MORGAN & CULPEPPER, INC.

OSHRC Docket No. 9850

Occupational Safety and Health Review Commission

March 31, 1981

[*1]

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

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

George D. Palmer, Assoc. Reg. Sol., USDOL

Daniel P. Self, Jr., for the employer

OPINION:

DECISION

BY THE COMMISSION:

This is a case under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). A decision of Administrative Law Judge John J. Larkin is before the Commission for review under section 12(j) of the Act, 29 U.S.C. 661(i). In his decision, Judge Larkin vacated a citation issued by the Secretary of Labor ("the Secretary") to Respondent, Morgan & Culpepper, Inc., which alleged a serious violation of the Act for noncompliance with the standard at 29 C.F.R. 1926.750(b)(1)(ii). n1 Judge Larkin also denied the Secretary's motion to amend his complaint to allege noncompliance with the standard at 29 C.F.R. 1926.105(a). n2 A petition for discretionary review was filed by the Secretary, and Commissioner Cleary directed review of the case on the issues raised in the petition. The issues on review are:

(1) Whether the judge erred in denying the Secretary's motion to amend to allege noncompliance with section 1926.105(a).

(2) If he [*2] did err, whether the evidence establishes noncompliance with section 1926.105(a).

We conclude that the judge erred in denying the Secretary's motion to amend, and we hold that Respondent failed to comply with section 1926.105(a).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 The standard provides:

Subpart R - Steel Erection

1926.750 Flooring requirements.

* * *

(b) Temporary flooring - skeleton steel construction in tiered buildings.

(1) . . .

(ii) On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contacts with the surface of structures below.

n2 The standard reads as follows:

Subpart E - Personal Protective and Life Saving Equipment

* * *

1926.105 Safety nets. (a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.

[*3]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

I

Respondent, a general contractor, was inspected by Compliance Officer Butler on August 21, 1974, at its worksite in Meridian, Mississippi, where it was constructing a theatre for the Meridian Little Theatre, a local civic group. At the time of the inspection, the walls of the building, which were composed of concrete blocks, had been erected. Portions of the roof support, i.e., bar joists connected by X-bracing, had been attached to the walls. The theatre was a one-story structure, but the height of the roof varied forming three distinct levels. The highest level, which was over the stage area ("stage roof"), was approximately 30 feet above ground.

When he arrived at the site, Butler observed Harwell, Respondent's foreman, and Mitchell, one of Respondent's laborers, on the framework for the stage roof. Harwell was standing on the top of a 12-inch wide concrete-block wall, while Mitchell was sitting on two bar joists near the middle of the stage roof. The two employees were at these positions to hold the bar joists and I-beams in place for, and otherwise assist Brown and Harris, who were [*4] welding steel beams to steel plates set in the concrete-block walls of the building. Both Harwell and Mitchell were approximately 30 feet above the building's concrete floor.

At the time of the inspection, Harwell and Mitchell were waiting for the welding of one beam to be completed and for the crane to lift another I-beam for them to position. Neither Mitchell nor Harwell was wearing a safety belt, nor was there any other form of protection in place to protect the two employees from a fall. A multi-level rolling scaffold that had been used earlier that day was located to the outside of the wall on which Harwell was standing. The scaffold was between 10 and 30 feet away from Mitchell. During the inspection, Butler informed both Harwell and Robert H. Culpepper, Respondent's president and safety officer, that the lack of fall protection for the two employees appeared to be in violation of the Act and that safety nets, scaffolding safety belts with lifelines, or walk boards could have provided the protection required by the standards.

As a result of that inspection, Respondent was issued two citations. The only citation before us on review alleges that Respondent committed a [*5] serious violation due to its noncompliance with section 1926.750(b)(1)(ii) in that there was:

Failure to protect employees more than thirty (30) feet above concrete floor while installing long span bar joist by installing either safety nets or any other appropriate safety equipment or methods. (Reference 1926.104 or 1926.105)

A penalty of $500 was proposed.

Respondent timely contested that citation. The Secretary's description in his complaint is the same as that in the citation. In its answer, Respondent generally denied having committed the alleged violation and contended that on the day of the inspection "proper ropes were available to the individual workers on the scaffolds . . . to tie themselves to break any and all falls" that may have occurred. Respondent noted that its president Culpepper has cautioned Respondent's employees to be particularly careful and to consider the heights at which they are working. Respondent stated that its employees "have objected to tying themselves on the scaffolds" because of a fear that either the ropes would get caught on something and pull them off of the scaffold or they would trip on the ropes and fall. Respondent further contended [*6] that its employees are experienced construction workers who "prefer the ease and freedom of working without ropes . . . or safety belts." Respondent further argued that safety nets would be impractical for the size of the job and the great cost that a small contractor such as Respondent would incur. It also contended that if noncompliance with section 1926.750(b)(1)(ii) is found, the violation should be characterized as other than serious and the penalty assessed should be less than the $500 proposed by the Secretary.

II

The first hearing in this case was held on February 12, 1975. The Secretary called two witnesses: Respondent's president Culpepper and Compliance Officer Butler. Although Butler testified about protective equipment other than the type of equipment specifically listed in section 1926.750(b)(1)(ii), i.e., safety lines, Respondent made no objection to any evidence presented by the Secretary. At the close of the Secretary's case, Respondent moved for dismissal of the citation claiming that the Secretary had not sustained his burden of proof. Judge Larkin granted Respondent's motion, and the hearing terminated. In his decision, n3 the judge concluded that the [*7] Secretary had failed to carry his burden of proving Respondent's noncompliance with section 1926.750(b)(1)(ii) because the citation and complaint pertained to the installation of bar joists while the evidence established that the bar joists had been installed prior to the time of the alleged violation. The judge also found that the Secretary had failed to establish that Respondent was not using scaffolds.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n3 The judge entitled his decision "Order Granting Motion for Directed Judgment." He characterized Respondent's request as a motion for a directed verdict, which is the proper motion when the case is tried before a jury. See Fed. R. Civ. P. 50(a). However, in the instant case, as in all Commission hearings on cases, the judge sat without a jury. See Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977). Respondent's request is thus correctly characterized as a motion for involuntary dismissal under Fed. R. Civ. P. 41(b). See 5 Moore's Federal Practice P41.13[1], at 41-174 to 41-177 (2d ed. 1980).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*8] -

In Morgan & Culpepper, Inc., 77 OSAHRC 29/D12, 5 BNA OSHC 1123, 1977-78 CCH OSHD P21,605 (No. 9850, 1977), the Commission concluded, after considering the evidence of record, that the Secretary had sustained his burden of initially establishing a serious violation of the Act for noncompliance with section 1926.750(b)(1)(ii). The Commission noted that the cited standard is not limited in application to bar joist installation, so the judge's reliance on the Secretary's failure to establish that fact was misplaced. The Commission stated, "The preponderant evidence establishes that respondent's employees were working at a height over 25 feet in a tiered building of skeleton steel construction which was not adaptable to temporary floors and that neither scaffolds nor safety nets were used to protect those exposed employees" (footnotes omitted). 5 BNA OSHC at 1125, 1977-78 CCH OSHD at p. 25,929. The case was remanded to afford Respondent the opportunity to present its case on the merits of the alleged violation.

III

At the second hearing in this case, Respondent elicited opinion testimony from its witnesses that the building at issue was not a "tiered building" within the meaning [*9] of the cited standard. The characterization of the theatre as a "tiered building" was not discussed previously by the parties. Also at that hearing, witnesses testified that safety nets could not be obtained, could not be hung even if obtained, and would in any event be damaged during welding activities, and that safety belts and lines would present greater hazards to employees than if they were not used. n4 Compliance Officer Butler and other witnesses called by Respondent testified at the second hearing concerning safety belts, lines, ropes, catch platforms, and ladders.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n4 We treat this testimony along with Respondent's claims in its answer as raising the affirmative defenses of impossibility of compliance and greater hazard.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

At the close of its case, Respondent moved to vacate the citation because the standard cited by the Secretary did not apply to the theatre, which it asserted was not a "tiered building." Alternatively, Respondent urged that the citation be vacated because scaffolds were being used at the [*10] time of the alleged violation. Compliance Officer Butler was then recalled and testified that the standard allegedly not complied with was section 1926.750(b)(1)(ii). Respondent's counsel immediately stated: "Then I move to exclude at this point his [Compliance Officer Butler's] testimony as to any other standards or sections or regulations attempted to be brought in by counsel through this witness at this point in the proceeding. . . . [W]e therefore move to exclude his [Butler's] testimony as elicited by Mr. Beers [the Secretary's counsel]." No further testimony was given after the motion. The judge stated that he would take pending motions under advisement and terminated the hearing. A week after the hearing, the Secretary moved to conform the complaint to the evidence, in accordance with Federal Rule of Civil Procedure 15(b), by adding an allegation of noncompliance with section 1926.105(a) to its charge that Respondent had failed to comply with section 1926.750(b)(1)(ii). Respondent filed an objection to the motion. Both parties submitted post-hearing briefs.

In his second decision in this case, Judge Larkin concluded that, in accordance with the Review Commission's decision [*11] in Daniel Construction Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976-77 CCH OSHD P21,521 (Nos. 7672 & 7734, 1977), section 1926.750(b)(1)(ii) does not apply to the building at issue because the theatre had no intermediate floor and was therefore not a "tiered building" within the meaning of the cited standard. He then denied the Secretary's motion to amend his complaint to allege noncompliance with section 1926.105(a), stating that under Commission precedent such an amendment would not be allowed. He concluded that, if the amendment were permitted, Respondent "would definitely be prejudiced as different facts would have to be proven other than those involving installation of safety nets."

IV

The Secretary filed a petition for discretionary review in which he takes exception to the judge's denial of his motion to amend the complaint and particularly challenges the judge's conclusion that Respondent was denied fair notice and, thus, due process. The Secretary notes, "Although the Secretary does not concede the validity of the judge's conclusion that 29 CFR 1926.750(b)(1)(ii) does not apply to the facts of this case, he does not seek review of that conclusion in the instant case." [*12] n5

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n5 Because the Secretary does not challenge on review the judge's conclusion that the theatre is not a "tiered building" within the meaning of 1926. 750(b)(1)(ii), we do not consider that issue.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

As noted above, Commissioner Cleary granted the Secretary's petition and directed review of the case to examine: (1) whether the judge erred in denying the Secretary's motion to amend, and (2) if so, whether the evidence establishes noncompliance with section 1926.105(a). Respondent submitted a letter stating that it would not file a brief on review, but would instead rely on the judge's decision. The Secretary has filed an extensive brief.

A

The Secretary argues that, pursuant to the second part of Federal Rule of Civil Procedure 15(b), n6 the judge erred in failing to grant the motion to amend. The Secretary cites Duane Smelser Roofing Co., 76 OSAHRC 145/E3, 4 BNA OSHC 1948, 1976-77 CCH OSHD P21,387 (No. 4773, 1976), aff'd in pertinent part, 617 F.2d 448 (6th Cir. 1980); and General Electric Co., 75 [*13] OSAHRC 50/A2, 3 BNA OSHC 1031, 1974-75 CCH OSHD P19,567 (No. 2739, 1975), rev'd on other grounds, 540 F.2d 67 (2d Cir. 1976), for support. He asserts that "[i]nstead of indicating possible prejudice, the record reflects an extensive litigation of all relevant issues." The Secretary asserts that the gravament of the violation, regardless of the standard under which the charge is brought, is Respondent's failure to provide any type of fall protection for its employees who were working more than 25 feet above the ground. The Secretary claims that, having established through his representatives from the time of the inspection to the end of the second hearing that no fall protection of any kind had been used by Respondent's employees, he has proven that Respondent failed to comply with either section 1926.750(b)(1)(ii) or section 1926.105(a). The Secretary generally cites Frank Briscoe Co., 76 OSAHRC 125/D7, 4 BNA OSHC 1706, 1976-77 CCH OSHD P21,191 (No. 12136, 1976).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n6 The first part of Fed. R. Civ. P. 15(b) provides:

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.

The second part of Fed. R. Civ. P. 15(b) 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.

[*14]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

The Secretary further contends that Respondent had notice of and sufficient opportunity to defend against the section 1926.105(a) charge. According to the Secretary, Respondent was given notice by the specific reference to section 1926.105 in the original citation and the complaint as well as by the citation's allegation that Respondent failed to use safety nets "or any other appropriate safety equipment or methods." The Secretary argues that, even without such an express reference, the amendment is valid because the requirements of sections 1926.105(a) and 1926.750(b)(1)(ii) are substantially identical, i.e., the three alternative methods of protection (temporary floors, scaffolds, or safety nets) required by section 1926.750(b)(1)(ii) are also listed in section 1926.105(a). Thus, the Secretary contends, the defenses with regard to those three methods of protection are essentially the same.

As noted by the Secretary, Respondent's primary defense was the use of scaffolding, a defense appropriate to an alleged violation of either section 1926.750(b)(1)(ii) or section 1926.105(a). The Secretary [*15] cites to portions of the transcripts to demonstrate that testimony given by witnesses of both parties at both hearings establishes that Respondent was aware that more than noncompliance with section 1926.750(b)(1)(ii) was at issue. The Secretary argues that Respondent's motion made at the end of the second hearing to exclude the compliance officer's testimony not going to the section 1926.750(b)(1)(ii) charge was untimely and made for tactical advantage. The Secretary contends that his post-hearing motion to amend the citation to conform to the evidence was a "precautionary action" in response to Respondent's closing arguments at the hearing.

B

The Commission has permitted amendment of a citation under the second part of Federal Rule 15(b) where an employer who objected at the hearing to evidence supporting an unpleaded charge had failed to establish that it would have been prejudiced by amendment of the citation to include that unpleaded charge. John and Roy Carlstrom, d/b/a Carlstrom Brothers Construction, 78 OSAHRC 96/A2, 6 BNA OSHC 2101, 1979 CCH OSHD P23,155 (No. 13502, 1978); Frank Briscoe Co., supra; General Electric Co., supra. The essential determinants [*16] of prejudice under the second part of Federal Rule 15(b) are whether the party opposing the amendment was denied a fair opportunity to prepare and present its case on the merits, and whether it could offer additional evidence if the case were tried again on a different theory. Carlstrom Brothers, supra. Absent a showing of prejudice, leave to amend should be freely granted. 3 Moore's Federal Practice P15.14 at 15-180 (2d ed. 1980); 6 C. Wright & A. Miller, Federal Practice & Procedure 1495 at 480 (1971).

We consider Respondent's motion to exclude portions of Butler's testimony to be best characterized as an objection to evidence, the prerequisite to application of the second part of Federal Rule 15(b). Under that part of Federal Rule 15(b), we conclude that Respondent had a fair chance to present its case on the merits and could provide no further evidence if the case were tried later on a different theory. We note that Respondent was put on notice of the applicability of section 1926.105 in that the citation and compliant specifically referred to that standard. Furthermore, Respondent did not immediately object to either questions or responses on the subject [*17] of safety belts, lines, or ropes. Neither did Respondent object to the Secretary's questions and the witnesses' responses concerning catch platforms and ladders (against the inside of the building), other protective devices listed in section 1926.105(a) but not mentioned in section 1926.750(b)(1)(ii). n7 We further note that Butler was not the only witness who testified about safety devices listed in section 1926.105(a) but not in section 1926.750(b)(1)(ii).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n7 This case is distinguishable from McLean-Behm Steel Erectors, Inc. v. OSHRC, 608 F.2d 580 (5th Cir. 1979), rev'g 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978), in which the court noted that all evidence introduced at the hearing was relevant to the violation originally charged and therefore consent to trial of the unpleaded charge could not be implied from the employer's failure to object to the admission of that evidence.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Moreover, Respondent did not move to reopen the record upon notice of the Secretary's motion to amend. [*18] Indeed, Respondent was in no way prejudiced in the presentation of its primary defense, i.e., that scaffolding was used, or its affirmative defenses of impossibility of compliance and greater hazard. See note 10 infra. We conclude that no additional evidence could have been presented by Respondent if the case were tried later on another theory, i.e., an alleged violation of section 1926.105(a). n8

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n8 Commissioner Cottine notes that, even if Respondent's motion was characterized as other than an objection to evidence, an amendment should be permitted based on the first part of Federal Rule 15(b). The first part of the Rule requires that pleadings be amended when an unpleaded charge has been tried with the express or implied consent of the parties. In determining whether a party impliedly consented to try an unpleaded charge, the Commission has considered whether that party introduced evidence relevant to the unpleaded charge, whether it objected to the introduction of such evidence, and whether it would be prejudiced by the amendment. Bill C. Carroll Co., 79 OSAHRC    /   , 7 BNA OSHC 1806, 1979 CCH OSHD P23,940 (No. 76-2748, 1979). In this case, Commissioner Cottine would find implied consent because Respondent's own counsel questioned witnesses at the hearing concerning safety belts and lines, protective devices listed in section 1926.105(a) but not mentioned in section 1926.750(b)(1)(ii) and therefore relevant only to the unpleaded charge. See Mineral Industries & Heavy Construction Group v. OSHRC, No. 79-2224 (5th Cir. Mar. 19, 1981) (by raising defense relevant to unpleaded issue, employer impliedly consented to trial of that issue).

[*19]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, we conclude that it is appropriate to amend the citation to allege a violation of section 1926.105(a) in lieu of the section 1926.750(b)(1)(ii) charge.

V

With regard to the merits of the violation, the Secretary asserts on review that Respondent failed to comply with section 1926.105(a) because it did not successfully rebut the Secretary's evidence establishing that no protection of any kind was used. The Secretary notes that, although the record indicates that a rolling scaffold was present at the work site, the scaffold was not used by Harwell or Mitchell at the time of the inspection, and therefore it afforded no fall protection. The Secretary further contends that, besides scaffolding, the record establishes that safety belts could have been but were not used. He argues that the violation is serious because an uninterrupted 30-foot fall to a concrete floor would result in serious injury or death. As we have already noted, Respondent's defenses to the original citation are also relevant to the amended charge.

The Secretary makes a prima facie showing of noncompliance with section [*20] 1926.105(a) when he establishes that an employee was exposed to a fall of more than 25 feet and that none of the devices listed in section 1926.105(a) were used. Southern Colorado Prestress Co. v. OSHRC, 586 F.2d 1342 (10th Cir. 1978); Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974); Sierra Construction Corp., 78 OSAHRC 2/E6, 6 BNA OSHC 1278, 1978 CCH OSHD P22,506 (No. 13638, 1978). We conclude that the Secretary has made an initial showing of noncompliance with section 1926.105(a) in the instant case and make the following findings of fact. n9 At the time of the inspection, Mitchell and Harwell were exposed to a fall of more than 25 feet, and none of the protective means set forth in section 1926.105(a) were in use in order to protect them from the fall hazard. A multi-level rolling scaffold had been used earlier on the day of the inspection but, because of its location at the time of the inspection, it afforded no protection to Harwell and Mitchell.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n9 Where, as in the instant case, the Commission deems it unnecessary to remand a case and the judge did not in his decision give relevant findings of fact and conclusions of law, the Commission must supply them in its decision on review. See Duane Smelser Roofing Co. v. Marshall, 617 F.2d 448 (6th Cir. 1980).

[*21]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Respondent attempted to rebut the Secretary's case by claiming that a scaffold was being used on the day of the inspection. As noted above, the facts prove otherwise. Thus, Respondent's evidentiary defense must fail.

Respondent also argued before the judge that the use of safety nets was impossible and that safety belts and lines would pose a greater hazard than no use of protective equipment. However, the fact that a scaffold, an alternative means of employee protection -- indeed, one mentioned in the standard -- was available and had previously been used vitiates Respondent's impossibility of compliance and greater hazard defenses. n10 Because Respondent did not and could not successfully defend against the charge, we conclude that Respondent failed to comply with section 1926.105(a).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n10 Because the record establishes that a scaffold -- an alternative means of protection listed in both 1926.105(a) and 1926.750(b)(1)(ii) -- was available for use at the time of the inspection, no impossibility of compliance or greater hazard defense would succeed if the case were brought under 1926.750(b)(1)(ii).

[*22]

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

We further determine that the violation was serious n11 because the record establishes that, if either of the two exposed employees fell, he would suffer serious injury or death. Furthermore, Respondent's foreman Harwell had knowledge of the violation. Having considered the criteria in section 17(j) of the Act, 29 U.S.C. 666(i), we assess a penalty of $500.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n11 A "serious" violation is defined in section 17(k) of the Act, 29 U.S.C. 666(j), as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Accordingly, [*23] we reverse the judge and grant the Secretary's motion to amend the citation to allege a serious violation of the Act for failure to comply with the standard at section 1926.105(a). We affirm the citation as amended and assess a penalty of $500.

IT IS SO ORDERED.