KAISER ALUMINUM AND CHEMICAL CORPORATION

OSHRC Docket No. 3685

Occupational Safety and Health Review Commission

March 31, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Robert J. Allen, Jr., Kaiser Aluminum & Chemical Corp., for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

On May 3, 1976, we issued our previous order in this case finding that Respondent (Kaiser) had failed to provide covers and/or guardrails for open pits, in violation of 29 C.F.R. 1910.22(c). n1 Kaiser Aluminum and Chemical Corp., 76 OSAHRC 52/C10, BNA 4 OSHC 1162, CCH OSHD para. 20,675 (1976). Kaiser had originally been cited for allegedly violating 29 C.F.R. 1910.23(a)(8). n2 We concluded, however, that the cited condition violated 1910.22(c) rather than 1910.23(a)(8), and that a violation of 1910.22(c) had been tried by the implied consent of the parties. We therefore amended the citation pursuant to Fed. R. Civ. P. 15(b) to reflect a violation of 1910.22(c), and provisionally affirmed the citation as so amended. Because, however, the parties had not previously argued the applicability of 1910.22(c), we afforded them an opportunity to show cause why the citation should not be amended.

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n1 29 C.F.R. 1910.22(c) provides:

Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.

n2 29 C.F.R. 1910.23(a)(8) provides:

Every floor hole into which persons can accidentally walk shall be guarded by either:

(i) A standard railing with standard toeboard on all exposed sides, or

(ii) A floor hole cover of standard strength and construction that should be hinged in place. While the cover is not in place, the floor hole shall be constantly attended by someone or shall be protected by a removable standard railing.

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In response to our decision, Kaiser has filed a motion objecting to the amendment of the citation and requesting either that the citation be vacated, or that the case be remanded for further evidence on the issue of a violation of 1910.22(c). Complainant opposes the motion, contending that our original decision was correct. For the reasons which follow, we deny Kaiser's motion and affirm our prior decision.

Kaiser does not contend that 1910.22(c) [*3] is inapplicable to the facts of this case. Instead, Kaiser's principal contention is that it would be unfairly prejudiced by the amendment because it could have presented different defenses had it been charged with a violation of 1910.22(c). In particular, Kaiser states that since the original standard cited, 1910.23(a)(8), was clearly inapplicable, it went no further in preparing its defense than to argue that standard's inapplicability. Thus, according to Kaiser, "no attempt was made by the Respondent to ascertain what impact the imposition of covers and/or guardrails would have on its overall work operation . . . . nor was any showing made by either party as to when and under what circumstances all or some of the carbon pits were to be so covered and/or guarded." Kaiser also contends that the procedure followed is inconsistent with the requirement of 29 U.S.C. 658(a) that a citation must describe alleged violations, including a reference to the standard allegedly violated, with particularity.

We reject these arguments. The citation informed Kaiser that the alleged violation concerned the failure to equip the pits at issue with covers and/or guardrails. The amendment [*4] did not change the factual allegation of the citation, but only the standard allegedly violated. Furthermore, both 1910.23(a)(8) and 1910.22(c) require the same conduct, i.e. the use of covers and/or guardrails. The amendment is therefore consistent with the particularity requirement of 29 U.S.C. 658(a). J.L. Mabry Grading, Inc., 9 OSAHRC 108, BNA 1 OSHC 1211, CCH OSHD para. 15,686 (1973).

Since the citation informed Kaiser that the alleged violation was the failure to cover and/or guard the pits, and since the amendment did not alter this allegation, then Kaiser had the opportunity to present all possible factual defenses against the amended charge. n3 Kaiser argues, however, that since the cited standard, 1910.23(a)(8), was clearly inapplicable to the facts, it relied on this defense and did not pursue other possible defenses. If this is so, however, it resulted from Kaiser's own free choice. Kaiser had the opportunity to present evidence concerning the matters to which it now refers, such as the impact that the use of covers and/or guardrails would have on its work operation. It cannot reasonably claim that it was prejudiced because it failed to avail itself [*5] of the opportunity. We also note that in its prayer for remand Kaiser does not give any indication of what additional evidence it would expect to develop that would be material but not repetitious.

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n3 By granting Kaiser an opportunity to show cause why the citation should not be amended, we have afforded it an opportunity to bring to our attention defenses that might have been raised as to 1910.22(c) and which would not have also applied in defense to the cited standard. Kaiser has not brought any such defenses to our attention. Indeed, Kaiser does not claim that 1910.22(c) is inapplicable to the facts of this case, or raise any other challenge to the legal sufficiency of 1910.22(c).

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Kaiser also contends that our order amending the citation is contrary to the six-month statute of limitations for the issuance of citations found in 29 U.S.C. 658(c), in that more than six months elapsed between the time of the alleged violation and our order. Fed. R. Civ. P. 15(c), however, provides that amendments made pursuant [*6] to Rule 15 relate back to the date of the original pleading when the amendments relate to the same conduct, transaction, or occurrence as the original pleading. The purpose of Rule 15(c) is to defeat the bar of a statute of limitations when the original pleading is filed within the allowed time, and the party opposing the amendment is not prejudiced. Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973); Rural Fire Protection Co. v. Hepp, 366 F.2d 355, 362 (5th Cir. 1966). In this case, the amendment did not change the factual allegation of the citation, and therefore did not prejudice Kaiser. Accordingly, pursuant to Rule 15(c), the amendment relates back to the date the citation was issued, and is not barred by the statute of limitations.

Kaiser further contends that the Commission is precluded by 29 C.F.R. 2200.91a from amending the citation to allege a violation of a standard not previously raised by a party. Rule 91a was not, however, in effect at the time this case was directed for review. n4 It is therefore not necessary to discuss further the contention.

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n4 Rule 91a became effective on January 3, 1977. 41 Fed. Reg. 53015 (December 3, 1976).

[*7]

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Finally, Kaiser points out that Complainant has proposed to revise the standards here at issue. Kaiser does not, however, ask us to draw any conclusion from this fact, and we therefore note only that this does not affect the question before us, which is whether Kaiser violated 1910.22(c) as it is currently written.

Accordingly, we deny Kaiser's motion to show cause, and order that the amended citation for violation of 29 C.F.R. 1910.22(c) be affirmed. For the reasons stated in our prior decision, a penalty of $600 is assessed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

As I stated in my dissenting opinion to the previous Commission decision in this case, n5 a citation is not a pleading to which the amendment provisions of the Federal Rules of Civil Procedure apply. n6 It is a unique creature of statute upon which a cited employer must rely in order to make the irrevocable decision of whether or not to contest a charge. It is therefore inherently unfair to the employers of this country to apply the liberal amendment provisions of Rule 15(b) to citations issued under the Occupational Safety and Health [*8] Act.

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n5 Secretary v. Kaiser Aluminum and Chemical Corp., OSAHRC Docket No. 3685, May 3, 1976.

n6 See also my separate opinions in Secretary v. Warnel Corp., OSAHRC Docket No. 4537, March 31, 1976; Secretary v. California Stevedore and Ballast Company, 16 OSAHRC 800 (1975); Secretary v. Everhart Steel Construction Company, 16 OSAHRC 696 (1975).

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The Act specifically requires that each citation "shall describe with particularity the nature of the violation, including a reference to the . . . standard . . . alleged to have been violated." 29 U.S.C. 658(a). After receipt of the citation and notification of proposed penalties, the cited employer must decide within 15 working days whether or not to contest the allegations against him. If a notice of contest is not filed within that time, the cited employer, except for jurisdictional questions, is normally precluded from obtaining any further hearing on the matter. n7 29 U.S.C. 659(a).

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n7 There are some very narrow exceptions to this rule, which arise under extremely unusual circumstances. See, e.g., Atlantic Marine, Inc. v. OSAHRC, 524 F.2d 476 (5th Cir. 1975); Secretary v. Owens-Illinois, Inc., OSAHRC Docket No. 8859, May 19, 1976.

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It is due to these unique statutory requirements that liberal rules of pleading, as contemplated in the Federal Rules of Civil Procedure, are inappropriate to citations under the Act. A citation is not a complaint. It is more than a beginning procedural matter of pleading because it sets forth the information needed by employers to make the crucial and irrevocable decision of whether or not to contest the complainant's allegations.

This case amply demonstrates the absurdities that result from the Commission's liberal amendment policies. Respondent was initially cited for failing to comply with the occupational safety standard codified at 29 C.F.R. 1910.23(a)(8). After respondent received the citation and decided to contest the matter, complainant moved at the hearing to amend the citation to allege, in [*10] the alternative, a violation of 29 U.S.C. 654(a)(1), the so-called general duty clause. After the hearing was completed, the Judge held that 1910.23(a)(8) did not apply to the facts of the case and that respondent could not be held in violation of the general duty clause because complainant had failed to establish that 1910.23(a)(5), a standard never cited or mentioned by either party, was not the applicable standard. As if this was not confusing enough to the respondent, the Commission then reversed the Judge and held that neither 1910.23(a)(5) nor 1910.23(a)(8) applied, but that the standard at 1910.22(c), which, like 1910.23(a)(5), was never cited or mentioned by either party at any time previously, was applicable to the facts of the case. The citation was therefore amended and affirmed by a divided Commission.

If the Secretary of Labor, the hearing Judge, and the Commission members, all of whom are presumably familiar with the requirements of the various standards, cannot in any way agree on which standard is applicable to a given situation, it is totally unrealistic to think that an employer might have fair notice of the standard with which it is charged. My [*11] colleagues, however, feel that this is unimportant. In response to respondent's contention that it was prejudiced because it defended at the hearing on the ground that the cited standard did not apply to the facts and therefore did not pursue other possible defenses, my colleagues reply that respondent had the opportunity to present evidence regarding other defenses it might have had and that its failure to avail itself of the opportunity was a matter of respondent's "own free choice." Such a response is truly unbelievable. Apparently, my colleagues will require every respondent to assume the onerous burden of presenting each and every possible defense for each and every possible standard which might conceivably be made applicable at any point in the proceedings n8 - even if, as here, the determination of the applicable standard is made more than three years after the hearing. n9 Such a requirement is a gross departure from our system of justice.

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n8 This is a truly onerous burden:

"The initial regulations published by OSHA were massive. When stacked one on top of another, they created a pile 6 feet high."

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"[A]s has been pointed out previously, the sheer number of these regulations is intimidating. This is so because the regulations applying to a specific business are not only numerous in themselves, but are also not compiled in any single section or issued in any rational order, but instead are interspersed throughout the entire collection of regulations. Consequently, a businessman would have to buy all published regulations and subscribe to the Federal Register, which last year contained 35,591 pages, and read it daily just to know which regulations affected his business. Assuming that an employer spent the time and money required just to find the regulations that applied to him, it is likely that he would still not know exactly what to do, for many of the regulations continue to be written in language that is so technical that they are incomprehensible to a layman. Additionally, it must be remembered that the time and effort consumed in locating and deciphering the applicable standards so that the businessman can learn what he must do is in addition to the administrative duties that he must perform in order for his business to remain economically competitive."

Subcommittee on Environmental Problems Affecting Small Business of the Permanent Select Committee on Small Business, The Effects of the Administration of the Occupational Safety and Health Act on Small Business, H.R. Rep. No. 93-1608, 93d Cong., 2d Sess. at 3 and 9 (1974). The volume of regulations which affect employers is even greater today than it was at the time of initial promulgation.

n9 The Judge's decision in this case was dated March 5, 1974.

[*12]

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This Commission, a supposedly impartial adjudicatory body, has no business correcting the errors of one of the parties at the expense of the other party's basic rights. Accordingly, the citation should not be amended. It should be vacated.