OSHRC Docket No. 14817

Occupational Safety and Health Review Commission

October 31, 1977


Before CLEARY, Chairman; and BARNAKO, Commissioner.


Baruch A. Fellner, Office of the Solicitor, USDOL

Albert H. Ross, Regional Solicitor

Arthur G. Capaldi, for the employer




A decision of Administrative Law Judge Foster Furcolo is before the Commission for review under section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act"). In his decision, Judge Furcolo vacated a citation issued to respondent alleging a serious violation of section 5(a)(2) of the Act for failure to comply with the standard at 29 CFR 1926.652(b). n1 The Judge also denied a motion, which was made by the Secretary two weeks after the hearing had closed, to amend the complaint to allege alternatively a failure to comply with 29 CFR 1926.652(c). n2 The Secretary petitioned for review of the Judge's decision only insofar as it vacated the 1926.652(b) citation, and an order granting its petition was issued. n3

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 This standard reads:

(b) Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working within them. See Tables P-1, P-2 (following paragraph (g) of this section).

n2 This standard reads:

(c) Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring, the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each 1/2-foot horizontal.

The Judge denied the motion to amend on the ground that since the respondent had prepared and defended against the 1926.652(b) citation, it would be prejudiced by an amendment of the citation after the hearing had been closed. Judge's decision at 3.

n3 The Judge also vacated two items of a nonserious citation alleging failures to comply with 29 CFR 1926.50(d)(1) and 1926.602(a)(9)(ii), and affirmed a nonserious item alleging noncompliance with 29 CFR 1926.651(i)(1). Neither party has challenged the Judge's disposition of any of these items and they are not before us on review. Therefore, insofar as these items are concerned, the Judge's decision is the final order of the Commission. Section 12(j) of the Act.


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

At the time of the inspection, respondent was excavating a trench for the installation of a sewer line. The trench was at a right angle from a macadam road, and a portion of the trench extended into the road. Judge Furcolo did not make any factual findings concerning the dimensions or slope of the trench. The only specific finding made by the Judge relevant to the involved citation is that the Secretary failed to establish that the soil was soft or unstable as had been alleged in the citation.

Chairman Clearly would accept the Judge's finding that the soil was not soft or unstable, and the conclusion that a failure to comply with 1926.652(b) was not established. In his opinion, however, an amendment to allege a failure to comply with 1926.652(c) is appropriate in this situation, and the Secretary's motion to amend should have been granted by the Judge. n4 W.N. Couch Constr. Co., 75 OSAHRC 10/F12, 3 BNA OSHC 1786, 1975-76 CCH OSHD para. 20,210 (No. 5105, 1975) (Cleary, dissenting) (amendment under Fed. R. Civ. P. 15(b)); Usery v. Marquette Cement Manufacturing Co. & O.S.H.R.C., No. 76-4083, [*3] 2d Cir., August 29, 1977 (amendment under Fed. R. Civ. P. 15(a)). In the Chairman's opinion, a failure to amend to 1926.652(c) in this situation is an abuse of the Commission's discretion. Marquette Cement, supra.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 Chairman Cleary would not find that amendment is precluded due to the Secretary's failure to move for amendment on review. Under Fed. R. Civ. P. 15(b), "even in the absence of a motion to amend [the Commission has] the duty to determine issues which are presented by the evidence properly before us." Kaiser Aluminum & Chemical Corp., 76 OSAHRC 52/C10, 4 BNA OSHC 1162, 1975-76 CCH OSHD para. 20,675 (No. 3685, 1976), petition for review docketed, No. 77-2280, 9th Cir., June 10, 1977 (and cases cited therein). Furthermore, under Fed. R. Civ. P. 15(a), the Commission may require an amendment to avoid dismissal in order to further the policy of the federal rules "that pleadings are not an end in themselves but are only a means to assist in the presentation of a case to enable it to be decided on the merits." 6 Wright & Miller, Federal Practice and Procedure, 1473, at 376 (1971).


- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Chairman Cleary would further conclude that the preponderance of the evidence establishes respondent's failure to comply with 1926.652(c). Based on the testimony of the compliance officer, Sindo Cavalieri, and respondent's pipelayer, Germano Botelho, concerning the dimensions of the trench, and in view of the photographic exhibits introduced at the hearing, the Chairman would conclude that the trench was not sloped to the extent required by 1926.652(c). n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Chairman Cleary notes that Judge Furcolo stated in his decision:

If upon review it is decided that Complainant's Motion to Amend should have been allowed, I would find that upon the evidence presented at the hearing, the Complainant had established a violation of 29 CFR 1926.652(c) (emphasis in original).

Judge's decision at 4.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Therefore, the Chairman would remand the case to the Judge with directions to permit the Secretary to allege a failure to comply with 1926.652(c), [*5] and, if either party so reuests, to receive additional evidence relevant to the amended citation and complaint. If no additional evidence is offered, he would order that the citation be affirmed.

Commissioner Barnako would accept the Judge's weighing of the evidence and his conclusion that the soil was not soft or unstable. Okland Constr. Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD para. 20,441 (No. 3395, 1976). Therefore, he also agrees that a violation of 1926.652(b) was not established. However, Commissioner Barnako would not amend the complaint to allege a failure to comply with 1926.652(c). He notes that the Secretary did not raise the amendment issue before the Commission and would treat this failure as a waiver of the argument. Assuming that the amendment issue was before the Commission, Commission Barnako would deny the amendment on the grounds that respondent did not consent to the trial of a 1926.652(c) violation and because respondent would be prejudiced by an amendment at this stage of the proceedings. Old Forge Constr. Co., Inc., 76 OSAHRC 40/C8, 4 BNA OSHC 1049, 1975-76 CCH OSHD para. 20,545 (No. 3491, 1976); Carr Erectors, Inc., [*6] 77 OSAHRC 14/C9, 4 BNA OSHC 2009, 1976-77 CCH OSHD para. 21,471 (No. 7477, 1977).

Because the Commission as presently constituted is equally divided, no official action can be taken in this case. Section 12(f) of the Act, 29 U.S.C. 661(e). Accordingly, the Judge's decision becomes the final order of the Commission. Kaw Roofing & Sheet Metal, Inc., 5 BNA OSHC 1724, 1977-78 CCH OSHD para. 22,087 (No. 14774, 1977). The Judge's decision is not binding precedent. See Leone Constr. Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976), appeal withdrawn, No. 76-4070, 2d Cir., May 17, 1976.

It is so ORDERED.