OSHRC Docket No. 80-7330


Before:  BUCKLEY, Chairman and CLEARY Commissioner.


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).

Copperweld Steel Company ("Copperweld") has petitioned for review of the decision of the administrative law judge finding Copperweld in violation of section 5(a)(1) of the Act, 29 U.S.C. 654(a)(1).  The alleged violation involves an unguarded elevated runway in Copperweld's plant.  We conclude that section 5(a)(1) does not apply to the cited conditions, in light of the specific provisions of 29 C.F.R. 1910.23(c)(2).[[2]]  We remand the case to the judge to determine whether an amendment of the pleadings to charge a violation of section 1910.23(c)(2) would be appropriate, and, if so, to determine whether a violation of that standard has been established.

Copperweld operates a steel manufacturing plant in Warren, Ohio.  The melt shop, where molten metal pouring operations take place, is about 400 feet long.   The runway in question runs parallel to tracks on which three cranes operate.   The runway is bounded on one side by the shop's wall.  The other side, adjacent to the crane tracks and eight feet above the pouring platform, is open.  The runway is about 4 1/2 feet wide except at the building support columns, where the width is reduced to 18 1/4 inches.  The runway provides the only access to the three cranes, which operate on the pouring platform.

The primary purpose of the runway is to provide a means of escape for the hot metal crane operators during an explosion or other emergency.  It is undisputed that guardrails cannot be placed along the open side of the runway because they would block the operator's escape in an emergency.  However, crane operators also walk along the runway about once or twice a week to enter and exit a crane when a shift change occurs during a lengthy pour, and the crane cannot be moved to the point where the relieving crane operator enters the runway.  There is no evidence that the runway ever is used for any purpose other than entering and exiting the cranes.

At the hearing, Copperweld moved to dismiss the Secretary's case on the ground that section 1910.23(c)(2) applies to the cited conditions and thus citation to section 5(a)(l) is inappropriate.  Copperweld further argued that the runway fell under the "special purpose" exception in section 1910.23(c)(2) and therefore that it was not required to have a guardrail on its open side.  The Secretary continued to contend that section 5(a)(1) of the Act was the applicable provision.   The judge ruled that Copperweld did not use the runway exclusively for emergency escape and concluded that this was a violation of section 5(a)(1) of the Act.

The Secretary now agrees with Copperweld that section 1910.23(c)(2) applies to the facts and that section 5(a)(1) does not.  He argues that the judge should have amended the pleadings sua sponte at the hearing after Copperweld had raised the standard's applicability.  He moves to have the Commission amend the citation under Rule 15(b) of the Federal Rules of Civil Procedure to allege a violation of section 1910.23(c)(2).  Copperweld argues that a violation of section 1910.23(c)(2) was not tried below and argues that an amendment now would come too late.  Copperweld states that it would be prejudiced by an amendment because it would have presented additional evidence in defense if it had known that a violation of section 1910.23(c)(2) was being tried.

Because the elevated walkway is a runway [[3]] and is more that four feet above the adjacent floor level (the pouring platform), section 1910.23(c)(2) applies here and citation to section 5(a)(1) of the Act is inappropriate, as Copperweld and the Secretary agree.  E.g., A. Prokosch & Sons Sheet Metal, Inc., 80 OSAHRC 96/A2, 8 BNA OSHC 2077, 1980 CCH OSHD 24,840 (No. 76-406, 1980).  The next question is whether the pleadings should be amended as the Secretary requests to charge noncompliance with section 1910.23(c)(2).  The judge did not rule on this issue because no motion to amend was made to him.  We therefore remand the case to the judge to determine initially whether an amendment of the pleadings under Rule 15(b) to allege a violation of that standard should be allowed.  If the judge determines that the motion to amend should be granted, he is to decide whether Copperweld should be permitted an opportunity to present further evidence regarding the amended charge, as it requests, and he is to make appropriate findings and conclusions.



DATED:  AUG 31 1984

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[[1]] Section 5(a)(1) provides:

Each employer . . . shall furnish to each of his employees employment and a 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.

[[2]] 1910.23 Guarding floor and wall openings and holes

(c) Protection of open-sided floors, platforms, and runways.

(2) Every runway shall be guarded by a standard railing (or the equivalent . . . ) on all open sides 4 feet or more above floor or ground level.  Wherever tools, machine parts, or materials are likely to be used on the runway, a toeboard shall also be provided on each exposed side.

Runways used exclusively for special purposes (such as oiling, shafting, or filling tank cars) may have the railing on one side omitted where operating conditions necessitate such omission, providing the falling hazard is minimized by using a runway of not less than 18 inches wide.  Where persons entering upon runways become thereby exposed to machinery, electrical equipment, or other danger not a falling hazard, additional guarding than is here specified way be essential for protection.

[[3]] Section 1910.21(a)(5) provides:

Runway.  A passageway for persons, elevated above the surrounding floor or ground level, such as a footwalk along shafting or a walkway between buildings.