ROB'T. W. SETTERLIN & SONS COMPANY

OSHRC Docket No. 7377

Occupational Safety and Health Review Commission

May 11, 1976

  [*1]  

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

COUNSEL:

William Kloepfer, Associate Regional Solicitor, USDOL

James R. Elleman, for the employer

OPINIONBY: MORAN

OPINION:

DECISION

MORAN, Commissioner: A decision of Review Commission Judge Charles K. Chaplin, dated February 20, 1975, is before us for review pursuant to 29 U.S.C. §   661(i).   By that decision respondent was found not to be in violation of 29 U.S.C. §   654(a)(2) for failure to comply with an occupational safety and health standard codified at 29 C.F.R. §   1926.500(d)(1). n1

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n1 The cited standard 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)(i) of this section, on all open sides . . . ."

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This case was initially directed for review by Commissioner Cleary on March 17, 1975, on the following issue:

"Whether the Administrative Law Judge erred in denying the Secretary of Labor's motion to amend the pleadings to alternatively [*2]   allege noncompliance with the standards at 29 C.F.R. §   1926.104 and 29 C.F.R. §   1926.105?" n2

Subsequent thereto, on March 24, 1975, former Commission member James F. Van Namee added the following issue for review:

"Whether my colleague's Direction for Review is untimely within the meaning of section 12(j) of the Act in view of the fact that the judge's report was certified to the Commission on January 31, 1975, some 46 days prior to review being ordered?"

Addressing the questions in reverse order, we answer both in the negative and affirm the Judge's decision.

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n2 In his review brief complainant has withdrawn that portion of his motion which sought to allege a violation of section 1926.104.   Remaining in issue, therefore, is the attempted amendment to alternatively allege a violation of section 1926.105(a) which provides that:

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

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Timeliness of the Direction for Review

Section 12(g) n3 of the Occupational Safety and Health Act of 1970, 84 Stat. 1590, 29 U.S.C. §   651 et seq., hereinafter the Act, authorizes the Review Commission to "make such rules as are necessary for the orderly transaction of its proceedings." Pursuant to this rulemaking authority, the Commission formulated its present Rules of Procedure which became effective with publication in the Federal Register on September 28, 1972 (37 Fed. Reg. 20237). At that time, Rules 90 and 91 (29 C.F.R. § §   2200.90 and 2200.91 provided the following:

"Rule 90 Decisions of Judges.

(a) The decision of the Judge shall include findings of fact, conclusions of law, and an order.

(b) The Judge shall sign and date the decision.   Upon issuance of the decision, jurisdiction shall rest solely in the Commission, and all motions, petitions and other pleadings filed subsequent to such issuance shall be addressed to the Commission."

"Rule 91 Discretionary review; petition.

(a) A party aggrieved by the decision of a Judge may submit a petition for discretionary review.

(b) The petition must be received [*4]   by the Commission at its offices in Washington, D.C. on or before the 25th day following receipt by the Commission of the Judge's decision.

(c) A petition should contain a concise statement of each portion of the decision and order to which exception is taken and may be accompanied by a brief of points and authorities relied upon.   The original and three (3) copies shall be filed with the Commission.

(d) Failure to act on such petition within the review period shall be deemed a denial thereof."

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n3 29 U.S.C. §   661(f).

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Subsequent thereto, amendments to these rules were published in the Federal Register (39 Fed. Reg. 40249 (1974)), to be effective on December 15, 1974.   These amendments were adopted by the Commission after interested persons had been invited to comment thereon.   Having considered comments received, this agency determined that the opportunity to consider petitions for discretionary review for the full 30-day review period set forth in section 12(j) n4 of the Act outweighed objections to the adoption [*5]   of the amendments.

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n4 29 U.S.C. §   661(i).

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In amended form the rules read as follows:

"§   2200.90 Decisions and report of Judges.

(a) Upon completion of any proceeding, the Judge shall prepare a decision.   When a hearing is held, the decision shall comply with 5 U.S.C. 557. Copies of the decision shall be mailed to all parties.   Thereafter, the Judge shall file with the Executive Secretary a report consisting of his decision, the record in support thereof, and any petitions for discretionary review of his decision, or statements in opposition to such petitions, that may be filed in accordance with §   2200.91.   The Judge shall file his report on the day following the close of the period for filing petitions for discretionary review, or statements in opposition to such petitions, but no later than the twenty-first day following the date of the mailing of the decision to the parties.

(b)(1) Promptly upon receipt of the Judge's report, the Executive Secretary shall docket the case and notify all parties of that fact.   [*6]   The date of docketing shall be the date that the Judge's report is made for the purposes of section 12(j) of the Act (29 U.S.C. 661).

(2) On or after the date of docketing of the case, all pleadings or other documents that may be filed in the case shall be addressed to the Executive Secretary.

(3) In the event no Commission Member directs review of a decision on or before the thirtieth day following the date of docketing of the Judge's report, the decision of the Judge contained therein shall become a final order of the Commission."

"§   2200.91 Discretionary review, petitions for; statements in opposition.

(a) A party aggrieved by the decision of a Judge may submit a petition for discretionary review.

(b)(1) Except as provided in paragraph (b)(2) and (3) of this section, any petition must be received by the Judge at his office on or before the twentieth day following the mailing of a copy of the decision to the parties.

(2) When there is no objection by any party, when an expedited proceeding has been directed pursuant to §   2200.101, or for other good cause, the Judge is empowered to prescribe a shorter time for filing petitions for discretionary review following the mailing [*7]   of his decision.

(3) Petitions for review of a Judge's decision may be filed directly with the Executive Secretary subsequent to the filing of the Judge's report.   Such petitions will be considered to the extent that time and resources permit.   Parties filing such petitions should be aware that any action by a Commission Member directing review must be taken within thirty (30) days following the filing of the Judge's report.

(4) In the case of proposed settlements or other proposed dispositions by consent of all parties, petitions for discretionary review shall not be allowed, except for good cause shown.

(c) * * *

(d) Failure to act on such petition within the review period shall be deemed a denial thereof.

(e) Statements in opposition to petitions for discretionary review may be filed at the times and places specified in this section for the filing of petitions for discretionary review. Any statement shall contain a concise statement on each portion of the petition to which it is addressed."

Section 12(j) of the Act sets forth a jurisdictional time limitation for review by this agency:

"A hearing examiner . . . shall hear, and make a determination upon, any proceeding instituted [*8]   before the Commission . . . and shall make a report of such determination which constitutes his final disposition of the proceedings.   The report of the hearing examiner shall become the final order of the Commission within thirty days after such report by the hearing examiner, unless within such period any Commission member has directed that such report shall be reviewed by the Commission."

We have previously had the occasion to consider this section of the Act in Secretary v. Gurney Manufacturing Division, Gurney Industries, Inc., 6 OSAHRC 634, 637 (1973). In that case we interpreted the statutory language to provide a full 30-day review period for the Commission to determine whether the Administrative Law Judge's report should be considered further under section 12(j).

It was to further this purpose that the Commission amended Rules 90 and 91.   That this purpose was recognized and approved of by interested parties is indicated in the following comments by the Administrative Law Section of the American Bar Association to the proposed changes when published in the Federal Register:

"Under the proposed change, the Commission members should benefit from a greater number of   [*9]   better prepared petition and supporting briefs, as well as more time in which to examine them."

It further noted:

"The Commission members would then have an opportunity to examine the Judge's decision, in the light of any petition for review, during the full 30-day period allowed under section 12(j) of the Act."

The problem in this case is apparent from Mr. Van Namee's direction for review:

". . . the Judge's report was certified to the Commission on January 31, 1975, some 46 days prior to review being ordered."

The Judge's decision (report) was dated February 20, 1975, the date it was docketed as received by the Commission, some 20 days after the Judge's certification.   This procedure is purely administrative in nature.   When, under 29 C.F.R. §   2200.90, the Judge's decision is mailed to the parties, it is also mailed, along with the case file, to the Central Review Section of the Commission, n5 an administrative section which is separate from the office of the Commission members.   It is not seen by any Commission member at that time, or at any time during the 20-day period allowed for the filing of petitions for discretionary review or statements in opposition to such [*10]   petitions.   During this time, the case remains under the jurisdiction of the Administrative Law Judge who may recall the file upon request and modify his tentative decision if he desires to do so.   At the end of the 20-day period the decision n6 is docketed by the Commission's Executive Secretary in accordance with 29 C.F.R. §   2200.90(b)(1).   Only then do the Commission members receive copies of the Judge's report, plus a review memorandum prepared during this time by the Central Review Section.

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n5 This is the certification date noted above.

n6 The Administrative Procedure Act, at 5 U.S.C. §   557(c)(2), provides for the exception of parties to be included in such a report:

"(c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to submit . . . (2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions . . . ."

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Section 12(j) provides for review of a Judge's decision [*11]   upon the direction of any Commission member. To interpret this provision so as to give a full 30-day review period to Commission members, who alone are empowered to direct review, is fully consistent with the Congressional purpose and should be granted deference.   See Morton v. Ruiz, 415 U.S. 199, 94 S. Ct. 1055 (1974).

We find that the Commission's administrative implementation of Rules 90 and 91 are consistent with the jurisdictional limitations set forth in section 12(j). n7 The apparent departure from strict compliance with Rules 90 and 91 does not in any significant way affect the rights of any parties, nor does it require any additional action or inaction by them.   It is merely the machinery with which the Commission sets its review process in motion.

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Clearly, the Commission was acting within [*12]   its express statutory authority in formulating procedures for the purpose of conducting its adjudicatory and review functions.   Furthermore, an agency's interpretation of its own rules are given considerable weight as long as it is not unreasonable, arbitrary, or capricious.   Pressentin v. Seaton, 284 F.2d 195 (D.C. Cir. 1960). The validity of rules and regulations promulgated pursuant to general statutory empowering provisions will be sustained if reasonably related to the purposes of the enabling legislation.   Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369, 93 S. Ct. 1652, 1661 (1973).

Absent a showing of substantial prejudice, it is within the discretion of an administrative agency to relax or modify a procedural rule adopted for the orderly transaction of business.   NLRB v. Monsanto Chemical Company, 205 F.2d 763 (8th Cir. 1953) (involving an extension of the period of time allowed for an application for review of an order of the Board's Regional Director).   As was the case in American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 90 S. Ct. 1288 (1970), which involved procedural rules of the Interstate Commerce Commission for temporary [*13]   operating authority he rules involved here were promulgated for the purpose of providing the information needed by the Commission members "'to reach an informed and equitable decision.'"

The Court in American Farm Lines v. Black Ball Freight Service, 397 U.S. at 538-539, distinguished those cases which require strict agency compliance with their own rules:

"The rules were not intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion as in Vitarelli v. Seaton, 359 U.S. 535, 79 S. Ct. 968, . . . nor is this a case in which an agency required by rule to exercise independent discretion has failed to do so.   United States ex rel.   Accardia v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499 . . . ."

We therefore hold that the Commission's action in this case is within the scope of the above-cited case.   Inasmuch as the Judge's report was docketed on February 20, 1975, the initial direction for review on March 17, 1975, was timely.

Correctness of the Judge's Decision

At the time of the inspection, respondent's employees were engaged in the installation of masonry work for the outside wall on the 10th floor of the Bell [*14]   Telephone Building in Columbus, Ohio.   Several employees were observed working adjacent to an opensided floor. This particular location was the only area of the 10th floor which was unguarded.   The evidence indicated that the rails had previously been properly installed but were removed in order to install cement blocks.   The record amply supports respondent's contention that the required work could not have been performed with standard guardrails in place.   We therefore hold that Judge Chaplin properly recognized respondent's defense as valid under the Act.   Secretary v. W.B. Meredith II, Inc., 9 OSAHRC 245 (1974).

We also hold that the Judge correctly denied complainant's motion to amend made during the hearing at the close of his case.   To permit the amendment would be to impermissibly change the nature of the violation charged.   This is not a case where the two standards at issue prohibit essentially the same conduct and the change would not alter the factual or legal basis of complainant's case as in Secretary v. Park Construction Co., 17 OSAHRC 343 (1975). Nor is this a case where the pleadings can be amended to conform to the evidence under Rule 15(b) of the Federal [*15]   Rules of Civil Procedure without possible prejudice to the respondent.   See Secretary v. Otis Elevator Company, 12 OSAHRC 127 (1974). At the hearing in this case, respondent objected to questions regarding the applicability of the safety net standard as being immaterial.   It was further argued that respondent was prepared to go forth only on the issues involving the cited standard and would be completely surprised by any change in the allegations.   Under these circumstances it cannot be said that a violation of section 1926.105(a) was tried by either the express or implied consent of the parties.

Even if we were to allow the amendment, complainant's case would not be improved.   This Commission has previously held, in a decision upheld on appeal, that a violation of section 1926.105(a) cannot be found where employees were working on scaffolding or floors. Secretary v. J.W. Bounds, d/b/a Pearl Steel Erection Co., 2 OSAHRC 161 (1973), aff'd sub nom, 488 F.2d 337 (5th Cir. 1973). A similar Commission holding in Secretary v. Ron M. Fiegen, Inc., 9 OSAHRC 999 (1974), was upheld in Brennan v. OSAHRC and Ron M. Fiegen, Inc., 513 F.2d 713 (8th Cir. 1975),   [*16]   which rejected the Secretary's argument that a scaffold or floor which does not prevent falls does not relieve an employer of the duty to install a safety net.

This case is readily distinguishable from cases such as Brennan v. Southern Contractors Service & OSAHRC, 492 F.2d 498 (5th Cir. 1974), and Secretary v. Allied Structural Steel Company, 14 OSAHRC 698 (1975), where none of the safety devices enumerated in the standard were employed (i.e. ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts).   Rather, as in Feigen and Pearl Steel, floors were in fact used, and violation of section 1926.105(a) could not be affirmed.

Accordingly, the Judge's decision is affirmed.  

DISSENTBY: CLEARY

DISSENT:

CLEARY, Commissioner, DISSENTING:

My views on the validity of Commission Rules 90 and 91 are set forth in my concurring opinion in Merriott Printing Co., 1974-75 CCH OSHD para. 19,466, 2 BNA OSHC 1702 (No. 10615, March 31, 1975), and need not be restated here.   In any event, even if my colleagues are correct in their conclusion that the rules do not conflict with section 12(j) of the Act and their application here is not an abuse of discretion, the operation   [*17]   of the rules in this case, nevertheless, demonstrates how they may unduly prolong the decisional process.

Forty-six days elapsed between the time Judge Chaplin's decision was first "issued" and the time that this case was ordered for review before us.   A delay of this sort should not be countenanced if the Commission's role in conducting prompt adjudication of citations is to be achieved.   If my colleagues are correct in their conclusion that the rules are a permissible exercise of rulemaking authority, then I suggest that the rules should be changed with reasonable promptness.

I also dissent from the majority's disposition on the merits of this case.

There is no dispute that respondent did not take any precautions to prevent its employees from falling from the perimeter of the tenth floor even though the employees were working directly at the unguarded western edge of the floor. A safety hazard, therefore, clearly existed.   while it is true that this hazard was not cognizable under 29 CFR §   1926.500(d)(1), the majority errs when it affirms the Judge's denial of complainant's motion to amend the pleadings to allege a violation of 29 CFR §   1926.105(a) [hereinafter §   1926.105(a)].   [*18]  

Even assuming that a violation of this standard was not tried by the express or implied consent of the parties, n8 complainant's motion came at the close of his case-in-chief and, therefore, if the motion were granted, respondent would have had an opportunity to defend against the amended allegations.   That is all the APA requires.   Cf. N.L.R.B. v. United Aircraft Corp., Hamilton Standard Div., 34 Ad.L. 121 (2d Cir. 1973).   In addition, respondent would be able to demonstrate any possible prejudice that the amendment might cause.   Thus, respondent's right to a full and fair adjudication of the merits would be preserved along with the affected employees' right to a safe workplace.

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n8 The Secretary of Labor offered evidence indicating that personal protective devices such as safety belts could have been employed to obviate the falling hazard noted in the citation.   Such proffers of proof clearly go beyond the original 29 CFR §   1926.500(d)(1) allegation, and bear upon a §   1926.105(a) allegation.   Respondent did not object to these proffers of proof, and thus can be said to have consented to the trial of the unpleaded issue.   Graven Bros. & Co., 1975-76 CCH OSHD para. 20,544, 4 BNA OSHC 1045 (No. 2538, March 26, 1976) (Cleary, Commissioner, concurring in part and dissenting in part).   At the very least respondent was placed on notice of the amendment.   Indeed, respondent elicited some testimony regarding the possible implementation of personal protective devices.

The majority notes that respondent objected when the Secretary's counsel asked the compliance officer whether respondent could have been cited under §   1926.105(a).   While this is true, respondent, however, did not move to strike any of the testimony regarding personal protective equipment.   Thus, I submit that the record is equivocal on the question of whether respondent consented to the trial of the unpleaded issue.

In any event, as the text that follows will indicate, any possible prejudice resulting from the amendment could have been fully litigated and possibly cured because of the stage of the hearing at which amendment was sought.   For this reason alone, amendment should have freely been granted.

  [*19]  

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Under these circumstances, I submit that the Judge should have permitted amendment.   Moreover, in my opinion the Judge, in his role as representative of the public interest, was under an affirmative duty to permit amendment in this case so as to assure that the facts surrounding this obvious safety hazard were fully elicited.   Cf. Brennan v. O.S.H.R.C. & John J. Gordon Co., 492 F.2d 1027 (2d Cir. 1974).

Finally, my colleagues conclude that even if amendment were allowed a violation of §   1926.105(a) cannot be found where employees are working on unprotected scaffolding or floors. Cited in support of this proposition is the case of Brennan v. O.S.H.R.C. & Ron M. Fiegen, Inc., 513 F.2d 713 (8th Cir. 1975) wherein, according to the majority, the court ". . . rejected the Secretary's argument that a scaffold or floor which does not prevent falls does not relieve an employer of the duty to install a safety net (emphasis added)."

The majority's reading of the Eighth Circuit's opinion is not entirely correct.   Actually, the Court affirmed this Commission's reading of the standard.   [*20]   This is evidenced by the following language:

While the Secretary may have intended the regulation to mean one thing, it is the Commission and not the Secretary which is charged with the final administrative adjudication of the Act.   29 U.S.C. §   659. Where the Secretary has failed, as he has here, to convey that meaning to those charged with construing the regulation and where the Commission has given the regulation an interpretation well within the plain meaning of this terms, we cannot say that the Commission's reading is unreasonable.   Cf.   Brennan v. Southern Contractors Service, 492 F.2d 498, 501 (5th Cir. 1974); Brennan v. OSHRC and Gerosa, supra, 491 F.2d at 1344-45. Simply stated, the Secretary has failed to advance any "weighty reasons" adequate to justify overruling the Commission's interpretation of this ambiguous regulation. Doe v. Department of Transportation, 412 F.2d 674, 678 (8th Cir. 1969).

Brennan v. O.S.H.R.C. & Ron M. Fiegen, Inc., supra at 715-716. See also Warnel Corp., 1975-76 CCH OSHD para. 20,576, p. 24,602 n.16, 4 BNA OSHC 1034, 1038 n.16 (No. 4537, March 31, 1976) (Cleary, Commissioner, concurring).   Thus, in my opinion, the Commission [*21]   is free to reverse its position and adopt complainant's interpretation of §   1926.105(a). n9 I would do so.

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n9 It should be noted that complainant in his brief distinguishes the instant factual situation from that presented in Brennan v. O.S.H.R.C. & Ron M. Fiegen, Inc., supra., in that in the latter case the employees were working from a temporary floor (i.e. one of the alternatives listed in §   1926.105(a)).   Here, however, complainant notes that the employees were working from a permanent floor which is not one of the alternatives listed in §   1926.105(a).   It is argued that "the affirmative requirement to provide one of the enumerated safety devices is not vitiated (emphasis added)."

Inasmuch as the majority does not address this point, it can only be assumed that they make no distinction between permanent or temporary floors in their interpretation of §   1926.105(a).   I would.   In any event for the reasons that follow, I reject the majority's interpretation insofar as it would apply to temporary as well as permanent floors.

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Implicit in §   1926.105(a) is a requirement, that regardless of which alternative protective measure is employed, that it be effective to mitigate the hazard at which the standard is directed, namely a fall of 25 feet or more.   Contrary to the majority's statements, a scaffold or floor that does not prevent falls does not relieve an employer of the duty to use safety nets or other measures noted in §   1926.105(a) that are effective in preventing the hazard at which the standard is directed.   Thus, an employer is free to use ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts so long as the safety device employed serves to protect the affected employees from falls.

Appendix A

DECISION AND ORDER

Theodore J. Pethia, for Complainant

James R. Elleman, for Respondent

Charles K. Chaplin, Judge:

This is a proceeding pursuant to section 659 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter the Act) wherein the respondent contested both the fact of violation and the proposed penalty of $750 n1 for an alleged serious violation of section 5(a)(2) for failure to comply with a standard [*23]   codified at 29 CFR 1926.500(d)(1).

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n1 Respondent chose not to contest the citations for two non-serious violations.   Pursuant to section 10(a) of the Act, these violations and proposed penalties therefor are deemed final orders of this Commission.

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The standard at 1926.500(d)(1) 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. . . ."

The citation, issued March 15, 1974, after a March 7, 1974, inspection, n2 described the alleged violation as follows:

"Failure to guard open-sided floors with a standard railing or equivalent to protect employees from failing: the brickmasons and tenders constructing the west wall of the 10th floor."

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n2 Relying on Secretary v. Chicago Bridge & Iron Co., 6 OSAHRC 244 (Docket No. 744, January 24, 1974), respondent waived consideration of any possible issue whether the citation was issued with reasonable promptness as required by section 9(a) of the Act.

  [*24]  

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MOTIONS

Complainant has made a post trial motion to admit into evidence Exhibits C-4 through C-7.   Seeing no prejudice resulting therefrom, this motion is granted.

However, complainant's motion during the hearing to amend the pleadings in the alternative to 29 CFR 1926.104 and 1926.105 is denied.   The reason is the fact that prejudice to the respondent would clearly result because of the untimeliness thereof.

THE EVIDENCE

The parties have stipulated that respondent's accurate corporate name is Rob't. W. Setterlin and Sons Co. n3 In addition, they stipulated that its general contracting business affects commerce within the meaning of section 3(3) of the Act by engaging in orders, purchases, receipts, and use of substantial amounts of supplies, materials, equipment and other goods, manufactured, produced, processed or obtained outside of its state of incorporation.   Respondent also stipulated that it was an employer within the meaning of section 3(5) of the Act.

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n3 This was admitted in the answer and so stipulated during the hearing as well as in a pre-trial written stipulation.   Therefore, even though the amendment of the citation occurred in the complaint and did not strictly follow the requirements under Commission Rule 33(a)(3), respondent's corporate name is so amended.

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The unrebutted evidence developed upon the record shows that on March 7, 1974, respondent's employees were constructing an outside wall on the 10th floor of the Bell Telephone Building located at 150 East Gay Street, Columbus, Ohio (Tr. 16, 18).   At the particular location of the subject work, there were no guardrails on this outside wall (Tr. 18, 19, 20, 24, 47).   Prior to the time of inspection, however, guardrails had been installed but were subsequently removed to allow such construction (Tr. 79).

ISSUE

The issue here is whether, under the given circumstances, respondent could have adhered to the requirements as set forth in the charged standard and still have been able to perform the work.

DISCUSSION

Section 2(b) of the Act states that the purpose and policy thereof is to assure "so far as possible" safe and healthful working conditions for working men and women.   In order to achieve this objective there must not be a strained or inequitable construction of the Act's provisions or standards promulgated thereunder so as to view them in a vacuum with total disregard of their intended meaning.   [*26]   Secretary v. DeLuca Construction Corporation, 2 OSAHRC 435, 444 (Docket No. 1225, February 9, 1973).   To construe standards so narrowly that every technical deviation is a violation of the Act would clearly disregard the intended limitation in section 2(b).

This Commission has set substantial precedent in recognizing this limitation.   That is, when the use of protective measures enumerated in a standard severely disrupt or make it impossible to perform the work in question, it would not only be unreasonable but also improper to affirm a violation.   Secretary v. Mohawk Manufacturing Corporation, 1 OSAHRC 520 Docket No. 608, July 7, 1972); Secretary v. DeLuca, supra; Secretary v. La Sala Contracting Co., 2 OSAHRC 976 (Docket No. 1207, March 28, 1973); See Secretary v. Tilo Co., 2 OSAHRC 1391 (Docket No. 211, April 27, 1973); Secretary v. Masonry, Inc., 5 OSAHRC 524 (Docket No. 2693, December 6, 1973); Secretary v. W.B. Meredith II, Inc., 9 OSAHRC 245 (Docket No. 810, June 7, 1974).

That is the case here.   Respondent's vice-president n4 testified that the installation of the cement blocks forming the outside wall would have [*27]   been impossible without removal of the guardrail (Tr. 77-78).   Respondent's masonry foreman testified that removal under these conditions was a standard procedure in the industry (Tr. 108).

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n4 Ralph F. Setterlin, Jr., an architectural engineer, testified he has been employed with respondent since 1953 and has been in his present position -- overseeing the general contracting work including that type involved here -- since 1962 (Tr. 76).

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The only testimony rebutting this is that of the inspection officer. n5 He testified that, in his opinion, respondent's employees, under the given circumstances, could have constructed the outside wall without removing the guardrail (Tr. 44).

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n5 Earl A. Maxie testified he has been a compliance officer for the last two and one half years.   Prior thereto he was employed as a fire inspector and protection specialist (Tr. 11-12).

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I am not convinced by substantial evidence presented by the Secretary that such a wall could be built with the guardrails in place.   Therefore, I conclude that it would be unreasonable and contrary to the objectives and purpose of the Act to hold that its absence in this instance constituted a violation of the standard in question.

FINDINGS OF FACT

1.   On March 7, 1974, several of respondent's employees were constructing an outside wall on the 10th floor of the Bell Telephone Building located at 150 East Gay Street, Columbus, Ohio.

2.   These employees were under the supervision and control of respondent during the time of the inspection.

3.   The guardrails at the work site had been removed to permit the masonry wall to be constructed.

4.   Under the circumstances it would severely disrupt, if not make impossible, the construction of the outside masonry wall if the guardrails were left standing.

5.   The guardrail removal in these circumstances is in accordance with standard procedures in the construction industry.

CONCLUSIONS OF LAW

1.   Respondent is, and was at all times, relevant to the issues herein, engaged in a business affecting commerce within the meaning [*29]   of section 3(3) of the Act.

2.   Respondent is, and was at all times herein mentioned, an employer with the meaning of section 3(5) of the Act and subject to the provisions of sections 4(a) and 5(a) thereof and standards authorized by section 6.

3.   The respondent was not in violation of section 5(a)(2) of the Act for failure to comply with the occupational safety and health standard codified at 29 CFR 1926.500(d)(1).

It is hereby ORDERED:

That the citation for serious violation and civil penalty proposed therefor, dated March 15, 1974, and directed to the respondent herein, is vacated.

Dated: February 20, 1975

Washington D.C.

CHARLES K. CHAPLIN, Judge, OSAHRC