UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-3944
RODNEY E. FOSSETT d/b/a SOUTHERN LIGHTWEIGHT CONCRETE CO.,
Respondent.

October 29, 1979

DECISION

Before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Dee C. Blythe is before the Commission for review pursuant to § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). The issues in this case are whether the judge properly amended sua sponte the standard alleged to be violated in the citation and complaint from 29 C.F.R. § 1926.451(a)(12)[1] to 29 C.F.R. § 451(a)(14)[2] and whether the judge properly affirmed the alleged violation of 29 C.F.R. § 1926.451(a)(13).[3]

Respondent is a contractor that was engaged in the application of stucco to the exterior surface of a building in an apartment complex located in Amarillo, Texas. During an inspection by an OSHA compliance officer, two of respondent’s employees were working atop a tubular scaffold at a height of twelve feet. The working surface of the scaffold consisted of three planks, each two feet by twelve feet, laid across metal supports. The planks extended beyond the ends of the supports in lengths varying from zero inches to eight inches. The employees reached the working surface of the scaffold by climbing up horizontal members of the tubular side braces. These ‘rungs’ were spaced vertically at intervals of approximately twenty to twenty-two inches; each was six to eight inches long. Fossett was charged with a violation of § 1926.451(a)(12) because the planks did not overlap twelve inches and a violation of § 1926.451(a)(13) for failure to have an access ladder or equivalent safe access to the scaffold.[4]

In his answer, Fossett, who has represented himself throughout these proceedings, denied that he violated § 1926.451(a)(12), saying that ‘it is impossible for this violation to exist since only one stand of scaffold is used.’ After the facts pertaining to the scaffold planks were established at the hearing, Fossett questioned the compliance officer on this issue. The compliance officer indicated that Fossett violated the standard because the planks did not extend at least twelve inches over their end supports. Fossett then indicated his belief that the standard only applied to a situation in which boards overlap other boards on adjacent scaffold supports. The judge mentioned the possible applicability of § 1926.451(a)(14), at which point Fossett stated ‘[t]hat’s the one I was getting at with Mr. Sayers (the compliance officer).’ Upon questioning by the judge, the compliance officer then stated § 1926.451(a)(14) was the standard he was ‘trying to apply.’

In his decision, Judge Blythe amended the citation to allege a violation of § 1926.451(a)(14). The judge noted that Fossett was fully aware of the applicability of § 1926.451(a)(14) and that the issue of a violation of that standard was fully litigated without objection. Although the Secretary had not moved for an amendment, the judge sua sponte amended the citation pursuant to Rule 15(b) of the Federal Rules of Civil Procedure.[5] He then concluded that Fossett violated § 1926.451(a)(14) since one plank was flush with the end supports.

On review, Fossett contends that the judge’s amendment of the citation was improper. Although not disputing that his scaffold failed to comply with § 1926.451(a)(14), Fossett asserts that, by amending the citation on his own motion, the judge demonstrated that he was prejudiced against Fossett and denied him a fair and impartial hearing.[6] Fossett thus asks that all of the violations that the judge found be set aside.

We conclude that the judge’s action was proper. It is clear from the testimony of the compliance officer that the citation was directed to failure of the planks to extend over the end supports. It is equally clear that the standard applicable to this condition is § 1926.451(a)(14), rather than § 1926.451(a)(12).

It is well established that administrative pleadings are liberally construed and easily amended. McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD ¶ 23,139 (No. 15582, 1978), petition for review filed, No. 79–1073 (5th Cir. Jan. 9, 1979); Usery v. Marquette Cement Mfg. Co., 568 F.2d 902 (2d Cir. 1977); National Realty and Construction Co., Inc. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Rule 15(b) of the Federal Rules of Civil Procedure permits amendment of the pleadings to conform to the evidence when the parties have expressly or impliedly consented to the trial of the unpleaded issues. Rule 15(b) is made applicable to Commission proceedings by 29 C.F.R. § 2200.2(b).[7] Inasmuch as neither party expressly consented to the trial of the alleged § 1926.451(a)(14) violation, it is necessary to resolve whether the parties impliedly consented to litigation of that charge.

Two factors that give rise to a finding of implied consent are the failure of the parties to object to introduction of evidence concerning the unpleaded issue and the introduction of evidence relevant to the unpleaded issue by the party opposing the amendment. Southwestern Bell Telephone Company, 78 OSAHRC 100/D8, 6 BNA OSHC 2130, 1978 CCH OSHD ¶ 23,187 (No. 14761, 1978). In this case, we note that at the hearing, Fossett specifically referred to the applicability of § 1926.451(a)(14). Moreover, Fossett introduced evidence regarding the dimensions of the scaffold and planks and the amount by which the planks overlapped the end supports. Fossett did not object to the evidence adduced by the Secretary pertaining to the size of the planks, the spacing, and the overlapping. The issue of how far the planks overlapped the end supports of the scaffold was not relevant to the original charge. Thus, the respondent was on notice that issues pertinent to the unpleaded standard were being tried and he had an opportunity to present any defenses to the unpleaded charge. Bill C. Carroll Co., OSAHRC Docket No. 76–2748 (——, 1979). Fossett has not requested leave to present additional evidence relating to the amended allegation. Accordingly, the issue of whether the respondent was in violation of § 1926.451(a)(14) was tried by consent and the amendment of the pleadings to charge a violation of that standard was proper.[8] In its petition for discretionary review, Fossett asserts that his failure to object to the amendment resulted from his ignorance that the original allegation was being amended. In this case, however, Fossett introduced the issue of the inapplicability of the cited standard, and the evidence adduced by the parties was relevant only to the unpleaded charge. The respondent failed to object when the Secretary introduced evidence pertinent to the unpleaded issue. The respondent was on notice of the applicability of the amended charge and had a full opportunity to litigate that issue. On the basis of Fossett’s notice and opportunity to be heard, we conclude that the respondent cannot claim prejudice on the ground that he was unaware that the pleadings were being amended.

The judge also concluded that the scaffold rungs were not an access ladder or equivalent safe access within the meaning of § 1926.451(a)(13), and found Fossett in violation of that standard. On review Fossett contends that the scaffold rungs constituted an access ladder or equivalent safe access and asks that the citation be vacated. We have consistently held that a scaffold frame does not provide equivalent safe access for the purpose of satisfying the requirements of § 1926.451(a)(13) if the means of access provided by the frame does not comport with the requirements of the ANSI specifications incorporated into § 1926.450(a)(5), the standard for fixed ladders.[9] Rust Engineering Company, 77 OSAHRC 37/C8, 5 BNA OSHC 1183, 1977–78 CCH OSHD ¶ 21,693 (No. 12200, 1977); Charles H. Tompkins, 77 OAHRC 197/D1, 6 BNA OSHC 1045, 1977–78 CCH OSHD ¶ 22,337 (No. 15428, 1977). Fossett’s scaffold did not meet these requirements.[10] Accordingly, we affirm the violation. However, in light of the slight variances from the standard’s requirements,[11] the nearly-uniform configuration of the scaffold braces and the reasonably safe access provided by their use, we conclude that the violative condition does not have a direct and immediate relationship to safety and health. Accordingly, we conclude that the violation is de minimis in nature. Ray Boyd Plaster and Tile, Inc., 78 OSAHRC 47/D8, 6 BNA OSHC 1648, 1978 CCH OSHD ¶ 22,794 (No. 76–814, 1978) appeal dismissed, No. 78–2666 (5th Cir. Sept. 29, 1978); Perini Corporation, 77 OSAHRC 65/A2, 5 BNA OSHC 1343, 1977–78 CCH OSHD ¶ 21,790 (No. 12589, 1977); Rust Engineering Company, supra; Charles H. Tompkins, supra.

The judge assessed a $300 penalty for Fossett’s violation of five separate standards, without apportioning the penalty among the various allegations of the citation.[12] He based the penalty assessment on the criteria set forth in section 17(j) of the Act, 29 U.S.C. 666(i). We find the assessed penalty to be appropriate and would not reduce it because we conclude that the violation of § 1926.451(a)(13) is de minimis. Our finding that the ladder violation is de minimis does not significantly reduce the overall gravity of the hazards encompassed in the citation. Moreover, the judge indicated that the ladder violation alone would be nonserious or de minimis, indicating that he gave it little weight in his penalty assessment.

Accordingly, we modify the judge’s decision to find that the violation of § 1926.451(a)(13) is de minimis, yet affirm the penalty of $300 as assessed. As so modified, the judge’s decision is affirmed.

FOR THE COMMISSION:

Ray H. Darling, Jr.

Executive Secretary

DATED: OCT 29, 1979

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 76-3944
RODNEY E. FOSSETT d/b/a SOUTHERN LIGHTWEIGHT CONCRETE CO.,
Respondent.

DECISION AND ORDER

Appearances:

Robert E. Luxen, Esq., of Dallas, Texas, for Complainant.

Rodney E. Fossett, of El Paso, Texas, pro se.

STATEMENT OF THE CASE

This is a proceeding brought before the Occupational Safety and Health Review Commission (‘the Commission’) pursuant to § 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (‘the Act’), contesting a citation issued by complainant, the Secretary of Labor (‘the Secretary’), to the respondent, Rodney E. Fossett, doing business as Southern Lightweight Concrete Company,[14] under the authority vested in the Secretary by § 9(a) of the Act. As the result of an inspection conducted on August 17, 1976, by the Secretary’s compliance officer of a housing construction site at 4701 Western Avenue, Amarillo, Texas, on which respondent was a subcontractor, one citation was issued to respondent on September 3, 1976, alleging serious violation of § 5(a)(2) of the Act by his failing to comply with 29 CFR Part 1926, §§ 451(a)(4), (12), (13), (15) and (20), for which a single penalty was proposed. Respondent did not contest item 1A, alleging a violation of § 451(a)(4), but did timely contest the remaining items. Thereafter a complaint was filed with the Review Commission on September 28, 1976. On October 29, 1976, the Secretary filed a motion to affirm the citation and proposed penalty on the ground that respondent had failed timely to answer the complaint. By letter dated November 10, 1976, respondent attributed this failure to oversight and again requested a hearing. The Secretary abandoned his motion at the hearing (Tr. 4), hence the letter of November 10th is considered an answer to the complaint.[15]

JURISDICTION AND ISSUES

Respondent at the hearing admitted facts establishing jurisdiction, including that he uses materials and equipment in the state of Texas originating outside that state and that he is an employer engaged in business affecting commerce who has employees within the meaning of § 3 (5) of the Act (Tr. 6, 7). The issues remaining to be determined are:

1. Whether the alleged violations may be grouped into one ‘serious’ citation.

2. Whether respondent on August 17, 1976, was in violation of 29 CFR 1926.451(a)(12).

3. Whether on said date respondent was in violation of 29 CFR 1926.451(a)(13).

4. Whether on said date respondent was in violation of 29 CFR 1926.451(a)(15).

5. Whether on said date respondent was in violation of 29 CFR 1926.451(a)(20).

6. The appropriate penalty, if any, to be assessed for any violations found.

The grouping of the alleged violations.

Respondent’s principal contention seems to be that the five alleged violations should not have been grouped in one ‘serious’ citation. Grouping of multiple nonserious violations in one serious citation has been held permissible by the Commission when the violations are related. Secretary v. Harold A. Simpson & Associates Development Co. apparent that the citation should have Docket No. 5572, December 13 1976, OSAHRC Reports 76/144/A2, CCH OSHD ¶ 21,353; Secretary v. CTM, Inc., Docket No. 5106, July 21, 1976, OSAHRC Reports 76/87/D11, CHH OSHD ¶ 20,912. Here, as will be seen, at least three of the five alleged violations were ‘serious’ within the meaning of § 17(k) of the Act, so it actually was to respondent’s benefit that they were combined, or grouped, into one serious citation, with a single proposed penalty no larger than usually is proposed for each serious violation. Four of the alleged violations involved the same scaffold, so they certainly were related. The fifth involved a different scaffold, but it was sufficiently related to the other scaffolding violations to be grouped therewith.

The planking ‘overlap’ citation.

Item 1B alleges a violation of 29 CFR 1926.451(a)(12) in that the planking of the platform of a scaffold on the west end of building #18 ‘was not overlapped a minimum of 12 inches, or secured from movement.’

The cited standard provides:

‘All planking of platforms shall was exacerbated by excessive vibration (minimum 12 inches), or secured from movement.’

The scaffold in question was of the tube and coupler type, with two sections stacked vertically, topped by a platform consisting of three 2‘ x 12‘ planks which extended past the end support distances varying from zero to about 8 inches (Tr. 18). The Secretary interprets the cited standard as requiring the planks to ‘overlap’ the end supports a minimum of 12 inches but this is not the meaning of ‘overlap,’ which refers to endwise overlapping where planks are shorter than the platform. It is apparent that the citation should have alleged a violation of 29 CFR 1926.451(a)(14), which provides:

Scaffold planks shall extend over their end supports not less than 6 inches nor more than 12 inches.

The applicability of the latter standard was brought out at the hearing (Tr. 43), yet the Secretary has not moved to amend the citation and complaint. Since the matter was fully litigated without objection (and respondent indicated he was aware of § 451(a)(14)’s applicability), such an amendment may be (and is) made by the Judge sua sponte under Rule 15(b) of the Federal Rules of Civil Procedure.[16] Secretary v. Carr Erectors, Inc., Docket No. 7247, January 21, 1977, CCH OSHD ¶ 21,471.

Under § 451(a)(14), the planks should have projected at least six inches but not more than 12 inches beyond the end supports. Only one of the planks (which was flush with the end supports) failed to meet this standard, the other being within the tolerance. It was possible for that one plank to have shifted or ‘walked’ due to the movement of employees on the platform, and this possibility was exacerbated by excessive vibration noted by the compliance officer due in part to an employee’s jumping to the platform from a rooftop a few feet higher than the platform (Tr. 13, 14, 16, 25). Further, there was a gap of 10 or 12 inches between this plank and the next one (Tr. 18: Exh. C 1 and 2), and this would facilitate movement of the plank. Two of respondent’s employees were on the scaffold (Tr. 70), and they were exposed to a fall of 12 feet (Tr. 13) onto a dirt surface from which there was a substantial probability of resulting serious physical harm (Tr. 14). The violation was clearly visible and could have been known to respondent with reasonable diligence. It meets the criteria of § 17(k) of the Act[17] for a serious violation.

The ‘access ladder’ citation.

Item 1C alleges a violation of 29 CFR 1926.451(a)(13) in that ‘[a]n access ladder or equivalent safe access . . . was not provided’ for the same scaffold involved in item 1B. The cited standard requires that ‘[a]n access ladder or equivalent safe access shall be provided.’

Access to the scaffold was by means of braces welded to each corner post. Each brace consisted of a metal tube joined to its post near the bottom and tapering outward to about eight inches from it at the top, with the two being joined at intervals of about 20 to 22 inches by horizontal metal tubes which served as ladder rungs (Tr. 19 24). These braces do not meet the requirements of 29 CFR 1926.450(a)(6) and the ANSI standards adopted thereby for fixed ladders, with regard to minimum length of rung (16 inches under § 4.1.3 of ANSI 14.3 1956) and distance between rungs (not to exceed 12 inches under § 4.1.2 of the same standard). Also, the brace projected only 4 to 6 inches above the platform on top of the scaffold, whereas 29 CFR 1926.450(a)(9) requires an extension of 36 inches above the landing (or grab rails).

Of course, respondent is not cited for violating these specific ladder standards, but resort may be had to them to determine what constitutes ‘an access ladder or equivalent safe access.’ When confronted with a similar situation in Secretary v. Ringland-Johnson, Inc., Docket No. 3028, June 16, 1976, OSAHRC Reports 76/63/A2, CCH OSHD ¶20,801, affirmed, Ringland-Johnson, Inc. v. OSHRC, 8th Cir., Docket No. 76 1687, March 23, 1977, the Commission unanimously held that § 451(a)(13) was violated. This decision is controlling. See also Secretary v. Rust Engineering Co., Docket No. 12200, March 28, 1977.

This violation by itself would be nonserious (or de minimis), as held in Rust Engineering), but, as previously discussed, it is properly grouped with other scaffolding violations in a serious citation.

The scaffold bracing citation.

Item 1D alleges, with regard to the same scaffold involved in items 1B and 1C, ‘Upright members . . . were not securely and rigidly braced to prevent swaying and displacement,’ in violation of 29 CFR 1926.451(a)(15), a general requirement for all scaffolds, which provides,

The poles, legs, or uprights of scaffolds shall be plumb, and securely and rigidly braced to prevent swaying and displacement.

According to the compliance officer, the scaffold vibrated and swayed due in part to looseness of crossbraces which were fastened with bolts and wingnuts that were not properly tightened. He opined that lockwashers would have helped keep them tight, that some instability was inherent in the short (6 foot) length of the scaffold, and that it would have helped if the scaffold were placed closer to or tied to the building (Tr. 25 29).

There is a specific standard pertaining to tube and coupler scaffolds and to the latter point; 29 CFR 1926.451(c)(12) provides, ‘The entire scaffold shall be tied to and securely braced against the building at intervals not to exceed 30 feet horizontally and 26 feet vertically.’ An identical requirement for tubular welded frame scaffolds is codified at 29 CFR 1926.451(d)(7) and has been interpreted as meaning that any such scaffolds should be tied to and braced against the building (not that it must exceed 30 feet horizontally or 26 feet vertically for these requirements to apply). Secretary v. Ray Lien d/b/a Ray Lien Masonry Co., 3 OSAHRC 949 (1973) (Morris, J.).

There is no proof in this case to indicate that the scaffold’s uprights were not plumb, but there is uncontradicted evidence that the scaffold swayed. This must be taken to mean that the uprights were not ‘securely and rigidly braced to prevent swaying,’ as required by § 451(a)(15). Therefore, I find a violation of this standard proved. Even though § 451(b)(12) was violated as well, it would serve no useful purpose to amend the citation to make this addition.

Here again, the violation standing alone probably would be classified nonserious, but in conjunction with the other items it constitutes a serious violation.

The ‘lean-to’ scaffold citation.

Item 1E alleges that respondent used a ‘shore’ or ‘lean-to’ scaffold on the north side of building #18 in violation of 29 CFR 1926.451(a)(20), which provides,

The use of shore or lean-to scaffolds is prohibited’.

The scaffold in question was 10 feet high and built of wood in a fashion similar to a ladder and with an unguarded platform on top, measuring about 20 inches by 24 or 28 inches, on which an employee engaged in stuccoing the outside wall was crouched (Tr. 30 36; Exh. C 3). This scaffold rested against the ground on two legs and leaned against the building for support. It definitely was of the lean-to type forbidden by the cited standard. Since the employee was exposed to a 10-foot fall to hard ground on which there was some debris, this violation standing alone would be classified as serious. Not only was there a substantial probability of serious injury but there was also a high possibility of a fall (Tr.35).

The penalty issue.

The statutory criteria[18] for assessing penalties are the employer’s size, history of previous violations and good faith and the gravity of the violation. Respondent, with less than 20 employees and only five on this job (Tr. 38) is classed as a small employer. This was his first inspection, so he had no history of previous violations. His good faith was not questioned. The gravity of the combined violations was fairly high, and at least three employees were exposed to fall hazards thereby. He has been found in violation of four standards and he did not contest another item in the same citation.

After considering all of the criteria, I am of the opinion that the proposed penalty of $500 is excessive and that $300 is appropriate.

FINDINGS OF FACT

1. The respondent, Rodney E. Fossett, is an individual doing business as a sole proprietorship under the name of Southern Lightweight Concrete Company. He uses materials and equipment moving in interstate commerce and is an employer engaged in business affecting commerce who has employees.

2. On August 17, 1976, respondent was engaged as a subcontractor in stucco work on a construction site at 4701 Western Avenue, Amarillo, Texas, and on said date said workplace was inspected by a duly authorized compliance officer of the Occupational Safety and Health Administration.

3. At said time and place two of respondent’s employees were exposed to the hazard of falling 12 feet to the ground from a tube and coupler scaffold on the west end of building #13 which had one plank in its platform which did not extend six inches beyond the end supports; did not have an access ladder or equivalent safe access; and the uprights of which were not securely and rigidly braced to prevent swaying.

4. At said time and place an employee of respondent was exposed to the hazard of a 10 foot fall to hard ground from a lean-to scaffold on the north side of said building. Said scaffold was built of wood similarly to a ladder with an unguarded 20‘ x 24‘ or 28‘ platform on top. It rested on two legs and leaned against the building for support, with the employee on the platform.

5. There was a substantial probability that an employee falling from either of said scaffolds would suffer death or serious physical injury.

CONCLUSIONS OF LAW

On the basis of the foregoing findings of fact, the following conclusions of law are made:

1. The Commission has jurisdiction of the parties and of the subject matter of this proceeding.

2. On August 17, 1976, respondent was in violation of 29 CFR 1926. §§ 451(a)(13), (15), and 20).

3. On August 17, 1976, respondent was not in violation of 29 CFR 1926.451(a)(12), and the citation and complaint should be amended to allege in lieu thereof a violation of 29 CFR 1926.451(a)(14) under Rule 15(b)., F.R.C.P., the matter having been fully litigated without objection.

4. The items included in the citation were properly grouped or combined as one serious violation.

ORDER

On the basis of the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Item 1B, as amended, for violation of 29 CFR 1926.451(a)(14), item 1C for violation of 29 CFR 1926.451(a)(13), item 1D for violation of 29 CFR 1925.451(a)(15), and item 1E for violation of 29 CFR 1926.451(a)(20), be and they hereby are affirmed as one serious violation, and a penalty of $300 is assessed.[19]

2. This proceeding be and it hereby is terminated.

DEE C. BLYTHE

ADMINISTRATIVE LAW JUDGE

Date: May 9, 1977

[1] Subpart L—Ladders and Scaffolds.

§ 1926.451 Scaffolding

(a) General Requirements.

(12) All planking of platforms shall be overlapped (minimum 12 inches), or secured from movement.

[2] § 1926.451 Scaffolding

(a) General Requirements.

(14) Scaffold planks shall extend over their end supports not less than 6 inches nor more than 12 inches.

[3] § 1926.451 Scaffolding

(a) General Requirements.

(13) An access ladder or equivalent safe access shall be provided.

[4] These two alleged violations were included in a single citation alleging a serious violation of five separate standards. In addition to the allegations at issue here, the citation alleged a lack of guardrails on a scaffold (§ 1926.451(a)(4)); inadequate bracing of the scaffold (§ 1926.451(a)(15)); and improper use of a lean-to scaffold (§ 1926.451(a)(20)). The judge affirmed the alleged violations of § 1926.451(a)(15) and § 1926.451(a)(20). Respondent excepted to the judge’s ruling on the alleged violation of § 1926.451(a)(15); however, review was not directed on that or the alleged violation of § 1926.451(a)(20). Fossett did not contest the alleged violation of § 1926.451(a)(4), and it became a final order of the Commission pursuant to 29 U.S.C. § 659(a).

[5] Rule 15(b) provides:

(b) AMENDMENT 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. 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.

[6] In its letter dated July 5, 1977, the respondent contends that liability based on an unpleaded standard is tantamount to a denial of a fair and impartial hearing. Claims of partiality based on the judge’s substantive rulings do not afford an independent ground for review. Cf. United States v. Grinnel Corp., 384 U.S. 563, 583 (1966) (bias and prejudice are disqualifying only if they result in an opinion on the merits on some basis other than what the judge learned from his participation in the case).

[7] 29 C.F.R. § 2200.2(b) reads as follows:

Rule 2 Scope of Rules: applicability of Federal Rules of Civil Procedure.

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

[8] In the McLean-Behm case supra, we held that where, as in this case, an amendment changes the legal theory from that alleged in the citation, consent to the amendment will be implied where the party opposing the amendment has not objected to the introduction of evidence relevant to the unpleaded charge and is not prejudiced by the amendment. In McLean-Behm, the evidence introduced was relevant to both pleaded and unpleaded issues and, therefore, it was not clear that the parties had notice of the trial of an unpleaded issue. Consequently, the Commission considered whether the employer would have been able to introduce additional evidence or present alternative defenses had the amendment been made before or during the hearing.

[9] Fossett argues that a ladder built into the scaffold is permissible because another standard, § 1926.451(c)(5), requires that manually propelled mobile scaffolds be provided with ladders built into the scaffold. We agree that § 1926.451(a)(13) permits the use of a built-in ladder. That, however, is not the question. The violation here is predicated, not on the rungs being part of the scaffold framework, but on their failure to conform to the requirements for ladders. Our conclusion would be equally applicable to rungs built into a manually propelled mobile scaffold that failed to conform to the requirements for ladders. Perini Corporation, 77 OSAHRC 65/A2, 5 BNA OSHC 1343, 1977–78 CCH OSHD ¶21,790 (No. 12589, 1977).

[10] Pursuant to ANSI A14.3–1956, Safety Requirements for Fixed Ladders, adopted by 29 CFR 1926.450(a)(5), a conforming ladder must have rungs uniformly spaced at intervals not to exceed twelve inches (§ 4.1.2) and be a minimum of sixteen inches in length (§ 4.1.3). The rungs here at issue were spaced approximately twenty to twenty-two inches apart and were only six to eight inches in length.

[11] As indicated at footnote, 7, supra, the rungs were slightly shorter than required by the standard, were not uniformly spaced, and were spaced somewhat farther apart than required.

[12] See footnote 4, supra.

[13] 29 C.F.R. § 1926.451(a)(12) provides:

All planking of platforms shall be overlapped (minimum of 12 inches), or secured from movement.

[14] The citation was issued to Southern Lighweight Concrete, but at the hearing it was established that this is a sole proprietorship owned by Mr. Fossett (Tr. 3). Accordingly, the caption is changed to its present form.

[15] This is consistent with the Commission’s liberal interpretation of Rule 33(b)(1) of its Rules of Procedure (requiring service of the answer within 15 days after service of the complainant) in such situations, e.g., Secretary v. Sanitas Cleaning Contractors, 10 OSAHRC 107 (1974); Secretary v. Superior Boat Works, Inc., Docket No. 12463, October 4, 1976, OSAHRC Reports 76/129/G2, CCH OSHD ¶ 21,159.

[16] Made applicable by Rule 2(b) of the Commission’s Rules of Procedure.

[17] § 17(k).

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.

[18] Section 17(j) of the Act.

[19] Although the penalty for item 1A is not at issue, the assessed penalty is intended to cover the entire citation since only one penalty was proposed and the fall hazard is the same for items 1A, 1B, 1C, and 1D. It is understood that no penalty has been paid for item 1A.