Docket No. 4537

WARNEL CORPORATION

OSHRC Docket No. 4537

Occupational Safety and Health Review Commission

March 31, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

John M. Orban, Assoc. Regional Solicitor

Nelson W. Proctor, Warnel Corporation, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

The issue in this case is whether Respondent (Warnel) violated Section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act") by failing to assure that two of its employees working at the edge of a floor of a building under construction were protected against falling. Warnel was cited for allegedly violating 29 C.F.R. § 1926.500(d)(1) n1 by not protecting these employees by means of a guardrail. Although finding that a guardrail could not have been used under the existing circumstances, Judge James A. Cronin affirmed the citation on the basis that "equivalent" protection could have been provided by safety belts. He assessed a penalty of $500. We have reviewed the entire record. For the reasons which follow, we grant Complainant's motion to amend the citation to charge that the failure to use safety belts was in violation of 29 C.F.R. § 1926.28(a), and affirm the citation as so amended.

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n1 This standard states:

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, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. . . .

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The facts are not in dispute. Two of Warnel's employees were engaged in installing window frames at the edge of the third floor of the building, thirty feet above the adjacent ground level. Although a guardrail had been erected around the perimeter of the floor, in order to install the window frames it was necessary to displace the guardrail and work outside of it. No other protection against falling was employed.

After the work had been in progress for an entire morning, the jobsite was inspected by a representative of Complainant. He pointed out the situation to Warnel's foreman, who had also been working on the same floor that entire morning. The foreman thereupon instructed the workers to obtain safety belts from Warnel's equipment truck. He [*3] also arranged for the general contractor to install a lifeline to which the safety belts could be tied. The foreman told Complainant's representative that, on prior occasions, they had experienced a problem in persuading the general contractor to install lifelines.

At the hearing, Warnel was represented pro se by its owner, who was also its only witness. He stated that, although Warnel provided safety belts and required their use under the circumstances existing at the time of the inspection, employees continually failed to use them through carelessness and neglect. He also stated that it was impossible for an employer to constantly police a workplace to assure that employees were using the safety equipment which was provided.

Despite the fact that Complainant's representative recognized that the appropriate form of fall protection was safety belts, Warnel was charged with failing to provide a guardrail. At the hearing, both parties agreed that a guardrail could not have been used, and virtually all of the evidence related to the use of safety belts. At the close of the hearing, Complainant's counsel moved to amend the citation to allege in the alternative that the [*4] failure to use safety belts was a violation of Section 5(a)(1) n2 of the Act. Counsel also stated that he would consider other standards, particularly 29 C.F.R. 1926.28(a) n3 and 29 C.F.R. 1926.105(a) n4 to require the use of safety belts except for prior contrary decisions of this Commission and its administrative law judges. Judge Cronin reserved ruling on the motion to amend.

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n2 Section 5(a)(1) provides:

Each employer shall furnish to each of his employees employement and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.

n3 This standard states:

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.

n4 This standard states:

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.

[*5]

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Judge Cronin found that a guardrail could not have been used, but nevertheless affirmed the citation for violation of § 500(d)(1) n5 on the basis that safety belts would have provided "equivalent" protection within the meaning of the standard. He therefore found it unnecessary to rule on the motion to amend.

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n5 Unless otherwise noted, all subsequent references to standards are to 29 C.F.R. Part 1926.

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In his brief on review, Complainant does not seek affirmance for the reason stated by the Judge. Instead, he argues that since § 500(d)(1) was breached by the failure to provide a guardrail, the citation should be affirmed on this basis despite the undisputed fact that a guardrail could not have provided protection to the employees. Alternatively, he moves to amend the citation to charge that § 28(a) or § 105(a) was violated by the failure to use safety belts.

We first note that we cannot accept the Judge's reasoning. Section 500(d)(1) [*6] speaks of a "standard railing, or the equivalent, as specified in paragraph (f)(i) of this section." Section 500(f) is entitled "Standard specifications" and contains requirements for the materials and dimensions to be used in the construction of a standard railing. Inasmuch as § 500(f) contains only requirements for the construction of physical barriers, then the "equivalent" of a standard railing to which § 500(d)(1) refers must mean a physical barrier which, while not conforming to the precise specifications in § 500(f), provides the same protection. Thus, safety belts cannot be considered the "equivalent" of a standard railing within the meaning of § 500(d)(1). As the record clearly establishes that a guardrail or similar barrier could not have been used to protect Warnel's employees, a violation of § 500(d)(1) cannot be found. Underhill Construction Corp., 15 OSAHRC 695, BNA 2 O.S.H.C. 1651, CCH E.S.H.G. para. 19,328 (1975); Universal Sheet Metal Corp., 9 OSAHRC 742, BNA 2 O.S.H.C. 1061, CCH E.S.H.G. para. 18,163 (1974); W.B. Meredith II, Inc., 9 OSAHRC 245, BNA 1 O.S.H.C. 1782, CCH E.S.H.G. para. 18,003 (1974).

We have held, however, that § 28(a) requires the [*7] use of safety belts under circumstances similar to those presented in this case. Underhill Construction Corp., supra; Eichleay Corp., 15 OSAHRC 635, BNA 2 O.S.H.C. 1635, CCH E.S.H.G. para. 19,324 (1975). Indeed, Warnel agrees that safety belts could have and should have been used. In moving to amend the citation to charge a violation of § 28(a), Complainant argues that a violation of this standard was tried by the implied consent of the parties, and that the amendment should therefore be allowed pursuant to Rule 15(b) of the Federal Rules of Civil Procedure. n6

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n6 Rule 15(b) provides, in pertinent part:

When issues not raised by the pleadings are tried by 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. . .

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A Rule 15(b) amendment is proper when all issues relevant to the amended theory, including issues of defense, have been tried, Copelan Plumbing Co., 9 OSAHRC 425, BNA 2 O.S.H.C. 1007, CCH E.S.H.G. para. 18,074 (1974); Brisk Waterproofing Co., 3 OSAHRC 1132, BNA 1 O.S.H.C. 1263, CCH E.S.H.G. para. 16,345 (1973). In this case, whether there was a safety belt violation was in fact tried. The evidence adduced at the hearing by both parties focused on the safety-belt issue. Warnel admitted that safety belts were not used, and defended affirmatively against their non-use. Under these circumstances, Warnel will not be prejudiced by amendment of the citation, and we grant Complainant's motion to amend the citation to allege a violation of § 28(a).

The evidence of record establishes a failure to comply with the standard. Warnel claims that it did supply safety belts and require that they be used, but that their non-use was due to employee neglect. The record shows, however that Warnel's foreman had been working on the same floor as the unprotected employees, knew that there was no lifeline to which safety belts could be tied, [*9] and did not take action to require use of the belts until requested to do so by Complainant's representative. Warnel thus knew its employees were unprotected but did not enforce the requirement that safety belts be used. In the absence of such enforcement, Warnel was not in compliance with the standard.

In assessing an appropriate penalty, we note that the gravity of the violation is high. Two employees were working for a considerable length of time at the very edge of the floor, with no protection against a potential fall of thirty feet. A fall could have resulted in death or serious injury. Warnel showed good faith in providing safety belts, and it has no history of prior violations. Additionally, Warnel is not a large employer. On balance, we find a penalty of $500 to be appropriate.

What has been said is sufficient to dispose of this case. We think it is appropriate, however, to comment on the unnecessary difficulty we have encountered in deciding a case involving relatively simple facts, in the [*10] hope that similar problems may be avoided in the future and the purposes of the Act be better served.

The construction safety standards in 29 C.F.R. Part 1926 contain a number of provisions directed against the hazard of alling from heights. Provisions generally applicable to construction work include specification standards, e.g., 105(a), a performance standard, 28(a), and a mixed specification-performance standard, 500(d)(1). n6a Other standards are applicable to particular types of work. n7 Although the standards purport to specify the type of protection required under particular circumstances, it is not always clear when each standard is applicable.

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n6a Although requiring some type of structural barrier, § 500(d)(1) does allow a certain degree of flexibility by permitting the use of a standard guardrail or the "equivalent." To this extent, it is partly a "performance" standard. Generally, performance standards state the required result without specifically mandating how that result is to be achieved. (Jan, 22, 1976).

n7 See, for example, § 750(b)(1)(ii) (safety nets required during steel erection on buildings not adaptable to temporary floors); § 700(b) (employees more than 6 feet above adjacent working surface installing reinforcing steel for concrete construction must be protected by safety belts.)

[*11]

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For example, Complainant has consistently argued that § 500(d)(1) applies so as to require guardrail protection for workers on flat roofs. In a number of cases, roofing contractors have argued that the standard does not apply to roofs, and that guardrails are not a practical means of protecting their employees. We have agreed with Complainant's interpretation, but one court of appeals has held to the contrary. Langer Roofing and Sheet Metal, Inc. v. OSAHRC, No. 74-1645 (7th Cir., Nov. 20, 1975). The issue is currently on appeal in at least four other circuits. n8 Thus, whether workers on flat roofs must be protected against falls, and if so, the type of protection required, are still uncertain.

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n8 S.D. Mullins Co., 4 OSAHRC 1415, BNA 1 O.S.H.C. 1364, CCH E.S.H.G. para. 16,803 (1973), pet. for review filed, No. 73-3705 (5th Cir. Nov. 14, 1973). Lance Roofing Co., 6 OSAHRC 95, BNA 1 O.S.H.C. 1501, CCH E.S.H.G. para. 17,101 (1974), pet. for review filed, No. 74-1343 (4th Cir. Feb. 13, 1974). State Sheet Metal & Roofing Co., 15 OSAHRC 157, BNA 2 O.S.H.C. 3271 CCH E.S.H.G. para. 19,147 (ALJ 1975), pet. for review filed No. 75-1355 (6th Cir. April 2, 1975). Keystone Roofing Co., 19 OSAHRC 376, BNA 3 O.S.H.C. 1451, CCH E.S.H.G. para. 19,764 (ALJ, 1975), pet. for review filed, No. 75-2010 (3rd Cir. Sept. 3, 1975).

[*12]

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Problems have also arisen in determining the scope of § 105(a). Complainant argues that this standard should be interpreted to require the use of either safety nets or one of the other means of fall protection mentioned. We have held, however, that the standard can only be read to require the use of safety nets, and then only when the use of all of the other means mentioned is impractical. Drake-Willamette Joint Venture, 2 OSAHRC 1216, BNA 1 O.S.H.C. 1181, CCH E.S.H.G. para. 15,655 (1973). One court of appeals has accepted Complainant's interpretation. Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974). The same court has, however, rejected Complainant's further argument that the standard is violated if a relatively ineffective means of fall protection is used. Brennan v. OSHRC (Pearl Steel Erection Co.), 488 F. 2d 337 (5th Cir. 1973); Accord, Brennan v. Ron M. Fiegen, Inc., 513 F. 2d 713 (8th Cir. 1975). Additionally, by its terms, 105(a) applies only when employees are 25 feet or more above adjacent ground or floor level. If this is interpreted to require [*13] the use of safety belts, confusion can arise as to whether safety belts must be used when a fall distance of less than 25 feet exists.

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n9 We have held that §

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In addition to the difficulties presented in the litigation of cases, the deficiencies in the fall protection standards may well result in diminished protection for employees. In cases other than this where the absence of fall protection was alleged and it was shown that the required type of fall protection could have been used, we have vacated citations because the use of an alternative means was not tried. Universal Sheet Metal Corp., supra; B. Heckerman Iron Works, [*14] Inc., 3 OSAHRC 1165, BNA 1 O.S.H.C. 1352, CCH E.S.H.G. para. 16,371 (1973); Gressani-Gysel Construction Co., 3 OSAHRC 1183, BNA 1 O.S.H.C. 1348, CCH E.S.H.G. para. 16,399 (1973); Consolidated Engineering, Inc., 12 OSAHRC 490, BNA 2 O.S.H.C. 1253, CCH E.S.H.G. para. 18,832 (1974); Isaacson Structural Steel Co., 17 OSAHRC 496, BNA 3 O.S.H.C. 1138, CCH E.S.H.G. para. 19,592 (1975). In one case, the means of fall protection Complainant sought to require would have resulted in a greater hazard to the affected employees. Industrial Steel Erectors, Inc., 6 OSAHRC 154, BNA 1 O.S.H.C. 1497, CCH E.S.H.G. para. 17,136 (1974). And, as noted above, § 105(a) has been interpreted to permit the use of relatively ineffective means of fall protection. Brennan v. Ron M. Fiegen, Inc., supra; Brennan v. OSHRC (Pearl Steel Erection Co.) supra.

Two basic problems exist as the standards are currently written. First, their language does not clearly evidence the interpretation Complainant seeks to place on them. As the Court noted in Brennan v. Ron M. Fiegen, Inc., supra, Complainant's interpretation of § 105(a) "derives little support from the language of [*15] the regulation." 513 F.2d at 716. Similarly, while we have held that § 28(a) is not unenforceably vague, n10 it is clearly not a "model of perfect precision." Cf. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). And, as the court noted in Langer Roofing and Sheet Metal, Inc. v. OSHRC, supra, the controversy over whether § 500(d)(1) applies to flat roofs would be dened if Complainant amended the standard to make such a requirement explicit.

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n10 Hoffman Construction Co., 15 OSAHRC 327, BNA 2 O.S.H.C. 1523, CCH E.S.H.G. para. 19,275 (1975), pet. for review filed, No. 75-1741 (9th Cir. March 27, 1975).

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A more fundamental problem, however, is related to the very nature of specification standards. The particular means of abating a hazard mandated by such standards may not be the most suitable or effective under all circumstances. For example, in cases where roofing contractors are cited under § 500(d)(1) for the absence of guardrails on flat roofs, we are often met with the [*16] argument that the erection of guardrails is impractical because of the lack of structural supports to which guardrails can be attached, and because of the necessity to remove the guardrails when flashing or guttering is installed at the edge of the roof. It may well be that means other than guardrails would provide equivalent fall protection to workers on flat roofs at less cost and with less disruption to the work. Indeed, different means of protection may be most suitable at various stages of the work. We must, however, enforce the standards as written, and cannot excuse the absence of guardrails where the standard requires them and their use is possible. n11

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n11 Should an employer wish to use an equivalent means of protection other than that required by a standard, his proper recourse is to seek a variance from Complainant pursuant to 29 U.S.C. § 655(d).

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Additionally, the specific means of abatement required by a standard may not in fact provide the intended protection. In this case, for example, a guardrail [*17] was provided, but it was necessary to displace and work outside of it. See also Univeral Sheet Metal Corp., supra. In some situations no type of device may provide adequate fall protection, but an alternative means of performing the work may eliminate the fall hazard. See Isaacson Structural Steel Co., supra.

We realize that, in the early stages of enforcement of the Act, Complainant was obliged to enforce standards derived from other sources, n12 and that in all situations where such standards were unsatisfactory, he could not immediately correct the problem by exercise of the rulemaking authority guanted him under Section 6(b) of the Act. Our experience with the standards as currently written, however suggests that whatever effort is necessary to adopt a comprehensive fall protection standard applicable to construction work would be well justified.

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n12 29 U.S.C. 655(a).

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Unless or until Complainant exercises his authority to adopt such a standard or clarify the existing standards, employers should [*18] be cited under the standard which requires the appropriate means of abatement applicable to the situation. To summarize what has been said above, the following standards require the following means of abatement:

500(d)(1)	standard guardrails or other type of structural
	barrier as provided for by 500(f).

28(a)	safety belts n13 secured in a manner consistent
	with § 104(a).

105(a)	safety nets (required only when the potential
	fall distance is 25 feet or more and the use
	of ladders, scaffolds, catch platforms, temporary
	floors, safety lines, or safety belts is impractical).

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n13 We do not imply that the standard may not require appropriate personal protective equipment other than safety belts.

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Other standards requiring specific types of fall protection under specific working conditions will be enforced according to their terms. Where such specific standards apply, the general standards listed above do not. n14

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n14 29 C.F.R. 1910.5(c)(1).

[*19]

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Accordingly, the citation for violation of 29 C.F.R. 1926.500(d)(1) is amended to reflect a violation of 29 C.F.R. 1926.28(a), and as so amended is affirmed. A penalty of $500 is assessed. It is so ORDERED.

CONCURBY: CLEARY

CONCUR:

CLEARY, Commissioner, Concurring:

My colleague's treatment of this case is correct, and with the necessary exceptions noted below, I join in his expositive and well-considered opinion. Specifically, I join fully in Chairman Barnako's discussion of the meaning of "equivalent" as that term is used in section 1926.500(d)(1), n15 his finding that the amendment of the pleadings to conform to the evidence is proper, his conclusion that the evidence of record establishes a violation, and the assessment of a $500 penalty.

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n15 Chairman Barnako refrains from deciding in this case whether the employer must bear the burden of persuading us that the structural barriers he uses meet the level of performance provided by the standard railing specified in section 1926.500(f)(1). I note, but do not decide, that generally applicable legal principles would seem to place the burden of proof on the party who may wish to be exempted from the requirements of section 1926.500(f)(1). See Rheem Mfg. Co. v. Rheem, 295 F.2d 473, 475 (9th Cir. 1961).

[*20]

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As to the matter of impossibility, I do not agree with the implication that impossibility standing alone is a sufficient ground to vacate a citation. While I might agree that a guardrail or similar barrier could not have been used to protect Warnel's employees, I would not conclude that an employer's duty under the Act is therefore at an end. In my view, the Commission should ordinarily decline to entertain an impossibility defense until the variance procedures provided by the Act have been exhausted. Deemer Steel Casting Co., 2 BNA OSHC 1577, CCH 1974-75 OSHD para. 19,221 (No. 2792, January 23, 1975). Cf. G.A. Hormel & Co., 2 BNA OSHC 1190, CCH 1974-75 OSHD para. 18,685 (No. 1410, September 20, 1974), pet. for reconsideration denied, 2 BNA OSHC 1282, CCH 1974-75 OSHD para. 18,881 (October 21, 1974). In this way, employers would be required to comply either with the standard, or will a variance order requiring a place of employment as safe and healthful as what which compliance with the standard would provide. Unless this is done, the variance procedure in impossibility [*21] cases may be substantially a nullity. In this unusual case, however, the citation has not been vacated on grounds of impossibility. Rather, because the pleadings have been amended under Fed. R. Civ. P. 15(b), an abatement order is being issued, based on a more appropriate standard, which provides equivalent or greater protection to employees. Thus, in my view, the statutory purpose has been fully served, and resort to variance procedures is unnecessary.

I dissociate myself from the dicta in the lead opinion interpretating 29 CFR § 1926.105(a). I would not reject sub silentio the judgment of the Fifth Circuit in Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974) that the Commission's previous interpretation of this standard is "infirm." n16 Also, the meaning of the standard is presently before us for resolution in Carr Erectors, Inc., CCH 1974-75 OSHD Para. 19,363 (No. 7909, February 24, 1975) (Administrative Law Judge), review directed March 17, 1975. While the objective of issuing a comprehensive opinion of standards applying to fall hazards is salutary, I would consider it more prudent to re-examine a Circuit Court's opinion with concrete [*22] facts.

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n16 At page 10, the lead opinion quotes an extract from the Eighth Circuit's opinion in Brennan v. Ron M. Fiegen, Inc., 513 F.2d 713, 716 (8th Cir. 1975), as finding "little support" from the language of the regulation. It should be noted that the Court was mainly concerned with the issue of the reasonableness of the Commission's interpretation rather than that of the Secretary. The Court noted that the Secretary's interpretation was more consonant with the purposes of the Act. The quotation is actually from a secondary holding of the Eighth Circuit that the Secretary's interpretation was based upon a text that was too imprecise to provide an adequate notice of its requirements. The Fifth Circuit in Southern Contractors held the opposite; i.e. although the text of the standard was ambiguous it was not fatally defective.

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I do not join in the Chairman's suggestion that the Secretary make whatever effort is necessary to adopt a comprehensive fall protection standard because I do not know that the [*23] Secretary's priorities for rulemaking are, particularly with regard to health standards. I would suggest however some use of interpretative rules or general statements of policy in this area. This would avoid the procedural delays inherent in rulemaking under section 6(b) of the Act and not require any change in rulemaking priorities.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

The two preceding opinions consume some sixteen typewritten pages of remorseless and imperfect reasoning in an attempt to find some justification for sustaining a guilty verdict against this respondent. The only way they can do this is by changing the rules of the ball game three years after an error was called against him by complainant while respondent was building the St. Bernadine Hospital in San Bernardino, California.

The respondent here is a contractor who represented himself throughout these proceedings. Since he is not a lawyer himself and has not retained counsel, I fail to see what purpose (other than to demonstrate the scholarship of the author) is to be served by citing him to more than fifty judicial decisions and statutory references including some OSAHRC decisions which have [*24] been subsequently overruled by the courts.

Nevertheless, my colleagues' reputation for legal erudition would be certain to increase as a result of this veritable torrent of case citations were it not for the fact that in the very same opinion they prove that they don't understand the scope or purpose of their own jobs. Members of this Commission have only one function to perform:

"carrying out adjudiciatory functions under the Act." 29 U.S.C. § 651(b)(3)

Those adjudiciatory functions are supposed to be discharged impartially between the parties to an OSHA action: the Secretary of Labor, on the one hand, and the employer cited by the Secretary for a violation of the Act, on the other. Those functions are the very antithesis of service as an advisor or counsel to one of the parties. Yet that is exactly what Mr. Barnako has done in his lengthy advice to the Secretary of Labor telling him how "employers should be cited." One wonders where an employer who thinks he has been unjustly cited can turn for justice when the head of the agency established by law to adjudicate OSHA citations writes opinions telling the Secretary how to cite those employers in order to convict them. n17

[*25]

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n17 Further evidence that Mr. Barnako doesn't understand his role appears in testimony he delivered to a subcommittee of the House Appropriations Committee on February 11, 1976 when he stated:

"I view the mission of the Occupational Safety and Health Review Commission to be that of making an important contribution to the reduction in the number and severity of job-related injuries, illnesses, and fatalities."

That, of course, is the mission of the Secretary of Labor. The role of both the Review Commission and the courts under this Act is to dispense justice in accordance with the law.

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Presumably, construction of the hospital on which this employer was working when cited in 1973 is now complete. The citation which was issued alleged failure on the respondent's part

". . . to guard an open-sided floor or platform located 6 feet or more above adjacent floor or ground level with a standard railing or the equivalent . . . ."

Respondent successfully defended against the cited charge on the basis that its work could [*26] not be performed with standard or equivalent railings in place. n18 As Judge Cronin ruled:

"A standard railing installed along the third floor's perimeter would have made it impossible to perform the assigned work; therefore, this Respondent was not obliged to guard by a railing."

The lead opinion agrees with this ruling but does not find respondent not guilty as charged. My colleagues, undeterred by the fact that the job has been completed or that three years have elapsed since the citation was issued, decide to amend the charges and find respondent guilty because safety belts were not being used. They attempt to justify this travesty of justice on the basis that administrative pleadings may be liberally amended, citing Rule 15 of the Federal Rules of Civil Procedure.

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n18 This is a defense we have recognized in prior Commission decisions which are noted and cited in the lead opinion.

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Conveniently overlooked, however, is that this action was commenced by - and respondent was defending against - a citation issued [*27] under 29 U.S.C. § 658(a) - not a civil pleading. The citation issued in this case said nothing about safety belts nor did it mention the safety standard of which respondent now standards convicted. Yet the Act states in no uncertain terms that:

"Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated." [29 U.S.C. § 658(a) emphasis supplied].

The Federal Rules of Civil Procedure do not apply to the amendment of a job safety citation because it is a creature of statute. n19 A citation under this law is a unique document, unlike traditional pleadings, to which statutory requirements for particularity have been attached. n20

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n19 The reasons for my position are stated in some length in my separate opinions in Secretary v. California Stevedore and Ballast Company, 16 OSAHRC 800, 806 (1975), Secretary v. Everhart Steel Construction Company, 16 OSAHRC 696, 698 (1975), Secretary v. RPM Erectors, Inc., 11 OSAHRC 319, 323 (1974).

n20 These statutory requirements are in sharp contrast to what is commonly known as "notice pleading" under Rule 8 of the Federal Rules of Civil Procedure, whereby a claimant is not required to set out in detail the facts upon which he bases his claim (Conley v. Gibson, 355 U.S. 41, 47 (1957)) nor to allege the particular law or theory under which recovery is sought (Misco Leasing, Inc. v. Keller, 490 F.2d 545, 548 (10th Cir. 1974)). The Supreme Court noted in Conley v. Gibson, supra at 48, that "notice pleading" was made possible because of liberal discovery policy and other pretrial procedures which would more precisely disclose the nature of a claim and more narrowly define the disputed facts and issues. Obviously, Congress did not intend for the Secretary of Labor to have such flexibility when it set forth specific requirements for citations. Therefore, those requirements are not superseded by the Federal Rules.

[*28]

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Furthermore, 29 U.S.C. § 658(b) provides:

"Each citation issued under this section . . . shall be prominently posted . . . at or near each place a violation referred to in the citation occurred."

During House floor debate, Congressman Scherle of Iowa made the following enlightening remarks:

"This issuance of a citation is a new angle in safety legislation and the bill provides that the citation shall be in writing, shall describe the nature of the violation and a reference to the provisions of the standards, rules or orders alleged to have been violated and the period of time in which the violation must be corrected. The bill provides that the citation shall be posted at, or near the place of the violation. In other words, the bill is calling for enforcement by publicity." n21

Furthermore, as noted by Congressman Steiger, citations are issued by the Secretary, instead of by the inspecting officer as proposed by the original House bill, H.R. 16785, because

"review of the inspector's work insures that the citations issued will be for valid violations enforceable under the act." n22

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n21 Staff of the Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 1223 (Comm. Print 1971).

n22 Id. at 990.

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How then can amendments of infirm citations be justified after the 15 working days permitted under 29 U.S.C. § 659(a) for employer contests have passed? Certainly not by a review of the legislative history, nor by a reading of the Act itself. To the contrary, the legislative history and the Act compel the opposite conclusion. Allowing a charge to be amended without requiring posting of the new charge not only does violence to the congressional intent to have "enforcement by publicity," but aborts the necessity that citations be issued only for "valid violations enforceable under the Act." n23

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n23 This is glaringly apparent when one notes, as does Chairman Barnako, that "[d]espite the fact that Complainant's representative recognized that the appropriate form of fall protection was safety belts, Warnel was charged with failing to provide a guardrail."

[*30]

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Here the pro se respondent was cited for a failure to install perimeter guarding, but is found in violation of 29 C.F.R. § 1926.28(a) for failing to insure that its employees were wearing personal protective equipment which is unspecified in that standard. There can be no doubt that respondent is prejudiced by allowing an amendment which alleges an entirely different offense because it most assuredly would have defended itself in a different manner if it had known that a violation under section 1926.28(a) was in issue. n24

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n24 The finding of a failure to comply with 29 U.S.C. § 1926.28(a) raises issues concerning lack of employer knowledge of the violative conduct, the impropriety of imputing the foreman's knowledge to respondent, and employee disregard of company safety rules. See Horne Plumbing and Heating Company v. OSAHRC, No. 74-3897 (5th Cir., February 26, 1976). Under the circumstances, these issues should not be resolved against the respondent.

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Respondent was not advised at any time prior to the hearing in this matter that the complainant believed that a violation other than the one charged existed. The motion to amend was not made until after the presentation of evidence was completed. Respondent was not, therefore, allowed a full opportunity to defend against these charges, nor did it consent to trial thereon. n25 Therefore, the motion should be denied.

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n25 Judge Cronin made the same observation at the hearing by commenting as follows at pages 36-37 of the hearing transcript:

"The problem I have with this . . . is the fact that you've not moving [sic] in the alternative until after the hearing has been concluded.

Now, the Respondent employer came here today ready to face the charges of a violation of 1926.500(d)(1), and now all of a sudden he learns for [the] first time that he may have to face three or four standards.

Now, he certainly wasn't prepared when he came here today to defend against the other standards."

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Finally, I am constrained to briefly comment on the lead opinion's dicta which acknowledges the vagueness of several enumerated standards by speaking of the unnecessary difficulty we encounter because of the lack of clarity therein. Despite this acknowledgement, Chairman Barnako is not hesitant to penalize an employer, who would have even greater difficulty interpreting these standards, for a violation thereof. If the language of a standard "does not clearly evidence the interpretation Complainant seeks to place on [it]," I am unable to understand the propriety of enforcing it. To do so is to advocate the continued proliferation of vague and uncertain standards, despite protestations to the contrary.

Decisions such as this can only discourage employers from staying in business. The purpose of this Commission is not to search the volumes of safety standards in order to find one that can be used to convict an employer, nor to advise the Secretary how to write standards or prosecute employers. The purpose of the Act is not to put employers out of business, but that is exactly what has happened in this case. In this connection, the following testimony of Warnel's owner is illuminating: [*33]

"I have decided that there is no way that I can operate a business and conform to every government regulation so immediate[ly] following this incident, I have liquidated my business, I have laid off every single workman. I don't have one single man employed today, and I am going out of business. I'm past 65 years old, but I say that it's just become too difficult for me to be a policeman to every worker who completely defies rules and regulations and does what he jolly wells [sic] pleases."

The continued improper enforcement of the Act will undoubtedly prompt other employers to reach this same unfortunate conclusion.