TEXACO, INC.  

OSHRC Docket No. 77-2014

Occupational Safety and Health Review Commission

June 30, 1980

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Francis V. LaRuffa, Reg. Sol., USDOL

Jerry V. Leaphart, Texaco, Inc., for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge Jerome C. Ditore is before the Commission for review under section 12(j), 29 U.S.C. §   661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   In his decision, Judge Ditore vacated a citation alleging noncompliance with section 501-9(b)(1) of article 501 of the National Electric Code of 1971 (NEC), as adopted by 29 C.F.R. §   1910.309(a).   Section 501-9(b)(1), when read in conjunction with related provisions of the NEC, prohibits the use of a portable lamp in a Class 1, Division 2, hazardous location unless the lighting fixture is of an approved explosion-proof type.   The judge found that a Class 1, Division 2, hazardous location existed in the workplace of the Respondent, Texaco, Inc. -- specifically, the area within eighteen inches of the floor of a "preventive maintenance bay" where truck repair work was performed.   The judge also found that an employee of the Respondent used [*2]   an unapproved portable lamp and drop cord while working in the preventive maintenance bay.   Nevertheless, Judge Ditore vacated the citation on the ground that the Secretary of Labor ("the Secretary") failed to establish that the unapproved portable lamp and drop cord was used within the Class 1, Division 2, hazardous location, that is, within eighteen inches of the floor.

The Secretary petitioned for review of the judge's decision, arguing that he (the Secretary) did establish through circumstantial evidence that the unapproved lighting fixture was used within the hazardous location and accordingly that the judge erred in vacating the citation at issue n1.   The Secretary also argues that, in any event, he clearly established that the unapproved portable lamp and drop cord was used in the area above the Class 1, Division 2, hazardous location, that is, more than eighteen inches above the floor of the preventive maintenance bay.   Such use of an unapproved portable lamp in an area above a hazardous location is, according to the Secretary, a violation of the Act due to noncompliance with section 515-4 of article 515 of the NEC, as adopted by 29 C.F.R. §   1910.309.   Moreover, the Secretary [*3]   asserts, the potential applicability of this standard to the facts of this case was an issue expressly raised at the hearing below.   He therefore argues in the alternative that, if the judge's conclusion that the Respondent did not fail to comply with section 501-9(b)(1) of the NEC is sustained, the Commission should conclude that the Respondent failed to comply with section 515-4 of the NEC.

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n1 More specifically, the Secretary set forth in his petition three separate, distinct and alternative arguments in support of his allegation that the Respondent failed to comply with section 501-9(b)(1) of the NEC.   Acceptance of any one of those arguments would lead to the conclusion that the Secretary established his prima facie case. The alternative arguments are concisely stated in the Secretary's brief on review as follows:

(1) that the judge erred in failing to infer from the substantial evidence of record that the mechanic was in fact engaged in inspecting and adjusting the tank trailer's right front brakes, which would have necessitated use of the unapproved lamp and cord within the class 1, Division 2 area;

(2) that even if the mechanic was not actually working on the brakes at the time of the explosion, he was potentially exposed to the hazard since the nature of his work assignment would require him at some point to be in the class 1, Division 2 area with the unapproved lamp and cord; and

(3) that even if the unapproved lamphead were never used in the class 1, Division 2 area, a violation must still be found since the unapproved cord was allowed to run along the ground for several feet, thereby placing it in the hazardous area.

We note that Judge Ditore in effect responded only to the first of these three arguments.   We further note, however, that the Secretary chose not to file a brief before the judge and accordingly failed to effectively formulate the issues to be decided by him.

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Accordingly, the Secretary moved in his petition for review to amend the citation and complaint to allege a serious violation of the Act for failure to comply with section 515-4 of the NEC, as adopted by 29 C.F.R. §   1910.309.   This motion was made under Rule 15(b) of the Federal Rules of Civil Procedure, which rule provides that, "[w]hen 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. . . ."

Because the Secretary's motion to amend was made after the judge's decision was filed with the Commission, Judge Ditore had no opportunity to rule upon the motion.   However, the principles to be applied and the factors to be considered in determining whether a motion under Rule 15(b) should be granted have been clearly set forth in our prior decisions.   See, e.g., Mississippi Power & Light Co., 79 OSAHRC    , 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979).   See also, Bill C. Carroll Co., 79 OSAHRC    , 7 BNA OSHC 1806, 1979 CCH OSHD P23,940 (No. 76-2748, 1979);   [*5]   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).   In addition, as explained at note 1 supra, the judge has not responded to two of the three independent arguments raised by the Secretary in support of his original charge. Under these circumstances, we conclude that the most expeditious course of action is to remand the case for reconsideration by the administrative law judge who president at the reception of the evidence.   See 5 U.S.C. §   557(b).

Accordingly, the case is remanded to Judge Ditore. n2 The judge should issue a decision and order disposing of the alleged violation of the Act due to noncompliance with section 501-9(b)(1) of the NEC and, if necessary, ruling on the Secretary's motion under Federal Rule 15(b).   He should reconsider his holding on the original charge in light of the record and the arguments made in the submissions of both parties on review.   If he reinstaes his prior ruling that the Secretary failed to establish his prima facie case, he should respond to each of the three arguments presented by the Secretary on review.   See note 1 supra. However, if he [*6]   concludes that the Secretary has established noncompliance with the originally cited standard, he should then decide the issues raised by the Respondent. n3

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n2 Commissioner Barnako's views on when a motion under Rule 15(b) should be granted differ from those of the Commission majority.   Thus, he would find implied consent to an amendment only if the parties squarely recognized the unpleaded charge was an issue in the trial.   McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD P22,139 (No. 15582, 1978) (dissenting), Comm. dec. rev'd, 608 F.2d 580 (5th Cir. 1979) (Barnako rationale applied by circuit court).   See also, John and Roy Carlstrom, d/b/a Carlstrom Bros. Constr., supra (dissenting); Mississippi Power & Light Co., supra, 7 BNA OSHC at 2041 n.8, 1980 CCH OSHD at p.29,342 n.8. Although Commissioner Barnako adheres to his position as stated in his prior opinions, he recognizes that the orderly administration of the Act requires that the Commission's administrative law judges follow precedent established by the Commission.   Gulf & Western Food Products Co., 77 OSAHRC 72/A2, 4 BNA OSHC 1436, 1439, 1976-77 CCH OSHD P20,886 at p. 25,067 (Nos. 6804 & 6805, 1976).   For this reason, he joins with his colleagues in the Commission's remand order.

n3 In its brief on review, the Respondent presents an argument that confuses the Secretary's burden of proving that a violation is serious within the meaning of section 17(k) of the Act, 29 U.S.C. §   666(j), with the Secretary's burden of proving a violation of section 5(a)(1) of the Act, 29 U.S.C. §   654(a)(1).   Here the violation was alleged to be serious.   However, the employer's duty allegedly violated is the duty under section 5(a)(2) of the Act, 29 U.S.C. §   654(a)(2), rather than the "general duty" under section 5(a)(1).   Accordingly, we interpret the Respondent's brief as raising two contentions: (1) that the Secretary failed to establish that the violation was serious because he failed to prove that the Respondent knew or could, with the exercise of reasonable diligence, have know of the violation, and (2) that the citation should be vacated because the violation resulted from unpreventable employee misconduct.   We further note that these contentions would be equally applicable to the amended charge, if the amendment is granted.

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If the judge reinstates his order vacating the allegation that the Respondent failed to comply with section 501-9(b)(1) of the NEC, he should then rule upon the Secretary's motion to amend in light of the submissions of the parties and Commission precedent, including that cited above.   Thus, he should grant the motion if he concludes that the Respondent would not be prejudiced and that the amended charge was tried by the implied consent of the parties.   See Bill C. Carroll Co., supra; John and Roy Carlstrom d/b/a Carlstrom Brothers Construction, supra. However, if he concludes that the Respondent would be prejudiced by the amendment because, for example, all of the issues relevant to the amended charge were not tried, then he should conclude that the amended charge was not tried by the implied consent of the parties and deny the amendment.   When an amendment under Fed. R. Civ. P. 15(b) is initially sought on review, the policy of achieving finality in adjudications militates against reopening a record to cure prejudice.   Accordingly, if prejudice would result from an amendment first [*8]   sought on review, the amendment should be denied.   See Mississippi Power & Light Co., supra. Inasmuch as the Secretary's motion to amend in this case was first made before the Commission, the judge is to apply these principles to his consideration of the issue.   If the judge grants the amendment, he should then determine whether the Respondent violated the Act by failing to comply with section 515-4 of the NEC.   This determination should be made in light of the record and the arguments of the parties on review, including those referred to in note 3 supra.

SO ORDERED.