THE ROGERS MANUFACTURING CO.

OSHRC Docket No. 76-896

Occupational Safety and Health Review Commission

August 10, 1979

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

William S. Koepfer, Assoc. Regional Solicitor

James J. Masturzo, Safety Director, THE ROGERS MANUFACTURING COMPANY, for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner: A decision of Administrative Law Judge Louis J. Rubin is before the Commission pursuant to a general direction for review issued by former Commissioner Moran under 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. In his decision, Judge Rubin affirmed the only contested citation, an alleged nonserious violation of 29 CFR 1910.217(d)(1)(i), n1 and assessed a zero penalty. In response, The Rogers Manufacturing Company ("Rogers"), filed a petition for discretionary review taking exception to the judge's decision.

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n1 1910.217 Mechanical power presses.

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(d) Design, construction, setting and feeding of dies. (1) General requirements. Effective February 1, 1975, the employer shall: (i) use dies and operating methods designed to control or eliminate hazards to operating personnel. . . .

[*2]

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I

The citation at issue relates to Rogers' Aida #32 press, a power punch press used in the manufacture of pulleys. At the time of the inspection that resulted in this citation, the dies on the press consisted of a stationary lower die shoe and a moveable upper die shoe. Both were flat pieces of metal. In the middle of the upper die shoe was a rubber "doughnut" that protruded downward. In the middle of the lower die shoe was an indented area referred to as a "pocket" or "nest". The point of operation on the press was the area where the "doughnut" pressed the workpiece, a 5-1/2 inch high piece of metal, into the "next", thereby forming the finished part.

The press was normally operated in the following manner. While the press motor was running but before the operating cycle was activated, the operator reached between the die shoes to insert a workpiece into the "nest". In this position, the operator's hands and arms were extended into the area between the die shoes, a distance of 14 to 16 inches. The distance between the upper and lower die shoes was 8 inches. n2 After placing the workpiece in [*3] the nest, the operator removed her hands from between the die shoes and activated the operating cycle by depressing a foot pedal. Upon completion of this cycle, the operator removed the processed pulley, inserted another workpiece, and reactivated the operating cycle. In this manner, 25 to 30 workpieces were processed in a period of 15 to 20 minutes.

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n2 The amount of clearance between the die shoes is determined by the size of the crankshaft installed in the press. (Thus, the size of the crankshaft on this machine was eight inches.)

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Under 29 CFR 1910.217(c)(1)(i), an employer using a mechanical power press, such as the Aida #32 press, is required to safeguard the point of operation by using one of the methods of guarding specified in 1910.217(c)(2) and (3). n3 The guarding method used by Rogers for the Aida #32 press was a "pull-back" or "pull-out device". See 1910.217(c)(3)(i)(b) and (c)(3)(iv). If the operating cycle were inadvertently activated while the operator's hands were between the die shoes, [*4] a pullout device, consisting of a nylon cord attached to the operator's wrists, would immediately and rapidly pull the operator's hands out of the point of operation and the surrounding area. The compliance officer testified that, in the event of this occurrence, the operator could be injured through contact with the protruding screws and the sharp edges on both die shoes, particularly the lower die shoe. He further testified that, if the operator's hands and forearms were pulled back across the surface of the lower die shoe, cuts, bruises, and lacerations on the operator's hands and forearms could result. In their testimony, both Rogers' assistant general manager and its maintenance engineer agreed that the operator could be injured by the screws and sharp edges of the lower die shoe if the pull-out device were activated. However, their testimony on the precise circumstances when the operator could be injured and the severity of the hazard differed from the compliance officer's testimony on those issues.

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n3 A detailed history of 1910.217 is set forth in AFL-CIO et al. v. Brennan et al., 530 F.2d 109 (3rd Cir. 1975). As noted in that decision, the OSHA standard was derived from a standard developed by the American National Standards Institute (ANSI) in response to an "intolerable" incidence of point of operation injuries on mechanical power presses. 530 F.2d at 112, n. 3. The standard "details a number of different forms of point of operation guarding and requires that every power press be guarded by at least one of these methods." Irvington Moore, Division of U.S. Natural Resources, Inc. v. OSHRC et al., 556 F.2d 431, 435 (9th Cir. 1977). In the case now before us, past incidents confirmed the possibility of activating the operating cycle while the operator's hands were between the die shoes. This could be caused by a malfunction of the machine or by the operator accidentally depressing the foot pedal.

[*5]

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As a result of this hazard, the Secretary issued the citation under review, alleging that Rogers violated 1910.217(d)(1)(i) by failing "to use dies and operating methods designed to control or eliminate hazards to operating personnel on Aida #32 press." Judge Rubin affirmed the citation, finding that there was a "potential hazard of cuts and bruises caused by contact of the hands and arms with the screws and sharp edges of the dies, particularly the lower die, as the pull-back device withdraws the hands." He further found that greater clearance between the die shoes, which could be obtained by installing a larger crankshaft in the press, e.g., a 10-inch or 12-inch crankshaft, would decrease the possibility of such injury. In its petition for discretionary review, Rogers took exception to both of these findings.

II

All three witnesses who testified at the hearing, including the two witnesses called by Rogers, agreed that the operator could be injured by contact with the lower die shoe as the pull-out device withdrew her hands and arms. We therefore affirm the judge's finding that the operator of [*6] the Aida #32 press was exposed to a hazard of cuts and bruises.

Concerning Rogers' exception to the judge's finding that the hazard could be reduced by installing a larger crankshaft, we note that the three witnesses at the hearing testified generally that the operation of the press would be safer if the clearance between the die shoes were increased. However, there is no clear testimony that increasing this clearance would substantially reduce the particular hazard at issue. In fact, Rogers' maintenance engineer testified that increasing the clearance would not have a substantial effect on the hazard. He testified, and Rogers argues on review, that increasing the clearance between the die shoes would not change the position of the operator's hands and arms in relation to the stationary lower die shoe during the time when the operator places workpieces into, or removes them from, the point of operation. He concluded that increasing the clearance would therefore not substantially diminish the possibility of injury if the pull-out device were activated by the operator inadvertently starting the operating cycle. This testimony was not directly contradicted and it is consistent [*7] with the record evidence concerning the operation of the power press.

However, it is not necessary to determine whether the judge's finding that the hazard could be reduced by installing a larger crankshaft is supported by a preponderance of the evidence. Our review of the record reveals a more fundamental issue -- whether the cited standard applies to the hazard established by the record and found by the judge.

Section 1910.217(d)(1)(i) applies to hazards that can be controlled or eliminated through the use of appropriate dies or operating procedures. See n. 1, supra. However, there is no indication in the record that the hazard at issue in this case could be controlled or eliminated through the use of different dies and operating procedures. Furthermore, the cited standard does not include within its scope a hazard that allegedly must be controlled by installing a larger crankshaft. For these reasons, we conclude that the cited standard, 29 C.F.R. 1910.217(d)(1)(i), does not apply to the hazard at issue. The judge's conclusion that Rogers violated 1910.217(d)(1)(i) and his implied order that Rogers must install a larger crankshaft on the Aida #32 press are accordingly [*8] vacated. n4

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n4 Our conclusion that the cited standard does not require the elimination of hazards through the installation of larger crankshafts does not preclude Rogers from attempting to eliminate the hazard at issue in this manner. However, as indicated above, the record before us creates considerable doubt regarding the effectiveness of this suggested abatement method.

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In our view, the Secretary not only misinterpreted the requirements of the cited standard but also misconstrued the nature of the cited hazard. Although the record suggests that increasing the clearance between the die shoes would have a marginal impact in terms of reducing the hazard, it also establishes that the hazard could be eliminated if Rogers were to use a different method of guarding the point of operation on the Aida #32 press. For example, the compliance officer testified that there would be no hazard during normal operations if two-hand controls were used. n5 See 1910.217(c)(3)(i)(e) and (c)(3)(vii). This testimony was not rebutted. [*9] Our analysis of the provisions of 1910.217(c)(2) and (3) also leads to the conclusion that the hazard could be eliminated by using a method of guarding other than the "pull-out device." One of the factors contributing to the hazard at issue was Rogers' use of the "pull-out device", which was designed to pull the operator's hands and arms out of the area between the die shoes as rapidly as possible if the operating cycle were accidentally started. Thus, the operator was exposed to potential injury because the "pull-out device" would be activated while the operator's hands and arms were in a confined space directly above a die shoe with sharp edges and screws. However, among the methods of guarding listed in 1910.217(c)(2) and (3), only the pull-out and sweep devices create this hazard. n6 Therefore, we conclude that the gravamen of the charge under review is Rogers' use of the pull-out device as the method of guarding the point of operation on the Aida #32 press. This conclusion necessarily raises a question as to whether the issue actually tried by the parties was an alleged violation of the requirements of 29 C.F.R. 1910.212(a)(2) n7 instead of 1910.217(d)(1)(i).

[*10]

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n5 The record establishes that some of the presses at Rogers' workplace were operated by two-hand controls and contains testimony indicating that the Aida #32 press may also have been equipped with such controls. If so, the two-hand controls on the Aida #32 press apparently were deactivated since the press was in fact operated by depressing the foot treadle.

n6 We note that a hazard might have been created if Rogers and chosen to install a "sweep device." Sections 1910.217(c)(3)(i)(b) and (c)(3)(v). Like the pull-out device, the sweep device protects the operator by forcibly "withdrawing his hands if they are inadvertently located in the point of operation, as the dies close." Section 1910.217(c)(3)(i)(b). The other listed alternatives do not result in a forcible withdrawal from the point of operation and therefore would not create the hazard at issue.

n7 The standard provides the following, in pertinent part:

1910.212 General requirements for all machines.

(a) Machine guarding --

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(2) General requirements for machine guards. . . . . The guard shall be such that it does not offer an accident hazard in itself.

[*11]

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III

When issues not raised by the pleadings are tried by the express or implied consent of the parties, the Commission is required to amend the citation under Rule 15(b) of the Federal Rules of Civil Procedure. n8 McLean-Behm Steel Erectors, Inc., 78 OSAHRC    , 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978). Despite "the failure of complainant to request an amendment," we have "no course but to amend the citation" if we find that an unpleaded charge has been tried by the express or implied consent of the parties. Southwestern Bell Telephone Co., 78 OSAHRC    , 6 BNA OSHC 2130, 2133, 1978 CCH OSHD P23,187 at p. 28,033 (No. 14761, 1978). Neither party in this case has expressly consented to try an alleged violation of 1910.212(a)(2) since the possible application of that standard has not previously been raised as an issue in this case. We therefore must determine whether the parties have impliedly consented to the trial of a 1910.212(a)(2) charge.

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n8 The Rule provides the following, in pertinent part:

Rule 15. Amended and Supplemental Pleadings.

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(b) Amendments to Conform to the Evidence. 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. . . .

[*12]

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Where, as here, an amendment changes the legal theory, consent will be implied whenever the cited employer has not objected to the introduction of evidence relevant to the unpleaded charge, provided it would not be prejudiced by the amendment. n9 McLean-Behm Steel Erectors, Inc., supra; John & Roy Carlstrom, d/b/a Carlstrom Brothers Construction, 78 OSAHRC    , 6 BNA OSHC 2101, 1978 CCH OSHD P23,155 (No. 13502, 1978). Moreover, "any prejudice to [Rogers] is determined on the basis of whether it had a 'fair opportunity to defend' against the Secretary's evidentiary case and whether it could have offered any additional evidence if the case had been tried under the [ 1910.212(a)(2)] charge." McLean-Behm Steel Erectors, Inc., supra, 6 BNA OSHC at 2084, 1978 CCH OSHD at p. 27,959. See also, John & Roy Carlstrom d/b/a Carlstrom Brothers Construction, supra.

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n9 Where the parties are clearly on notice that an unpleaded issue is being tried and have had the opportunity to introduce all evidence relevant to that issue, an amendment is proper on the basis of the trial of the issue by implied consent. See, e.g., Warnel Corp., 76 OSAHRC 41/C5, 4 BNA OSHC 1034, 1975-76 CCH OSHD P20,576 (No. 4537, 1976). Where, as here, the parties were not clearly on notice that an alternative theory was being tried, we will consider whether additional evidence relevant and material to the amended charge could have been adduced and whether any defense to the amended charge could have been established.

[*13]

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In this case, the Secretary's evidence, which consisted of the testimony of its compliance officer, was primarily directed to the factual issue of whether the operator of the Aida #32 press could be injured by the screws and sharp edges on the die shoes if the pull-out device were activated. Rogers did not object to the introduction of any evidence relevant to this issue. Instead, it fully cross-examined the compliance officer on the factual issue raised by his testimony and directed the testimony of its own witnesses to that issue. Therefore, we conclude that the issue tried by the parties was whether the method of guarding used by Rogers in itself created a hazard to the operator.

In proving a violation of 1910.212(a)(2), the Secretary does not have the burden of establishing the feasibility and likely utility of measures the employer could have taken to avoid the citation. Instead, the employer has the burden of proving that the violation was unpreventable. See S & H Riggers and Erectors, Inc., 79 OSAHRC    , 7 BNA OSHC 1260, 1265-1266, 1979 CCH OSHD P23,480 at p. 28,438 (No. 15855, [*14] 1979). See also, Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH OSHD P22,909 (No. 12523, 1978). Accordingly, the fact that the parties addressed the question of whether the hazard could be abated by installing a larger crankshaft does not affect our determination that the issue actually tried by the parties was whether the method of guarding used by Rogers in itself created a hazard to the operator in contravention of 1910.212(a)(2).

We also conclude that Rogers could not have prevailed by trying the case differently if 1910.212(a)(2) had been initially cited. Thus, the record indicates that there are no additional defenses that Rogers could have asserted in defense to a 1910.212(a)(2) charge. The effect of finding Rogers in violation of that standard would be to require Rogers to select a different method of point of operation guarding from among the alternatives listed in 1910.217(c)(2) and (3). Because this standard provides Rogers considerable flexibility in selecting a method of guarding for the Aida #32 press, it would be difficult if not impossible for Rogers to establish (1) a "greater hazard" defense, (2) an "impossibility of [*15] performance" defense, or (3) an "impossibility of compliance" defense. n10

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n10 See M.J. Lee Construction Co., 79 OSAHRC    , 7 BNA OSHC 1140, 1979 CCH OSHD P23,330 (No. 15094, 1979) and the cited cases for a statement of the elements of these three defenses.

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In order to establish the "greater hazard" defense, Rogers would have to prove that each of the alternative permissible methods of guarding listed in 1910.217(c)(2) and (3) would create a hazard greater than that created by the pull-out device. To establish the "impossibility of performance" defense, it would have to prove that if it used any of these alternative methods the guarding would preclude manufacturing of its product (pulleys). Finally, to establish the "impossibility of compliance" defense, Rogers would have to prove that none of the alternative methods could be installed or used on the Aida #32 press. However, the record establishes that two-hand controls would virtually eliminate the hazard posed by the point of operation without itself creating [*16] a hazard as the pull-out device did. n11 These two-hand controls would not interfere with the production of the pulleys. In addition, there is testimony indicating that the Aida #32 press may already be equipped with two-hand controls. We therefore conclude that Rogers would not be prejudiced by an amendment of the citation and complaint to allege a violation of 1910.212(a)(2) and that this allegation was tried with the implied consent of the parties.

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n11 We recognize that the hazard posed by the point of operation of a mechanical power press can be totally eliminated only by installing a guard that prevents entry of the operator's hands and arms into the point of operation. When entry is permitted, the operator is exposed to the possibility of injury from the dies due to the malfunctioning of either the power press or the guarding device.

Nevertheless, in promulgating 1910.217, the Secretary chose not to prohibit entry into the point of operation. Instead, he determined that the guarding devices listed in 1910.217(c)(3) provide adequate protection even though they do not preclude entry. The Secretary's determination as to the adequacy of the alternative devices was expressly upheld in a challenge to the standard under 6(f) of the Act, 29 U.S.C. 655(f). AFL-CIO et al. v. Brennan et al., supra, 530 F.2d at 117-120.

In the case before us, the compliance officer testified that two-hand controls would not protect the operator if the press malfunctioned. This testimony is not relevant to any affirmative defense that Rogers might have asserted if violation of 1910.212(a)(2) had been alleged initially. The Secretary has determined that two-hand controls are a permissible method of guarding the point of operation even though such controls may not totally eliminate the hazard created by the dies under all circumstances. The only limitation on the use of two-hand controls is that contained in 1910.212(a)(2) -- this device cannot be used if it "offer[s] an accident hazard in itself." There is no evidence in this case that two-hand controls would create an independent hazard to operators.

Moreover, it is important to emphasize that the issue under 1910.212(a)(2) is not whether Rogers is required to use two-hand controls, but whether Rogers is prohibited from using a pull-out device.

[*17]

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Under 1910.212(a)(2), an employer is prohibited from using a guarding method that "offer[s] an accident hazard in itself." Here, the compliance officer testified, and Rogers' two witnesses confirmed, that Rogers used a pull-out device under circumstances that exposed its operator to potential cuts and bruises. It was the possible activation of that device while the operator's hands and arms were in a confined space directly above a die shoe with sharp edges and screws that created this hazard. We therefore conclude that Rogers' use of the pull-out device violated 1910.212(a)(2).

No exception has been taken to the penalty assessed by the judge. Moreover, our conclusion that Rogers violated a standard other than the standard initially cited does not affect the determination of an appropriate penalty. Therefore, we affirm that part of the judge's order assessing a zero penalty.

IV

Although we conclude that the issue of whether Rogers was in violation of 1910.212(a)(2) has been tried by the parties and that the record establishes a violation of that standard, we recognize that Rogers has not [*18] had an opportunity to specifically demonstrate that it would be prejudiced by this amendment. We also recognize that the parties may be able to introduce additional evidence relevant to the amended charge. Therefore, we conditionally affirm a modified citation for nonserious violation of 29 CFR 1910.212(a)(2) in that the pull-out device on the Aida #32 press in itself created a hazard to the press operator. This order will become a final order of the Commission within ten days of its issuance, unless one of the following motions is filed. If we receive from Rogers a motion for reconsideration on the ground that it has been prejudiced by the amendment to the citation, we will allow the parties an opportunity to further brief this issue and will reconsider our order in light of the arguments and affidavits presented. If we receive from either party a motion to reopen the record for the purpose of introducing additional evidence relevant to the alleged violation of 1910.212(a)(2), we will remand this case to an administrative law judge for the purpose of taking additional evidence and entering supplemental findings.

It is so ORDERED.

DISSENTBY: BARNAKO

DISSENT:

BARNAKO, Commissioner, dissenting: [*19]

I agree with my colleagues that 29 C.F.R. 1910.217(d)(1)(i), the standard Rogers Manufacturing Company was cited as having violated, does not apply to the hazard in question. However, amendment at this time to charge a violation of 29 C.F.R. 1910.212(a)(2) is impermissible, since violation of this standard was not tried by consent of the parties and amendment now is prejudicial to Rogers. n1 Therefore, I would reverse the judge's decision and vacate the citation.

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n1 Because I find the amendment improper, I do not reach the question of whether 29 C.F.R. 1910.212(a)(2) is applicable to Rogers' mechanical power press even though another standard, 29 C.F.R. 1910.217, specifically covers the guarding of mechanical power presses. Cf. Bristol Steel & Iron Works, Inc., 77 OSAHRC 191/D6, 5 BNA OSHC 1940, 1977-78 CCH OSHD P22,240 (No. 14537, 1977) appeal filed No. 77-2485 (4th Cir. Nov. 28, 1977).

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The standard which Rogers was cited with violating, 29 C.F.R. 1910.217(d)(1)(i), concerns mechanical power [*20] presses and provide the following:

Effective February 1, 1975, the employer shall: (i) use dies and operating methods designed to control or eliminate hazards to operating personnel, and (ii). . . .

The citation and complaint issued to Rogers charged, in the language of the standard, that Rogers:

Failed to use dies and operating methods designed to control or eliminate hazards to operating personnel on Aida No. 32 press.

Although the language of the standard is and the citation was unspecific, at trial the Secretary's attorney elicited from his only witness, compliance officer Armando Gomez, the substance of the alleged violation. At the outset of the trial, Mr. Gomez explained that the area between the dies into which the press operator had to reach did not have enough clearance. If the press malfunctioned or the operating cycle were inadvertently activated while the employee's hands were between the dies, the employee's hands would be pulled out of the closing dies by pull-back devices, or "pulleys," attached to the employee's wrists. Because of the narrow clearance, cuts and scrapes to the arms would occur as they were pulled across the dies, which had sharp surfaces and [*21] screws protruding from them. Mr. Gomez further testified that after his inspection of Rogers' press, he asked the Rogers representative if Rogers had other presses with larger crankshafts, because the size of the clearance between the dies is determined by the dimensions of the crankshaft. He stated that after his discussion of this problem with Rogers, Rogers agreed to change the dies to another press which had a larger shaft and would provide greater clearance for the operator's hands and arms. Thus, despite the vagueness of the citation and complaint, it is clear that based on discussions that occurred during the inspection, both parties at the outset of the trial understood the charged violation to be the narrow clearance between the Aida press' dies and the remedy for this violation to be the use of a larger crankshaft which would increase this clearance.

This common understanding of the case continued throughout the trial. Compliance officer Gomez testified at some length, on both direct and cross examination, that if the pull-back device were activated, the operator's hands and arms would be scraped across the sharp did surfaces because of the inadequate clearance and that [*22] a larger crankshaft should be installed to increase the clearance. When asked on cross examination what the company failed to do which caused it to be charged with this violation, Mr. Gomez responded:

The violation is the lack of space in the die itself. The opening should be at least - at least three more inches. . . .

The testimony of Rogers' witnesses demonstrated that they shared this conception of the case. Rogers' assistant general manager, Richard Rothermel, testified that during his closing conference with Mr. Gomez following the inspection, that they agreed "there was a minimum clearance involved," and that Rogers assented to Mr. Gomez' request to move the dies to a press with a larger crankshaft, although this might not be possible at all times. He also conceded that the dies had some sharp surfaces which could cause cuts or scrapes and that increasing clearance between the dies would "make for . . . a better situation." He also discussed the cost of installing a larger crankshaft on the press. During Mr. Rothermel's testimony the judge stated:

And Mr. Gomez has testified that the hazard is when the arms are pulled away, the opening isn't large enough, and that the [*23] - well, he testified both the fingers and the forearms may be cut or scraped or maybe even broken by the die.

Mr. Rothermel responded that he did not think the injuries would be so severe, but he did not indicate any disagreement with the judge's characterization of what constituted the alleged hazard.

The testimony of Rogers' other witness, maintenance engineer Wilbert Dean, evinces no different understanding of the gravamen of the violation. He agreed that the operator's arms could be injured, but not seriously hurt, on the sharp surfaces of the dies and that a larger opening between the dies "is more desirable," but would not entirely alleviate the problem. He also discussed the cost and difficulty of installing a larger crankshaft in the Aida press. At the beginning of Mr. Dean's testimony, the judge and the two attorneys engaged in a colloquy concerning the essence of the alleged violation. During the course of this discussion, the Secretary's attorney stated:

Your honor, the focal question is an issue of clearances - When that employee's hands come out from placing the die, clearance is too minimal.

The judge replied: "Yes, I understand that, and the focal question is [*24] the clearance." He went on to state: "[I]f the opening was larger, then the possibility of contact with the upper and lower dies would be reduced or eliminated." No one took issue with the judge's formulation of the issues.

The record, then, makes it abundantly clear that the parties shared a common understanding of the case and focused the hearing on two issues - the hazard presented by the narrow clearance between the dies, with their sharp surfaces, and the feasibility of remedying this hazard by installing a larger crankshaft to increase the clearance between the dies. This understanding comported with the wording of the standard, citation, and complaint, all of which referred to the use of dies and operating methods to control hazards. This narrow clearance between the dies caused by use of a small crankshaft apparently was viewed, in a general sense, as a use of dies or an operating method which failed to control the hazard of the operator's arm being scraped or cut by the dies.

Despite the clarity of the record concerning what the parties viewed at issue in the case, the majority divines from the hearing the implied consent of the parties to try a charge that Rogers violated [*25] a standard not mentioned in the citation, complaint, or hearing, 29 C.F.R. 1910.212(a)(2). Under this standard, abatement is accomplished by employing an alternative method of guarding which does not offer an accident hazard in itself. The majority concludes that since the parties introduced evidence as to whether the operator of the Aida No. 32 press could be injured by the screws and sharp edges on the die shoes if the pull-back device were activated, Rogers impliedly consented to try the issue of whether a guarding method other than the pull-back devices should have been utilized. I disagree.

In considering amendment of pleadings, the Second Circuit Court of Appeals in a case arising under the Williams-Streiger Occupational Safety and Health Act of 1970, 29 C.F.R. 651 et seq., recently stated: "[I]t cannot be fairly said that there is any implied consent to try an issue where the parties do not squarely recognize it as an issue at trial." Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 907 (2d Cir. 1977), quoting 3 Moore's Federal Practice, P15.13(2) at 992 (2d ed. 1974); accord, International Harvester Credit Corp. v. East Coast Truck, [*26] 547 F.2d 888 (5th Cir. 1977). n2 It is readily apparent that at trial the parties did not recognize as an issue the question of replacing the pull-backs with another guarding method. Indeed, the wording of the cited standard and the citation put in issue the control of hazards through use of dies and operating methods, not through use of alternative guarding systems. Only a single statement in the record mentioned the possibility of removal of the hazard through utilization of a two-hand tripping device. Otherwise, the record is devoid of any evidence which in any way suggests that the question of replacing the pull-backs with another guarding method was an issue. The specific testimony is the compliance officer's assent to the judge's statement that: "[I]f there is a [two hand] button operation, the danger [of the dies closing on the operator's hands] would not exist unless there's some kind of malfunction." This evidence is hardly sufficient to have given notice to Rogers that there was any issue in the case involving use of an alternative guarding device, particularly in view of the manner in which the Secretary presented his case. n3

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n2 See, e.g., 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. 79-1039 (5th Cir., Jan. 9, 1979); John and Roy Carlstrom d/b/a Carlstrom Brothers Construction, 78 OSAHRC 96/A2, 6 BNA OSHC 2101, 1978 CCH OSHD P23,155 (No. 13502, 1978) (dissenting opinion).

n3 The majority notes that to prove a violation of the standard to which it amends, 1910.212(a)(2), the Secretary is not required to show the feasibility or likely utility of measures the employer could have taken to aboid the citation. However, it notes, the employer may defend on the ground and the violation was unpreventable. From this the majority concludes that the fact that the parties actually litigated the question of whether the hazard could be abated by installing a larger crankshaft does not affect the majority's determination that the issue the parties really were trying was whether the pull-back device method of guarding used by Rogers itself created a hazard.

This conclusion is a non sequitur. When the parties tried the case, the issue before them was whether Rogers had violated 1910.217(d)(1)(i). That standard focuses on the use of dies or operating methods to control or eliminate hazards. The parties addressed at length whether the installation of a larger crankshaft to provide greater clearance between the dies would alleviate the hazard, because they viewed the use of a larger crankshaft as a use of dies or operating methods to control the hazard, as stated in the language employed repeatedly in the standard, citation and complaint. The standard at 1910.212(a)(2), to which the majority amends, was never mentioned prior to or during trial. Thus, because the issue being tried involved a violation of 1910.217(d)(1)(i) the evidence concerning the installation of a larger crankshaft was directed at and understood by the parties as going toward establishment of the Secretary's prima facie case.

[*28]

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Nor is the majority's finding of implied consent justified because some of the evidence, introduced without objection in trying the case under the cited standard, also would be relevant to the case if brought under the theory of violation of 1910.212(a)(2). As Professor Moore states:

The purpose of an amendment to conform to proof is to bring the pleadings in line with the actual issues upon which the case was tried; therefore an amendment after judgment is not permissible which brings in some entirely extrinsic issue or changes the theory on which the case was actually tried, even though there is evidence in the record - introduced as relevant to some other issue - which would support the amendment.

3 Moore's Federal Practice P15.13[2] at 15-171 (2d Ed. 1979) (emphasis added); accord, McLean-Behm Steel Erectors, Inc., supra.

Despite this well-settled principle, the majority states, at footnote 9, that it may find trial by consent of an alternative theory of violation even "when, as here, the parties were not clearly on notice that an alternative theory was being tried." In [*29] such a case the majority

will consider whether additional evidence relevant and material to the amended charge could have been adduced and whether any defense to the amended charge could have been established. n4

The majority goes on to divine that "Rogers could not have prevailed by trying the case differently if 1910.212(a)(2) had been initially cited." On this basis it purports to determine that Rogers is not prejudiced by the majority's amendment of the citation to 1910.212(a)(2).

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n1 I note that this formulation goes beyond that employed by the majority in prior amendment cases, where it purported to examine whether the employer "could offer additional evidence if the case were to be retried under the [amended] charge." McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 2084, 1978 CCH OSHD P23,139 (No. 15582, 1978), appeal docketed, No. 79-1039 (5th Cir. Jan. 9, 1979); John and Roy Carlstrom d/b/a Carlstrom Brothers Construction, 78 OSAHRC 96/A2 6 BNA OSHC 2101, 2104, 1978 CCH OSHD P23,155 (No. 13502, 1978). Now the majority states that the test for determining whether prejudice results from an amendment includes whether the employer could have prevailed against the amended charge.

[*30]

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Certainly the majority's inquiry is beyond the ablity of this Commission to address since it is impossible to determine how either party would have tried the case or what defenses, either procedural or substantive, Rogers might have raised or prevailed on had a different standard, containing substantively different requirements, been at issue. Moreover, allowing amendment of the pleadings after trial on the basis of such an inquiry is highly improper. It not only unjustly deprives Rogers of both notice and hearing on the substituted issue but as the court in Rodale Press, Inc. v. Federal Trade Commission, 407 F.2d 1252 (D.C. Cir. 1968), (the theory under which the complaint was issued and hearing held differed from the theory upon which the complaint ultimately was sustained by the FTC) held in another context, equally applicable here:

The evil at which the statute strikes is not remedied by observing that the outcome would perhaps or even likely have been the same [had the case been tried under the new theory of violation]. Id. at 1257.

Similarly, here the majority cannot properly find [*31] a lack of prejudice to Rogers from its change of legal theories merely because it believes that Rogers would not have been able to defend successfully against a case based on the theory which the majority now imposes.

Indeed, Rogers clearly is prejudiced by the majority's amendment. Because it was cited with violating 1910.217(d)(1)(i) and the trial was conducted on the basis of that citation, it had no way to know that it should have adduced evidence and presented arguments to defend against a charge of violating the requirements of 1910.212(a)(2). It introduced evidence that installation of a larger crankshaft would, at best, only partially abate the cited hazard, in the expectation that such evidence would cause the judge to vacate the citation. It had no reason to submit evidence to show that two-hand control buttons would present a greater hazard than a pull-back device or that for other reasons such buttons would be less desirable than such a device. n5 Having had no opportunity to defend against the new theory of violation embodied in the 1910.212(a)(2) charge, Rogers is prejudiced by the majority's amendment. The presence of such prejudice, of course, should bar [*32] the amendment. Usery v. Marquette Cement Manufacturing Co., supra.

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n5 The majority states, in footnote 12, that testimony showing that two-hand controls would not protect the operator if the press malfunctioned is not relevant to any defense Rogers might have asserted if a violation of 1910.212(a)(2) had been alleged initially, because by adopting 1910.217(c)(3) the Secretary was making a determination that two-hand control devices provide adequate protection, even though they do not eliminate the possibility of serious injury. I would note only that pull-back devices, as well as two-hand control devices, are endorsed by the Secretary in 1910.217(c)(3); the majority's argument that the safety devices listed in 1910.217(c)(3) are not subject to challenge is equally applicable to pull-back devices.

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Although the majority denies that its amendment is prejudicial, it tacitly acknowledges this prejudice in its disposition of the case. The lead opinion concludes by stating it recognizes that the parties [*33] may be able to introduce additional evidence relevant to the citation as amended. Therefore, it permits a remand for the taking of additional evidence if either party requests an opportunity to introduce such evidence. The very fact the majority acknowledges that taking of additional evidence may be necessary to support the amended citation demonstrates that amendment is improper.

The majority's disposition is improper on other grounds. If, as the majority believes, a violation of 1910.212(a)(2) was tried by express or implied consent, there is no need or basis for a remand for more evidence. On the other hand, if, as I believe, there is no express or implied consent to amend to the new standard and the standard under which the Secretary tried the case was inapplicable, the citation should be vacated without the opportunity for a remand for additional evidence. Additionally, by allowing the Secretary to request a remand to introduce additional evidence, the majority, having found the Secretary employed an inapplicable theory in trying the case the first time, is improperly giving him a second chance to prove his case. And by permitting Rogers to request a remand, the majority [*34] unfairly places the Respondent in a dilemma. Rogers proceeds at its peril if it requests a remand and introduces evidence to try to defeat the amended charge, because a reviewing court may later rule that by doing so Rogers has mooted its argument that it was prejudiced by the Commission's amendment. However, if Rogers wishes to preserve its argument that the amendment is improper, it is equally disadvantaged, because it may have to forgo its opportunity to defend the 1910.212(a)(2) citation on the merits. The majority's disposition therefore succeeds in achieving an unfair result by, in effect, requiring Rogers to waive certain defenses in order to pursue others.

Because I find no implied consent to amend the citation and complaint, because the majority's disposition operates in a manner unfair to Rogers, and for other reasons noted above, I dissent.