MILLER BREWING COMPANY

OSHRC Docket No. 78-3216

Occupational Safety and Health Review Commission

January 22, 1980

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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.  

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

F. V. LaRuffa, Reg. Sol., USDOL

Paul M. Sansoucy, for the employer

OPINION:

DECISION

BY THE COMMISSION:

This case is before the Commission on interlocutory appeal from Administrative Law Judge Ben D. Worcester's order denying the Secretary's motion to amend the citation and complaint to allege a violation of 29 C.F.R. §   1910.178(m)(8) and 29 C.F.R. §   1910.178(n)(1). n1 On July 7, 1978, the Secretary issued two citations to the Respondent, Miller Brewing Company ("Miller"), for alleged violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678, ("the Act"), at its facility in Volney, New York.   The citation in issue here alleged a violation of section 5(a)(1) of the Act, the "Meneral duty clause." n2

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n1 29 C.F.R. §   1910.178 sets forth the safety requirements for powered industrial trucks and in pertinent part provides:

29 C.F.R. §   1910.178 Powered Industrial Trucks

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(m) Truck operations.

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(8) There shall be sufficient headroom under overhead installations, lights, pipes, sprinkler system, etc.

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(n) Traveling. (1) All traffic regulations shall be observed, including authorized plant speed limits.   A safe distance shall be maintained approximately three truck lengths from the truck ahead, and the truck shall be kept under control at all times.

n2 The citation and complaint read in pertinent part:

Section 5(a)(1) of the Occupational Safety and Health Act of 1970: Employment and a place of employment which were free from recognized hazards causing or likely to cause death or serious physical harm to employees were not provided, in that:

(a) An employee was allowed to drive a forklift truck in which he was traveling with the forks elevated thereby striking the overhead conveyor catwalk between can depalletizer #1 and #2 with the load backrest extension thereby overturning Clark forklift truck #482 resulting in the operator's death.

Item 2 of Citation 1 and Item 1 of Citation 2, although contested by Miller, are not in issue on appeal.   Those items read in pertinent part:

29 C.F.R. §   1910.178(1): Operators were not trained in the safe operation of powered industrial trucks:

(a) One employee operating the Clark forklift truck, plant No. 482, Serial No. E235-419-3106-PA-76, Model No. EC500-530, Type E, was not trained in the safe operation of the powered industrial truck.

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29 C.F.R. §   1910.145(c)(2)(i): Caution sign(s) were not used to warn against potential hazard(s) or to caution against unsafe practice(s):

(a) The overhead empty can conveyor catwalk located between can depalletizer #1 and #2 did not contain a caution sign warning fork truck operators of the overhead obstruction.

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I

Miller contested the citation on July 20, 1978, and a hearing was scheduled for November 16, 1978.   On October 19, 1978, Miller moved to dismiss the alleged violation of section 5(a)(1) on the ground that a specific standard, 29 C.F.R. §   1910.178, n3 regulates the safe operation of power industrial trucks and that it takes precedence over section 5(a)(1).   Miller further argued that, as the Secretary did not allege a violation of any section other than section (1) of §   1910.178, supra at note 2, the Respondent must assume that it was in compliance with the other sections of that standard and accordingly in compliance with section 5(a)(1).

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n3 In its motion to dismiss, Miller specifically cites 29 C.F.R. §   1910. 178(m)(8) (see n. 1 supra); 29 C.F.R. §   1910.178(n)(6) and (8); and 29 C.F.R. §   1910.178(n)(7)(iii).   Those standards read:

§   1910.178 Powered Industrial Trucks

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(n) Traveling.

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(6) The driver shall be required to look in the direction of, and keep a clear view of the path of travel.

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(7) Grades shall be ascended or descended slowly.

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(iii) On all grades the load and load engaging means shall be tilted back if applicable, and raised only as far as necessary to clear the rond surface.

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(8) Under all travel conditions the truck shall be operated at a speed that will permit it to be brought to a stop in a safe manner.

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On October 27, 1978, Judge Worcester issued an order in which he granted Miller's motion to dismiss unless within 10 days the Secretary showed "good cause" why the dismissal should not be granted.   On October 30, 1978, the Secretary filed a response to Miller's motion to dismiss and on November 3, 1978, Judge Worcester, without reference to the Secretary's response, granted Miller's motion to dismiss but gave the Secretary leave to amend under Rule 15(a) of the Federal Rules of Civil Procedure. n4

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n4 Rule 15(a) provides in pertinent part:

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. . .

The Federal Rules of Civil Procedure govern Commission proceedings unless the Commission has adopted a different rule.   Section 12(g) of the Act, 29 U.S.C. §   661(f).   Rule 2(b) of the Commission Rules of Procedure, 29 C.F.R. §   2200.2(b).

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On November 13, 1978, the Secretary moved to amend the citation alleging a violation of the general duty clause to allege that Miller had violated § §   1910.178(m)(8) and 1910.178(n)(1). n5 On November 15, 1978, one day before the scheduled hearing date, the Secretary moved, via a telephone call to Judge Worcester, for an adjournment of the hearing due to the "sudden and unpredictable" illness of the Secretary's counsel.   Judge Worcester granted the motion and further ordered that within 15 days the parties agree upon a new hearing date on or after January 22, 1979.

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n5 The amended citation and complaint read:

1(a) - 29 C.F.R. §   1910.178(n)(1): All plant traffic regulations were not observed in that an employee was allowed to travel on a forklift truck without the forks tilted toward the mast and without the forks being a maximum of four inches from the floor.   (Emphasis Added).

1(b) - 29 C.F.R. §   1910.178(m)(8): An employee was allowed to operate a forklift truck where there was insufficient headroom and clearance under overhead installations such as a catwalk.

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On November 16, 1978, Judge Worcester denied the Secretary's motion to amend the citation and complaint Relying on Cornell & Co., Inc. v. OSAHRC, 573 F.2d 820, 824 (3rd Cir. 1978), the judge found the motion late filed and prejudicial in that "it completely changes the nature of the charges" against the Respondent.   Five days later on November 21, 1978, the parties were notified that the rescheduled hearing would be held on January 30 and 31, 1979.

The Secretary petitioned for interlocutory appeal and took exception to Judge Worcester's denial of the amendment and his finding that the amendment was late filed and prejudicial. The Commission granted the Secretary's petition on January 12, 1979.

II

In his petition, the Secretary argues that the motion to amend was not late filed.   The Secretary notes that the amendment was drawn up within 24 hours of his receipt of Judge Worcester's dismissal with leave to amend and submitted one week before the then scheduled November 16, 1978, hearing date. n6 Moreover, as a result of the rescheduling of the hearing to January 30, 1979, the motion was, in fact,   [*6]   submitted more than two months before the matter would be heard.   Accordingly, the Secretary concludes that "under no interpretation or definition of 'late filing' can the Respondent be said to have been prejudiced" by the motion to amend.

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n6 The Secretary's motion was dated November 8 but was not received by the Judge until November 13.

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The Secretary also argues that the amendment does not change the cause of action.   The Secretary notes that Judge Worcester's grant of leave to amend suggests that the amendment should be to a more specific standard and that the Secretary amended to a standard "alluded" to by the Respondent (1910.178(m) (sufilcient headroom)) and one to which Miller had generally referred in its motion to dismiss (1910.178(n)(1) ("travel conditions," "load engaging means")).   The Secretary notes that the amendment does not change the gravamen of the citation and complaint and does not alter the burdens of proof as to the alleged violations.

The Secretary contends that his burdens are the same in   [*7]   that he must prove that plant regulations were not followed and that an untrained operator was allowed to operate a forklift without sufficient overhead clearance. Similarly, according to the Secretary, the Respondent's burdens are not changed in that to establish its affirmative defenses the Respondent still must illustrate a proper safety program and the enforcement of the plant traffic regulations.

Finally, the Secretary submits that there is no prejudice.   He notes that the underlying factual allegations remain the same and that the Respondent is not surprised by the amendment.   He further adds that this is not a situation in which the testimony of an individual crucial to the Respondent's case is now unavailable, as was the case in Cornell, supra, and that any possible prejudice that may exist is surely cured by the adjournment of the hearing to January 30, 1979.   The Secretary further argues that the Respondent must show in what way it has been prejudiced by the amendment and "must prove the prejudice to be one of substance."

In its response to the Secretary's petition, Respondent argues that the amendment changes the nature of the charges against the employer.   Specifically,   [*8]   Miller argues that the alleged violation of section 5(a)(1) addressed the operation of a forklift with the forks raised but the proposal amendment speaks to the extent to which the Respondent ensures compliance with its plant traffic regulations and the sufficiency of the headroom.

Citing the cases of Robert W. Setterlin & Sons Co., 76 OSAHRC 53/D8, 4 BNA OSHC 1214, 1975-76 CCH OSHD P20,682 (No. 7377, 1976) and Mesa Fiberglass Products Co., 73 OSAHRC 26/E11, 1 BNA OSHC 3132, 1971-73 CCH OSHD P15,810 (No. 1645, 1973), Miller further argues that the Secretary is not permitted to amend the pleadings when the amendment will have the effect of alleging a new and different charge.   Miller submits that the amendment will prejudice its defense because it alleges a new and different charge.

III

We agree with the Secretary that the amendment should be granted.   Where fair notice is given, administrative pleadings are liberally construed and easily amended.   National Realty and Construction Co., v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Moreover, under Rule Fed. R. Civ. P. 15(a), leave to amend is freely given when justice so requires.   Accordingly, the Commission has consistently [*9]   approved the granting of pre-hearing amendments where there is no showing by the party objecting to the amendments that it would be prejudiced in the preparation or presentation of the case.   Higgins Erectors and Haulers, Inc., 79 OSAHRC    , 7 BNA OSHC 1736, 1979 CCH OSHD P23,896 (No. 78-3398, 1979); P.A.F. Equipment Company, 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979), appeal docketed, No. 79-1398 (10th Cir. May 7, 1979); Constructora Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD P22,487 (Nos. 13680 & 14509, 1978); Schiavone Construction Company, 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD P21,815 (No. 12767, 1977), appeal dismissed, No.77-1807 (3rd Cir. 1978); Mid-Plains Construction Co., 75 OSAHRC 81/D2, 2 BNA OSHC 1728, 1974-75 CCH OSHD P19,484 (No. 4584, 1975).   Further, amendments well before the hearing rarely result in any prejudice.   Higgins Erectors and Haulers, supra; P.A.F. Equipment Company, supra; Henkels & McCoy, Inc., 76 OSAHRC 143/C2, 4 BNA OSHC 1502, 1976-77 CCH OSHD P20,944 (No. 8842, 1976); see Coastal Pile Driving, Inc., 77 OSAHRC 206/F3, 6 BNA [*10]   OSHC 1133, 1977-78 CCH OSHD P22,375 (No. 15043, 1977). n7

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n7 The Secretary's motion to amend was filed 3 days before the date of the hearing as originally scheduled. However, in view of the continuance granted by the judge, the pleadings could have been amended well before the postponed hearing.

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The original citation and complaint gave the respondent notice of the allegedly hazardous condition and the Secretary's amendment does not alter the factual basis of the citation.   See Structural Painting Corp., 79 OSAHRC    , 7 BNA OSHC 1682, 1979 CCH OSHD P23,817 (No. 15450, 1979).   The general test for determining whether there is a change in the cause of action is whether the original and the amended charges arise out of the same conduct, transaction, or occurrence.   Higgins Erectors and Haulers, supra; P.A.F. Equipment Company, supra. See Fed. R. Civ. P. 15(c); see, e.g., Flaherty v. United Engineers & Constructors, Inc., 213 F. Supp. 835 (E.D. PA. 1961). Clearly, the claims asserted [*11]   in the amendment, that "plant traffic regulations were not observed in that an employee was allowed to travel on a forklift truck without the forks tilted toward the mast and without the forks being a maximum of 4 inches from the floor" and that the employee was allowed to operate a forklift truck where there was insufficient headroom, arose out of the same forklift accident set forth in the original citation and complaint. n8 Moreover, the amended charges with respect to traveling with the forks elevated (1910.178(n)(1)) and the insufficient headroom and clearance under the catwalk (1910.178(m)(8)) are closely related to the initial charges of "traveling with the forks elevated thereby striking the overhead conveyor catwalk."

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n8 See footnote 2.

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Miller has not demonstrated how it would be prejudiced by the amendment.   At the time that the Secretary's motion to amend was denied (November 16, 1978), no hearing date had been scheduled and thereafter the hearing was set for January 31, 1979, nearly two months hence.    [*12]   Clearly Miller was provided ample opportunity and time to prepare its case. n9 In addition, in view of Miller's introduction of the applicability of §   1910.178 to the proceedings in its motion to dismiss and the judge's grant of leave to amend, Miller cannot argue surprise as an objection to the prehearing amendment.

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n9 We also hold that had the matter not been rescheduled Miller could have requested a sontinuance if additional time was needed to prepare its case as a result of the amended charges.   Structural Painting Corp., supra.

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Finally, Miller has not demonstrated an inability to marshall the witnesses and evidence necessary to defend against the amended charge.   Consequently this case is distinguishable from Cornell, supra. In Cornell, the Respondent's ability to obtain the witnesses it needed to prepare a defense to the amended charges was seriously impaired by the Secretary's delay in moving to amend.

For the foregoing reasons we conclude that the prejudice necessary to defeat the amendment [*13]   is absent.   The Secretary's amendment of the citation and complaint is proper and Judge Worcester erred in denying the amendment.

Accordingly, the judge's order denying the Secretary's motion to amend is vacated and this case is remanded for further proceedings consistent with this decision.