OSHRC Docket No. 79-1177

Occupational Safety and Health Review Commission

October 29, 1982


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


Council for Regional Litigation, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

Derald W. Wiehl, for the employer




The Secretary of Labor ("Secretary") cited Farmers Cooperative Grain and Supply Company ("Farmers Co-op") for allegedly violating section 5(a)(1) of the Occupational Safety and Health Act of 1970 n1 by failing to prevent excessive accumilations of grain dust in certain areas of its workplace. Following a hearing on the merits, Administrative Law Judge John A. Carlson vacated the citation on the basis that the Secretary did not prove Farmers Co-op or its industry recognized that the dust conditions at Farmers Co-op's facility were hezardous. Commissioners Cleary and Cottine directed review of the judge's decision pursuant to section 12(j) of the Act, 29 U.S.C. 661(i).

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n1 29 U.S.C. 651-678 ("the Act"). Section 5(a)(1), 29 U.S.C. 654(a)(1), provides:

Sec. 5.(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.


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During the proceeding before the judge, the parties discussed the possible applicability of the specific housekeeping standard at 29 C.F.R. 1910.22(a)(1) n2 to the conditions that were the subject to the citation. According to the Secretary, the dust accumulations in Farmers Co-op's workplace gave rise to a fire and explosion hazard. Counsel for the Secretary stated that the Secretary was not proceeding under section 1910.22(a)(1) because of the uncertain application of that standard to conditions creating fire and explosion hazards. After this case was directed for review, certain court and Review Commission decisions held that section 1910.22(a)(1) does apply to the allegedly hazardous conditions cited in this case. In Bunge Corp. v. Secretary of Labor, 638 F.2d 831 (5th Cir. 1981), the court rejected the argument that section 1910.22(a)(1) is limited to slipping and tripping hazards and explicitly held that the standard applies to fire and explosion hazards resulting from excessive grain dust accumulations. The Commission subsequently followed Bunge in holding that "the standard is [*3] directed not merely to sanitation but to all hazards arising from poor housekeeping . . . ." Pratt & Whitney Aircraft, 81 OSAHRC 39/A2, 9 BNA OSHC 1653, 1659, 1981 CCH OSHD P25,359 at p. 31,506 (No. 13401, 1981), appeal withdrawn, No. 81-4104 (2d Cir. Aug. 2, 1981). Accordingly, the Commission issued a supplemental briefing order asking the parties' views on the potential applicability of section 1910.22(a)(1) as well as other standards. n3 In response, both parties agree that section 1910.22(a)(1) applies to the facts of this case. The Secretary moves to amend the citation to allege that Farmers Co-op violated section 1910.22(a)(1). Farmers Co-op opposes the amendment.

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n2 This standard provides:

1910.22 General requirements.

(a) Housekeeping. (1) All places of employment, passageways, storerooms, and service rooms shall be kept clean and orderly and in a sanitary condition.

n3 The supplemental briefing order also mentioned standards at 29 C.F.R. 1910.176(c), which applies to housekeeping conditions in storage areas, and 29 C.F.R. 1910.141(a)(3), which contains housekeeping requirements directed at maintaining proper sanitation. The parties do not contend that either of these standards applies to this case.


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We agree with the parties that section 1910.22(a)(1) applies to the hazard alleged to exist in this case: the potential for fire and explosion from excessive accumulations of grain dust. See Bunge Corp. v. Secretary of Labor, supra; Pratt & Whitney Aircraft, supra; see also Con Agra, Inc. v. OSHRC, 672 F.2d 699 (8th Cir. 1982). Where a specific standard applies to the facts of a case, citation under section 5(a)(1) is inappropriate. Mississippi Power & Light Co., 79 OSAHRC 109/D2, 7 BNA OSHC 2036, 1980 CCH OSHD P24,146 (No. 76-2044, 1979). However, for the reasons given in this opinion, we conclude that the parties impliedly consented to try a violation of section 1910.22(a)(1) and therefore grant the Secretary's motion to amend the citation to allege a violation of that standard. We affirm the amended citation as a repeated violation of the Act and assess a penalty of $640.


Farmers Co-op operates a grain elevator in Garretson, South Dakota. The elevator is used for the storage of grain and animal feed ingredients, such as soybean meal. In March, 1978, the [*5] facility was inspected by an OSHA compliance officer, and the Secretary subsequently cited Farmers Co-op for violating section 5(a)(1) of the Act by failing to implement a housekeeping program to prevent excessive accumulations of grain dust. Farmers Co-op contested the citation but, as part of a settlement to resolve that citation together with certain others, Farmers Co-op withdrew its notice of contest and agreed to abate the violation. The abatement program the company implemented consisted of the removal of grain dust accumulations twice a week by the use of vacuum cleaners and brooms.

On February 16, 1979, the compliance officer reinspected Farmers Co-op's Garretson elevator. He observed grain dust accumulations as high as 20 inches deep in two of the same locations that were the subject of the earlier citation. As a result of his observations, the Secretary issued to Farmers Co-op a citation alleging a repeated violation of section 5(a)(1).

According to the compliance officer, the dust accumulations resulted primarily from spillage of material during the storage process. The grain and feed ingredients to be stored are brought to the elevator by local farmers and are [*6] dropped through a metal grating in the floor. The material is then raised by a bucket-leg elevator to the top of the facility and is dropped into a turret, from which it is distributed to a series of storage bins through a number of spouts. The compliance officer testified that the major source of spillage resulted from dust located in already-filled bins "boiling up" through the turret when another bin was being loaded. He suggested that this problem could be alleviated by a plate over the turret with an opening for only one spout. The plate would be rotated so that the spout opening was over the bin being filled and would prevent dust from other bins backing up through the turret. The compliance officer suggested that spillage could be further reduced by making the spouts airtight, and that excessive accumulations could be prevented by a more strenuous program of cleaning up dust that had spilled. The OSHA area director for the Sioux Falls, South Dakota, office, who had accompanied the compliance officer on the inspection, suggested that an aspiration system that would maintain a slight positive pressure in the elevator leg would help control grain dust spillage.

The compliance [*7] officer testified that grain dust in the concentrations he observed created a fire and explosion hazard. The dust could spontaneously ignite or could burn or explode if ignited by an outside source.

The manager or Farmers Co-op's Garretson elevator, Mr. Top, testified that spills of material were a problem due to the age of the structure and the equipment. When spills occurred, they were cleaned up and, if the spillage resulted from faulty equipment, the equipment was repaired. Normal accumulations of dust were an inevitable result of their operations, and feed ingredients, which were being handled at the time of the reinspection, were particularly dusty. These normal accumulations were supposed to be cleaned up twice a week, on Tuesdays and Fridays. However, at the time of the reinspection by the OSHA compliance officer, which was on a Friday, the last cleaning had occurred on the previous Friday.

Mr. Moe, the supervisor for Farmers Co-op in direct charge of the housekeeping program, also testified that the last cleaning had occurred a week before the reinepection. He stated that it was the normal policy to clean up on Tuesdays and Fridays, but that they would put it off [*8] a day or so if they were exceptionally busy. He did not state any reason why the Tuesday cleaning that was supposed to occur prior to the reinspection did not take place.


Rule 15(b) of the Federal Rules of Civil Procedure n4 seeks to promote resolutions of cases on their merits rather than on the technicalities of pleadings. See Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902 (2d Cir. 1977); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Where, as in this case, the amendment seeks to introduce a new legal theory and does not add any new questions of fact, consent to the amendment under Rule 15(b) will be implied where the party opposing amendment has introduced or failed to object to evidence relevant to the unpleaded issue and that party would not be prejudiced by the amendment. See Crawford Construction Co., 82 OSAHRC    , 10 BNA OSHC 1522, 1525, 1982 CCH OSHD P25,984 at 32,605 (No. 79-928, 1982), and cases cited therein. See also Mineral Industries & Heavy Construction Group v. OSHRC, 639 F.2d 1289, 1293 (5th Cir. 1981).

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n4 Rule 15(b) provides, in pertinent part:

Rule 15. Amended and Supplemental Pleadings.

* * *

(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 . . . .

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The factual issues relevant to an alleged violation of section 1910.22(a)(1) concern the nature and extent of the grain dust accumulations in Farmers Co-op's workplace. This issue was squarely presented by the citation alleging a violation of section 5(a)(1) of the Act and was fully tried by the parties. Farmers Co-op introduced evidence relevant to the section 1910.22(a)(1) issue and did not object to evidence introduced by the Secretary relating to the issue. In fact, Farmers Co-op introduced the [*10] issue of the applicability of section 1910.22(a)(1) into these proceedings. Moreover, Farmers Co-op has had the opportunity, in response to the supplemental briefing order, to show how it would be prejudiced by the amendment and does not contend that it could offer any other evidence relevant to the unpleaded charge or that it was otherwise prejudiced. Accordingly, the Secretary's motion to amend is granted.

We further conclude that Farmers Co-op violated section 1910.22(a)(1). It is undisputed that the accumulations of grain dust in Farmers Co-op's facility were excessive and gave rise to a fire and explosion hazard. Farmers Co-op's witnesses, Mr. Top and Mr. Moe, questioned the feasibility of certain of the means the Secretary's witnesses suggested to minimize the accumulations, such as the turret cover recommended by the compliance officer and the aspiration system mentioned by the area director. However, the Secretary does not bear the burden of proving the feasibility of a means of abatement under a specific standard as he does under section 5(a)(1). See S & H Riggers and Erectors, 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1265-66, 1979 CCH OSHD P23,480 at p. 28,438 [*11] (No. 15855, 1979), rev'd on other grounds, 659 F.2d 1273 (5th Cir. 1981). Under the standard, Farmers Co-op would have to prove, as an affirmative defense, that compliance was either impossible or that it would prevent the performance of necessary work. Id. Although Farmers Co-op's witnesses testified that some accumulations of grain dust were inevitable, they did not assert that the accumulations could not be reduced below the levels present at the time of the reinspection. Indeed, the record shows that those excessive levels resulted from Farmers Co-op's failure to adhere to its own maintenance schedule. Even if full compliance with a standard cannot be achieved, an employer must nevertheless protect its employees to the extent possible against the hazards to which standards are directed. See M.J. Lee Construction Co., 79 OSAHRC 12/A2, 7 BNA OSHC 1140, 1146-47, 1979 CCH OSHD P23,330 at p. 28,230 (No. 15094, 1979). Thus, even if Farmers Co-op had contended that compliance was impossible, the record would not support that contention.


We turn now to the question of whether the violation is properly classified as repeated. This classification [*12] is proper if, at the time the violation occurred, there was a Commission final order against the employer for a substantially similar violation. Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1063, 1979 CCH OSHD P23,294 at p. 28,171 (No. 16183, 1979). n5 The requirement of substantial similarity pertains to the hazards involved in the present and preceding violations. It is not necessary that the two violations involve the same standard or section of the Act. Id.

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n5 Accord, J.L. Foti Constr. Co. v. OSHRC, No. 80-3806 (6th Cir. Sept. 7, 1982); Kent Nowlin Constr. Co. v. OSHRC, 648 F.2d 1278 (10th Cir. 1981); Bunge Corp. v. Secretary of Labor, 638 F.2d 831 (5th Cir. 1981); George Hyman Constr. Co. v. OSHRC, 582 F.2d 834 (4th Cir. 1978).

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In this case, both the present violation and the earlier violation involve the same conditions and the same hazards: excessive grain dust accumulations giving rise to a hazard of fire and explosion. Indeed, the areas in which the present violation occurred [*13] were specifically covered in the previous citation. Thus, the violations are substantially similar despite the fact that the earlier citation became a final order under section 5(a)(1) while in this case we are finding that Farmers Co-Op violated section 1910.22(a)(1). Moreover, the first citation was a final order at the time this violation occurred. The settlement agreement affirming that citation was approved by an administrative law judge on Nov. 2, 1978. The judge's order was not directed for review and therefore became a final order of the Commission on December 2, 1978, more than two months before the violation alleged in this case.

We also note that our decision in Potlatch Corp., supra, was issued before the violation in this case occurred. Thus, at all material times, Farmers Co-op was on notice that it could be found in repeated violation of the Act for violations involving a hazard substantially similar to that in the earlier citation regardless of whether the same section of the Act was violated. Accordingly, our granting of the motion to amend does not prejudice Farmers Co-op's defense to the repeated allegation.

In assessing a penalty, we must consider [*14] the gravity of the violation together with Farmers Co-op's size, good faith, and history of previous violations. 29 U.S.C. 661(i). The gravity of the violation was substantial as the excessive accumulations of grain dust exposed several employees to the possibility of death or serious injury should a fire or explosion occur. Moreover, Farmers Co-op's good faith is questionable as the company offered no satisfactory explanation for the reoccurrence of conditions that had been the subject of a previous citation. However, Farmers Co-op is a relatively small employer. It has only eight employees at its Garretson elevator and operates one smaller grain elevator in addition to the Garretson facility. On balance, we conclude that the Secretary's proposed penalty of $640 is appropriate.


Accordingly, the judge's decision is set aside. The Secretary's motion to amend the citation to allege that Farmers Co-op violated 29 C.F.R. 1910.22(a)(1) is granted and, as so amended, the citation is affirmed as a repeated violation. A penalty of $640 is assessed. So ORDERED.



ROWLAND, Chairman, dissenting:

Despite the fact that the Secretary declined to try this case under the [*15] standard at 29 C.F.R. 1910.22(a)(1), n1 the majority concludes that the parties consented to try a violation of that standard. This conclusion is inconsistent both with Rule 15(b) of the Federal Rules of Civil Procedure and with this Commission's role as an impartial adjudicator under the Occupational Safety and Health Act. I would vacate the citation because citation under section 5(a)(1) is inappropriate when a specific standard is applicable and the parties did not consent to try the unpleaded issue of whether Farmers Co-op violated section 1910.22(a)(1).

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n1 See note 2 of the lead opinion.

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At the outset of the hearing, Farmers Co-op moved to dismiss the 5(a)(1) charge on the basis that section 1910.22(a)(1) applied to this case. Although the Secretary was aware of long-standing Commission precedent holding that a section 5(a)(1) charge cannot stand where a specific standard applies, n2 and although the Secretary had previously cited other employers under section 1910.22(a)(1) in circumstances similar to [*16] this case, n3 the Secretary explicitly decided to continue to pursue this case under section 5(a)(1). The hearing that followed focused on the various aspects of a section 5(a)(1) charge, particularly recognition of the hezard and feasibility of the means of abatement. See Jones & Laughlin Steel Corp., 10 BNA OSHC 1778, 1982 CCH OSHD P26,128 (No. 76-2636, 1982). Only after this case was directed for review, and after Commission and court decisions held that section 1910.22(a)(1) did indeed apply to the types of hazard alleged to exist in this case, did the Secretary move to amend on the basis that the parties had implicitly "consented" to try the case under the standard.

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n2 See, e.g., Brisk Waterproofing Co., 73 OSAHRC 30/E1, 1 BNA OSHC 1263, 1973-74 CCH OSHD P16,345 (No. 1046, 1973).

n3 See Bunge Corp. v. Secretary of Labor, 638 F.2d 831 (5th Cir. 1981).

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In agreeing with the Secretary, the majority offers two reasons why Farmers Co-op implicitly consented to the amendment: the company [*17] (1) introduced or failed to object to evidence relevant to the unpleaded issue, and (2) would not be prejudiced by the amendment. These reasons are unpersuasive. All of the evidence introduced at the hearing relevant to a charge under section 1910.22(a)(1) was also relevant to the pleaded section 5(a)(1) charge. Therefore, Farmers Co-op's participation in the introduction of such evidence can hardly be taken as implying its consent to try an unpleaded charge. n4 McLean-Behm Steel Erectors v. OSHRC, 608 F.2d 580 (5th Cir. 1979). Essentially, then, the majority's rationale reduces to the proposition that an employer who proceeds to trial under one legal theory consents to any subsequent change in that theory that will not prejudice the employer. And because an amendment that changes the legal theory is viewed by the majority as a mere "technicality," it is difficult to envision how an employer would be able to show it was prejudiced by such an amendment. Thus, the Secretary is free to proceed to trial under an erroneous legal theory secure in the knowledge that the Commission will view his decision as a "technicality" and will ultimately amend to the correct theory.

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n4 A party's failure to object to evidence that is relevant to a pleaded issue does not demonstrate that the party believed it was trying an unpleaded issue. McLeod v. Stevens, 617 F.2d 1038 (4th Cir. 1980); 6 C. Wright and M. Miller, Federal Practice and Procedure 1493 (1971). Indeed, such an objection would lack merit and would only serve to delay the proceedings. A party may, and should, object to evidence that is not relevant to the issues framed by the pleadings. A party's failure to make such an objection is an indication that the party considered the evidence relevant to an unpleaded issue. Niedland v. United States, 338 F.2d 254 (3d Cir. 1964).

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Although in this case the Secretary ultimately moved to amend to section 1910.22(a)(1), it is significant that the majority's action in amending the citation does not depend on the Secretary having requested the amendment. In prior cases the Commission has ordered sua sponte amendments under Rule 15(b), saying:

Despite "the failure of complainant [*19] 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.

Rogers Manufacturing Co., 79 OSAHRC 67/E2, 7 BNA OSHC 1617, 1620, 1979 CCH OSHD P23,800 at p. 23,878 (No. 76-896, 1979), citing Southwestern Bell Telephone Co., 78 OSAHRC 100/D8, 6 BNA OSHC 2130, 2133, 1978 CCH OSHD P23,187 et p. 28,033 (No. 14761, 1978). By taking it upon itself to decide under what legal theory an employer should be charged in such cases, the Commission acts as an associate prosecutor to the Secretary. Such actions are not ones that were envisioned by Congress, which expected that the Commission's role under the Act would be that of an impartial adjudicator. See Mobil Oil Corp., 10 BNA OSHC 1905, 1931-32, 1982 CCH OSHD P26,187 at pp. 33,044-45 (No. 77-4386, 1982) (dissenting opinion).

In my opinion, a finding of consent under Rule 15(b) is appropriate only when the parties squarely recognize at trial that they are trying an unpleaded issue. Crawford Construction Co., 10 BNA OSHC 1522, 1982 CCH OSHD P25,894 (No. 79-928) (dissenting opinion), appeal filed, No. [*20] 82-3350 (6th Cir. May 27, 1982); Vicon Corp; 81 OSAHRC 98/C4, 10 BNA OSHC 1153, 1981 CCH OSHD P25,749 (No. 78-2923, 1981) (concurring opinion), aff'd, No. 81-2359 (8th Cir. Aug. 2, 1982). In this case, the Secretary's adherence to the section 5(a)(1) charge despite Farmers Co-op's motion to dismiss demonstrates that the parties did not believe the case was being tried under section 1910.22(a)(1). See Western Waterproofing Co. v. Marshall, 576 F.2d 139, 143-44 (8th Cir. 1978). The Secretary's motion to amend should be denied and the citation vacated.