SOUTHWESTERN BELL TELEPHONE CO.
OSHRC Docket No. 14761
Occupational Safety and Health Review Commission
November 29, 1978
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Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
James E. White, Reg. Sol., USDOL
Nancy L. Coats, Southwestern Bell, for the employer
OPINION:
BY THE COMMISSION:
A decision of Review Commission Judge David C. Oringer is before the Commission pursuant to a direction for review by former Commissioner Moran issued under § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. At issue are Judge Oringer's sua sponte amendment of the citation from 29 C.F.R. § 1926.450(a)(1) to 29 C.F.R. § § 1910.268(h)(8)(i) and 268(h)(8)(iii) and his affirmance of a single violation of the latter standards. We affirm the Judge's decision to the extent that it is consistent with the following discussion.
Most of the pertinent facts were stipulated by the parties prior to the hearing. Respondent's employees were working inside a manhole, splicing wires in a cable for the purpose of providing communications service. Access to and from the manhole was provided by a metal ladder attached to the neck of the manhole. The first rung of the ladder was approximately 36 inches below ground level and 4 feet 1 inch below [*2] the top of the collar placed around the manhole. The rungs of the ladder below the top rung were spaced 12 inches apart.
Respondent was cited for a nonserious violation of § 1926.450(a)(1). n1 The OSHA compliance officer opined that Part 1926 of 29 C.F.R., addressed to construction work, was applicable to respondent's activities because respondent's employees were "altering" a communications system. n2 He also testified that the hazard involved in having a manhole ladder begin 36 inches below the ground was that an employee might have difficulty in reaching the top rung of the ladder, and could possibly slip and fall into the manhole.
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n1 The standard provides the following:
§ 1926.450 Ladders.
(a) General Requirements. (1) Except where either permanent or temporary stairways or suitable ramps or runways are provided, ladders described in this subpart shall be used to give safe access to all elevations.
n2 29 C.F.R. § 1910.12(a) makes Part 1926 of 29 C.F.R. applicable to "construction work." 29 C.F.R. § 1910.12(b) defines "construction work" as "work for construction, alteration, and/or repair, including painting and decorating."
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Respondent asserted in its notice of contest, answer, stipulation of facts and issues, as well as at the hearing, that the construction standards at Part 1926 were inapplicable because respondent was not engaged in construction work, as defined in § 1910.12(b). The applicable standards, according to Respondent, are the telecommunications standards at 29 C.F.R. § 1910.268 et seq. In a pre-hearing stipulation, respondent contended that if the ladder failed to conform to any OSHA standard, the standard at issue should be 29 C.F.R. § 1910.268(h)(8)(iii). n3 At the hearing, respondent's counsel stated that if the telecommunications standard were found to apply, respondent was willing to stipulate that the telecommunications standard had been violated.
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n3 The standard provides the following:
§ 1910.268 Telecommunications.
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(h) Ladders.
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(8) The following requirements apply to metal manhole ladders.
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(iii) The spacing of rungs or steps shall be on 12-inch centers.
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Throughout the pre-hearing conference (held immediately prior to the hearing) and the hearing, the parties argued at length over the question of whether the construction or telecommunications standards were applicable. The Judge repeatedly stated that the major issue for his consideration was the question of the applicability of the construction or telecommunications standards. In its post-hearing brief, respondent stated, "It is undisputed that respondent's ladder did not meet the requirements of § 1910.268(h)(8)(iii). The first rung of the ladder reached only to 36 inches from the top of the manhole."
In his decision, Judge Oringer first considered whether respondent was engaged in construction work. He concluded that "splicing of cable was exactly the type of work for which the vertical telecommunications standards were created, and it seems most tortured and impractical to label this type of work, without any other activity taking place, 'construction work.'" He then turned to the question of whether respondent had violated any of the telecommunications standards and found that respondent had violated both 29 [*5] C.F.R. § 1910.268(h)(8)(i) n4 and § 1910.268(h)(8)(iii). The Judge reasoned that a ladder free of "structural defects and accident hazards means that the ladder must begin no more than 12 inches from the top of the manhole, particularly in view of section iii." The Judge amended the citation sua sponte to allege a single violation of § § 1910.268(h)(8)(i) and (iii), reasoning that respondent was aware that the ladder at issue failed to comply with the telecommunications standard and, indeed, had argued this as a "positive part of its case."
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n4 The standard provides the following:
§ 1910.268 Telecommunications.
* * *
(h) Ladders.
* * *
(8) The following requirements apply to metal manhole ladders. (i) Metal manhole ladders shall be free of structural defects and free of accident hazards such as sharp edges and burrs. The metal shall be protected against corrosion unless inherently corrosion-resistant.
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In its brief on review, respondent argues that the Judge's action in amending the citation and finding [*6] respondent in violation of the telecommunications standards was a violation of due process. Respondent contends that permissible amendments are limited to those that either abandon charges in the complaint or seek to clarify those charges, and that it was denied the opportunity to defend against the alleged violations of the telecommunications standards. Respondent avers that even if the amendment was proper, there was no violation of the telecommunications standards. Respondent notes that the Secretary, in his brief to the Judge, stated that respondent had conformed with the requirements of § 1910.268(h)(8)(iii).
We find that the Judge's sua sponte amendment of the citation was proper n5 and that the Judge correctly found a violation of § 1910.268(h)(8)(iii). However, we disagree with the Judge that respondent was in violation of § 1910.268(h)(8)(i).
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n5 Because complainant has not excepted to the Judge's decision, respondent has not taken issue with the Judge's finding that it was not engaged in construction work and the issue is not one of compelling public interest, the question of whether respondent's activities constituted construction is not before us on review. See Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1975-76 CCH OSHD para. 20,780 (No. 4136, 1976).
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Our analysis of the amendment issue turns on Rule 15(b) n6 of the Federal Rules of Civil Procedure, made applicable to Commission proceedings by 29 C.F.R. § 2200.2(b). n7 Rule 15(b) is divided into two independent parts. The first section addresses the situation in which an unpleaded issue has been tried with the express o implied consent of the parties. The second part of the Rule concerns itself with amendments to conform the pleadings to the proof where a party has objected to the introduction of evidence pertaining to issues not within the pleadings. Because neither party objected to the introduction of evidence concerning possible violations of the Act for failure to comply with the unpleaded telecommunications standards, this case falls within the ambit of the first section of the Rule.
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n6 The Rule 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 any 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 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 his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.
n7 29 C.F.R. § 2200.2(b) reads as follows:
Rule 2 Scope of Rules; applicability of Federal Rules of Civil Procedure.
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(b) In the absence of a special provision, procedure shall be in accordance with the Federal Rules of Civil Procedure.
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In this case, it is arguable that the issue of a violation of § 1910.268(h)(8)(iii) was tried by the express consent of the parties. Respondent's counsel stated at the hearing that respondent was willing to stipulate to a violation of that standard and, as the Judge states, respondent pursued this argument as an affirmative part of its case. Even if there was no express consent to trial of a violation of § 1910.268(h)(8)(iii), there was implied consent. Two factors that give rise to a finding of implied consent are the failure of the parties to object to introduction of evidence concerning the unpleaded issue and the introduction of evidence relevant to the unpleaded issue by the party opposing the amendment. See Duane Smelser Roofing Co., 76 OSAHRC 145/E3, 4 BNA OSHC 1948, 1976-77 CCH OSHD para. 21,387 (No. 4773, 1976), and cases cited therein; 3 Moore's Federal Practice para. 15.13[2], at 994 (2d ed. 1974); 6 C. Wright & A. Miller, Federal Practice and Procedure § 1493, at 493-465 (1971). Neither of the parties objected to the introduction of evidence [*9] concerning the elements of a violation based upon a failure to comply with § 1910.268(h)(8)(iii). n8 Both parties stipulated to the facts that are pertinent to a determination of whether respondent complied with § 1910.268(h)(8)(iii). We thus conclude that the parties impliedly consented to trial of the requirements of § 1910.268(h)(8)(iii).
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n8 We note that failure to object may not in itself support a finding of implied consent, particularly where the opposing party is not on notice that extrinsic evidence is being introduced to support a violation of a standard not cited in the pleadings. See 3 Moore's Federal Practice, supra para. 15.13[2], at 991-992; 6 Wright & Miller, supra § 1493, at 466. Such is not the case here, for respondent was well aware that the elements of a violation based upon a failure to comply with § 1910.268(h)(8)(iii) were being tried and adduced evidence on point.
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Although prejudice to the opposing party is sometimes considered as a factor in determining whether an amendment [*10] should be granted under the first part of Rule 15(b), n9 respondent has not demonstrated prejudice here. Respondent asserts that it was denied the opportunity to present additional defenses to the alleged violation of the Act for failure to comply with § 1910.268(h)(8)(iii), but has failed to delineate those defenses or specifically define how it was prejudiced. The factual elements constituting noncompliance with § 1926.450(a)(1) as alleged by the Secretary and the factual elements constituting noncompliance with § 1910.268(h)(8) as found here are identical. Neither party was misled in that respect. This, regardless of which of the two standards was alleged to have been violated, respondent has essentially the same defenses available to it. See Kaiser Aluminum & Chemical Corp., 76 OSAHRC 52/C10, 4 BNA OSHC 1162, 1975-76 CCH OSHD para. 20,675 (No. 3685, 1976), affirmed on reconsideration, 77 OSAHRC 39/E8, 5 BNA OSHC 1180, 1977-78 CCH OSHD para. 21,692 (1977). To accept respondent's argument, therefore, would be to elevate the form of the pleadings over the substance of the issues, contrary to the fundamental concept of notice pleading under [*11] both the Federal Rules of Civil Procedure and the Administrative Procedure Act. See generally 2 Moore's Federal Practice, supra para. 1.13[1]; 4 Wright & Miller, supra § 1029; 1 K. Davis, Administrative Law Treatise, § § 8.04-8.06 (1958).
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n9 See 6 Wright & Miller, supra at 467-468.
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Once a finding of implied or express consent has been made, the Judge has no discretion to deny an amendment. Rule 15(b) states that if issues are tried by implied or express consent, "they shall be treated in all respects as if they had been raised in the pleadings (emphasis added)." In light [*12] of this mandatory language, there is no course but to amend the citation. See Kaiser Aluminum & Chemical Corp., supra; 3 Moore's, supra para. 15.13[2], at 996; 6 Wright & Miller, supra, § 1493, at 469. We also note that the failure of complainant to request an amendment is immaterial in light of the language of Rule 15(b). The Rule provides that any party may move to amed at any time, "but failure so to amend does not affect the result of the trial of these issues." In light of the implied consent of the parties to trial of a violation of § 1910.268(h)(8)(iii), we find that the Judge's sua sponte amendment was proper.
We conclude that § 1910.268(h)(8)(iii) encompasses the hazard presented in this case and requires that the top rung of a metal manhole ladder be no more than 12 inches from the top of the manhole. n10 The standard states that the spacing of rungs shall be on 12-inch centers, meaning that the rungs must be 12 inches apart. Uniformity in the spacing of the rungs from the top to the bottom of the ladder eliminates the hazard in this case - the difficulty of attempting to step down 36 inches to reach the top rung of [*13] the ladder. Finally, we note that in Southwestern Bell Telephone Co., No. 77-2463 (5th Cir., February 21, 1978), the court held that an administrative law judge's interpretation of § 1910.268(h)(8)(iii) as requiring the top rungs of the ladder to be within 12 inches of the top of the manhole was not contrary to the plain meaning of the standard.
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n10 We specifically disagree with the Judge's holding that respondent did not comply with the standard at 29 C.F.R. § 1910.268(h)(8)(i). See n.4, supra. That standard addresses "structural defects" and "accident hazards such as sharp edges or burrs." There is no evidence that the ladder possessed any structural defects or that the placement of rungs was a structural defect. Thus, it has not been shown that the ladder was not "free of structural defects." With regard to "accident hazards such as sharp edges or burrs," we apply the doctrine of statutory construction that where a general term is followed by specific terms, the general terms are construed to include only matters similar in nature to the matters described by the specific terms. See generally 2A C. Sands, Sutherland Statutory Construction § 47.17 (4th ed. 1973). Applied here, the phrase, "such as sharp edges or burrs," is construed as limiting the general phrase, "accident hazards," to hazards similar to sharp edges or burrs. We find that the absence or improper spacing of rungs is not a hazard of the same general category as sharp edges or burrs. Accordingly, noncompliance with 29 C.F.R. § 1910.268(h)(8)(i) has not been established.
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For the foregoing reasons we affirm a violation for failure to comply with the standard at 29 C.F.R. § 1910.268(h)(8)(iii) and the Judge's penalty assessment of $100. So ORDERED.
DISSENTBY: BARNAKO
DISSENT:
BARNAKO, Commission, Dissenting:
Despite the fact that the Secretary insists Respondent did not violate 29 C.F.R. § 1910.268(h)(8)(iii), the majority concludes that the parties consented to try a violation of that standard, and that Respondent violated the standard. I respectfully disagree.
Although Respondent was willing to stipulate that its ladder violated the applicable telecommunications standard, no such stipulation was ever entered because the Secretary took the opposite view. As the Secretary stated in his brief to the Judge:
The telecommunication standards merely require the use of ladders in manholes and the spacing of ladder rungs at twelve inch intervals. These standards are silent as to the distance the top of the ladder must be from the manhole cover. It is therefore complainant's position that respondent is in conformity with 29 CFR 1910.268(o)(4) and 1910.268(h)(8)(iii) since the manhole in question [*15] did have a ladder with rungs that were spaced twelve inches apart.
The Secretary is the prosecutor under the Act. n1 It is his responsibility to inspect and investigate workplaces, to cite employers he believes have violated occupational safety and health standards, and to prosecute contested cases before the Commission. 29 U.S.C. § § 658(a) and (c). The Commission's role is adjudicatory, n2 and the Commission cannot specify the legal theory the Secretary should pursue in prosecuting a case. See National Realty and Construction Co. v. OSHRC, 489 F.2d 1257, 1267 (D.C. Cir. 1973). In recognition of these respective roles, the Commission has refused to find trial by consent of a different legal theory than is described in the pleadings when the Secretary specifically declines to allege a violation under that theory. Godwin-Bevers Co., 75 OSAHRC 26/A2, 2 BNA OSHC 1470, 1974-75 CCH OSHD P19,206 (No. 1373, 1975). I would adhere to our precedent and hold that the parties here did not consent to try a violation under the telecommunications standards. See also Western Waterproofing Co. v. Marshall, 576 F.2d 139, 144 (8th Cir. 1978) cert. denied, No. 78-362 (November [*16] 13, 1978); Granite-Seabro Corp., 74 OSAHRC 59/A3, 2 BNA OSHC 1163, 1974-75 CCH OSHD P18,470 (No. 923, 1974) (Cleary, concurring).
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n1 See Carnation Can Co., 78 OSAHRC 54/D9, at p. 12, 6 BNA OSHC 1730, 1735, 1978 CCH OSHD P22,837 at p. 27,620 (No. 8165, 1978), pet. for review filed, No. 78-2894 (9th Cir., August 18, 1978).
n2 T.J. Service Co., 78 OSAHRC 23/A2, 6 BNA OSHC 1509, 1978 CCH OSHD P22,670 (No. 14991, 1978).
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Because I would not amend the pleadings, I do not reach the question of the proper interpretation of § 1910.268(h)(8)(iii). I think, however, that whether (h)(8)(iii) requires that the top rung of the ladder be within twelve inches of the top of the manhole is not as obvious as the majority seems to think. n3 Their interpretation differs from that advanced by the Secretary and, as Chairman Cleary has stated, "(i)t is the Secretary's regulatory intent that must ultimately govern the interpretation of occupational safety and health standards." United States Steel Corp., 77 OSAHRC 64/C8 at p. [*17] 32, 5 BNA OSHC 1289, 1300, 1977-78 CCH OSHD P21,795 at p. 26,229 (No. 10825, 1977) (concurring and dissenting opinion). We are not, of course, bound to accept an interpretation suggested by the Secretary that does not manifest his regulatory intent, but we should nonetheless accord the Secretary's views careful consideration, particularly where, as here, the standard is one that the Secretary has drafted and promulgated pursuant to the notice and comment rulemaking proceedings established by Section 6(b) of the Act. n4
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n3 This standard has not previously been interpreted by the Commission. In another case involving this same employer, an administrative law judge interpreted the standard in the same manner as does the majority. Southwestern Bell Telephone Co., 77 OSAHRC 132/E9, 5 BNA OSHC 1851, 1977-78 CCH OSHD P21,938 (No. 76-4056, 1977), aff'd 568 F.2d 368 (5th Cir. 1978). The administrative law judge's interpretation, however, is not definitive Commission precedent. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976). Moreover, although the administrative law judge's interpretation was upheld on appeal by the Fifth Circuit, that Court was silent as to whether his interpretation was the most reasonable one. In that case the administrative law judge accepted the interpretation the Secretary had advanced. The Fifth Circuit has consistently stated that it will uphold the Secretary's interpretation of a standard if it is one of several reasonable interpretations, even if it does not appear as reasonable as some other. Southwestern Industrial Contractors & Riggers, Inc. v. Marshall, 576 F.2d 42 (5th Cir. 1978); Brennan v. Southern Contractor's Service, 492 F.2d 498 (5th Cir. 1974). Accordingly, in the Southwestern bell case that was before it, the Court may have done no more than apply its usual rule requiring it to uphold the Secretary's reasonable interpretation. The Commission, however, does not act as an appellate court in resolving questions of how a standard should be interpreted, but seeks to determine the most reasonable interpretation. United States Steel Corp., infra. Therefore, the Court's decision does not serve as instructive authority for the Commission in determining the proper interpretation of the standard.
n4 When the Secretary promulgates a standard pursuant to Section 6(b), 29 U.S.C. § 655(b), we must look to his intent at the time the standard was promulgated to resolve any ambiguity in the standard. See GAF Corp., 75 OSAHRC 3/As, 3 BNA OSHC 1686, 1975-76 CCH OSHD P20,163 (No. 3203, 1975), aff'd, 561 F.2d 913 (D.C. Cir. 1977). Although an interpretation advanced by the Secretary's counsel during litigation is entitled to careful consideration, such an interpretation cannot, without more, be taken as evidence of the Secretary's intent at the time of promulgation, or even as an official interpretation of the Secretary. See United States Steel Corp., supra (lead opinion). Indeed, the fact that the Secretary advanced a different interpretation in another case (n. 3, supra), suggests that the interpretation he puts forth here is no more than the opinion of his trial counsel. However, because the telecommunications standard was not pleaded, and because the Secretary did not seek an amendment, the parties have not had the opportunity to address the crucial question in resolving an ambiguity in a standard: the intent of the Secretary at the time the standard was promulgated. Therefore it is all the less advisable for the Commission to render a definitive interpretation of the standard in this case.
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