JOHN & ROY CARLSTROM, d/b/a CARLSTROM BROTHERS CONSTRUCTION
OSHRC Docket No. 13502
Occupational Safety and Health Review Commission
November 20, 1978
[*1]
Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor
Dean G. Kratz, for the employer
OPINIONBY: COTTINE
OPINION:
DECISION
COTTINE, Commissioner: A decision of Administrative Law Judge Alan M. Wienman is before the Commission pursuant to a general direction for review issued by former Commissioner Moran under § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. In his decision, Judge Wienman amended a citation to allege a violation of the standards published at 29 C.F.R. § 1926.451(k)(8) and § 1926.451(h)(4). He affirmed the amended citation, assessing a penalty of $25. On review, the Respondent, Carlstrom Brothers Construction ("Carlstrom"), takes exception to the Judge's disposition of this citation. n1 We affirm the Judge's decision to the extent it is consistent with the following discussion.
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n1 The Judge vacated item 1 and affirmed items 2 - 5 of a citation for non-serious violations. The vacated item alleged a violation of 29 C.F.R. § 1926.304(f). The remaining items alleged violations of 29 C.F.R. § 1926.300(b)(2), § 1926.500(e)(1)(iii), § 1926.152(g)(11) and § 1926.152(g)(9). No party has objected to the disposition of these items, and they will not be considered by the Commission because they do not involve issues of compelling public interest. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer, Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976).
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Carlstrom was a subcontractor at a building construction site in Fremont, Nebraska. It had installed a single-point suspension seaffold under the supervision of its project superintendent. The scaffold was suspended from two I-beams placed on the roof of the building. The I-beams, each ten feet long, were welded and bolted together to form a 20-foot outrigger. Two five-gallon paint drums filled with concrete were placed on the roof at either side of the end of the I-beam. A metal bar was set in the concrete in each drum and welded to the top of the I-beam. The drums were fastened to wooden cleats that rested on the roof of the building.
During an inspection of the worksite, an OSHA compliance officer observed one of Carlstrom's employees in a basket suspended from the scaffold. This employee was not protected by a tied-off safety belt. The scaffold had been erected on the day of the inspection for use as a working level for caulking the windows of the building two or three days later. The employee in the suspended basket testified that he had been testing the scaffold to determine whether the [*3] lift would clear an overhang of the building. In addition, the project superintendent testified that it was customary for an employee to ride in the scaffold to test it.
The citation charged Carlstrom with a single serious violation of 29 C.F.R. § 1926.451(a)(2) and § 1926.451(k)(8). n2 It stated that the I-beams were "not securely fastened or anchored to prevent displacement." In the complaint, the reference to § 1926.451(k)(8) was seleted and it was alleged that Carlstrom had violated 29 C.F.R. § § 1926.451(h)(5) and 451(i)(8) n3 in addition to § 1926.451(a)(2). The complaint specifically described the allegedly hazardous condition as follows: "footing or anchorage for the single-point adjustable scaffolding was not sound, rigid, and capable of carrying the maximum intended load without settling or displacement."
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n2 The standards provide the following:
§ 1926.451 Scaffolding.
(a) General requirements.
* * *
(2) The footing or anchorage for scaffolds shall be sound, rigid, and capable of carrying the maximum intended load without settling or displacement. Unstable objects such as barrels, boxes, loose brick, or concrete blocks, shall not be used to support scaffolds or planks.
* * *
(k) Single-point adjustable suspension scaffolds.
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(3) Suspension methods shall conform to applicable provisions of paragraphs (h) and (i) of this section.
n3 These standards provide the following:
§ 1926.451 Scaffolding.
* * *
(h) Masons' adjustable multiple-point suspension scaffolds.
* * *
(5) Each outrigger beam shall be equivalent in strength to at least a standard 7-inch, 15.3-pound steel I-beam, at least 15 feet long, and shall not project more than 6 feet 6 inches beyond the bearing point.
* * *
(i) Swinging scaffolds) two-point suspension.
* * *
(8) On suspension scaffolds designed for a working load of 500 pounds, no more than two men shall be permitted to work at one time. On suspension scaffolds with a working load of 750 pounds, no more than three men shall be permitted to work at one time. Each employee shall be protected by an approved safety life belt attached to a lifeline. The lifeline shall be securely attached to substantial members of the structure (not scaffold), or to securely rigged lines, which will safely suspend the employee in case of a fall. In order to keep the lifeline continuously attached, with a minimum of slack, to a fixed structure, the attachment point of the lifeline shall be appropriately changed as the work progresses.
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At the hearing, Judge Wienman raised the issue of whether Carlstrom had violated 29 C.F.R. § 1926.451(h)(4), n4 which requires that I-beams be "securely fastened or anchored to the frame or floor system of the building or structure." Carlstrom objected to testimony concerning the applicability of that standard and to the Judge's raising the issue, claiming surprise and asserting that the complaint had not alleged a violation of that standard.
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n4 The standard provides the following:
§ 1926.451 Scaffolding.
* * *
(h) Masons' adjustable multiple-point suspension scaffolds.
* * *
(4) The scaffold outrigger beams shall consist of structural metal securely fastened or anchored to the frame or floor system of the building or structure.
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In his decision, the Judge found the evidence inadequate to support a violation of § 1926.451(a)(2). He ruled that the Secretary had failed to prove that the outrigger was incapable of carrying [*5] the maximum intended load without settling or displacement even though the scaffold and I-beams could have been anchored in a more rigid fashion. The Judge vacated the § 1926.451(a)(2) allegation on this basis. Judge Wienman also vacated the § 1926.451(h)(5) and § 1926.451(i)(8) allegations.
However, based upon the testimony of the compliance officer and Carlstrom's project superintendent, Judge Wienman found that the I-beams were not fastened or anchored to the frame or floor system of the building. He held that Carlstrom had violated § 1926.451(h)(4). The Judge noted that § 1926.451(h)(4) had not been specifically referred to in the citation or complaint. However, he found that Carlstrom "had fair notice from the pleadings that the manner in which the I-beam was fastened or anchored was an issue." As a result, Judge Wienman concluded that Carlstrom had violated § 1926.451(k)(8) as originally alleged in the citation because the scaffold installation methods did not conform with the requirements of § 1926.451(h)(4), which is specifically referred to in § 1926.451(k)(8). The § 1926.451(a)(2) allegation in the citation was deleted and the portion of the citation alleging a violation [*6] of § 1926.451(k)(8) was amended to include a specific reference to § 1926.451(h)(4).
On review, Carlstrom asserts that the Judge erred in finding a violation of § 1926.451(h)(4) for the following three reasons: (1) the Judge improperly found Carlstrom in violation of a standard that was not specifically set forth in the citation or complaint, (2) the record does not establish a violation of § 1926.451(h)(4), and (3) Carlstrom did not and could not with the exercise of reasonable diligence have known that a violation of § 1926.451(h)(4) existed at the worksite. The Secretary maintains that the Judge's amendment of the pleadings was proper and argues that Carlstrom was in violation of § 1926.451(h)(4). He urges that the Commission affirm the Judge.
I. Conforming Amendment under Federal Rule 15(b)
It has long been held that pleadings before the Commission should be liberally construed and easily amended. n5 "The Federal Rules reject the approach that pleading is a game of skill in which one misstep of counsel may be decisive to the outcome. . . ." Conley v. Gibson, 355 U.S. 41, 48 (1957). This is consistent with the overall objective of the Federal Rules ". . . to secure the [*7] just, speedy and inexpensive determination of every action." Fed. R. Civ. P. 1. Central to our disposition of this case is Rule 15(b) of the Federal Rules of Civil Procedure, n6 made applicable to Commission proceedings by 29 C.F.R. § 2200.2(b).
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n5 See, e.g., Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir. 1977); National Realty & Const. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973); Mid-Plains Const. Co., 75 OSAHRC 81/D2, 2 BNA OSHC 1728, 1974-75 CCH OSHD P19,484 (No. 4584, 1975); Pukall Lumber Co., Inc., OSAHRC , 2 BNA OSHC 1675, 1974-75 CCH OSHD P19,433 (No. 10136, 1975).
n6 Fed. R. Civ. P. 15(b) provides the following:
Rule 15. Amended and Supplemental Pleadings.
* * *
(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by the 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 the party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at 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 his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
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At the hearing Carlstrom objected to testimony by the compliance officer concerning the applicability of § 1926.451(h)(4). The second part of the Rule is concerned with the situation created when a party objects to the introduction of evidence at trial on the ground that the evidence is not within the scope of the pleadings. Under the second part of the Rule ". . . the court may allow the pleadings to be amended and shall do so freely . . ." when amendment will promote resolution of the case on the merits and the objecting party is unable to demonstrate it will be prejudiced by the amendment. The key factors in determining prejudice are whether the party opposing the amendment had a fair opportunity to prepare and present its case on the merits and whether it could offer additional evidence if the case were to be retried on a different theory. See 3 Moore's Federal Practice, P15.14 at 1011-1012; Hodgson v. Colonnades, Inc., 472 F.2d 42, 48 (5th Cir. 1973); Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 907-908 (2d Cir. 1977). Absent a demonstration of prejudice, leave [*9] to amend should be freely granted. Foman v. Davis, 371 U.S. 178 (1962); Moore's Federal Practice, supra at 1011; 6 C. Wright & A. Miller, Federal Practice and Procedure, § 1495 at 480 (1971).
In this case, no specific reference was made to § 1926.451(h)(4) in either the citation or the complaint. However, § 1926.451(k)(8), noted in the citation, refers to subpart (h) of § 1926.451. At the hearing, Carlstrom objected to the raising of § 1926.451(h)(4), claiming that it was surprised and asserting that the complaint did not include a reference to § 1926.451(h)(4). Although it is true that the complaint did not refer to § 1926.451(h)(4), this single fact alone is not sufficient to demonstrate prejudice. The Judge raised the issue during the testimony of the Secretary's sole witness and before the close of the case-in-chief. n7 Thus, Carlstrom had the opportunity to question every witness concerning the factual issue in controversy -- the fastening of the I-beam to the frame or floor system of the building. n8 In fact, shortly after § 1926.451(h)(4) was raised by the Judge, Carlstrom asked questions of its project superintendent concerning the fastening of the I-beam [*10] and relies on this exchange in support of its assertion that there was no violation of that standard. This indicates that Carlstrom had an opportunity to defend against the § 1926.451(h)(4) allegations.
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n7 The fact that the Secretary failed to seek an amendment is not crucial because the Judge has the ultimate responsibility for the disposition of the case on its merits. In addition, Rule 15(b) states that a failure by a party to formally request an amendment "does not affect the result of the trial" of the issues that were actually litigated.
n8 In addition, the citation alleged that the I-beams were "not securely fastened or anchored" and the complaint alleged that the "footing or anchorage" of the scaffold was deficient. Under these circumstances Carlstrom's counsel was on notice that the fastening or anchoring of the scaffold was an issue that might be raised at the hearing.
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Carlstrom has also failed to show that additional evidence could have been offered in defense. It is significant that Carlstrom's brief [*11] does not support an assertion that additional evidence could have been presented at the hearing had the case originally involved an alleged violation of § 1926.451(h)(4). Instead, it relies on the record evidence to support its assertion that there was no violation of § 1926.451(h)(4). Furthermore, Carlstrom did not ask for a continuance n9 or seek leave to present additional evidence. It chose instead to rely on the evidence presented at the hearing. n10 Under these circumstances we find no prejudice to Carlstrom in the preparation and presentation of its defense. Accordingly, the conforming amendment was a proper exercise of the Judge's discretion and his action is affirmed. n11
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n9 See Moore's Federal Practice, supra P15.14 at 1012.
n10 The alleged violation was addressed in Carlstrom's brief before the Judge and thus it was obviously aware that a violation of § 1926.451(h)(4) was in issue at the hearing.
n11 See Kaiser Aluminum & Chemical Corp., 76 OSAHRC 52/C10, 4 BNA OSHC 1162, 1975-76 CCH OSHD P20,675 (No. 3685, 1976), aff'd on reconsideration, 77 OSAHRC 39/E8, 5 BNA OSHC 1180, 1977-78 CCH OSHD P21,692 (1977), and cases cited therein.
[*12]
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Moreover, we find the amendment proper under the first part of Rule 15(b) that requires amendment "[w]hen issues not raised by the pleadings are tried by the express or implied consent of the parties." Rather than consistently objecting to all evidence relevant to the unpleaded § 1926.451(h)(4) charge, Carlstrom objected to the Judge's raising the issue of a possible violation of that standard. n12 Usually consent is implied from a party's failure to object at trial to the introduction of evidence relevant to the unpleaded charge. Moore's Federal Practice, supra P15.13[2] at 994. Carlstrom objected to the potential amendment. Its objection, therefore, was directed to a changed legal theory. Under the first part of Rule 15(b) "a change in the nature of the cause of action, or the legal theory of the action, is immaterial as long as the opposing party has not been prejudiced in presenting his case." Moore's Federal Practice, supra P15.13[2] at 985. In Usery v. Marquette Cement Manufacturing Co., supra, the court found that amendment was proper in a Commission proceeding when [*13] an employer objected to an amendment which simply changed the legal theory of the case. The court concluded that the crucial issue was whether the employer was prejudiced by the amendment. It found no prejudice to the employer and permitted the amendment under Rule 15(b). Similarly, we have held that if an amendment changes the legal theory from that indicated in the citation, consent will be implied under the first part of the Rule whenever the party opposing amendment has not objected to the introduction of evidence relevant to the unpleaded charge, as long as it is not prejudiced by the amendment. Thus, amendment is proper in this case under the first part of Rule 15(b) because (1) Carlstrom's objection was directed against the changed legal theory in the case, and (2) no prejudice arose from the amendment. Pp. 8-10, supra.
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n12 Carlstrom frames its argument in terms of insufficient notice and particularity under 29 U.S.C. § 658(a). That section of the Act is inapposite to this situation. The citation gave Carlstrom sufficient notice of the facts in issue to enable it to contest -- both the citation and complaint referred to the anchoring of the I-beam.
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II. Section 1926.451(h)(4) Violation
The Judge was correct in holding that the Respondent had knowledge of the violative condition. The I-beam was installed under the supervision of Carlstrom's superintendent. He therefore had actual knowledge of the violative conditions, and we impute his knowledge to Carlstrom. See Mountain States Telephone & Telegraph Co., 78 OSAHRC 30/A2, 6 BNA OSHC 1504, 1978 CCH OSHD P22,668 (No. 13266, 1978). However, Carlstrom argues that the employee's action in riding the scaffold, to test it, prior to its use three days later was not i accordance with Carlstrom's usual practice. In essence, an unpreventable occurrence defense is raised. This defense will be sustained when it is shown that: (1) the employee's action was a departure from a uniformly and effectively enforced workrule, and (2) the employer had no actual or constructive knowledge of the departure. B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976); Floyd S. Pike Electrical Contractors, Inc., 77 OSAHRC 26/B11, 5 BNA OSHC 1088, [*15] 1977-78 CCH OSHD P21,584 (No. 12398), aff'd, 576 F.2d 72 (5th Cir. 1978); Western Waterproofing Co., Inc. v. Marshall, 576 F.2d 139, 144 (8th Cir. 1978). Carlstrom's assertion that work was not to be performed on the scaffold until three days later finds support in the record. However, there is no evidence to support the contention that it was not customary to test the scaffold. In fact, the project superintendent's testimony contradicted this assertion. He stated that the scaffold "might have [been] operated" in the "process of setting it up" and further testified that an employee had to ride in the scaffold to test it. In addition, no evidence was presented that the employee violated any workrules or safety instructions by riding the scaffold for any purpose and thus no unpreventable occurrence defense has been established. See Del-Cook Lumber Co., 78 OSAHRC 14/A2, 6 BNA OSHC 1362, 1978 CCH OSHD P22,544 (No. 16093, 1978).
Finally, we agree that Carlstrom failed to comply with § 1926.451(h)(4). The compliance officer testified unequivocally that the I-beams were not fastened to the frame or floor system of the building. In contrast, the project superintendent [*16] stated at one point that the I-beams were fastened. However, it subsequent questioning by the Judge the superintendent stated that the I-beam was not fastened, that "it had only those weights." We conclude that the Judge was correct in finding that the testimony preponderated in favor of the Secretary. We therefore AFFIRM the Judge's decision and his assessment of a $25 penalty.
IT IS SO ORDERED.
DISSENTBY: BARNAKO
DISSENT:
BARNAKO, Commissioner, DISSENTING:
When the hearing in this case commenced, the Secretary adduced evidence to establish that the footing or anchorage for a single-point adjustable scaffolding was not sound, rigid, and capable of supporting the maximum intended load in violation of § 1926.451(a)(2). Although he concluded that Carlstrom did not violate this standard, the judge found Carlstrom in violation of a standard not mentioned in the complaint, § 1926.451(h)(4), because the scaffold was not fastened to the building. The majority affirms his action, finding amendment is proper under either the first or second part of Rule 15(b). I dissent from their opinion.
At the outset I note that the two parts of Rule 15(b) are mutually exclusive, and therefore the majority's action [*17] in applying both parts is inconsistent. If the second part of Rule 15(b), as the majority contends, is applicable because Carlstrom objected to the introduction of evidence as not within the issues made by the pleadings, then the first part of Rule 15(b), which is applicable where a party consents to the evidence, cannot also apply.
The amendment issue in this case should properly be viewed in the context of implied consent within the first part of Rule 15(b). The only time Carlstrom's counsel objected to the § 1926.451(h)(4) allegation was when Judge Wienman asked the compliance officer whether he had considered any standards other than those referenced in the complaint and the compliance officer answered that he had considered § 1926.451(h)(4). As the majority correctly notes at the conclusion of its opinion, Carlstrom's objection was directed to a change in legal theory. n1 Carlstrom did not object to the introduction of evidence in support of the § 1926.451(h)(4) charge and therefore the second part of Rule 15(b) does not apply. See Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 908 (2d Cir. 1977). Indeed the evidence elicited by the judge with respect [*18] to § 1926.451(h)(4) was repetitive; it had previously been introduced by counsel for both complainant and respondent in questioning the compliance officer concerning the § 1926.451(a)(2) allegation. At no point during this questioning did Carlstrom object.
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n1 Carlstrom's counsel stated:
I just want the record to show an objection to any reference to Subsections [sic] 4 or 14 of H as not being contained within the allegations of the complaint. [emphasis added].
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As I noted previously, the Secretary's case-in-chief was directed to three conditions: (1) whether the scaffolding's footing or anchorage was sound, (2) whether the scaffolding's footing or anchorage was rigid, and (3) whether the I beam supporting the scaffold was capable of supporting the scaffold's maximum intended load. In eliciting testimony relevant to these conditions, both parties necessarily had to introduce evidence about the manner in which the footing or anchorage was secured or fastened. n2 Hence any evidence introduced which was [*19] relevant to a violation of the § 1926.451(a)(2) charge contained in the complaint was relevant to a violation of § 1926.451(h)(4).
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n2 The following testimony was introduced with respect to the § 1926.451(a)(2) allegation:
Q. The beam which is shown in this picture, can you describe what material that is made of?
A. This was an aluminum I beam, and the I beam had a top flange of 2 and 1/4 inches. . . .
Q. Was this the beam to which this scaffold was attached?
A. Yes. . . .
Q. Would you describe what appears to be two cylinders down at the lower end of the beam?
A. Those were two five-gallon cans that were filled with concrete that were used to hold this scaffold in place on the tail.
Q. And these orange colored blinds to the left of the beam are made of iron, right?
A. To a half-inch angle iron.
Q. And they are bolted together one on each side of the beam, is that correct.
A. They were welded into the side here, yes.
Q. . . . In your opinion, was this footing sound?. . .
A. This was the first time I have ever seen it, an outrigger scaffold secured with two five-gallon cans. . . .
Q. . . . . what does this standard mean by sound and rigid?. . . .
A. My connotation of sound and rigid means that it cannot be displaced readily.
Q. In other words, you then felt that this estimated 750 pounds on the front end was sufficient to possibly displace the back end or lift it up, is that correct?
A. Yes. The backend could be displaced.
Q. What was the weight on the back end?
A. The weight on the back end is there. There were two five-gallon buckets of concrete. We figured the weight of the concrete at 140 pounds a cubic foot. A five-gallon bucket will hold approximately 93 pounds of concrete. . . .
Q. Is it your opinion that a displacement could occur?
A. Yes.
Q. How would that occur?
A. Being as it did not have a firm bearing on the front --
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Until the judge introduced the § 1926.451(h)(4) issue at the close of Complainant's case-in-chief, Carlstrom was not aware that a violation of that standard was being tried. Indeed Complainant's actions prior to hearing would have led Carlstrom to conclude that the § 1926.451(h)(4) allegation was not an issue in the case. While this section is incorporated in § 1926.451(k)(8) which was alleged in the citation, the complaint deleted both the reference to the latter section and the language in the citation as to whether the beams were securely fastened or anchored to prevent displacement. The complaint substituted an allegation that the anchorage was not sound and rigid and was inadequate with respect to its capacity [*21] to support the maximum intended load. In addition, the complaint stated that insofar as the citation might be inconsistent with the language of the complaint it was to be considered amended to conform to the allegations of the complaint. Carlstrom could hardly be expected to anticipate that it might have to defend against an alleged violation of § 1926.451(h)(4) when by his actions the Secretary indicated prior to trial that he did not consider this to be the proper standard. As the court stated in Cornell and Company v. OSHRC, 573 F.2d 820, 825 (3d Cir. 1978), "[p]reparing for a hearing of this nature is not the same as preparing for a football game. Surely it is unfair to charge an employer with the burden of guessing what violations the Secretary might charge . . . ."
Nor would I conclude that there is implied consent because the judge raised the § 1926.451(h)(4) issue. Carlstrom is entitled to rely upon the actions of the Secretary's counsel in prosecuting the case. At no point did counsel for the Secretary indicate that he considered § 1926.451(h)(4) to be an issue or request that such an amendment be made. While I agree with the general proposition stated by the [*22] majority that the Judge has ultimate responsibility for the disposition of the case on its merits, his right to question witnesses in order to complete the record on an issue raised by a party does not extend so far as to include injecting sua sponte nonjurisdictional issues that neither party has raised or consented to be tried. Consolidated Pine, Inc., 75 OSAHRC 55/E14, 3 BNA OSHC 1178, 1974-75 CCH OSHD para. 19,597 (No. 5543, 1975). n3
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n3 The majority states in note 7 that it is irrelevant that the Secretary did not seek an amendment since the judge can amend sua sponte under Rule 15(b). However, the provision to which note 7 of the majority opinion refers is applicable only in the situation where issues not raised by the pleadings are fully litigated with the consent of the parties.
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Contrary to the majority's opinion, Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902 (2d Cir. 1977), does not support amendment based upon implied consent under Rule 15(b). In that case the Secretary had [*23] originally alleged a violation of the "general duty clause" of the Act, 29 U.S.C. § 654(a)(1), but amended the citation in the complaint to allege a violation of a specific standard. Thereafter, he sought to amend the complaint to reallege section 654(a)(1). Although the court concluded that the amended complaint was proper, it did so under Rule 15(a) rather than, as the majority contends, under 15(b). n4 The court's reasoning on the question of implied consent is particularly appropriate to this case.
[W]e recognize that the Secretary's shifts in theory conceivably could have obfuscated whether "the evidence went to the unpleaded issue" . . . or that the Secretary's "failure or mistake [may have misled] the party charged" . . . or that there was even a slight chance of "misunderstanding as to what was the basis of the [Secretary's] complaint". . . . Accordingly in fairness we hold that there was no implied consent.
568 F.2d 907 n.9 (citations omitted).
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n4 The Secretary's argument on review in support of the judge's action might conceivably be viewed as a motion to amend under Rule 15(a). See Marquette Cement Manufacturing Co., supra. That rule declares that leave to amend "shall be freely given when justice so requires." In McLean-Behm, supra, I noted that motions to amend under that rule should be denied where there is undue delay, bad faith, or dilatory motive on the part of the movant. Under this test amendment under Rule 15(a) is not proper because of the Secretary's bad faith or dilatory motive. As I noted earlier, the citation in this case originally alleged a violation of § 1926.451(k) which incorporates by reference 1926.451(h)(4). Moreover the language of the citation partially tracked the wording of the standard at § 1926.451(h)(4). Therefore the Secretary was clearly aware of this standard. Additionally the judge alerted the Secretary to the applicability of this standard by his questioning of the compliance officer. Yet at no time during the hearing or in any post hearing submissions to the judge did the Secretary move to amend. In view of these actions by the Secretary I would deny amendment under Rule 15(a).
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Since amendment to § 1926.451(h)(4) is improper and complainant does not take exception to the judge's vacation of the citation as amended in the complaint for violation of § § 1926.451(a)(2), 1926.451(h)(5), and 1926.451(i)(8), the amended citation should be dismissed.