ALL-STATE INDUSTRIES, INC.
OSHRC Docket No. 15522
Occupational Safety and Health Review Commission
September 20, 1977
[*1]
Before CLEARY, Chairman; and BARNAKO, Commissioner
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
Marshall H. Harris, Regional Solicitor, U.S. Department of Labor
Ira J. Smotherman, Jr., for the employer
OPINION:
DECISION
BY THE COMMISSION:
The issues are whether Administrative Law Judge Joseph Chodes erred in (1) affirming Complainant's citation alleging that Respondent violated the occupational safety standard at 29 C.F.R. 1926.500(d)(1), and (2) refusing to allow Complainant to amend the citation in his complaint to allege in the alternative a violation of 29 C.F.R. 1926.28(a). We conclude that the judge erred in affirming the citation for violation of 1926.500(d)(1), and we reverse this portion of his decision. We are, however, divided on whether he erred in disallowing the amendment. Therefore, we can take no official action on the amendment issue, and the judge's ruling becomes the final order of the Commission. 29 U.S.C. 661(e); Vappi & Co., 77 OSAHRC 72/D7, 5 BNA OSHC 1358, 1977-78 CCH OSHD para. 21,787 (No. 8282, 1977).
Respondent's employees were installing a flat roof on a building when one employee fell 14 1/2 feet to the ground and was fatally injured. Following [*2] an investigation, Complainant issued a citation alleging that Respondent violated 29 C.F.R. 1926.500(d)(1) n1 by failing to guard the roof with a standard railing on all exposed sides. In his complaint, filed approximately six weeks later he sought to amend to allege in the alternative a violation of 29 C.F.R. 1926.28(a) n2 in that employees were not required to use safety belts and lanyards for their protection where the use of guardrails may have been impossible. Complainant contended before the judge that this amendment complies with Commission Rule of Procedure 33(a)(3), n3 which, Complainant said, is analogous to the liberal amendment provisions of Federal Rule of Civil Procedure 15(a). n4 He also argued that the amendment is proper under Federal Rule 8(e)(2), which permits alternative pleading. n5
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n1 In pertinent part this standard provides, "Every opensided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . . on all open sides. . . ."
n2 This standard provides:
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.
n3 "Where the Secretary seeks in his complaint to amend his citation . . . he shall set forth the reasons for amendment and shall state with particularity the change sought." 29 C.F.R. 2200.33(a)(3).
n4 "A party may amend his pleading once as a matter of course at any time before a responsive pleading is served. . ."
n5 29 U.S.C. 661(f) and 29 C.F.R. 2200.2(b) provide that unless the Commission otherwise specifies, its proceedings shall be in accordance with the Federal Rules of Civil Procedure. The Commission has no rule governing alternative pleading.
[*3]
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Respondent opposed the requested amendment and asked that it be denied because Complainant offered no reasons within the meaning of Commission Rule 33(a)(3). At the same time Respondent filed an answer to the complaint denying the allegations of the violation and raising an affirmative defense that 1926.500(d)(1) is inapplicable on the facts of the case. Although it also raised other defenses, n6 Respondent argued that until the amendment it had intended to defend only on the ground of inapplicability of 1926.500(d)(1) whereas the amendment, if allowed, would inject substantive new issues into the case.
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n6 Respondent also defended saying that compliance with the standard would prevent completion of the work and would be more hazardous to its employees than noncompliance. It raised the same defenses to 1926.28(a).
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Respondent also said the amendment was untimely because Complainant did not request amendment until almost two months after [*4] he had issued the citation; in Respondent's view, it was denied the opportunity to investigate as soon as possible the circumstances of the supposed violation of 1926.28(a). Complainant, on the other hand, asserted that he had filed the complaint within the period of time prescribed the Commission's rules and without prejudice to Respondent; according to Complainant, the factual allegations had not been changed because both the citation and the complaint alleged exposure to a fall.
At trial Judge Chodes reserved ruiling on the amendment issue to allow the parties to develop a full record on all allegations, at which point Respondent declared, without objection by Complainant, that any evidence it might adduce on the issue of a violation of 1926.28(a) was not intended to waive its position with respect to the amendment issue and would not constitute trial by consent of a violation of 1926.28(a).
Following the close of Complainant's case, Respondent moved for dismissal on the grounds that 1926.500(d)(1) is inapplicable to flat roofs and that Complainant had not proved the 1926.28(a) allegation. The judge denied the motion with respect to 1926.500(d)(1) in accordance with Commission [*5] precedent that this standard applied to flat roofs. n7 He reserved ruling on the motion as to 1926.28(a). Respondent then proceeded with its case and presented evidence regarding the feasibility and efficacy of both guardrails and safety belts.
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n7 E.g., S.D. Mullins Co. and Diamond Roofing Co., 73 OSAHRC 49/A2, 1 BNA OSHC 1365, 1973-74 CCH OSHD para. 16,803 (nos. 364 & 459, 1973) (consolidated), rev'd, 528 F.2d 645 (5th Cir. 1976).
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In his decision Judge Chodes would not allow Complainant to amend. In his view, the facts concerning the alleged violation of 1926.28(a), the failure to wear protective equipment, were totally different from the facts, failure to provide guardrails, on which the 1926.500(d)(1) allegation was predicated. He reasoned that the proposed amendment would change the nature of the violation charged so that to allow the amendment would be contrary to 29 U.S.C. 658(a). n8 Accordingly, he expressly declined to consider whether the facts showed a violation of 1926.28(a). He did, [*6] however, determine that Respondent had failed to establish its defenses to the 1926.500(d)(1) allegation; having found that standard applicable, he affirmed the citation.
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n8 This provision requires that a citation describe "with particularity" the nature of the violation and include a reference to the standard alleged to have been violated.
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Respondent argues before us on review that the judge erred in his disposition of the applicability issue and in his rejection of Respondent's other defenses. Complainant asks that we affirm the judge's decision. We conclude that Judge Chodes erred because, subsequent to his decision, we held that 1926.500(d)(1) is inapplicable to flat roofs, and we overruled our precedents on which he had relied. E.g., Cornell Roofing & Sheet Metal Co., 76 OSAHRC 65/B14, 4 BNA OSHC 1387, 1976-77 CCH OSHD para. 20,820 (No. 8525, 1976); Central City Roofing Co., 76 OSAHRC 61/A2, 4 BNA OSHC 1286, 1976-77 CCH OSHD para. 20,761 (No. 8173, 1976). We therefore reverse and vacate the citation [*7] insofar as it alleges a violation of 1926.500(d)(1).
Although the parties have not argued the amendment issue on review, Complainant cannot be reasonably thought to have conceded on that issue inasmuch as he had prevailed on different grounds before the Judge under our precedent overturned in Central City Roofing Co., supra. Furthermore, since the issue was fully explored in argument before the Administrative Law Judge, supplementary briefing is not necessary.
The Commission members differ, however, on whether in the circumstances Complainant should have been allowed to amend his citation. In Chairman Cleary's opinion, the amendment does not change the factual predicate of the case, Respondent's failure to provide fall protection for its employees on the roof. It only introduces an alternate theory of the case before hearing and therefore should be allowed. Schiavone Construction Co., 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-78 CCH OSHD para. 21,815 (No. 12767, 1977), petition for review docketed, No. 77-1807 (3d Cir., June 20, 1977); Henkels & McCoy, Inc., 76 OSAHRC 143/C2, 4 BNA OSHC 1502, 1976-77 CCH OSHD para. 20,944 (No. 8842, 1976).
Moreover, as in Henkels [*8] & McCoy, supra, Complainant sought amendment in his complaint; for the reasons stated in his lead opinion in Henkels & McCoy, Chairman Cleary would conclude that Complainant complied with Commission Rule 33(a)(3). Any possible prejudice is limited to preparation of the opposing party's case and may be cured by a continuance or at the hearing itself. In this case, Respondent could and did defend on the safety belt allegation. Cornell & Co., 76 OSAHRC 122/C11, 4 BNA OSHC 1715, 1976-77 CCH OSHD para. 21,118 (No. 9054, 1976), petition for review docketed, No. 76-2513 (3d Cir., Nov. 19, 1976); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973). And since both the citation and complaint provided a clear statement of the conditions alleged to constitute the violation, the amendment would satisfy the "particularity" requirement of the Act. J.L. Mabry Grading, Inc., 74 OSAHRC 37/B10, 1 BNA OSHC 1211, 1971-73 CCH OSHD para. 15,686 (No. 285, 1973), petition for review dismissed, No. 73-2248 (5th Cir., Sept. 4, 1973); Konkolville Lumber Co., 76 OSAHRC 147/B7, 3 BNA OSHC 1796, 1975-76 CCH OSHD para. 20,224 (No. 2437, 1975), [*9] judge's decision on remand aff'd without review, 76 OSAHRC 147/A2, 4 BNA OSHC 1947, 1976-77 CCH OSHD para. 21,390 (1976), petition for review docketed, No. 77-1445 (9th Cir., Feb. 17, 1977). See Gannett Corp., 4 BNA OSHC 1383, 1976-77 CCH OSHD para. 20,915 (No. 6352, 1976).
In Chairman Cleary's opinion, there is no real problem resulting from an amendment before hearing so long as the parties have ample time to prepare. Enlargement of the issues from those initially noticed involves a matter of administrative convenience. More specifically, it is a matter of whether the enlargement would likely cause confusion at the hearing or prolong the hearing to the detriment of the parties. Here, the issue on the alternative theory was actually heard, and there is therefore no sound reason for not reaching the merits if the objectives of our rules are to be served. Henkels & McCoy, supra; Diamond Engineering Co., 2 BNA OSHC 1585, 1974-75 CCH OSHD para. 19,304 (No. 4217, 1975).
On the other hand, assuming the amendment issue is before us, Commissioner Barnako agrees with Judge Chodes' reasoning. Contrary to Complainant's argument, the amendment sought does not simply [*10] change the legal theory underlying the citation. It also adds new factual allegations in that the absence of both personal protective equipment and perimeter guarding are now alleged to constitute the violation. And the new factual allegations raise a number of different issues which are not presented by the original citation. Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77 CCH OSHD para. 21,162 (No. 7792, 1976); Warnel Corp., 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD para. 20,576 (No. 4537, 1976).
The problems created by the addition of such new factual allegations cannot be cured simply by giving Respondent more time to prepare its defense. In transitory situations such as this case involves, it is necessary for the employer to begin to preserve its evidence at the earliest possible time if it is to have a fair opportunity to defend against Complainant's charges. This is particularly crucial when the case involves fall protection in construction work. Under Complainant's construction safety standards, the appropriate means of fall protection, and thus the applicable standard, will often depend on the precise circumstances existing at the time [*11] of the alleged violation. See Warnel Corp., supra. An employer who is charged with a guardrail violation, and is not on notice that other forms of fall protection are at issue, cannot be expected to preserve evidence dealing with all other possible means of fall protection.
In Commissioner Barnako's view, Respondent did not by adducing evidence concerning the use of safety belts consent to try the issue of a violation of 1926.28(a). This case was heard before we issued our decision in Warnel, supra, in which we held that safety belts and lines did not constitute the "equivalent" of a standard railing within the meaning of 1926.500(d)(1). Therefore, at the time of the hearing in this case, an employer could in good faith defend against an alleged violation of 1926.500(d)(1) by presenting evidence on safety belts, lanyards, and lifelines. See Carr Erectors, Inc., 77 OSAHRC 14/C9, pp. 7-10, 4 BNA OSHC 2009, 2011-12, 1976-77 CCH OSHD para. 21,471 at 25,778-79 (No. 7247, 1977), petition for review docketed, No. 77-3161 (6th Cir., March 28, 1977). Moreover, Respondent expressly stated that it was not consenting to try a violation of 1926.28(a). n10 In addition, [*12] the allegation is in the alternative such that Complainant himself is unable to determine whether employees should have been protected by safety belts or by guardrails. n11
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n10 Commission Rule 74(a), 29 C.F.R. 2200.74(a) provides that no objection "with respect to the conduct of the hearing, including any objection to the introduction of evidence or a ruling by the Judge . . . shall be deemed waived by further participation in the hearing."
n11 While Commissioner Barnako does not agree with Respondent's view that the Federal Rules governing alternative pleading are applicable to proceedings before the Commission, he has serious reservations concerning the propriety of such pleading. Henkels & McCoy, supra.
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Precisely the same type of amendment was recently in issue before us in Roanoke Iron & Bridge Works, Inc., 77 OSAHRC 74/C9, 5 BNA OSHC 1391 (No. 10411, 1977). The parties there advanced essentially the same contentions as in this case. Judge Joseph L. Chalk refused to allow the amendment for basically [*13] the same reasons given by Judge Chodes in this case, and the Commission affirmed his ruling. n12
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n12 Commissioner Barnako would add that this case is one of a number of factually similar cases in which Complainant, having cited 1926.500(d)(1) in situations where it does not apply, thereafter asks the Commission to permit amendments to allege other fall protection standards or even the "general duty clause," 29 U.S.C. 654(a)(1). For a fuller discussion of the need for Complainant to revise his fall protection standards and the implications of his refusal to do so, see Commissioner Barnako's view expressed in Warnel, supra, 76 OSAHRC 41/C5, pp. 7-12, 4 BNA OSHC at 1036-38, 1975-76 CCH OSHD para. 20,576 at 24,599-601, and in Kaw Roofing & Sheet Metal, Inc., 77 OSAHRC 159/B8, 5 BNA OSHC 1724, 1977-78 CCH OSHD para.22,087 (No. 14774, 1977).
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We therefore reverse and vacate the citation insofar as it alleged a violation of 1926.500(d)(1). We take no official action on the question of whether Judge Chodes erred [*14] in not allowing the amendment; his ruling denying amendment is affirmed as the final order of the Commission.
SO ORDERED.