OSHRC Docket No. 80-5868


Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners:


This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration.  It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions.  See section 10(c) of the Act, 29 U.S.C. 659(c).

The Secretary of Labor has moved, pursuant to Federal Rule of Civil Procedure 15(b),[[1]] to amend a citation issued to McWilliams Forge Company to allege violations of three occupational safety and health standards.  The citation now alleges violations of the general duty clause, section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1).[[2]] The Secretary concedes that the citation should not have alleged violations of the general duty clause because there are specifically applicable standards.

McWilliams Forge Company produces alloy forgoings at a plant in Rockaway, New Jersey.  On June 22, 1980, two of its employees were cleaning a pump in a pit with a solvent alleged to be forty percent trichloroethylene.  This work was performed on a Sunday afternoon when the plant was not operating and when the nearest person was a security guard at the plant entrance.  While cleaning the pump, the employees lost consciousness and remained in the pit for about four hours.  The atmosphere in the pit had not been tested and the employees had not been wearing respirators.

Item one of the citation now alleges that a qualified person did not test the atmosphere in the pit before and during the cleaning operation to determine whether there were "concentrations of toxic contaminants or a deficiency or excess of oxygen that were hazards to life or health."  The Secretary moves to amend this item to allege a "failure to test the atmosphere in the pit" in alleged violation of the occupational health standard at 29 C.F.R. 1910.134(b)(8).  That standard states that "[a]ppropriate surveillance of work area conditions and degree of employee exposure or stress shall be maintained."[[3]]

Item three of the citation now alleges that "an employee within voice or visual range was not available in the immediate vicinity to render such emergency assistance as may have been required."  The abatement requirement of the item included training the employee in emergency rescue procedures, supplying him with the "applicable" personal protective equipment, and requiring him to
remain in the vicinity of the confined space until replaced.  The Secretary moves to amend this item to allege a violation of section 1910.134(e)(3)(i), which provides:

1910.134 Respiratory Protection.

(e) Use of respirators.

(3) Written procedures shall be prepared covering safe use of respirators in dangerous atmospheres that might be encountered in normal operations or in emergencies.   Personnel shall be familiar with these procedures and the available respirators.

(i) In areas where the wearer, with failure of the respirator, could be overcome by a toxic or oxygen-deficient atmosphere, at least one additional man shall be present.  Communications (visual, voice, or signal line) shall be maintained between both or all individuals present.  Planning shall be such that one individual will be unaffected by any likely incident and have the proper rescue equipment to be able to assist the other(s) in case of emergency.

Item four of the citation now alleges that the two employees in the pit "did not use applicable respiratory protective equipment as required by the nature of the atmosphere contaminants."  The Secretary moves to amend this item to allege a violation of section 1910.134(a)(1), which provides:

(a) Permissible practice.  (1) In the control of those occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors, the primary objective shall be to prevent atmospheric contamination.  This shall be accomplished as far as feasible by accepted engineering control measures (for example, enclosure or confinement of the operation, general and local ventilation and substitution of less toxic materials).  When effective engineering controls are not feasible, or while they are being instituted, appropriate respirators shall be used pursuant to the following requirements.

The Secretary maintains that a post-hearing amendment is proper under Rule 15(b) if the amendment adds only a new legal theory, not new questions of fact, and if the party opposing the amendment either introduced or failed to object to evidence relevant to the unpleaded issues and would not be prejudiced if the amendment were granted.  The Secretary also maintains that prejudice can be found only if the party opposing amendment lacked a fair opportunity to defend or could have offered additional evidence "if the case had been tried under the amended charge."  The Secretary points to the surface resemblances between the pleaded and unpleaded charges and states that "[n]o additional evidence could have been offered by [McWilliams Forge] to rebut the Secretary's evidentiary case if a 29 C.F.R. 1910.134 theory had been tried initially."

Rule 15(b) provides:

(b) Amendments to Conform to the Evidence.
[1] When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.  Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
[2] If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining this action or defense upon the merits.  The court may grant a continuance to enable the objecting party to meet such evidence.  (Bracketed numbers added.)  The text of the rule makes plain that an amendment under the first half of Rule 15(b) is proper only if two findings can be made--that the parties tried an unpleaded issue and that they consented to do so.  If amendment is proper under the first half of Rule 15(b), a remand for further trial on the merits of the action is pointless, because under the rule, if amendment is allowed, the unpleaded issues have already been tried by consent.

Trial by consent may be found only when the parties knew, that is, squarely recognized,[[4]] that they were trying an unpleaded issue.  This does not mean that the party against whom the amendment is offered must have expressly consented to trial of the unpleaded issue.  Consent may also be implied by the parties' words and conduct, even if neither party openly voices his consent. For example, the second half of Rule 15(b) suggests that the admission without objection of evidence that is not relevant to a pleaded issue is some evidence of consent. 

Conversely, consent is not implied by a party's failure to object to evidence that is relevant to both pleaded and unpleaded issues, at least in the absence of some obvious attempt to raise the unpleaded issue.  McLean-Behm Steel Erectors v. OSHRC, 608 F.2d 580, 582 (5th Cir. 1979), rev'g 79 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD 23,139 (No. 15582, 1978).  "[A] court may not base its decision upon an issue that was tried inadvertently.  Implied consent to the trial of an unpleaded issue is not established merely because evidence relevant to that issue was introduced without objection.  At least it must appear that the parties understood the evidence to be aimed at the unpleaded issue."  MBI Motor Co. v. Lotus/East, Inc., 506 F.2d 709, 711 (6th Cir. 1974), quoted with approval in Consolidated Data Terminals v. Applied Digital Data Systems, 708 F.2d 385, 397 (9th Cir. 1983); see also, e.g., McLeod v. Stevens, 617 F.2d 1038, 1040-41 (4th Cir. 1980); Cook v. City of Price, 566 F.2d 699, 702 (10th Cir. 1977); Standard Title Insurance Co. v. Roberts 349 F.2d 613, 620-22 (8th Cir. 1965); Niedland v. U.S., 338 F.2d 254, 258 (3d Cir. 1964).[[5]]  The record convinces us that neither party consented to try the unpleaded allegation that McWilliams Forge violated sections 1910.134(a)(1), (b)(8) and (e)(3)(i).

All the evidence cited by the Secretary in support of the amendment was offered as relevant to the pleaded issues.  That this evidence was not objected to does not suggest or imply consent to try the unpleaded issues.  MBI Motor Co., 506 F.2d at 711.  Nor was there an obvious attempt to raise these issues.  On the contrary, the circumstances of the hearing reveal that neither party consented to the trial of these unpleaded matters.  During cross-examination of the industrial hygienist who conducted the inspection resulting in the citation, McWilliams Forge elicited much testimony as to whether the general duty clause was preempted by OSHA standards in section 1910.134.  The industrial hygienist maintained that the citation to the general duty clause was proper. On re-direct examination, the Secretary did not attempt to prove that specific standards were applicable and had been violated. Instead, he attempted to make the opposite point:  that the standards did not preempt the general duty clause because the standards did not apply.  The parties neither consented to litigate nor squarely recognized that they were litigating violations of sections 1910.134(a)(1), (b)(8) and (e)(3)(i).

The issues raised by the original general duty clause allegations may have some similarity to those raised by the Secretary's allegations that McWilliams violated the standards.  However, elements of proof and defenses to general duty clause citations differ substantially from those which are raised by citations for section 5(a)(2) violations.  In the instant case, defenses which could have been raised to rebut alleged violations of the standards (but were not necessary to defend the general duty clause violations) were not made.

For example, item 1 of the citation originally alleged that a "qualified person" did not "test the atmosphere" for "concentrations of toxic contaminants or a deficiency or excess of oxygen that were hazards to life or health" in the pit before and while McWilliams Forge employees worked there.  The Secretary now alleges that the employer violated section 1910.134(b)(8) by its "failure to test the atmosphere in the pit."  The standard states that "[a]ppropriate surveillance of work area conditions and degree of employee exposure or stress shall be maintained."  At trial under the standard the parties might have litigated a number of issues not raised by the 5(a)(1) allegation, including the meaning of the critical phrases "appropriate surveillance," "work area conditions," and "degree of employee exposure or stress."  These issues were not tried.  Indeed, it is not clear, and we have found no Commission or court decisions suggesting, that "appropriate surveillance" necessarily includes atmospheric testing.

What we have said for item one applies as well to the other items.  With respect to item three, for example, the parties might have litigated additional issues such as whether the Secretary cited the most specifically applicable standard.  The Secretary suggests at one point in his review brief that McWilliams Forge should have equipped its employees with "self-contained breathing apparatus;" at another point he suggests an "air-supply respirator."  Yet, there are separate provisions covering standby assistance where these devices are used.  See 29 C.F.R. 1910.134(e)(3)(ii) (self-contained breathing apparatus) and (iii) (air line respirators); see also OSHA Industrial Hygiene Technical Manual V-22, Table V-1 (March 1984), reprinted in 2 BNA OSHR Reference File 77:8001, 77:8210 (June 1984), CCH Employ.   Safety & Health Guide No. 680 (May 1984).

Item four of the citation alleged originally that "employees did not use applicable respiratory protective equipment as required by the nature of the atmospheric contaminants."  Section 1910.134(a)(1), the standard that the Secretary now claims was tried by the parties, requires that "appropriate respirators shall be used pursuant to the following requirements."  The standard that follows, 29 C.F.R. 1910.134(a)(2), states that respirators shall be provided "when such equipment is necessary to protect the health of the employee."  As the Secretary recognizes in his brief, this provision arguably is susceptible to a vagueness attack, which might have caused the parties to litigate whether the standard was valid as applied--an issue that was not tried.

We find that the parties did not consent to try the unpleaded allegations and that issues relevant to the unpleaded allegations were not tried.  The Secretary's motion must be denied.  We recognize that the result of this ruling is that the Secretary's allegations against McWilliams Forge will not be resolved on the merits and that the considerable time and attention paid by the parties and the judge to the allegations will have been wasted.  To avoid a recurrence of this situation, we suggest that the Secretary's attorneys follow a course which has been suggested in other cases:  When it is claimed or suggested that a standard preempts the general duty clause, (or is more specifically applicable), move to amend to allege in the alternative a violation of that standard.  E.g., Henkels & McCoy, 76 OSAHRC 143/C2, 4 BNA OSHC 1502, 1976-77 CCH OSHD 20,944 (No. 8842, 1976); Sun Shipbuilding & Drydock Co., 73 OSAHRC 44/A9, 1 BNA OSHC 1381, 1973-74 CCH OSHD 16,725 (No. 161, 1973) (concurring opinion); Cf. J.L. Manta Plant Services Co., 82 OSAHRC 61/A2, 10 BNA OSHC 2162, 1982 CCH OSHD 26,303 (No. 78-4923, 1982)(invalidity).

A final matter raised by the proceedings in this case should be addressed.   In the past, parties have submitted motions in appeal briefs, in petitions for discretionary review, and even in footnotes to briefs and petitions.  In this instance, the motion for an amendment was made in the Secretary's appeal brief.  We will no longer accept this as a matter of course.  The Commission believes that it is the better practice to require parties to file motions in separate documents as is the practice in the federal courts. See Fed.R.Civ.P. 7(b)(1) and Fed.R.App.P. 27(a).   This will, we believe, ensure that motions are more carefully made and supported.[[6]]

Accordingly, the motion to amend is denied.  The judge's decision is reversed and the citation is vacated.


Ray H. Darling, Jr.
Executive Secretary

DATED:  JUL 20 1984

CLEARY, Commissioner, dissenting:

I dissent from the majority view of this case and would allow an amendment and remand. 

The gravamen of the violation with which the Respondent was charged in this case, regardless of whether it was brought under section 5(a)(1) or the standard found at 29 C.F.R. 1910.134 is the failure to test the confined atmosphere for toxic substances before employees were permitted to enter, a failure to maintain any type of surveillance for the protection of employees, and a failure to provide respirators where so required.   The relevant factual issues have been litigated.  As to the first allegation, section .134(b)(8) contemplates surveillance of work conditions and degree of employee exposure.  This should alert an employer that he not be cognizant of a possible exposure of employees to toxic substantives, particularly when entering confined areas.  However, I agree that Respondent was not made aware of the Secretary's intent to amend his charge to 1910.134 until it was raised on appeal, and then at a time when Respondent might not have had an opportunity to object.[[1]]  Thus, I would remand the case to allow the Respondent to indicate whether he was prejudiced, and raise any defenses he might have to the application of 1910.134 to these facts.

The decision of the majority in this case would essentially prohibit amendment of pleadings in Commission cases, in this case an amendment from section 5(a)(1) to a standard on the grounds that the majority can visualize some grounds that may be stated as objections to the application of a particular standard.  In so doing, however, they are reversing longstanding precedent and running contra to several Circuit Courts of Appeals which have addressed this issue.

This Commission has frequently permitted amendments of pleadings.  Pleadings have never been considered a serious obstacle to reaching the merits of a case, whether the amendments were from one standard to another or from an alleged 5(a)(1) violation to an alleged violation of a standard:  see Mabry, J. L. Grading, Inc., 74 OSAHRC 37/A14, 1 BNA OSHC 1211, 1974-1975 CCH OSHD 15,141; Bethlehem Steel Corp., 1975 OSAHRC 44/A2, 2 BNA OSHC 1732, 1975-76 CCH OSHD 16,956; California Stevedore & Ballast Co., 75 OSAHRC 47/C4, 3 BNA OSHC 1080, 1975-76 CCH OSHD 16,798; Konkolville Lumber Co., Inc., 76 OSAHRC 147/A2, 3 BNA OSHC 1796, 1976-77 CCH OSHD 18,296; Southern Colorado Prestress Co., 76 OSAHRC 107/D8, 4 BNA OSHC 1638, 1976-77 CCH OSHD 17,881; Claude Neon Federal Co., 77 OSAHRC 104/A2, 5 BNA OSHD 1546, 1977-78 CCH OSHD 20,279; McKee Wellman Power Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1977-78 CCH OSHD 20,142.

In Dunlop v. Uriel G. Ashworth, CA 4 (1976) 538 F.2d 562, 3 BNA 2065, the Fourth Circuit considered a case presenting similar issues to McWilliams.  The Secretary alleged a violation of a standard which was determined to be inapplicable by the Administrative Law Judge and by the Commission.  2 BNA OSHC 1552.  However, the Fourth Circuit decided the case as follows:

Uriel Ashworth was cited by the Secretary of Labor for a serious violation of the Occupational Safety and Health Act of 1970 [[1]] and was assessed a $600 fine.  Ashworth contested this citation and succeeded in persuading the Administrative Law Judge who heard his case that the specific provision he was cited under (Sec. 5(a)(2) of the Act) did not proscribe the conduct attributed to him.  This determination was upheld by the Occupational Safety and Health Review Commission [2 OSHC 1552], and the Secretary appealed to this court.  We affirm the decision below insofar as it holds that Ashworth is not guilty of violating Sec. 5(a)(2) of the Act; however, we remand the case in order to allow the Secretary to amend his pleadings to allege a violation of Sec. 5(a)(1), the so-called General Duty Clause.

In Morgan & Culpepper, Inc. v. OSAHRC and Donovan, CA 5 (1982), 676 F.2d 1065, 10 BNA 1629, it was said,

Liberal construction and easy amendment of pleadings are accepted procedure in an administrative law context.  Administrative tribunals, as well as courts, have often heeded one commentator's advice that "[t]he most important characteristic about pleadings in the administrative process is their unimportance." 1 K. Davis, Administrative Law 523 (1958).  Federal Rule of Civil Procedure 15(b) allows for amendment of pleadings not only after issues have been tried by express or implied consent, but also when such amendment will facilitate the presentation of the merits of the action and the objecting party fails to demonstrate prejudice.[[1]]  As this Court recently noted in Mineral Industries & Heavy Construction Group v. Occupational Safety and Health Review Commission, 639 F.2d 1289 [9 OSHC 1387] (5th Cir. 1981), "Rule 15(b) is designed to ensure that poor foresight on the part of scriveners is not converted into tunnelvision on the part of judges.  The amendment process prevents 'technicalities' in pleading from impeding the just resolution of the merits of the cases."

The Court then said that "While it is true that amendments to pleadings should be freely granted, it is just as certain that the company charged should be given an opportunity to fully respond to the new theories presented."  It then went on to say that "The Commission should remand cases in which amendment of pleadings is allowed so that the party cited will have a full opportunity to present its defense to the altered charge.  Where amendment of pleadings is permitted on the basis of the second half of Fed.R.Civ.P. 15(b), the Commission may not deny the petitioner the opportunity to present new defenses..."

Thus, the majority overlooks the fact that Respondent would have the opportunity in this case to raise any defenses to 1910.134, which it may not have raised before the administrative law judge previously.

In Brown & Root, Inc. v. OSAHRC and Marshall, 9 BNA 1387, (again, the 5th Cir.), 639 F.2d 1289, the Court said,

To effectuate the policy underlying Rule 15(b), and in recognition of the spirit of the Federal Rules of Civil Procedure, this Circuit has pursued "a course of strong liberality *** in allowing amendments."  United States v. Stephen Brothers Line, supra, 384 F.2d at 124-125 (quoting Hall v. National Supply Co., 270 F.2d 379, 383 (5th Cir. 1959)); see Wansor v. George Hantscho Co., Inc., 570 F.2d 1202, 1208 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978).

More importantly for the present case, it is well settled that administrative pleadings are "liberally construed" and "easily amended." NLRB v. Fant Milling Co., 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243 (1959); Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 903, [5 OSHC 1793, 1796] (2nd Cir. 1977); National Realty and Construction Co., Inc. v. Occupational Safety and Health Review Commission, 489 F.2d 1257, 1264 [1 OSHC 1422, 1426] (D.C. 1973)...As one commentator has noted "The most important characteristic of pleadings in the administrative process is their unimportance.  And experience shows that unimportance of pleadings is a virtue."  1 K. Davis, Administrative Law Treatise, 8.04 at 523 (1958).

The majority concludes an amendment is not proper where the Respondent could raise some objection to an amendment to charge a violation of a standard such as the validity of promulgation of the standard, it is void for vagueness, etc.  But this will always be true, and this statement can only construed as a conclusion by the majority that they will never allow an amendment under Fed.R.Civ.P. 15(b).  The majority has said that the Secretary can't amend from a 5(a)(1) charge to a standard because there are different elements of proof and methods of trial.  For this reason, he couldn't amend from a standard to 5(a)(1).  Also, there can be no amendment from one standard to another because the majority can suggest a challenge to the validity of promulgation of the substitute standard, or its vagueness.  There is no possibility of amendment left.  With one stroke the majority has eliminated Fed.R.Civ.P. 15(b) from Commission proceedings, reversed years of precedent, put this agency out of step with other administrative courts, and ignores 38 years, more or less, in the development of administrative law.

I also dissent from the majority's sua sponte decisional rulemaking that reverses without just cause almost 14 years of precedent, that motions may no longer be incorporated in briefs.  This is not reflected in the Commission's Rules of Procedure, and is a matter more appropriately handled by an amendment to the procedural rules with concomitant notice and opportunity for comment.  Rule 30(a) of the Commission Rules says, "[E]xcept as provided herein, there are no specific requirements as to the form of any pleading."  Moreover, in the instant case, the relevant portion of the Secretary's brief was clearly labeled a motion to amend, and I see no reason to require him to submit two separate documents.  The Secretary could, of course, have styled his submission as a "Brief of the Secretary, and Motion to Amend," but certainly no one was misled in this case, particularly since the amendment issue was directed for review.

The Administrative Law Judge decision in this matter is unavailable in this format.  To obtain a copy of this document, please request one from our Public Information Office by e-mail ( ), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).


[[1]] Federal Rule 15 applies to Commission proceedings because the Commission has not prescribed a different rule on the point. See section 12(g) of the Act, 29 U.S.C. 661(f); Commission Rule 2(b), 29 C.F.R. 2200.2(b).

[[2]] Section 5(a)(1) of the Act states that "[e]ach employer shall furnish to each of his employees employment and place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees[.]"

[[3]] Item two of the citation was withdrawn by the Secretary on review.

[[4]] International Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888 (5th Cir. 1977); 3 Moore's Federal Practice 15.13[2] at 15-171, 15-172 (1980).

[[5]] "The reasoning behind this view is sound since . . . the opposing party may not be conscious of [the evidence's] relevance to issues not raised by the pleadings unless that fact is specifically brought to his attention." 6 Wright and Miller, Federal Practice & Procedure: Civil 1493 at 466-7 (1971). To the extent that Commission cases hold or intimate that prejudice to the party opposing the motion determines whether amendments will be allowed under the first half of Rule 15(b) without regard to whether implied consent to try the issues was present, e.g., Crawford Construction Co., 82 OSAHRC 16/A2, 10 BNA OSHC 1522, 1525, 1982 CCH OSHD 25,984, p. 32,605 (No. 79-928, 1982), rev'd without published opinion, No. 82-3350 (6th Cir. Aug. 10, 1983), they are overruled.  Reliance on prejudice necessarily requires the Commission to rest its ruling entirely on speculation about how the parties might have presented their claims and defenses if they had recognized that an unpleaded issue was being tried. Aside from the practical difficulties of predicting what might have been, reliance on prejudice would be inconsistent with the text of the first half of Rule 15(b) and its very hypothesis--that unpleaded issues were tried by the parties' consent. Where there is evidence sufficient to demonstrate implied consent to try an unpleaded issue, the party opposing the motion may show that amendment nevertheless is inappropriate by showing prejudice.

[[6]] A party opposing a motion has ten days under Commission Rule 37, 29 C.F.R. 2200.37, to file a response in opposition to the motion.  Without leave of the Commission, parties have no right to file reply briefs, however.  See Commission Rule 93(b)(4), 29 C.F.R. 2200.93(b)(4).  A party opposing a motion made in an answering brief may therefore be misled into believing that he is not entitled as of right to respond to the motion, may not notice the short time in which to do so, and may go unnecessarily through the extra trouble and expense of filing a motion for leave to file a reply brief to respond to the motion.  Here, however, the amendment was suggested in the direction for review, and respondent had ample opportunity to brief the issue even if it did not respond to the motion.  Here, however, the amendment was suggested in the direction for review, and respondent had ample opportunity to brief the issue even if it did not respond to the motion in the Secretary's brief.

[[1]] I note that the issue of whether to amend was in the Direction for Review and should have alerted Respondent to this question.

[[1]] 29 U.S.C. Sec. 651 et seq. (1970).

[[1]] The Federal Rules of Civil Procedure are made applicable to the proceedings of the Occupational Safety and Health Review Commission (OSHRC) by Rule 2(b) of the OSHRC's Rules of Procedure, 29 C.F.R. 2002.2(b).