the Commission does not have a rule on alternative pleading. Hence, under section 12(g) of the Act and Commission rule 2(b), 29 CFR 2200.2(b), the Federal Rules of Civil Procedure apply. Pleading in the alternative is specifically allowed by Federal Rules of Civil Procedure 8(a) and (e). Thus the Secretary complied with the applicable procedural rule by amending the citation in the complaint to plead in the alternative. I deem alternative pleading in cases filed under the Act to be appropriate and consonant with the Act's purpose. See Henkels & McCoy, Inc., 76 OSAHRC 143/C2, 4 BNA OSHC 1502, 1976-77 CCH OSHD para. 20,944 (No. 8842, 1976). It is important to note that no prejudice would result by granting the amendment. The case was in the pleading stage and any possibility of prejudice could have been remedied by more time to answer or a continuance. All-State Industries, [*13] Inc., 5 BNA OSHC 1853, 1977-78 CCH OSHD para. 22, 174 (No. 15522, 1977). In National Realty & Construction Co., Inc. v. OSHRC, 489 F.2d 1257 at 1264 (D.C. Cir. 1973) the court stated:

[A]dministrative pleadings are very liberally construed and very easily amended. The rule has particular pertinence here, for citations under the 1970 Act are drafted by non-legal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his inspectors. (footnotes omitted).

I would remand this case for a hearing on the alternative allegation that respondent violated 29 CFR 1926.28(a).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 The situation is similar to that in Long Manufacturing Co. Inc. v. O.S.H.R.C., 534 F.2d 903 (8th Cir. 1977) in which the amendment of a citation by the complaint was approved. The Court noted that the citation is a preliminary step in the enforcement scheme and that an employer has no "vested right" to go to trial on the specific charge mentioned in the citation.

- - - - - - - - - - - - - - - - -End Footnotes- [*14] - - - - - - - - - - - - - - - -