QUALITY ROOFING COMPANY

OSHRC Docket No. 15930

Occupational Safety and Health Review Commission

December 19, 1977

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Before CLEARY, Chairman; BARNAKO, Commissioner

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Elinor P. Schroeder, for the employer

OPINION:

DECISION

BY THE COMMISSION:

The Secretary of Labor cited Quality Roofing Company for allegedly violating 29 C.F.R. 1926.500(d)(1) n1 by failing to equip a flat roof on which its employees were working with a standard guardrail or the equivalent.   Before a hearing was held, the Secretary moved to amend the citation to allege that Quality Roofing's failure to provide any type of fall protection to the employees on the roof alternatively violated 29 C.F.R. 1926.105(a). n2 Judge Paul E. Dixon denied the motion to amend, and vacated the citation.   The Secretary does not take exception to the vacation of the 29 C.F.R. 1926.500(d)(1) allegation.   He contends, however, that the Judge erred in denying the motion to amend.

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n1 "Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent . . ."

n2 "Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical."

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The Commission members are divided on whether amendments of this type should be allowed.   Tri-State Roofing and Sheet Metal Company, No. 16121, (Nov. 30, 1977); Kaw Roofing & Sheet Metal, Inc., 77 OSAHRC 159/B8, 5 BNA OSHC 1724, 1977-78 CCH OSHD para. 20,716 (No. 14774, 1977); All-State Industries, Inc., 77 OSAHRC 175/A2, 5 BNA OSHC 1853, 1977-78 CCH OSHD para. 22,174 (No. 15522, 1977).   They adhere to the views they expressed in the above decisions.

In addition to the arguments considered in those decisions, the Secretary argues that the amendment should be permitted pursuant to Fed. R. Civ. P. 15(a). n3 The complaint filed by the Secretary reiterated the allegations of the citation.   Before an answer was filed, the Secretary made his motion to amend the complaint.   Since he moved to amend the complaint before a responsive pleading was filed, the Secretary contends that the amendment should be allowed as a matter of right pursuant to Rule 15(a).

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n3 "A party may amend his pleading once as a matter of course at any time before a responsive pleading is served . . ." The Federal Rules of Civil Procedure apply to Commission proceedings in the absence of specific Commission rules.   29 C.F.R. 2200.2(b).

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Chairman Cleary would permit the amendment for the reasons assigned in the decisions cited above.   He notes that an employer has no vested right to go to hearing on the specific charge mentioned in the citation.   Long Mfg. Co., N.C., Inc. v. OSHRC, 554 F.2d 903, 907 (8th Cir. 1977). In any event, he would conclude that Fed. R. Civ. P. 15(a) provides an additional reason for granting the amendment.   Usery v. Marquette Cement Mfg. Co., No. 76-4083 (2nd Cir., Aug. 29, 1977).   Commissioner Barnako rejects the Secretary's argument premised on Rule 15(a).   The ultimate question is whether the citation can be amended as the Secretary requests.   If the amendment is not of the type which would be permissible if the Secretary made it in his original complaint, then it does not become permissible simply by being made by way of an amendment to the complaint.   Commissioner Barnako would not have permitted the amendment if it was made in the original complaint.   See Tri-State Roofing and Sheet Metal Co., supra.   Accordingly, for this reason as well as the reasons stated in the cases cited above,   [*4]   Commissioner Barnako would hold that the Judge properly denied the motion to amend.

In order to fulfill the statutory purpose of expeditious adjudication, and in view of the absence of a third member since April 28, 1977, the Commission members agree to resolve their impasse by affirming the Judge's decision, according it the precedential value of an unreviewed Judge's decision.   See Life Science Products Co., No. 14910 (November 11, 1977).

Accordingly, the Judge's decision is affirmed.