OSHRC Docket No. 6972

Occupational Safety and Health Review Commission

January 4, 1977


Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.


Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Regional Solicitor, U.S. Department of Labor

E. Kenneth Day, for the employer



MORAN, Commissioner: A decision of Review Commission Judge Joseph L. Chalk, dated September 17, 1974, is before this Commission for review pursuant to 29 U.S.C. 661(i). By that decision, which is attached hereto as Appendix A, n1 respondent was found not to have violated 29 U.S.C. 654(a)(2) for failure to comply with the occupational safety standard codified at 29 C.F.R. 1926.500(d)(1). For the reasons set forth below, we affirm.

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n1 Chairman Barnako does not agree to this attachment.

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Judge Chalk vacated the citation in this case because he determined that compliance with the guardrail requirements set forth in the cited standard n2 would render impossible the task of installing roofing material on a flat roof which respondent's employees were attempting to accomplish. n3 He reached this [*2] conclusion after first determining, as a matter of law, that the cited standard applies to flat roofs, as well as to floors, citing our prior Commission decision in Secretary v. S.D. Mullins Company, Inc., 4 OSAHRC 1415 (1973). Subsequent to Judge Chalk's decision in this case, the Mullins decision was reversed sub nom. by the United States Court of Appeals for the Fifth Circuit. Diamond Roofing Company, Inc. v. OSAHRC, 528 F.2d 645 (5th Cir. 1976). We accepted the reasoning of the Fifth Circuit on this issue in Secretary v. Central City Roofing Co., Inc., OSAHRC Docket No. 8173, June 4, 1976, and overruled all prior Commission decisions to the contrary. That decision is applicable in the instant case.

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n2 The cited standard, 29 C.F.R. 1926.500(d)(1), provides as follows:

"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, as specified in paragraph (f)(1) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard." (Emphasis added.)

n3 This Commission has recognized impossibility of compliance as an affirmative defense to an alleged job safety violation. Secretary v. W.B. Meredith II, Inc., 9 OSAHRC 245 (1974); Secretary v. W.C. Sivers Co., 8 OSAHRC 480 (1974).


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Our resolution of this issue does not dispese of this matter, however, because complainant has raised the separate issue of whether the Judge erred in denying complainant's motion to amend the citation and complaint to allege alternative violations of 29 C.F.R. 1926.28(a) and 1926.105(a) for a failure to require the use of personal protective equipment. Complainant's motion was made at the hearing in this matter and was properly denied. n4 Respondent was charged with, and came to trial prepared to defend against, an alleged noncompliance with 29 C.F.R. 1926.500(d)(1). Respondent was not prepared to face any additional new charges and, in fact, strenuously objected to complainant's attempt to interject new issues and a new legal theory into the proceedings. Allowance of the amendment would clearly be prejudicial and improper under these circumstances. n5 Secretary v. Rob't. W. Setterlin & Sons Company, OSAHRC Docket No. 7377, May 11, 1976.

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n4 For my personal views on amendments, see Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion).

n5 My colleague, in concurring with this opinion, gives valid additional reasons for this disposition. I am in full and complete agreement therewith.


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Accordingly, the Judge's decision is affirmed.



BARNAKO, Chairman, Concurring.

I concur for the reasons assigned by Commissioner Moran. I would comment specifically on the Secretary's attempt at trial and on review to change the course of these proceedings by seeking to have the citation amended so as to allege new charges under different standards. I might view allowing such an amendment favorably if the motion was unusual. Unfortunately, it is a too common practice of the Secretary. In case after case we and the judges of this Commission are asked to amend at and after trial simply because the Secretary determines at or after trial that his legal theory of the case is wrong. See, for example, Dunlop v. Uriel G. Ashworth, Masonry Contractor, Inc., 538 F.2d 562 (4th Cir. 1976) (amendment first requested on judicial review). Secretary v. Florida Power Corporation, 76 OSAHRC 70/D3 n1 (ALJ, 1976) (amendment first requested at start of trial); Secretary v. National Roofing of Sioux City, Inc., 76 OSAHRC 98/E 14 (1976) (amendment first requested [*5] on review before the Commissioners). In virtually all such cases the cited employer appears at the hearing ready to try the case as pleaded only to find that his preperation and money expended therefore are for naught. In my opinion it is unseemly for Federal prosecutors to engage in this kind of tactic. In any event the parties should be prepared to try the case upon the opening of the trial.

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n1 The citation is to OSAHRC reports which are now available in microfiche. See 29 CFR 2201.4, 41 Fed. Reg. 53067 (December 3, 1976).

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Moreover, it cannot be argued persuasively that such late amendments serve a useful occupational safety and health purpose. This case and the ones cited above were brought for alleged violations of construction safety standards. It can be assumed safely that usually the construction contract on which Respondent was engaged is completed. Abatement has therefore been achieved, and affirmation of the citation only has impact in the future for penalty purposes under 29 USC 666. It would appear [*6] that late attempts to amend in such circumstances are made to prevail in the case rather than for remedial purposes.

A stronger argument for granting late amendments may be made in general industry cases when the alleged violation is continuing in nature. However, the same element of unfairness exists. And in the general industry case the Secretary can always start over again by issuing a new citation.

I cannot help but think that the litigation burden for all persons and agencies concerned would be lessened if the Secretary would determine and elect his theory of the case early in the proceedings. In such event the argument that he advances for amendment, i.e., administrative pleadings are easily amended, would be more persuasive.




Based on the Commission's divided decision in Secretary v. Central City Roofing Co., Inc., supra, I concur with the majority's affirmance of the finding of the administrative law judge that respondent did not violate 29 CFR 1926.500(d)(1). I dissent, however, from the majority's action affirming the denial of the Secretary's motion to amend the citation [*7] and complaint.

To facilitate understanding of this case, the following factual background is provided. Respondent was initially cited for failure to comply with the standard at 29 CFR 1926.500(d)(1) requiring guardrailings to be installed on opensided floors six feet or more above an adjacent floor or ground. At the hearing, the Secretary raised the issue of the use of safety belts and safety nets. Respondent objected arguing that only the use of guardrailings was at issue. In response to this objection, the Secretary moved to allege alternatively noncompliance with 29 CFR 1926.28(a) n2 and 29 CFR 1926.105(a) n3 pursuant to Fed. R. Civ. P. 15(b) [hereinafter Rule 15(b)]. n4

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n2 29 CFR 1926.28(a) 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 29 CFR 1926.105(a) provides:

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.

n4 The Commission Rule at 29 CFR 2200.2(b) states that the Federal Rules of Civil Procedure govern all proceedings before the Commission in the absence of a specific provision to the contrary.


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The majority proceeds on the faulty premise that the Secretary sought to introduce a novel issue at the hearing. The citation described the hazard as working on an opensided roof without the protection of guardrailings or the equivalent. Yet the full Commission did not definitively interpret the meaning of the term "equivalent" in 29 CFR 1926.500(d)(1) until Warnel Corp., BNA 4 OSHC 1034, 1975-76 CCH OSHD para. 20,576 (No. 4537, 1976). Before the Commission's decision in Warnel, the interpretation of that term was unsettled. See e.g., Edward M. Ream, Inc., BNA 3 OSHC 1208, 1974-75 CCH OSHD para. 19,687 (No. 1504, 1975) (Cleary, Commissioner, separate opinion). The Enterprise Roofing & Sheet Metal, BNA 3 OSHC 1578, 1975-76 CCH OSHD para. 19,957 (No. 12395, 1975) (Judge's decision).

On April 25, 1974, Administrative Law Judge James A. Cronin, Jr., in his decision in Warnel Corp., held that the employer violated 29 CFR 1926.500(d)(1) because, although guardrails could not have been used, equivalent protection could have been provided by means of safety belts.

With [*9] this background respondent could not have reasonably discounted the possibility that it would have to defend against the theory that safety belts were a possible equivalent form of protection required by 29 CFR 1926.500(d)(1). Thus, there was nothing novel and unique about the requirement for safety belts that should have foreclosed the amendment in this case unless the case is viewed exclusively with the benefit of hindsight.

In my opinion a citation and complaint issued pursuant to the Occupational Safety and Health Act of 1970 n5 [hereinafter "the Act"] can be amended as liberally as otherwise permitted by Rule 15(b) which provides in part:

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits (emphasis added).

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n5 29 U.S.C.A. 651 et seq.


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The holding of the majority that the amendment would clearly be prejudicial is unsupported in the record. Rule 15(b) refers to actual prejudice. Hodgson v. Colonnades, Inc., 472 F.2d 42, 47-48 (5th Cir. 1973). By actual prejudice is meant that an amendment will change the case to the extent that the opposing party lacks the opportunity to prepare to meet the unpleaded issue. A technical change in the cause of action does not establish actual prejudice. n6

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n6 3 J. Moore Federal Practice, para. 15.14 (1974); 6 Wright and Miller, Federal Practice and Procedure: Civil 1493 at 467-468 (1971).

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In Brennan v. National Realty Company, 489 F.2d 1257 (D.C. Cir. 1973) the court said:

As long as fair notice is afforded, an issue litigated at an administrative hearing may be decided by the hearing agency even though the formal pleadings did not squarely raise the issue [footnote omitted]. This follows from the familiar rule [*11] that administrative pleadings are very liberally construed [footnote omitted] and very easily amended [footnote omitted]. The rule has particular pertinence here, for citations under the 1970 Act [referring to the Act herein] are drafted by nonlegal personnel, acting with necessary dispatch. Enforcement of the Act would be crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his inspectors (emphasis added).

489 F.2d at 1264.

I also note that the majority does not address the separate exception raised by the Secretary's Petition for Review and argued at length in his supporting brief that the administrative law judge erred in denying his motion to conform the pleadings to the evidence. Their opinions thus fail to conform to a plain requirement of the Administrative Procedure Act. n7

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n7 5 U.S.C.A. 557(c). See N.L.R.B. v. Wichita Television Corp., 277 F.2d 579, 589 (10th Cir. 1960).

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The Secretary contends that the issue of noncompliance with the standards [*12] at 29 CFR 1926.28(a) and 1926.105(a) was actually tried by consent and, thus pursuant to Rule 15(b), n8 the pleadings should be amended to conform to the evidence.

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n8 Rule 15(b) provides in 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 on these issues.

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The record supports the Secretary's contention. In its recross-examination of the OSHA District Supervisor, respondent deals at length with the practicality of using safety belts. n9 On further redirect examination, the Secretary continued this line of questioning. n10 The Secretary thereafter moved to amend the citation and complaint to conform to the evidence pursuant to Rule [*13] 15(b). The motion was denied. n11

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n9 Tr. pp. 184-189.

n10 Tr. pp. 189-190.

n11 Since respondent litigated the issue of safety belts, it had actual notice of the issue. Thus, absent a showing of prejudice, the merits should have been tried. 5 U.S.C.A. 554(b)(3). See Kuhn v. Civil Aeronautics Board, 183 F.2d 893 (D.C. Cir. 1952).

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We have precedent for conforming the pleadings to the evidence. Kaiser Aluminum & Chemical Corp., BNA 4 OSHC 1162, 1975-76 CCH OSHD para. 20,675 (No. 3685, 1976) and cases cited therein. In Warnel Corp., supra, the Commission dealt with a similar situation. There, we allowed a post-hearing amendment to the citation and complaint that originally alleged a violation of 1926.500(d)(1) to allege alternatively a violation of 1926.28(a) or 1926.105(a). On the basis of these decisions, I would hold that the Judge erred in denying the motion to amend the pleadings to allege a violation of 1926.28(a), and based on the amended pleadings, hold that respondent was [*14] in noncompliance with 1926.28(a). n12

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n12 Rule 15(b) clearly provides that the amendment is a mere formality. Since the issue was tried, the amendment is inconsequential. A ruling should have been made on the merits. By the plain terms of 15(b) even in the absence of a motion to amend, this Commission is duty bound to determine issues which are presented by the evidence properly before it. Kaiser Aluminum & Chemical Corp., BNA 4 OSHC 1162 et 1165, 1975-76 CCH OSHD para. 20,675 at 24,768. (No. 3685, 1976).

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Richard D. Soltan, For Complainant

E. Kenneth Day and M. Richard Epps, For Respondent

Chalk, Judge

Respondent's worksite, located at 2700 Washington Avenue, Newport News, Virginia, was inspected by a United States Department of Labor compliance officer on February 20, 1974. Following this inspection, a Citation for Serious Violation and a Notification of Proposed Penalty wre issued on March 6, 1974. n1 Respondent duly contested this action on March 11, 1974.

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n1 A Citation for five alleged nonserious violations was also issued at the same time. This Citation was duly contested by Respondent on March 27, 1974. On April 5, 1974, Respondent moved for leave to withdraw its Notice of Contest to this Citation and renewed said motion at the hearing on July 18, 1974. The motion was granted from the bench.

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The pertinent details relating to the charge are as follows:

29 CFR 1926.500(d)(1) n2

"Employees working on the open


sided roof of the penthouse, which

was more than 6 feet above the ad-

jacent floor or ground level, were

not protected by standard railings

or the equivalent."

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n2 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, 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. The railing shall be provided with a standard toeboard whereever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard."


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The principal questions resulting from the hearing are:

(1) Whether Respondent's evidence that the installation of guard rails on the roof prevented the roofing work from being accomplished and damaged the roofing work already accomplished constituted viable affirmative defenses to the charge.

(2) Whether Complainant can amend the Citation at the hearing to allege new offenses in the alternative.


It was stipulated at the hearing that Respondent, a Virginia roofing company, used materials and machinery that were shipped from or manufactured outside Virginia, that it employed an average of forty-five employees, and that it grossed a million dollars a year (Ex. J-1; Tr. 5).

The basic facts are not in dispute and may be summarized briefly. At the time of the inspection, Respondent was installing roofing material on a flat penthouse roof that was located on top of a four-story building. As this penthouse was partially offset from the top of the building below, some portions of its roof overlooked the fourth floor roof some fifteen feet below, whereas other portions overlooked the ground level [*17] some sixty feet below. Near one edge, Respondent had installed a small, portable, hand-operated hoist to lift hot adhesive and other materials to the penthouse roof. There were no standard guard rails around the perimeter of the penthouse roof and Respondent had some four or five employees working on the roof at the time. At times, the employees, or some of them, worked within two feet of the edge of the roof. The employees apparently had been working for "some time" prior to the inspection, as they had already "put more than one layer of tar paper down" (Tr. 30). These facts prompted the compliance officer to recommend the issuance of the Citation.

Two photographs introduced in evidence by Complainant, and a one-quarter inch scale cardboard model of the building introduced in evidence by Respondent, adequately portray the characteristics of the building as it existed at the time (Exs. C-1, C-2, R-1). One photograph shows two of Respondent's employees near the edge of the penthouse roof on either side of the hoist watching a third employee who in turn is shown climbing a ladder with some supplies in his right hand (Ex. C-1). It is also clear from the two photographs that the [*18] hoist was located near the edge of the penthouse roof overlooking the other roof some fifteen feet below (Exs. C-1, C-2).

Respondent's defense to this charge was that it could not install a roof with perimeter guard rails in place for two principal reasons, vis: a railing would prevent the work from being done and it would cause damage to the roof installation already begun. In support of its defense, Respondent produced two expert witnesses, both executives of roofing companies, one with about twenty-eight years' experience, the other with about nineteen years' experience. Respondent's owner, with about thirty-five years' experience, also testified to the same effect. All three had installed roofs numbering in the thousands.

These witnesses were in agreement that guard railings on the perimeter, either affixed to the roof or free-standing and weighted to serve the purpose, would not only prevent the work from being done but would cause considerable damage to the installation after it was started. Regarding the free-standing type, one witness elaborated as follows:

". . . in the process of so doing, you seriously damage the roof. The roof is a soft structure. Almost walking [*19] over it and rolling a wheelbarrow on it has a tendency to damage the felts that are underneath it." (Tr. 108)

Even the portable hoist may cause some damage, but it was limited to a small area and the hoist was usually removed before the installation was completed. According to these witnesses, the installation of a roof was a continuous operation consisting of the placement of four separate layers or plies of material on the deck to its very edges, each preceded by the application of hot asphalt pitch to the entire deck with mops. When the four layers were installed, a metal eaves strip, extending some five or six inches over and beyond the edge of the roof, was then installed around the entire perimeter of the roof, followed by another application of hot pitch into which gravel was embedded. Each layer or ply must be undamaged. In performing some of this work, employees are required to be as close as two feet from the edges of the roof.

None of Respondent's witnesses were aware of any way a suitable guard could be anchored to the completed walls below the roof line, under the circumstances of this case, without causing damage to the walls. Moreover, Respondent had no right [*20] to tamper with these walls.

In rebuttal, the area director thought that one way to provide perimeter guarding was to have the building designed in such a way as to permit the installation of guard rails on the sides of the building. The other way, which he dwelt on at length, was to use free-standing guard rails, suitably weighted, on the roof itself. He admitted, however, that the latter would be in the way at times and would have to be removed. When asked his opinion if the free-standing rail would cause damage to the installation once it was begun, he first stated that he did not believe he was "competent to answer" and that he therefore did not agree or disagree with Respondent's witnesses (Tr. 192). Thereafter, he stated his belief that it could be done without causing damage.


Based upon the provisions of the standard and the record evidence in the case, there can be no question that Respondent did not comply with the standard charged, a fact that even Respondent admits. Moreover, despite Respondent's argument to the contrary, the standard, as a matter of law, applies to flat roofs as well as to floors (Secretary v. S.D. Mullins Co., Inc., and Diamond Roofing Co., [*21] Inc., Dockets 364 and 459, consol., October 24, 1973). The principal question in this case, on the other hand, is whether Respondent's noncompliance with the standard is a chargeable one, or constitutes a violation of the Act, in light of Respondent's evidence that the installation of guard rails on the roof would prevent the work from being done, that such installation would also cause damage to the roofing material already installed, and that it was impossible to install guard rails on the walls below the roof line without damaging the walls. For the reasons that follow, I answer that question in the negative.

A majority of the Commissioners has indicated that a showing by an employer that compliance with a particular standard would prevent the work from being accomplished can constitute an affirmative defense to a charge alleging a failure to comply with the standard (Secretary v. W.C. Sivers Co., Docket No. 239, November 9, 1972; see also Secretary v. Brown & Kerr, Inc., Docket No. 3055, October 25, 1973, and Secretary v. State Sheet Metal and Roofing Co., Docket No. 2579, November 8, 1973). In Sivers, the majority referred to this defense as "impossibility of compliance." [*22] Commission judges, too, have recognized this defense and have vacated Citations where it has been successfully asserted (Secretary v. J.H. Baxter & Co., Docket No. 2043, August 2, 1973; Secretary v. La Sala Contracting Co., Inc., 2 OSAHR 976 (1973); Secretary v. DeLuca Construction Corp., 2 OSAHRC 435 (1973)). The theory underlying those decisions is that safety and health standards, under certain circumstances, should not be so narrowly construed that every technical deviation should be deemed citable violations of the Act (Secretary v. DeLuca, supra). Accordingingly, this part of Respondent's evidence can be asserted as an affirmative defense, at least in part, to this charge.

I conclude that the other two facets of Respondent's evidence similarly can be asserted as affirmative defenses to the charge. On the one hand, if it is true that guard rails on the roof would cause damage to the roof or that part thereof already installed, then it logically follows that Respondent's mission for which it was hired could not be completed so long as guard rails were in use. On the other hand, if it is true that guard rails could not be installed outside the roof edges on the walls below [*23] without causing considerable damage to a part of the building over which Respondent had no control, then Respondent would be faced with a complete work stoppage. In short, this type of evidence also tends to establish other forms of impossibility of compliance, affirmative defenses according to Sivers, Baxter, La Sala, and DeLuca, all supra.

On this record, I am compelled to accept all three of Respondent's defenses to the charge, for they stand largely unrebutted. First, the area director readily admitted that rails would be in the way during some parts of the roofing installation. Second, he stated that he "[felt]" that portable rails would not damage the roof installation, after previously stating that he was not "competent" to answer that question and accordingly did not agree or disagree with Respondent's witnesses (Tr. 192). Finally, he testified to a limited extent about the possibility of designing supports for guard rails into the walls of a building, but this building was not so constructed.

The charge, accordingly, must be set aside.


Counsel for the Secretary has continually argued first, that the defenses I have sustained cannot be considered [*24] by me because they infringe upon the Secretary's authority under the Act to entertain and determine applications for variances, and second, that I committed reversible error during the hearing by twice denying his motion to amend the Complaint and Citation to allege alternative violations of the Act by Respondent's failure to comply with 29 CFR 1926.28(a) and 105(a).

Counsel's first argument has already been rejected by the Commission:

"This decision does not detract from the authority of the Secretary of Labor to grant variances from standards under section 6(d) of the act in situations where an employer may be able to demonstrate that the working conditions of his employees are as safe and healthful as those which would prevail if he complied with a standard. A variance issued by the Secretary is a 'rule;' that is, a policy having future effect, rather than 'adjudication' or disposition on matters involving past conduct that have not been the subject of a variance. See 5 U.S.C. 551(4), (6), and (7). See also section 1905.5 of Title 29, Code of Federal Regulations, explaining the legal effect of any variances granted by the Secretary of Labor under the Act." Secretary v. Industrial [*25] Steel Erectors, Inc., Docket No. 703, January 10, 1974.

It has, moreover, been impliedly rejected by Judges of this Commission (Secretary v. J.H. Baxter and Co., supra; Secretary v. La Sala Contracting Co., supra; Secretary v. DeLuca, supra). Counsel's first argument is thus unpersuasive.

Counsel's second argument is equally unpersuasive. By his motions at the hearing, he was attempting to inject new charges into the proceedings that were neither mentioned nor implied in the Citation. In fact, the proposed charges were so foreign to any allegation of the Citation that one might just as well peruse a blank Citation form.

A Citation is a special creature of the safety and health statute that sets the stage for many things. In the first instance, it is the designated document by which the Secretary is required to notify the employer "with particularity" of the nature of the violation (29 USC 658(a)). In the last instance, it serves as the final, unimpeachable order of this Commission where no contest is filed by the employer or an employee or his representative (29 USC 659(a)). In between these two perimeters, it sets the tone for the proceedings before this Commission by informing [*26] the Commission of what the Secretary thinks the employer did wrong, the disputed item in view of the timely contest of the charge. But even this document has its limitations, for it is unenforceable against the employer unless and until the employer is notified of the penalty the Secretary proposes for the alleged violation (29 USC 659(a)). There are also other limitations attached to it by statute in that it not only must be issued with reasonable promptness, but it must be issued within six months of the occurrence of the alleged violation (29 USC 658(a) and (c)).

Where a contest of a Citation is timely filed, jurisdiction over the cause immediately vests with this Commission by operation of law (Secretary v. FMC Corp.-Fibers Div., et al, Docket No. 5355, July 17, 1974). The addition of a totally new charge from that stage of the proceedings on, by whatever means, would in effect not only place the Commission in the business of writing Citations, a procedure I am certain the Congress never intended (see Dale M. Madden Construction, Inc. v. James D. Hodgson, Secretary of Labor et al, No. 72-1874 (9th Cir., July 29, 1974)), but would circumvent other important procedures required [*27] by the statute, such as the issuance of a Citation and its service upon the employer, the issuance of the Notification of Proposed Penalty and its service upon the employer, which in turn breathes life into the Citation and starts the running of the fifteen working day period during which the employer or an employee may contest, the election accorded the employer and employee to contest or not to contest, and the posting of Citations.

In sum, the Citation is not a document that can be treated lightly, much less one that can be cast aside, as counsel's motions and argument necessarily imply. Yet that would be the result were new charges added to or substituted for those charged in the Citation, either by amendment or by other action, once jurisdiction is here. n3

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n3 In note that Judge Donald K. Duvall expressed somewhat the same view in Secretary v. Dorey Electric Co., Urban Builders, Inc., and Craft Construction Co., Docket Nos. 4598, 4626, and 4627 (consolidated) (July 29, 1974), where the same motion was made by the same counsel.

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Having made the foregoing observations, I can, nevertheless, not only wholeheartedly agree with the well-established legal principle that Citations can be easily amended but also agree with at least some of the cases counsel has cited as supporting his motions. That is not to say, however, that I agree with his interpretation of those cases.

I agree, as do many judges of the Commission, that inartfully drafted Citations may be amended to clarify or amplify that which is already inferentially alleged in those Citations. And that is exactly what the Court of Appeals for the District of Columbia meant in National Realty and Construction Company, Incorporated v. Occupational Safety and Health Review Commission et al, 489 F2d 1287 (1973) when it observed that administrative pleadings are "liberally construed and easily amended," a statement relied upon by counsel at the hearing and in his brief. But counsel's reliance on this statement is misplaced, for on its face, it is clear that it must be read conjunctively, not disjunctively. Rather, the statement pronounces the concept that pleadings are to be read liberally and amended accordingly. A [*29] fortiori, if a proposed amendment is foreign to anything alleged in the pleading - safety belts and other personal protective equipment in this case - there is nothing to construe "liberally" and the proposed amendment is legally impermissible.

Counsel's apparent interpretation of National Realty overlooks the fundamental rule that broad statements in decisions should be read in the context in which they are used (I. A. Watson, Jr., et al v. City of Memphis, Tenn., 83 Sp. Ct. 1314, 373 US 526 (1963); White v. Aronson, 58 Sp. Ct. 95, 302 US. 16 (1937); Orr v. Allen et al, 39 Sp. Ct. 23, 248 US 113 (1918); Westway Theatre, Inc. v. Twentieth Century-Fox Film Corp. et al, 30 Fed. Sup. 830 (D.C.Md., 1940)). Even a cursory examination of that decision reveals that the Court was carefully analyzing the allegations of the Citation, construing them liberally, and then concluding that these allegations permitted the Secretary to adduce evidence tending to show that National Realty's lack of a safety program was the primary cause of the fatal accident in that case. And the Court's additional remark that so long as fair notice is afforded the parties, an issue litigated at the hearing [*30] may be decided by the hearing agency "even though the formal pleadings did not squarely raise the issue," is consistent with this interpretation. In the context of that case, it would appear incongruous to conclude that the Court meant to equate the phrase "did not squarely raise" with the phrase "did not raise."

Without belaboring the issue further, it is sufficient to note that even in Robbins v. Jordon, 181 F2d 793 (D.C. Cir., 1950), another case cited extensively by counsel in his brief, the Court, in concluding that an amendment was improprely denied by the trial judge, observed that the proposed amendment did not state a new cause of action.

As I stated at the hearing, I am aware of no case in which the Commission itself has held that a new charge not embraced within the Citation allegations may be introduced into the proceedings in the manner proposed by counsel. On the contrary, in two prior cases, a majority of the Commissioners appeared to cast a warning against such amendments (see Secretary v. Mabry Grading, Inc., Docket No. 285, April 17, and Secretary v. Lovell Clay Products, Inc., Docket No. 683, July 25, 1974). While I am aware of the Commission's [*31] decision in Secretary v. W.B. Meredith II, Inc., Docket No. 810, June 7, 1974, in which the "liberally construed and easily amended" language of National Realty was employed in overruling the conclusion below that a new charge was involved in a proposed amendment, the Commission did not set forth its rationale underlying that determination. If, on the one hand, the Commission decided Meredith on the basis that the proposed amendment was embraced within the allegations of the Citation, then Meredith obviously would not militate against my ruling in this instance. If, on the other hand, the Commission was approving the introduction in Meredith of a new charge by way of amendment, then, of course, my ruling would be erroneous. But I cannot read the latter supposition into that decision, especially in light of the Lovell decision, supra, which was promulgated more than a month later.


Based upon the entire record, I reach the findings of fact and conclusions of law that follow.


1. That at the time and place in question, several of Respondent's employees were installing a roof on a penthouse of the building in question.

2. [*32] That there were no perimeter guard rails on said roof.

3. That the installation of guard rails on said roof would both damage the installation already accomplished and prevent some of the work from being accomplished.

4. That there was no way in which said rails could be installed on the walls below the roof without causing damage to said walls.

5. That Respondent had no jurisdiction over the walls of the building below the roof of the penthouse.


1. That this Commission has jurisdiction over the cause.

2. That Respondent did not violate 29 USC 654(a)(2) by not complying with 29 CFR 1926.500(d)(1).

Citation for Serious Violation number 1 is vacated. Respondent's motion for leave to withdraw its Notice of Contest to Citation number 1 for five nonserious violations is granted and said Notice of Contest is dismissed. Citation number 1 for five nonserious violations is affirmed. Penalties of $30.00 each for item numbers 3, 4, and 5 of Citation number 1 for five nonserious violations are assessed.



Dated: SEPTEMBER 17, 1974, Washington, D.C.