BILL C. CARROLL CO., INC.

OSHRC Docket No. 76-2748

Occupational Safety and Health Review Commission

October 12, 1979

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

James E. White, Reg. Sol., USDOL

William J. Lock, for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner:

A decision of Administrative Law Judge Dee C. Blythe is before the Commission for review under 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The issues are whether Judge Blythe erred in affirming two alleged nonserious violations based on the failure of the Respondent, Bill C. Carroll Co., Inc. ("Carroll"), to comply with construction safety standards requiring the guarding of manually propelled mobile scaffolds (29 C.F.R. 1926.451(e)(10)) and the guarding of wall openings (29 C.F.R. 1926.500(c)(1)). Chairman Cleary directed Commission review of whether the judge properly amended the citation to allege a violation of 1926.451(e)(10) and whether the judge correctly found that the respondent violated that standard. Former Commissioner Moran directed that Judge Blythe's entire decision be reviewed for error. In its submissions on review, Carroll raises a number of exceptions to the judge's affirmance of the [*2] 1926.451(e)(10) violation as well as the violation of 1926.500(c)(1). n1

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n1 Judge Blythe also affirmed nonserious violations of 29 C.F.R. 1903.2(a) and 1926.402(a)(11), and concluded that the Respondent was not in violation of 29 C.F.R. 1926.302(e)(5) and (6) and 1926.451(e)(8). Neither party has sought review of those aspects of the judge's disposition of the case. Moreover, there is no compelling public interest warranting further Commission review on the merits of those items. Accordingly, that portion of the judge's decision will not be considered on review. Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339, 1976-77 CCH OSHD P20,780 (No. 4136, 1976); Abbott-Sommer Inc., 76 OSAHRC 21/A2, 3 BNA OSHC 2032, 1975-76 CCH OSHD P20,428 (No. 9507, 1976). The decision is accolded the significance of an unreviewed judge's decision as to those items. Leone Construction Co., 76 OSAHRC 12/E6, 3 BNA OSHC 1979, 1975-76 CCH OSHD P20,387 (No. 4090, 1976).

Carroll argued before the judge that its rights under the fourth and seventh amendments of the United States Constitution had been violated. The judge addressed those claims in his decision, which was issued before the United States Supreme Court's decisions on those subjects. See Marshall v. Barlow's, Inc., 436 U.S. 307 (1978); Atlas Roofing Co., Inc. v. OSAHRC, 430 U.S. 442 (1977). Chairman Cleary and Commissioner Barnako conclude that those claims are not before us because neither party has raised the issues on review and there is no compelling public interest warranting further Commission review of them. Water Works, supra; Abbott-Sommer, supra; See Hurlock Roofing Co., 79 OSAHRC 7/A2, 7 BNA OSHC 1108, 1979 CCH OSHD P23,358 (No. 76-357, 1979). They accord Judge Blythe's decision the significance of an unreviewed judge's decision with regard to those claims. Leone Construction Co., supra.

Since the judge's decision predated the pertinent Supreme Court decisions referred to above, I would resolve the constitutional claims in a manner consistent with the Supreme Court decisions. See Hurlock Roofing Co., supra (dissenting opinion).

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I

Carroll was the drywall subcontractor for the construction of a motel in Farmington, New Mexico. During the course of an OSHA inspection, a compliance officer observed Carroll's foreman, Schraeder, and another employee welding from the edge of a scaffold platform 14 feet above the ground. There were no guardrails, midrails or toeboards around the platform. The scaffold was mobile, with pneumatic tires at the base. When the lack of guarding was pointed out to another foreman by the compliance officer, guardrails were installed. However, no midrails or toeboards were installed. Carroll was cited for failure to comply with 29 C.F.R. 1926.451(a)(4). n2

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n2 1926.451 Scaffolding.

(a) General requirements.

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(4) Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section). Scaffolds 4 feet to 10 feet in height, having a minimum horizontal dimension in either direction of less than 45 inches, shall have standard guardrails installed on all open sides and ends of the platform.

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At the hearing, Carroll's safety director, Arrington, testified that midrails and toeboards were available at the site for installation and that he had instructed foreman Schraeder to make use of all the safety equipment provided for the scaffold. Arrington stated that Carroll's employees had been instructed not to use the scaffold during the preceding week when guardrails were not in place. According to the safety director's testimony, Schraeder had indicated to him that shortly before the compliance officer arrived at the worksite the scaffold had been moved from beneath a canopy where there was insufficient space to erect guardrails and the other safety equipment. The safety director stated that he reprimanded the foreman, telling him that he ought to be fired. Arrington also stated that Schraeder admitted responsibility for the violation. Sanchez, a Carroll employee, testified that it is company policy to install guardrails on scaffolds and that they are always used. In response to a question posed by the Respondent's counsel at the hearing, the compliance officer testified that in his opinion [*5] the cited standard applied rather than the provisions relating to manually propelled mobile scaffolds.

In his decision the judge ruled that the scaffold conformed to the definition of a "manually propelled mobile scaffold" under 1926.452(b)(17) n3 because its pneumatic tires were the functional equivalent of casters. On his own motion, the judge amended the citation and complaint to allege a violation of 1926.451(e)(10). n4 He concluded that the guarding requirements for manually propelled mobile scaffolds were more specifically applicable to Carroll's equipment. Judge Blythe held that Carroll had failed to comply with the requirements of 1926.451(e)(10). He ruled that Carroll's affirmative defenses, including the defenses of unpreventable employee misconduct and impossibility of compliance, had been neither timely raised nor properly pleaded. n5 Nevertheless, the judge considered and rejected the defenses on the merits.

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n3 1926.452 Definitions applicable to this subpart.

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(b) Scaffolding --

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(17) "Manually propelled mobile scaffold" -- A portable rolling scaffold supported by casters.

n4 1926.451 Scaffolding.

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(e) Manually propelled mobile scaffolds.

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(10) Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), approximately 42 inches high, with a midrail, of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section.

n5 Those defenses were first asserted in Carroll's amended answer, which was submitted on the first day of the hearing. The defenses were raised generally to "certain of" the Secretary's alleged violations without specifying the items involved.

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On review, Carroll objects to the post-hearing amendment, claiming that the amendment is prejudicial. The Respondent also contends that the violation was an instance of unpreventable employee misconduct. The Secretary urges affirmance of the judge's decision, relying on the record below.

II

A

A "manually propelled mobile scaffold" is defined in 1926.452(b)(17) as a "portable rolling scaffold supported by casters." A "caster" is "a wheel or set of wheels mounted in a swivel frame used for supporting . . . trucks, and portable machines." Webster's Seventh New Collegiate Dictionary (1967). Photographs received in evidence indicate that the scaffold in issue, although portable and capable of rolling, was not supported by wheels mounted in a swivel frame but was instead supported by pneumatic tires connected to the scaffold by axles. However, the definition of manually propelled mobile scaffolds at 1926.452(b)(17) was not intended to restrict the application of the section on manually propelled mobile scaffolds, 1926.451(e), to scaffolds with wheels mounted in swivel frames. Scaffolds having [*7] wheels with axles are also included within the provisions of 1926.451(e). The terms "caster" and "wheel" are used interchangeably in 1926.451(e)(8), n6 and the standard at 1926.451(e)(7)(iii) n7 specifically refers to scaffolds with "wheels" of "rubber or similar resilient tires." Moreover, there are no significant differences between a caster and a wheel that bear any relationship to the need for guarding a manually propelled mobile work platform. Clearly, the Respondent's scaffold was "manually propelled," "mobile," "portable," and "rolling" as those terms appear in 1926.451(e) and 1926.452(b)(17). We therefore conclude that scaffolds such as Carroll's, mounted on pneumatic tires, are covered by the provisions for manually propelled mobile scaffolds at 1926.451(e). Accordingly, the judge correctly determined that 1926.451(e)(10) is specifically applicable to the scaffold.

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n6 1926.451(e) Manually propelled mobile scaffolds.

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(8) Scaffolds in use by any persons shall rest upon a suitable footing and shall stand plumb. The casters or wheels shall be locked to prevent any movement.

n7 29 C.F.R. 1926.451(e)(7) provides that "[t]he employer shall not allow employees to ride on manually propelled scaffolds unless the following conditions exist: . . . (iii) The wheels are equipped with rubber or similar resilient tires."

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B

With respect to the judge's amendment of the pleadings, it is important to emphasize that pleadings before the Commission are to be liberally construed and easily amended. McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978); appeal docketed, No. 79-1073 (5th Cir., Jan. 9, 1979); Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir. 1977); National Realty and Const. Co., Inc. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Rule 15(b) of the Federal Rules of Civil Procedure, made applicable to Commission proceedings by 29 C.F.R. 2200.2(b), n8 governs amendments of pleadings to conform to the evidence. This rule is divided into two independent parts. The first section addresses the situation in which an unpleaded issue has been tried with the express or implied consent of the parties. n9 The second part of the rule is concerned with amendments to conform the pleadings to the proof where a party has objected to the introduction of evidence pertaining to issues not within the pleadings. n10 Southwestern Bell Tel. Co., 78 OSAHRC [*9] 100/D8, 6 BNA OSHC 2130, 1978 CCH OSHD P23,187 (No. 14761, 1978). Here, both parties presented evidence relating to the unpleaded issues and neither party objected to the introduction of evidence regarding the new issues. Thus, this case falls within the first section of the rule. Inasmuch as the parties gave no express consent to the trial of the unpleaded charge, it is necessary to determine whether there was implied consent to try an alleged 1926.451(e)(10) violation.

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n8 29 C.F.R. 2200.2 Scope of rules; applicability of Federal Rules of Civil Procedure.

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(b) In the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Procedure.

n9 The first part of the rule reads as follows:

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. . . .

n10 The second part of the rule reads as follows:

. . . 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. The court may grant a continuance to enable the objecting party to meet such evidence.

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Two factors that give rise to a finding of implied consent are the failure of the party opposing amendment to object to the introduction of evidence concerning the unpleaded issue and the introduction by the objecting party of evidence relevant to the unpleaded issue. Southwestern Bell, supra; See Claude Neon Federal Co., 77 OSAHRC 104/A2, 5 BNA OSHC 1546, 1977-78 CCH OSHD P21,887 (No. 13810, 1977). The subject of the mobile scaffold provisions was introduced by Carroll's counsel when he questioned the compliance officer concerning their applicability. Moreover, Carroll introduced evidence that the scaffold was moved around the project manually on pneumatic tires and that midrails were available for installation on the scaffold. Carroll did not object to evidence adduced by the Secretary regarding the scaffold's pneumatic tires and the fact that no midrails were installed during the inspection. Thus, the Respondent interposed the issue of the mobile nature of the scaffold and adduced evidence concerning the lack of midrails. In addition, the Respondent failed to object when the [*11] Secretary introduced evidence relevant to these matters. The issues of the scaffold's mobility and the absence of midrails were not relevant to the original charge. Thus, the Respondent was on notice that the issue of the applicability of the unpleaded mobile scaffold standard was being tried and it had the opportunity to present defenses to the unpleaded charge. Moreover, Carroll has not requested an opportunity to present further evidence on the amended charge or indicated any further facts that it would adduce concerning that charge. Under these circumstances, Carroll can not prevail on its claim of prejudice resulting from the amendment of the pleadings to conform to the evidence. See Claude Neon Federal Co., supra; McKee-Wellman Power Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1977-78 CCH OSHD P21,972 (No. 12618, 1977); See also 6 Wright & Miller, Federal Practice and Procedure 1493 at pp. 462-465 (1971); 3 Moore's Federal Practice P15.13[2] at pp. 15-174 and 15-175 (2d. Ed. 1978). n11 Thus, the amendment of the pleadings to allege a violation of 1926.451(e)(10) was proper.

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n11 Carroll's objection to the amendment is an objection to a change in legal theory. In McLean-Behm, supra, we held that where an amendment changes the legal theory from that alleged in the citation, consent to the amendment will be implied where the party opposing amendment has not objected to the introduction of evidence relevant to the unpleaded charge, provided that it is not prejudiced by the amendment. Under Rule 15(b), a party is not prejudiced by an amendment where it has had a fair opportunity to defend against the unpleaded charge. See June T., Inc. v. King, 290 F.2d 404, 407 (5th Cir. 1961); 6 Wright & Miller, supra, at 467-469.

In McLean-Behm the evidence necessary to support both the original and the amended charge was the same. It was not clear from the introduction of evidence alone that the unpleaded charge was in issue. Therefore, we analysed all additional defenses that the Respondent could have offered in defense to the amended charge and concluded that those defenses could not have altered our conclusion that McLean-Behm was in violation. However, as noted above, Carroll introduced evidence relevant only to the unpleaded issue and failed to object to evidence pertaining to that issue when introduced by the Secretary. Thus, Carroll had notice that the unpleaded charge was in issue and accordingly had the opportunity to litigate the charge. Under these circumstances, Carroll's failure to adduce additional evidence does not constitute prejudice, and its claim of prejudice must be rejected.

[*13]

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It is undisputed that two Carroll employees were exposed to a fall as they worked at the edge of the manually propelled mobile scaffold 14 feet above the ground without guardrails, midrails or toeboards. Thus, a prima facie case of noncompliance with 1926.451(e)(10) has been established.

Carroll raised the defense of unpreventable employee misconduct when it submitted its amended answer at the commencement of the hearing. However, the defense was not specifically pleaded as a defense to the alleged scaffolding violation. At the outset of the hearing the Secretary objected to the late filing of the amended answer, and the judge took the matter under advisement. Nevertheless, Carroll later introduced evidence pertaining to the unpreventable employee misconduct defense as it related specifically to the scaffolding citation and the Secretary did not object. Also, at the close of the hearing Carroll stated that it would rely on all the affirmative defenses included in its amended answer. Again there was no objection.

Unpleaded affirmative defenses, like unpleaded charges, may be tried by [*14] the express or implied consent of the parties and treated as if actually raised by the pleadings. Fed. R. Civ. P. 15(b); Knudson v. Boren, 261 F.2d 15 (10th Cir. 1958). Here, the Secretary clearly was on notice that Carroll was relying on the unpreventable employee misconduct defense to this item. Consequently, the Secretary had a fair opportunity to rebut the defense or indicate why it could not do so. The Secretary has never requested a further opportunity to present evidence or indicated what additional facts or witnesses could be offered to rebut the defense. It has not indicated how it would be prejudiced by consideration of the defense. Under these circumstances, we conclude that the defense was tried with the implied consent of the parties. Lomartira v. American Automobile Ins. Co., 371 F.2d 550 (2d Cir. 1967). Accordingly, Carroll's pleadings in response to this item are amended to include the affirmative defense of unpreventable employee misconduct.

C

The knowledge and actions of a supervisory employee are ordinarily imputed to the employer. An exception exists when the employer has taken all necessary precautionary steps to comply with the requirements [*15] of the Act, but a hazardous condition results from the unpreventable acts of the supervisory employee. Alder Electric Co., Inc., 77 OSAHRC 49/C8, 5 BNA OSHC 1303, 1977-78 CCH OSHD P21,748 (No. 13573, 1977). To establish this defense the employer must demonstrate that the supervisory employee with knowledge of the violation was himself adequately supervised with regard to safety matters. Mountain States Tel. & Tel. Co., 78 OSAHRC 30/A2, 6 BNA OSHC 1504, 1978 CCH OSHD P22,668 (No. 13266, 1978); appeal docketed, No. 78-1438 (10th Cir., June 2, 1978). The specific elements of the defense include: 1) a demonstration of the employer's commitment to employee safety through the establishment of work rules that effectively implement the requirements of the standard at issue; 2) the effective communication of the work rules to employees; and 3) the effective enforcement of those work rules by supervision adequate to detect noncompliance with the rules and by discipline sufficient to discourage violations. Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1677-78, 1978 CCH OSHD P22,805 (No. 3069, 1978).

There was testimony that Carroll's foreman [*16] on the scaffold was instructed on how to use the necessary safety equipment and that Carroll had a policy not to use scaffolds until the necessary guardrails were in place. However, even assuming that Carroll had an established workrule at least with respect to some of the necessary guarding, the record does not establish that it was effectively communicated to the foreman or the other employee working on the scaffold. The compliance officer stated that no toeboards or midrails were installed during his inspection even though guardrails were installed on the scaffold when he noticed the problem. As noted above, toeboards are required by both the originally cited standard and the mobile scaffold provisions. It is reasonable to conclude that if Carroll's employees had been adequately instructed with respect to required safety equipment, all necessary devices would have been installed when the compliance officer pointed out the unsafe conditions. However, Carroll failed to fully comply with either the originally cited standard or the mobile scaffold provisions at that time. Thus, the record indicates that Carroll did not effectively communicate to its employees the relevant guarding [*17] requirements.

Also, there is no showing that Carroll had any program designed to detect violations of its workrules. The record does not establish that Carroll maintained any inspection program to discover violations created by its employees or foremen. Moreover, no evidence was presented that employees were notified in advance of disciplinary measures that would be taken in the event of violations. Thus, Carroll has not shown that it effectively enforced its safety program. n12

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n12 The evidence here sharply contrasts with the evidence in Floyd Pike, supra, where the Respondent was found not responsible for a violation by a supervisor. There the Respondent, among other things, issued employees a safety manual and held safety meetings where the relevant hazards were discussed. In addition, the Respondent's safety director had visited the supervisor's crew previously and observed them working. Moreover, employees violating safety rules were disciplined by means ranging from reprimands to discharges. Here, there was no showing that adequate measures were taken to explain workrules to employees, to inspect working conditions on the site or to apprise employees of the consequences of violating safety rules.

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Carroll's failure to effectively communicate and enforce any established workrules is particularly important here because the person creating the violation was a supervisor. Employers have a heightened duty to see that supervisors work safely. That a foreman feels free to breach a company safety policy is strong evidence that implementation of the safety policy is lax. Mountain States Tel. and Tel. Co., supra. Where as here the supervisor is working at a location removed from the company's top-level supervisors n13 the importance of training him adequately in the requirements of the Act is increased. Carroll's defense of unpreventable employee misconduct is not sustained. n14

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n13 The worksite in this case was located about 250 miles from Carroll's headquarters.

n14 Carroll claims that its defense would have prevailed as to the originally cited standard ( 1926.451(a)(4)). However, we note that the defense would not have succeeded because of Carroll's failure to effectively communicate and enforce workrules pertaining to the general guarding requirements for scaffolds.

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III

Carroll was also cited for exposing its employees to a fall hazard by failing to guard wall openings in violation of 1926.500(c)(1). n15 Its employees worked within three feet of wall openings as they installed drywall on the second floor of the motel, eight or nine feet above ground level. The openings were for floor-length windows. Carroll's safety director testified that under its subcontract Carroll had no right to erect guardrails. He further testified that under the subcontract and union rules Carroll would not be allowed to build a barricade that would interfere with the ability of other crafts to bring materials through the window openings. There was also evidence that Carroll and other trades had to hoist fixtures and other bulky materials through the window openings and could not do so with guardrails in place. Also, Carroll's working foreman testified that it would be impossible for its employees to hang sheetrock while wearing safety belts. However, the compliance officer testified that clamp-on, removable guardrails are commercially available, that they are used in all kinds [*20] of building construction, including the kind involved here, and that they could have been used without interfering with Carroll's work, except possibly the installation of the window glass itself.

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n15 1926.500 Guardrails, handrails and covers.

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(c) Guarding of wall openings. (1) Wall openings, from which there is a drop of more than 4 feet, and the bottom of the opening is less than 3 feet above the working surface, shall be guarded as follows:

(i) When the height and placement of the opening in relation to the working surface is such that either a standard rail or intermediate rail will effectively reduce the danger of falling, one or both shall be provided;

(ii) The bottom of a wall opening, which is less than 4 inches above the working surface, regardless of width, shall be protected by a standard toeboard or an enclosing screen either of solid construction or as specified in paragraph (f)(7)(ii) of this section.

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The judge affirmed the citation, rejecting Carroll's affirmative defense of impossibility [*21] of compliance as improperly pleaded and as unsupported by the evidence. The judge also rejected Carroll's defense that as a subcontractor it was not responsible for compliance with the cited standard. Citing the Commission's decision in Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975-76 CCH OSHD P20,690 (Nos. 3694 & 4409, 1976), the judge ruled against the Respondent, concluding that Carroll had failed to take any alternative measures to protect its employees.

The record demonstrates that Carroll's employees were exposed to possible falls through the wall openings. n16 On review, Carroll argues that performance of the work would have been impossible if it had complied with the cited standard. n17 In order to establish the defense of impossibility the respondent must prove that compliance with the requirements of the cited standard either was functionally impossible or would preclude performance of required work, and that alternative means of compliance were unavailable. M.J. Lee Constr. Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979). Evidence was presented that on certain occasions it was necessary to hoist materials through [*22] the wall openings and that therefore guardrails could not be in place at those times. However, the compliance officer's testimony that clamp-on, removable guardrails are commercially available and could have been used was unrebutted, and Carroll's defense of impossibility has, therefore, not been established. Cf. Ray Boyd Plaster & Tile, Inc., 78 OSAHRC 47/D8, 6 BNA OSHC 1648, 1978 CCH OSHD P22,794 (No. 76-814, 1978), appeal dismissed, No. 78-2666 (5th Cir. Sept. 29, 1978).

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n16 Carroll has argued that this item should be dismissed because of an intentional misrepresentation by the compliance officer. Carroll claims that at the time of the inspection the compliance officer told Mr. Morenus, Carroll's working foreman, that Morenus's statement would not be used against him or the respondent. At the hearing, the compliance officer testified that Morenus had admitted he worked within two feet of the wall openings. We need not determine whether such a misrepresentation occurred. The record shows that another of Carroll's employees, Jim Harwood, testified at the hearing that he worked within three feet of the wall openings. Harwood's testimony by itself establishes exposure to the hazard. There is no assertion that Harwood's testimony was in any way connected to the claimed misrepresentation. Carroll has not demonstrated any basis for excluding Harwood's testimony, or for dismissing the item based on any alleged misrepresentation. See Fed. R. Civ. P. 61; cf. Atlantic Marine, Inc. v. OSHRC, 524 F.2d 476 (5th Cir. 1975).

n17 The defense was first raised in Carroll's amended answer and was raised generally as a defense to "certain of" the alleged violations without specifying any items. At the outset of the hearing the Secretary objected to the untimeliness of the pleading. However, Carroll introduced evidence in support of the defense and reiterated its reliance on all its affirmative defenses at the end of the hearing. The Secretary failed to object. Thus, the Secretary was on notice of the defense. Moreover, the Secretary utilized his opportunity to litigate the issue by introducing rebuttal evidence relevant to it. Furthermore, he has not requested an additional opportunity to present evidence on the issue or indicated what other evidence might be presented. No prejudice to the Secretary's case has been shown and we conclude that the defense is properly before us.

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The Respondent also argues that it should not be held responsible because its ability to correct the violations was restricted by contract. A subcontractor is not relieved of the duty to provide protection to its employees merely because the responsibility to comply was contracted to another party. Cornell & Co., Inc., 77 OSAHRC 164/F5, 5 BNA OSHC 1736, 1977-78 CCH OSHD P22,095 (No. 8721, 1977). Once the Secretary has shown that a subcontractor's employees have access to a hazard in violation of a standard, the subcontractor may affirmatively defend by showing that it did not create the hazard or control it in a manner that realistically permitted the subcontractor to abate the condition consistent with the requirements of the cited standard. The subcontractor must then show either that it took realistic alternative measures to protect its employees or that it did not and could not reasonably have been aware that the condition was hazardous. Anning-Johnson Co., supra; Grossman Steel and Aluminum Corp. 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1975-76 CCH OSHD P20.691 (No. 12775, 1975). [*24]

Carroll presented evidence that it did not create or control the hazards because it would not be allowed to erect barricades that would interfere with the ability of other trades to move materials through them. However, there is unrebutted evidence that the Respondent could have literally complied with the cited standard by the use of clamp-on, removable guardrails as suggested by the compliance officer. Thus, its affirmative defense is insufficient. Cornell & Co., Inc., supra. Furthermore, Carroll failed to demonstrate that it took any realistic alternative protective measures. There is no indication that Carroll took even the minimal step of complaining to the responsible contractor about the hazardous conditions. n18 Thus, Carroll has failed to establish this affirmative defense.

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n18 Merely complaining to the responsible contractor is not in itself adequate when there are other alternative means of protection available, except in the case of minor violations, which are not involved here. However, it is incumbent on a subcontractor to at least request abatement by the responsible contractor when there are no means available for the subcontractor to physically protect its employees from the violative conditions. McLean-Behm Steel Erectors, Inc., 78 OSAHRC 54/A2, 6 BNA OSHC 1712, 1978 CCH OSHD P22,812 (No. 76-2390, 1978); See J.H. MacKay Electric Co., et. al., 78 OSAHRC 77/B10, 6 BNA OSHC 1947, 1978 CCH OSHD P23,026 (Nos. 16110 & 16111, 1978).

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IV

Accordingly, we affirm the judge's ruling that the Respondent was in violation of the Act by failing to comply with 29 C.F.R. 1926.451(e)(10) and 29 C.F.R. 1926.500(c)(1). As to penalties, we affirm the judge's findings that the gravity of each violation was moderate, and that respondent is a relatively small company without a significant history of violations. We have no reason to question its good faith. Therefore, we affirm the judge's assessment of a $35.00 penalty for the scaffolding violation n19 and $40.00 for the wall opening violation.

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n19 The $35.00 penalty would be reasonable based on the failure to provide the scaffold with guardrails and toeboards alone.

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IT IS SO ORDERED.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, Commissioner, concurring:

I agree with my colleagues that the Bill C. Carroll Company violated standards which require guarding of scaffolds and of wall openings, 29 C.F.R. 1926.451(e)(10) and 1926.500(c)(1), respectively. [*26] I differ with them only in their analysis of the amendment of the citation and complaint with respect to the scaffold violation.

Carroll was charged with violation of 29 C.F.R. 1926.451(a)(4) because two of its employees were working from the unguarded platform of a scaffold 14 feet above the ground. Both the citation and the complaint made clear that the unguarded scaffold platform was the gravamen of the alleged violation. n1 Consistent with the citation and complaint, the cited standard requires guardrails and toeboards to be used on open sides and ends of scaffold platforms more than ten feet above the ground. n2

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n1 The citation described the alleged violation as follows:

Platform more than 10 feet in height on the following scaffold was not guarded on all open sides and ends by guardrails and toeboards, located in front of building carport on west side.

The alleged violation was described in the complaint in a similar fashion:

[G]uardrails and toeboards were not installed on all open sides and ends of a scaffold platform more than 10 feet above the ground or floor. . . .

n2 29 C.F.R. 1926.451(a)(4) states, in relevant part:

Guardrails and toeboards shall be installed on all open sides and ends of platforms more than 10 feet above the ground or floor, except needle beam scaffolds and floats (see paragraphs (p) and (w) of this section).

[*27]

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Following a hearing, the judge issued a decision amending the pleadings, pursuant to Fed. R. Civ. P. 15(b), to allege a violation of 29 C.F.R. 1926.451(e)(10), n3 a standard which also requires guarding of scaffolds over ten feet high but which applies only to manually propelled mobile scaffolds. On the basis of the evidence presented at trial, the judge concluded that the scaffold in issue was a manually propelled mobile scaffold and that the provision specifically governing guarding of such scaffolds should apply. He further found Carroll to have violated this provision.

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n3 29 C.F.R. 1926.451(e)(10), states, in relevant part:

(e) Manually propelled mobile scaffolds.

(10) Guardrails made of lumber, not less than 2 X 4 inches (or other material providing equivalent protection), approximately 42 inches high, with a midrail, of 1 X 6 inch lumber (or other material providing equivalent protection), and toeboards, shall be installed on all open sides and ends on all scaffolds more than 10 feet above the ground or floor.

[*28]

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Under the facts of this case, I agree that amendment is proper. Section 1926.451(e)(10) contains, with one exception, n4 the same requirements as the provision originally cited. Moreover both the originally cited standard and the one referenced by the amendment are provisions of the same standard and are closely interrelated. n5 Since Carroll's failure to provide guardrails and toeboards, as alleged in the initial citation, is the same action that constitutes a violation of the amended charge and since the amendment is merely from one subsection to another of the same standard, I view the amendment as in the nature of a technical correction which causes no prejudice to Carroll. See Terra Motus Co., 77 OSAHRC 152/B1, 5 BNA OSHC 1696, 1977-78 CCH OSHD P22,040 (No. 14154, 1977); National Steel and Shipbuilding, 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 and 11769, 1978) appeal docketed No. 78-2695 (9th Cir. Aug. 3, 1978). On this basis, I agree that amendment is permissible. n6

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n4 In addition to requiring guardrails and toeboards, 1926.451(e)(10) includes a requirement of midrails, which is not found in 1926.451(a)(4).

n5 Section 1926.451(a)(4) is a general standard which, in effect, serves as an introduction to the specific standards that follow and which fills any gaps created by the failure of the specific standards to cover a particular scaffold. Section 1926.451(e)(10) is one of the specific standards that follows the general.

n6 The citation and complaint did not charge Carroll with a violation for lack of midrails; nevertheless my colleagues include in their amendment an allegation for lack of midrails. In doing so they note that evidence was adduced at the hearing on this issue. However, any allegation relating to the lack of midrails is in addition to and separate from the initial allegation with which Carroll was charged. Therefore, I dissent from my colleagues' holding that the lack of midrails constitutes part of the amendment. Accordingly, I would limit the amendment and finding of violation to the absence of guardrails and toeboards.

[*29]

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My colleagues conclude that the amended charge was tried by implied consent and permit amendment pursuant to Fed. R. Civ. P. 15(b). In finding implied consent, they point to the fact that during the trial Carroll asked the compliance officer why the standard for manually propelled mobile scaffolds was not cited. They also note there was testimony that Carroll's scaffold was mounted on tires and moved to different locations at the worksite. Additionally, they cite testimony that the scaffold lacked midrails, which are not required by the initially cited standard but are required under the standard to which the judge amended. See note 4, supra.

In McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978) (dissenting opinion) appeal docketed, No. 79-1073 (5th Cir. Jan. 9, 1979), I stated that I would find implied consent for amendment pursuant to Fed. R. Civ. P. 15(b) only where the parties squarely recognized that an unpleaded issue was being tried. I further stated,

A party does not give implicit consent to the trial of an unpleaded [*30] issue merely because it knowns that the evidence is potentially relevant to the issue; rather it must be clear from the introduction of that evidence that the opposing party is actually attempting to raise the unpleaded issue.

6 BNA OSHC at 2086, 1978 CCH OSHD at 27,961. Although Carroll itself raised the issue of the possible applicability of 1926.451(e)(10) when its counsel asked the compliance officer why the citation did not allege a violation of 1926.451(e)(10) relating to manually propelled mobile scaffolding, this question alone does not indicate that either party believed it was trying an alleged violation of 1926.451(e)(10) rather than 1926.451(a)(4).

The compliance officer's response to Carroll's question was unsatisfactory. He indicated, in rather garbled fashion, that specific standards take precedence over general ones but that if there is no specific standard that covers the cited condition, the general standard applies. He did not explain, however, the application of the rule in this case or the reason, in view of his earlier testimony that the scaffold was manually propelled and mobile, that 1926.451(e)(10) had not been cited.

Nevertheless, the issue [*31] was then dropped and neither party pursued the matter further. Since Respondent's counsel did no ask the compliance officer any additional questions concerning the applicability of 1926.451(e)(10), he apparently accepted the compliance officer's explanation and concluded that 1926.451(e)(10) was not at issue. Significantly, neither the compliance officer nor the Secretary's counsel gave any indication that they were attempting to show a violation of 1926.451(e)(10). In such circumstances, it is inappropriate to rely upon a single question by Carroll's counsel concerning the applicability of 1926.451(e)(10) to find implied consent.

Nor does the other evidence upon which the majority relies serve as a basis for finding implied consent. The testimony that the scaffold lacked midrails, had tires and was moved to different locations at the worksite was incidental testimony of the sort customarily introduced merely to provide a description of the relevant equipment, machinery or structure in order to aid the judge in forming a mental image of the circumstances surrounding the alleged violation. The testimony concerning the lack of midrails was also incidental to the compliance [*32] officer's description of the falling hazard to which Carroll's employees were exposed. Indeed in fall hazard cases evidence is often introduced showing that means of protection other than those required by the cited standard were not used by the employer in order to demonstrate that the exposed employees were entirely unprotected. E.g., Granite-Groves, A Joint Venture, 76 OSAHRC 28/B12, 5 BNA OSHC 1100, 1977-78 CCH OSHD P21,594 (No. 10677, 1977) (evidence presented showing lack of safety belts when employer was cited for absence of side guarding). Such evidence is relevant to the gravity of the violation and the lack of good faith on the part of the employer. Moreover, since most OSHA standards which require side guarding include a requirement of midrails, n7 the testimony concerning lack of midrails could simply have been given as a matter of course by the compliance officer. Accordingly, I disagree with my colleagues that testimony concerning midrails or the scaffold's tires was introduced here because either party believed it was trying an alleged violation of 1926.451(e)(10) rather than of 1926.451(a)(4).

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n7 See, e.g., 29 C.F.R. 1926.500(b)(1), 1926.500(d)(1) and 1926.501(b).

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Thus, I would find that the parties did not implicitly consent to try the 1926.451(e)(10) issue. However, since the requirements of 1926.451(e)(10) and 1926.451(a)(4) are virtually identical and the same conduct of Respondent is in issue under both, by trying a violation of one subsection the parties in effect tried a violation of either subsection. Therefore, even though I do not find consent of the parties to try an alleged violation of 1926.451(e)(10), I find the amendment to be non-prejudicial and proper.