CROOM CONSTRUCTION COMPANY

OSHRC Docket No. 12686

Occupational Safety and Health Review Commission

March 15, 1977

[*1]

Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Cliff Preslar, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge J. Paul Brenton, dated August 26, 1975, is before this Commission for review pursuant to the provisions of 29 U.S.C. 661(i). That decision, which is attached hereto as Appendix A, n1 vacated a citation which averred that respondent violated 29 U.S.C. 654(a)(2) by failing to comply with the occupational safety and health standard codified at 29 C.F.R. 1926.104(a). n2 For reasons that follow, that decision is affirmed.

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n1 Chairman Barnako does not agree to this attachment.

n2 That standard provides that:

"Lifelines, safety belts and lanyards shall be used only for employee safeguarding. Any lifeline, safety belt, or lanyard actually subjected to in-service loading, as distinguished from static load testing, shall be immediately removed from service and shall not be used again for employee safeguarding."

[*2]

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Following a properly conducted inspection, n3 respondent was issued the aforementioned citation which alleged noncompliance with 29 C.F.R. 1926.104(a) in that "lifeline, safety belt and lanyard were not being used for employee safeguarding while installing roofing sheets on a steel building." The complaint modified the language of the citation by charging respondent with failing

"to provide lifelines, safety belts and lanyards of a minimum of one-half inch nylon, or equivalent, with a maximum length to provide for a fall of no greater than six feet for employees working more than 15 feet above the ground surface in violation of 29 CFR section 1926.104(a)."

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n3 The inspection was precipitated by the fatal fall of one of respondent's employees from the roof of a single story metal building on which he was working. The employee fell through an opening temporarily covered by two by six boards to the concrete floor 15 to 17 feet below. Lifelines, safety belts or lanyards had been neither used nor provided.

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At the outset of the hearing, complainant's attorney asserted that the alleged violative conduct "was in violation of 1926.28 and 1926.104, code of Federal regulations." n4 Respondent's counsel vigorously objected maintaining that he was "not prepared to go into" 1926.28. Judge Brenton thereafter stated that "the citation . . . apparently speaks for itself." At the conclusion of complainant's presentation, the Judge granted respondent's motion to dismiss because complainant failed to establish a prima facie violation of 1926.104(a). In so ruling, the Judge impliedly rejected complainant's contention that 1926.104(a) must be read in conjunction with 1926.28(a). He concluded that "the case was tried on the sole issue of whether respondent had . . . violated" 1926.104(a) and that the evidence did not establish a violation of that standard because there was no evidence that the protective equipment in issue had been used for other than employee safeguarding or had been subjected to in-service loading. We agree with these conclusions.

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n4 The basis of his assertion was that "thus 1926.104 is a part of subpart (b)" of 29 C.F.R. 1926.28 which provides that:

"Regulations governing the use, selection, and maintenance of personal protective and lifesaving equipment are described under Subpart E of this part."

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Review was directed on the following issues:

"1. Whether the Administrative Law Judge erred in failing to amend the citation and complaint under rule 15(b) of the Federal Rules of Civil Procedure to allege non-compliance with the standard at 29 CFR 1926.28(a) together with the cited standard at 29 CFR 1926.104(a)?

2. Whether the Administrative Law Judge erred in failing to find non-compliance with these standards?"

We answer both questions in the negative.

Although this Commission has seen fit at times to invoke Rule 15(b) of the Federal Rules of Civil Procedure, which provides for liberal amendment of pleadings, it has permitted such amendments only when the new issues have been tried by the express or implied consent of the parties and no undue prejudice would result therefrom. See Secretary [*5] v. Isaacson Structural Steel Company, 17 OSAHRC 496 (1975); Secretary v. Park Construction Company, 17 OSHARC 343 (1975); Secretary v. Brisk Waterproofing Co., Inc., 3 OSAHRC 1132 (1973).

We find that respondent did not consent either expressly or impliedly, to an amendment in this case. Respondent expressly objected at the outset of the hearing to proceeding on the basis that a violation of 1926.28 was in issue, and the Judge's statement that "the citation . . . apparently speaks for itself" implied that respondent's objection was meritorous. Furthermore, although complainant presented evidence pertaining to the substance of the charge as set out in the citation and respondent did not object thereto, we find that consent cannot be implied under the circumstances of this case.

Under Rule 15(b), implied consent will only be found when the party against whom the amendment is sought was fairly apprised that the unpleaded charge was in issue. Niedland v. United States, 338 F.2d 254, 258 (3rd Cir. 1964); Kuhn v. Civil Aeronautics Board, 183 F.2d 839, 842, (D.C. Cir. 1950). If both parties introduce evidence relevant to the amended charge, or if such evidence is [*6] introduced without objection, this may indicate that the parties consented to trial of the issue. Petersen v. Klos, 426 F.2d 199, 202-203 (5th Cir. 1970); Arkla Exploration Co. v. Boren, 411 F.2d 879, 883 (8th Cir. 1969); Niedland v. United States, supra. However, it must appear that the parties understood that such evidence went to the amended charge and was not introduced solely because it was relevant to another issue being tried. Freitag v. The Strand of Atlantic City, 205 F.2d 778, 781 (3rd Cir. 1953); Simms v. Andrews, 118 F.2d 803, 807 (10th Cir. 1941).

In the instant case, it would have been an easy matter for complainant to have moved to amend the charge. Rather, however, after respondent made its motion to dismiss, complainant continued to insist that a violation of 29 C.F.R. 1926.104(a) was the proper charge. In this regard, complainant's counsel stated:

". . . I think the respondent has failed to provide safety belts, lifelines, and lanyards in violation of the implicit reading of 1926. 104 that they are required."

This is not a case where the two standards at issue prohibit essentially the same conduct, nor is this a case where the pleadings [*7] can be amended to conform to the evidence under Rule 15(b) without possible prejudice to the respondent. The elements of proof of the two standards here in question are entirely different. Section 1926.104 requires that lifelines, safety belts, and lanyards be used only for employee safeguarding and specifically prohibits using these items for employee safeguarding if they have been subjected to in-service loading. On the other hand, 1926.28(a) requires the wearing of "personal protective equipment" under hazardous conditions. n5 Because of complainant's insistence that 1926.104(a) was the proper charge, respondent may not have presented defenses that would have been available to it if complainant had moved to amend. Accordingly, we conclude that the Judge did not err in failing to amend the charge. see Marquette Cement Manufacturing Company, OSAHRC Docket No. 4725, January 27, 1976.

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n5 That standard states that:

"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."

[*8]

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Furthermore, even if we were to hold that the amendment should be allowed, we would vacate the citation on the ground that the evidence is insufficient to establish a violation of the amended charge.

In Secretary v. Grand Union Company, 20 OSAHRC 663 (1975), the Commission considered the applicability of the personal protective equipment provision of general industry standards, 29 C.F.R. 1910.132(a), and relying in part on Cape and Vineyard Division of New Bedford Gas and Edison Light Company v. OSHRC, 512 F.2d 1148 (1st Cir. 1975), held that where the terms of the standard are broad n6 it must be construed in light of industry practices or customs. n7 The only testimony in the instant case concerning the use of personal protective equipment was elicited from the complainant's area director, who had never personally visited the worksite, and one of respondent's employees. The employee testified that "[t]here is no way you can wear [a safety belt] when you are working like that, putting that kind of stuff on a building." Moreover, the area director testified as follows:

"Q. On a one story [*9] building such as this, have you ever observed lifelines or lanyards in use? What I am asking you: Is this customary in the industry to do this?

A. No. sir. I don't recall anyone using them."

* * *

"Q. . . . Just one last question and it is a reiteration: Have you ever seen lifelines or lanyards being used on a building job on a one story building roof?

A. From my personal experience, no."

With the evidence in this posture, a violation of 29 C.F.R. 1926.28(a) cannot be affirmed. Secretary v. Grand Union Company, supra.

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n6 There is no question that the terms of 29 C.F.R. 1926.28(a) are equally as broad as those of 1910.132(a). In fact, the majority opinion in Secretary v. Carpenter Rigging and Contracting Corp., 15 OSAHRC 400, 406 (1975), referred to 1910.132(a) is the general industry analogue to 1926.28(a).

n7 Also see Secretary v. Frank Briscoe Company, OSAHRC Docket No. 7792 (October 4, 1976).

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Accordingly, the Judge's decision is affirmed.

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING: [*10]

In my view, the majority errs by failing to amend the citation to conform to the evidence of a failure to comply with 29 CFR 1926.28(a).

The Commission has consistently held that a Rule 15(b) amendment is appropriate when all issues relevant to the amended theory have been tried with the express or implied consent of the parties, and when the amendment would not prejudice the parties. See, e.g., Warnel Corp., 4 BNA OSHC 1034, 1975-76 CCH OSHD para. 20,576 (No. 4537, 1976). For the reasons set forth below, I would hold that these requirements are fully satisfied in this case.

The citation alleged a violation of section 5(a)(2) of the Act for a failure to require "Lifeline, safety belt and lanyard [use] . . . for employee safeguarding while installing roofing sheets. . . ." The complaint subsequently filed by the Secretary's counsel modified the text of the citation, but still asserted that essence of the allegation was the failure "to provide lifelines, safety belts and lanyards" for employees working more than 15 feet above the ground.

The allegation was essentially factual; i.e., the failure to require the described means of personal protection from the hazzrd [*11] of falling. Under our precedent, the allegation concerns the elements of section 1926.28(a) rather than section 1926.104(a).

At the beginning of the hearing the Secretary asserted that both 1926.28(a) and 1926.104(a) were in issue. Respondent argued that it was not prepared to try the case under 1926.28(a), but did not say why not except that a differently numbered standard was involved. Yet, respondent did not object to the testimony of Gary Price, an employee of respondent, that none of the employees were wearing safety belts, lifelines, or lanyards. This testimony is plainly relevant under section 1926.28(a) but not under section 1926.104(a). There also was no objection to the testimony by OSHA's acting area director that the hazard of falling through the opening in the roof was apparent and that safety belts and lifelines could feasibly be used to alleviate the hazard. Moreover, respondent affirmatively defended on the ground that the use of safety belts or lifelines at the jobsite was impossible. Indeed, most of the testimony adduced at hearing by both parties concerned safety belts and whether their use at the worksite was feasible.

In view of the foregoing, I [*12] see no prejudice to the respondent resulting from an amendment. Respondent has had fair notice and an opportunity to defend.

The majority emphasizes that the Secretary insisted during the hearing that 1926.104(a) was the proper standard, n8 and that he failed to move for an amendment of the citation. However, when an employer has clear notice of the essentially factual allegations against him, and the case is tried under those allegations, it is the duty of the Commission to decide issues presented by the evidence, and to conform the pleadings to the evidence if necessary. Kaiser Aluminum & Chemical Corp., 4 BNA OSHC 1162, 1975-76 CCH OSHD para. 20,675 (No. 3685, 1976). See also Carr Erectors, Inc., 4 OSHC 2009, CCH para. 21,471 (No. 7247, Jan. 27, 1977) (dissenting opinion), which sets forth more fully my views on amendments of administrative pleadings.

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n8 See n.4 supra.

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I would remand the case for an initial decision by the Administrative Law Judge on the "impossibility" defense of respondent. [*13]

APPENDIX A

DECISION AND ORDER

Robert A. Fitz, for the Secretary of Labor

Cliff Preslar, for the Respondent

STATEMENT OF THE CASE

J. Paul Brenton, Judge, OSAHRC

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act) contesting a cltation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of that Act.

The citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the respondent, located at 201 Tanton, 3 miles west of Clint, Highway 80, Clint, Texas, and described as follows: "General Building Construction", the Respondent has violated section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to section 6 thereof.

The citation, which was issued on February 28, 1975, alleges that the violation results from a failure to comply with a standard promulgated by the Secretary by publication in the Federal Register and codified in 29 CFR 1926.

The description of the alleged violation contained [*14] on said citation states:

Item 1 "29 CFR 1926.104(a) Lifeline, safety belt and lanyard were not being used for employee safeguarding while instlaling roofing sheets on a steel building 19 miles east of El Paso, Texas on Highway 80 - 3201 Panton Street."

The standard as promulgated by the Secretary provides as follows:

Item 1 "Section 1926.104 -- Safety Belts, Lifelines, and Lanyards

(a) Lifelines, safety belts, and lanyards shall be used only for employee safeguarding. Any lifeline, safety belt, or lanyard actually subjected to in-service loading, as distinguished from static load testing, shall be immediately removed from service and shall not be used again for employee safeguarding."

Pursuant to the enforcement procedure set forth in section 10(a) of the Act, the respondent was notified by letter dated February 28, 1975, from Robert B. Simmons, Area Director of the Lubbock, Texas, area, Occupational Safety and Health Administration, U.S. Department of Labor proposed to assess a penalty or the violation alleged in the amount of $550.00.

After respondent contested this enforcement action, and a complaint and an answer had been filed by the parties, the case came on for hearing [*15] at El Paso, Texas, on June 17, 1975.

INTRODUCTORY

At the conclusion of complainant's case respondent's motion to dismiss the citation and the complaint was sustained because complainant failed to present facts and circumstances making a prima facia case for violation of 29 CFR 1926.104(a). This was the sole regulation alleged to have been violated, and the case was tried on the sole issue of whether respondent had, in fact and in law, violated this regulation as alleged.

FINDINGS OF FACT

1. Respondent conceded that it engages in a business affecting commerce.

2. On February 12, 1975, respondent was engaged in roofing a one story metal building which it then had under construction.

3. During this operation a hole, at or near the center of the roof top, was created within which to install a skylight. This hole was covered with two by six boards, nevertheless, one of respondent's workmen fell through this opening 15 or 17 feet to the concrete floor below resulting in his death.

4. This accident triggered the inspection by complainant two days later.

5. Three employees were engaged in roofing activities on the roof top at the time of the accident during which time [*16] and prior thereto no one of them had been provided with a lifeline, safety belt, and lanyard of any description, nor was any one of them using any kind of this equipment.

6. Except use for employee safeguarding, there is no evidence that respondent has at that time or any other time, caused or permitted the use of lifelines, safety belts, and lanyards of any description for any other purpose whatsoever, including in-service loading.

DISCUSSION

Complainant argues that the cited regulation implicitly imposes the duty upon respondent employer to provide and cause to be used lifelines, safety belts, and lanyards to make the roof top in question a safe place to work. He further argues that his complaint at paragraph IV amplified the citation by specifically charging failure to provide safety belt lanyard of a minimum of one-half inch nylon, or equivalent, with a maximum length to provide for a fall of no greater than six feet in violation of 29 CFR 1926.104. The strength and length requirement, concerning which he alluded, is included in sub-paragraph (d) 1926.104.

Neither 104(a), the cited regulation, nor 104(d) of part 1926 of title 29, command the respondent employer [*17] to provide and use lifelines, safety belts, and lanyards with respect to any employee job performance. The cited regulation specifically limits the use of this equipment for the sole purpose of employee safeguarding. 1926.104(d) specifically prohibits the use of a safety belt lanyard which is anything less than one half inch nylon, or equivalent, with a maximum length to provide for a fall of no greater than six feet.

The fashioners of the cited regulation were concerned with protecting the employee from the hazard of using defective personal protective equipment as distinguished from the hazard the equipment is designed to safeguard.

Moreover, it has been held in Secretary v. G.E. Drywall, Inc. 4 OSAHPC 1502, that 29 CFR 1926.104(a) is too vague and indefinite to provide adequate notice to an employer and must be cited in conjunction with a specific regulation which advises and informs when the safety belt is to be worn.

Accordingly the conclusion that complainant failed to produce evidence capable of supporting his case for a violation as alleged the dismissal of the citation and complaint should be and is confirmed.

CONCLUSIONS OF LAW

The Review Commission [*18] has jurisdiction to hear and decide this case.

A violation for failure to provide or use safety belts, lifelines, and lanyards to safeguard roofers from falls cannot be predicated upon the regulation at 29 CFR 1926.104(a)

Where complainant fails by his evidence to make a prima facia case for a violation as alleged and tried a motion to dismiss the complaint and citation at the conclusion of complainant's case should be sustained.

ORDER

Wherefore, it is Ordered that:

The citation and the notification of proposed penalty to be assessed be and each hereby is, vacated.

It is so Ordered at Dallas, Texas.

J. Paul Brenton, Judge