UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 8842
HENKELS & MCCOY, INCORPORATED
Respondent.

August 3, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

CLEARY, Commissioner:

On November 22, 1974, Judge Joseph L. Chalk issued his decision, denying the Secretary of labor’s motion to amend a citation, declaring 29 CFR § 1926.21(b)(2) unenforceable, and vacating a citation alleging a serious violation of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter ‘the Act’). The Secretary of Labor’s petition for review of the Judge’s decision was granted. The petition raised the following issues:

(1) Whether the Administrative Law Judge erred in denying the Secretary of Labor’s motion to amend the citation?

(2) Whether the Administrative Law Judge erred in finding the standard at 29 CFR § 1926.21(b)(2) so broad and nonspecific as to preclude its use as a basis for citation?

We answer both questions in the affirmative and remand for a full hearing on the merits of the amended citation.

On June 11, 1974, the respondent employer was issued a citation that alleged a violation of the ‘special duty’ requirements of section 5(a)(2) of the Act for failing to comply with 29 CFR § 1926.21(b)(2).[1] The citation described the violation in the following terms:

At the outside electrical substation adjacent to the Owens Corning Fiberglass Co. the employer failed to instruct his employees in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to eliminate hazards or other exposures to injury n that (2) employees were allowed to operate a Templeton Kenly 10 Ton Jack, Serial #839, in a unsafe manner. The two employees stood on the jack lever to exert force to operate the jack despite the manufacturer’s recommendation not to stand over the lever while the jack is in operation. One of the employees was subsequently fatally injured due to the jack levers action.

The alleged violation was characterized as ‘serious’ within the meaning of section 17(k) of the Act; a penalty of §600 was proposed.

After respondent submitted a timely notice of contest, the Secretary filed his Complaint, which essentially restated the factual allegations of the citation. The Secretary, however, also sought to amend his Complaint to allege in the alternative a violation of section 5(a)(1) of the Act, the ‘general duty’ clause. In pertinent part, the Complaint reads as follows:

On June 6 and 11, 1974 at an electrical substation located at Fiberglass Road, Barrington, New Jersey the respondent violated 29 C.F.R. 1926.21(b)(2) promulgated pursuant to section 6 of the Act in that respondent failed to instruct each employee in the recognition and avoidance of unsafe conditions and in the regulations applicable to his work environment for eliminating hazards or exposure to injury. The Respondent did not instruct two employees in the proper use of a Templeton Kenly 10 ton jack by permitting two employees to operate the jack by standing on its lever, contrary to recommendations by the manufacture[r] of the jack that persons should stand clear of the lever while in operation. As a result of respondent’s ommission [sic], an accident occurred which resulted in a fatal injury to Lawrence Duffey, one of the respondent’s employees.

The Secretary hereby amends his citation issued on June 18, 1974, pursuant to Rule 33 of the Occupational Safety and Health Review Commission Rules of Procedure to plead in the alternative that on June 6 and 11, 1974, at an electrical substation located at Fiberglass Road, Barrington, New Jersey, respondent violated the provisions of section 5(a)(1) of the Act by failing to furnish its employees with employment and a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm.

The respondent permitted two employees to operate a Templeton Kenly, 10 ton jack by standing on its lever contrary to recommendations by the manufacturer of the jack that persons should stand clear of the lever while in operation. As a result, an accident occured [sic] which resulted in a fatal injury to Lawrence Duffey, one of the respondent’s employees.

The Secretary amends his citation to plead the above application provision of the Act in the alternative because the description of the vioaltion [sic] satisfies the requirements of either the standard cited in paragraph V above and for section 5(a)(1) of the Act.

In its Answer, respondent asserted that the motion to amend was improper, and raised the affirmative defense that the cited standard was invalid for want of specificity.

On October 7, 1974, Judge Chalk ordered the Secretary to show cause why the citation should not be vacated. After briefs were filed, the Judge vacated the citation on the ground that the cited standard uses broad, introductory language and cannot be the basis for a valid citation. He also denied the Secretary4’s motion He also denied the Secretary’s motion ‘totally new charge.’

II.

We shall first deal with the matter of the amendment. We note at once the general principle that a citation is not the sole vehicle by which a contesting employer may be notified of an alleged violation. See J. L. Mabry Grading, Inc., 9 OSAHRC 98, 108, BNA 1 OSHC 1211, CCH 1971–73 OSHD para. 15,686 (No. 285, April 27, 1973). The Commission has accordingly made provision for the amendment the pleadings of contested citations. Commission Rule 33(a)(3) 29 CFR 2200.33(a)(33), states the following:

Where the Secretary seeks in his complaint to amend his citation . . . , he shall set forth the reasons for the amendment and shall state with particularity the change sought.

On its face, the Secretary’s motion falls well within the plainly worded terms of the Rule. The change sought has been stated with particularity. It is also sufficiently clear that the amendment is sought so that a decision on the merits will be made if the standard is found to be inapplicable or invalid.[2] Respondent suggests, however, that facial compliance with Rule 33(a)(3) is not enough, and that the Rule should not be applied in a manner that would do violence to the language or purpose of the Act. We agree. If so understood and applied, however, Rule 33(a)(3) should not transgress these bounds. We have recognized the Congressional concern in section 9(a) of the Act that the prompt abatement of hazards is aided when employers are informed with particularity of the violative condition to be corrected. See e.g., Concrete Construction Corp., BNA 4 OSHC 1133, CCH 1975–76 OSHD para. 20,610 (No. 2490, April 8, 1976). To this end Rule 33(a)(3) requires that an amendment of the citation sought by the Secretary be stated with the same degree of particularity that is originally required. The amended citation must enable the employer to identify adequately and correct the conditions it addresses. Cf. National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1264 & n.31 (D.C. Cir. 1973). Equally important, however, is the avoidance of a rigid application of the Rule in a manner that may cripple effective enforcement. Initial determinations by the Secretary’s safety or health experts to refer in the citation to a particular section or standard may, upon subsequent review by the Secretary’s legal staff, be found wrong. The cited standard may, for example, have been found to have been invalid[3] or inapplicable as a result of previous litigation. These matters are not within the professional expertise of compliance personnel who may lack legal skills. It accordingly follows that as a matter of administrative practicality, Rule 33(a)(3) may be applied so as to change the allegations of the original citation.

Respondent argues, however, that the Rule’s proper application is limited to insubstantial amendments of form or language, and cannot serve to change the legal theory of the case. Plainly stated, respondent argues that once issued, a citation freezes the legal theory of the case, and cannot be substantially amended. The argument, however, is founded upon a faulty premise, and must therefore be rejected. We are not dealing here with an attempt to amend pleadings in well-developed litigation. To argue whether the amendment would introduce untried factual issues misses the mark because there has not yet been a hearing. And in general, questions of prejudice rarely attain significance when the case is still in the pleading stage. This is not to say that the introduction of new matter is necessarily irrelevant. For example, if an attempt to amend occurred more than six months after an alleged violation (section 9(c), last sentence), then under Fed. R. Civ. P. 15(c), such considerations would become important. See Bloomfield Mechanical Contracting, Inc. v. O.S.H.R.C., 519 F.2d 1257, 1262 (3d Cir. 1975). Cf. Vincent Rizzo Constr. Co., BNA 3 OSHC 1841, CCH 1975–76 OSHD para. 20,236 (No. 4224, December 22, 1975). Also, if the amendment were to cause a substantial incurable injustice stemming for example from surprise, we would refuse to permit it. But these problems do not appear here. The amendment was filed well within the six-months limitation period. Permitting it can hardly be said to create an injustice as a result of surprise, for it would not change the underlying factual predicate of the case. It would only add an alternate theory of the case, for which the proof would be essentially the same. Moreover, respondent claims no injustice as a result of surprise.

Respondent also urges that because a citation must be posted, and a complaint need not be, the complaint may not make substantive changes in the citation. Henkels & McCoy has no standing to raise this issue. The posting requirement is provided for the benefit of employees rather than the employer. See Brennan v. O.S.H.R.C. and Bill Echols Trucking Co., 484 F.2d 230, 236 (5th Cir. 1973). Cf. Lee Way Motor Freight, Inc., BNA 3 OSHC 1843, 1846, CCH 1975–76 OSHD para. 20,250 at 24,144, 24,145 (No. 7674, December 22, 1975). Moreover, a copy of the complaint would be available for inspection by employees.[4] Also, so far as employees are concerned, the change could hardly be considered substantive. Under these circumstances, we find no reason why Rule 33(a)(3) should not be applied.[5] The Secretary’s motion to amend is granted.

We also find nothing objectionable about pleading or citing violations of subsections (1) and (2) of section 5(a) in the alternative. See Sun Shipbuilding & Drydock Co., 4 OSAHRC 1020, BNA 1 OSHC 1381, CCH 1971–73 OSHD para. 16,725 (No. 161, October 3, 1973) (concurring opinion). Fed. R. Civ. P. 8(a) clearly states that ‘[r]elief in the alternative . . . may be demanded.’ Fed. R. Civ. P. 8(e) provides that ‘[a] party may set forth two or more statements of a claim . . . alternatively . . ..’ It is no answer that the section 5(a)(1) claim may eventually be found to lack merit because the section 5(a)(2) claim would, if proved, displace it. Fed. R. Civ. P. 8(e) specifically states that ‘[a] party may also state as many claims . . . as he has regardless of consistency . . .’ The complaint states a claim upon which relief may be granted and that is sufficient.[6]

III.

We turn now to the merits of the original section 5(a)(2) allegation. We do not adopt the Judge’s view that 29 CFR § 1926.21(b)(2) is unenforceable on the ground that it is broad, introductory or nonspecific, or that it cannot be applied when a specific hazard is caused by a failure to instruct one’s employees. Nothing in the Act forbids the adoption of standards which address a broad range of hazards or which speak in general terms. In Eichleay Corporation, 15 OSAHRC 635, BNA 2 OSHC 1635, CCH 1974–75 OSHD paras. 19,324, 16,811 (No. 2610, February 20, 1975), we specifically approved Judge Burroughs determination that a similar standard, which refers generally to unsafe conditions and refers the employer to other standards, is enforceable. In his opinion Judge Burroughs stated:

The argument that the phrase ‘hazardous condition’ contained in 29 CFR 1926.28(a) contravenes Section 5(a)(1) of the Act in essence infers that the Secretary is prohibited from using the word ‘hazard’ in a standard. There is nothing in the Act or legislative history which remotely suggests that Section 5(a)(1) was enacted to achieve this result. The general duty provisions of Section 5(a)(1) were enacted to provide protection for employees where no standards existed to cover a condition which constituted a recognized hazard. In this case the phrase ‘hazardous conditions’ is used in a duly promulgated standard and takes precedence over the general duty clause. The standard is not unenforceable merely because it contains the word ‘hazard.’

We also find no merit in respondent’s argument that the cited standard is unconstitutionally vague. The standard is broad but clear. It requires: (1) instruction in safety measures and applicable regulations, and (2) instruction on how employees may recognize and thereby avoid unsafe conditions. See Brennan v. Butler Lime & Cement Co., 520 F.2d 1011 (7th Cir. 1975) (by implication); Ames Crane & Rental Service, Inc. v. Dunlop, No. 75–1591 (8th Cir., April 1, 1976) (same).[7] The scope of the remand will accordingly reach to the section 5(a)(2) allegations.

We make one more comment on this issue. In substance, the Judge decided the case on the pleadings. It is well settled that a motion under Fed. R. Civ. P. 12(b)(6) may not be granted ‘unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.’ Smith’s Transfer Corp., BNA 3 OSHC 1088, CCH 1974–75 OSHD para. 19,544 (No. 5786, April 18, 1975), quoting and citing authorities. Though no hearing was held, the Judge’s conclusion of law that the cited standard is unenforceable relies heavily on ‘the factual setting of this case.’ We therefore note that the Judge’s finding of invalidity should not in any event have been made until the record was fully developed. See River Terminal Railway Co., BNA 3 OSHC 1808, CCH 1975–76 OSHD para. 20,215 (No. 4419, December 12, 1975).

In view of the delay of this case, we order an expedited and full hearing. The Administrative Law Judge shall prepare findings of fact and conclusions of law, based on the presentations of both parties. See generally, White v. Rimrock Tidelands, Inc., 414 F.2d 1336, 1340 (5th Cir. 1969).

The Judge’s decision is reversed, and the case is remanded for further proceedings consistent with this opinion. So ORDERED.

FOR THE COMMISSION:

William S. McLaughlin

Executive Secretary

DATED: AUG 3, 1976

MORAN, Commissioner, Dissenting:

Judge Chalk correctly decided this case in a well-reasoned decision, which is attached hereto as Appendix A, and that decision should be affirmed. I am in complete agreement with Judge Chalk that complainant’s motion to amend the citation to allege an alternative charge is incorrect in law and, further, that 29 C.F.R. § 1926.21(b)(2) is not enforceable because its vagueness precludes it from qualifying as an occupational safety and health standard.

Complainant’s effort to insert a 29 U.S.C. § 654(a)(1) charge into the pleadings by amendment is a simple contravention of the mandatory requirement that citations shall describe:

‘. . . with particularity the nature of the violation, including a reference to the provision of the chapter, standard, rule, regulation, or order alleged to have been violated.’ 29 U.S.C. § 658(a) (emphasis supplied).

In the case before us the respondent was initially issued a citation alleging a failure to comply with 29 C.F.R. § 1926.21(b)(2) because respondent failed to instruct its employees in use of a Templeton Kenly jack. Thereafter, a complaint was filed which attempted to amend the citation to add an alternative charge that respondent violated 29 U.S.C. § 654(a)(1), the so-called general duty clause, by permitting its employees to operate this jack in an unsafe manner.

As I have previously pointed out in some detail,[8] the liberal amendment rules provided in Rule 15 Federal Rules of Civil Procedure, do not apply to the amendment of a job safety citation because it is a unique creature of statute to which Congress attached the particularity requirements enumerated in 29 U.S.C. § 658(a). Considering those requirements, it is clear that at most only minor editorial changes are permissible under Commission Rule 33(a)(3). Obviously, the Commission cannot circumvent the intent of Congress by construing its own procedural regulations in a manner that conflicts with congressional intent. However, that is exactly what the Commission is doing by allowing complainant to add a totally new charge in the complaint as no citation has been issued which sets out that particular allegation.

As one final observation on this matter I note that although my colleagues cite footnote 31 of National Realty and Construction Company, Inc. v. OSAHRC, 489 F.2d 1257 (D.C. Cir. 1973), they completely disregard its content in disposing of this case. In particular, I refer to the Circuit Court’s statement that

‘[A]n employer cannot be penalized for failing to correct a condition which the citation did not fairly characterize.’ (Emphasis supplied.)

A citation, of course, does not fairly characterize an allegation which adds a totally new charge.

As I stated at the outset, I fully agree with Judge Chalk’s conclusions regarding the vagueness of 29 C.F.R. § 1926.21(b)(2). Those conclusions are consistent with several Circuit Court decisions. For example, Brennan v. OSAHRC and Raymond Hendrix, d/b/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975), holds that an employer is not liable for an alleged violation of the Act unless the complainant establishes that the employer knew or should have known of the violation. Where a standard is as vague as the instant one, an employer has no notice of what he is supposed to do and, therefore, cannot have possessed the requisite knowledge which is necessary to support a violation.

As the United States Court of Appeals for the Fifth Circuit so appropriately stated in Diamond Roofing Company v. osahrc, 528 F.2d 645, 649 (5th Cir. 1976):

The respondents contend that the regulations should be liberally construed to give broad coverage because of the intent of Congress to provide safe and healthful working conditions for employees. An employer, however, is entitled to fair notice in dealing with his government. Like other statutes and regulations which allow monetary penalties against those who violate them, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents.

***

‘If a violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express. . . . We recognize that OSHA was enacted by Congress for the purpose stated by the respondents. Nonetheless, the Secretary as enforcer of the Act has the responsibility to state with ascertainable certainty what is meant by the standards he has promulgated.

The standard here in issue does not meet these requirements.

Finally, I must disagree with the ‘DECISION’ label on the first page of the lead opinion. After attempting to decipher the gibberish in the concurring opinion, it is obvious to me that there is no decision in this case. Chairman Barnako has simply not taken a position on the two salient issues that are before the Commission.[9] It is quite clear, however, that he has not registered agreement with Commissioner Cleary thereon. Therefore, the action purportedly ordered in the lead opinion is invalid because ‘official action can be taken only on the affirmative vote of at least two members’ of the Commission. 29 U.S.C. § 661(e). Since no two members of the Commission have voted to hold the Judge in error on the issues before it, the action ordered by Commissioner Cleary’s opinion is null and void. See Shaw Construction Inc. v. OSAHRC, —— F.2d ——, 5th Cir., No. 75–3495, decided July 12, 1976.

In many decisions my colleagues have been making a concentrated effort to downgrade the posture of decisions rendered by Judges of this Commission. In some of the discussions, consistent with the last paragraph of footnote 5 of the lead opinion in the instant case, they have taken the position that decisions of Judges which are not reviewed by the Commission members have no precedential value. See, e.g., Secretary v. Leone Construction Company, OSAHRC Docket No. 4090, February 10, 1976, in which, as in all of these decisions, I recorded my disagreement with that concept. Furthermore, Chairman Barnako has consistently used misnomers such as ‘report’ or ‘recommendation’ when referring to decisions of Commission Judge’s. See, e.g., Secretary v. Ringland-Johnson, Inc., OSAHRC Docket No. 3028, June 16, 1976. In view of such action, I am unable to understand how the Chairman can condone the use of the ‘DECISION’ label at the outset of this document.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 8842
HENKELS & MCCOY, INCORPORATED
Respondent.

FINAL ORDER DATE: December 23, 1974

DECISION AND ORDER

Chalk, Judge

This case presents the following two questions:

Whether the charge that Respondent violated 29 USC 654(a)(2) by not complying with 29 CFR 1926.21(a)(2) is correct in law, and

Whether the Secretary, in his Complaint, may be permitted to amend the Citation to allege in the alternative another violation different from that charged in the Citation.

My answer to both of these questions is in the negative and the Citation for Serious Violation and proposed penalty assessment accordingly will be vacated without a hearing.

The Citation for Serious Violation charged Respondent with the following alleged violation:

29 CFR 1926.21(b)(2) ‘At the outside electrical substation adjacent to the Owens Corning Fiberglass Co. the employer failed to instruct his employees in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to eliminate hazards or other exposures to injury in that (2) employees were allowed to operate a Templeton Kenly 10 Ton Jack, Serial #839, in an unsafe manner. The two employees stood on the jack lever to exert force to operate the jack despite the manufacturer’s recommendation not to stand over the lever while the jack is in operation. One of the employees was subsequently fatally injured due to the jack levers [sic] action.’

Respondent duly contested this charge.

When he filed his Complaint, the Secretary, in paragraph VI thereof, purported to amend the Citation in the following manner:

‘The Secretary hereby amends his citation issued on June 18, 1974, pursuant to Rule 33 of the Occupational Safety and Health Review Commission Rules of Procedure to plead in the alternative that on June 6 and 11, 1974, at an electrical substation located at Fiberglass Road, Barrington, New Jersey, respondent violated the provisions of section 5(a)(1) of the Act by failing to furnish its employees with employment and a place of employment which was free from recognized hazards that were causing or were likely to cause death or serious physical harm.

‘The respondent permitted two employees to operate a Templeton Kenly, 10 ton Jack by standing on its lever contrary to recommendations by the manufacturer of the jack that persons should stand clear of the lever while in operation. As a result, an accident occured [sic] which resulted in a fatal injury to Lawrence Duffey, one of the respondent’s employees.

‘The Secretary amends his citation to plead the above applicable provision of the Act in the alternative because the description of the violation [sic] satisfies the requirements of either the standard cited in paragraph V above and for section 5(a)(1) of the Act.’

The two questions will be discussed seriatim.

29 CFR 1926.21, the basis of the charge in this case, is a part of Subpart C of the construction standards entitled ‘General Safety and Health Provisions.’ For the most part, this entire subpart, as its title indicates, is general in nature and serves as an introduction to specific standards that follow in other subparts. Hence, many of its subsections, after making broad and general statements, direct attention to other subparts that specifically inform employers what they must do or not do (see 29 CFR 1926.21(b)(5), 29 CFR 1926.23, 29 CFR 1926.24, 29 CFR 1926.26, 29 CFR 1926.27, and 29 CFR 1926.28, as examples).

Standing alone, many of the subsections under Subpart C cannot serve as a basis for a charge against an employer, for want of specificity. Thus, Judge James D. Burroughs set aside a charge involving 29 CFR 1926.20(a) on the ground that that subsection was nonspecific and did no more than impose a general duty upon employers not to allow their employees to work under conditions which were unsanitary, hazardous or dangerous to health and safety (Secretary v. Rentenbach Engineering Co., McDowell-Purcell, Inc., 1 OSAHRC 1033(1972)). Other judges of the Commission have reached the same conclusion with respect to 29 CFR 1926.20(b)(1) and (2) (Secretary v. Granite-Seabro Corp., Docket No. 923, July 31, 1973; Secretary v. AMP Construction Co., 2 OSAHRC 1251 (1973)).

29 CFR 1926.21, the subsection involved in this case, also employs broad, introductory language that raises a serious question as to whether it is legally sufficient to serve as a basis to charge an employer with a violation of the Act (see Secretary v. Keibler Industries, Inc., Docket No. 1689, June 28, 1973; see also Secretary v. Granite-Seabro Corp., supra). At the very least, its language is so broad and nonspecific as to preclude its use as the basis for a charge that involves solely a particular condition believed to constitute a chargeable hazard under the Act (Id.). This subsection is entitled ‘Safety training and education,’ and subparagraph (a) thereof places responsibility upon the Secretary of Labor to establish and supervise training programs for both employers and employees in the recognition, avoidance and prevention of unsafe conditions in the work environment. After stating in subparagraph (b)(1) that the employer ‘should’ avail himself of such programs, subparagraph (b)(2), that in issue, provides as follows:

‘The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.’

The charge in this case was predicated upon a specific, hazardous condition and a related fatal accident. Accordingly, it is legally deficient and must be set aside (Secretary v. Keibler Industries, Inc., supra; Secretary v. Granite-Seabro Corp., supra; Secretary v. AMP Construction Co., supra).[10]

Proposed amendments to Citations attempting to charge alternative violations not included in the Citation seems to have become a popular practice with counsel since the promulgation of the concurring opinion in Secretary v. Sun Shipbuilding and Drydock Co., Docket No. 161, October 3, 1973. Indeed, the Secretary relies primarily on this opinion to support his proposed amendment in this instance. But what the Secretary apparently overlooks is the important fact that the opinion relied upon addressed itself to ‘citations issued in the alternative’ or, more precisely, to alternative charges alleged in citations, a procedure vastly different and apart from that which proposes to introduce new charges into the proceedings not mentioned in the Citation, as in this case. Such a procedure does not comport with the law (Secretary v. Roof Engineering Corp., Docket No. 6972, September 17, 1974).

A Citation is unique to the safety and health statute, setting the stage for many important steps in the enforcement and adjudicatory procedures that follow its issuance. In the first instance, it is the designated document by which the Secretary is required to notify the employer ‘with particularity’ of the nature of the violation (29 USC 658(a)). In the last instance, it serves as the final, unimpeachable order of this Commission where no contest is filed by the employer or an employee or his representative (29 USC 659(a)). In between these two perimeters, it sets the tone for the proceedings before this Commission by informing the Commission of what the Secretary thinks the employer did wrong, the disputed issue in light of the timely contest of the charge. But even the Citation itself has its limitations, for it is unenforceable against an employer unless and until the employer is notified of the penalty the Secretary proposes for the alleged violation (29 USC 659(a)). There are also other important limitations attached to it by statute in that it not only must be issued with reasonable promptness, but it must be issued within six months of the occurrence of the alleged violation (29 USC 658(a) and (c)).

Where a contest of a Citation is timely filed, jurisdiction over the cause immediately vests with this Commission by operation of law (Secretary v. FMC Corp.-Fibers Div., et al, Docket No. 5355, July 17, 1974). The addition of a totally new charge from that stage of the proceedings on, by whatever means, would in effect not only place this Commission in the business of writing Citations, a procedure I am certain the Congress never intended (see Dale M. Madden Construction, Inc. v. James D. Hodgson, Secretary of Labor et al, No. 72–1874 (9th Cir., July 29, 1974)), but would circumvent other important procedures required by the statute, such as the issuance of a Citation and its service upon the employer, the issuance of the Notification of Proposed Penalty and its service upon the employer, thereby breathing life into the Citation and invoking the running of the fifteen working day contest period, The election accorded the employer and employee to contest or not to contest, and the posting of Citations.

In sum, the Citation is not a document that can be treated lightly, much less cast aside, as the Secretary’s proposed amendment and argument of counsel necessarily imply. Yet that would be the result were the Secretary’s motion granted in this case, for the proceedings would then involve two charges instead of the one alleged in the Citation.[11]

The Secretary also argues that National Realty and Construction Company, Incorporated v. Occupational Safety and Health Review Commission et al, 489 F2d 1287 (1973) supports his proposed amendment. His reliance on this decision, however, is similarly misplaced, for the Court’s remarks therein must be read in the contest in which they were made (I. A. Watson, Jr., et al v. City of Memphis, Tenn., 83 Sp. Ct. 1314, 373 US 526 (1963); White v. Aronson, 58 Sp. Ct. 95, 302 US 16 (1937); 248 US 113 (1918); Westway Theatre, Inc. 248 US 113 (1918); Westway Theatre, inc. v. Twentiety Century-Fox Film Corp. et al, 30 Fed. Sup. 830 (D.C. Md., 1940)).

A cursory examination of National Realty reveals that the Court was carefully analyzing the allegations of the Citation, construing them liberally, and then concluding that these allegations were sufficiently broad to permit the Secretary to adduce evidence tending to show that National Realty’s lack of a safety program was the primary cause of the fatal accident. And the Court’s additional remark that so long as fair notice is afforded the parties, an issue litigated at the hearing may be decided by the hearing agency ‘even though the formal pleadings did not squarely raise the issue,’ is consistent with this interpretation. In the context of the case, it would be clearly incongruous to conclude that the Court meant to equate the phrase ‘did not squarely raise’ with the phrase ‘did not raise.’ Therefore, National Realty was not even remotely concerned with the proposed in this case. Rather, it dealt with issues, amendments and proof reasonably flowing directly from a liberal construction of the allegations of the Citation.

The proposed amendment in this case to introduce an alternative charge into the proceedings is incorrect in law. The motion to amend, accordingly, must be denied.

III

Inherent in the foregoing are the following conclusions of law:

1. That this Commission has jurisdiction over the cause.

2. That Respondent did not violate 29 USC 654(a)(2) by not complying with 29 CFR 1926.21(b)(2), as that regulation cannot serve as a basis for a charge in the factual setting of this case.

3. That the Secretary’s motion to amend the Citation to allege an alternative charge is incorrect in law.

The motion to amend the Citation is denied and the Citation and Notification of Proposed Penalty are vacated without a hearing.

So ORDERED.

JOSEPH L. CHALK

Judge, OSHRC

November 22, 1974

[1] § 1926.21 Safety training and education.

(b) Employer responsibility.

(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

[2] Consideration of the motion is appropriate because of the possibility that a developed record may reveal the inapplicability of the cited standard, and the possibility that a reviewing court may disagree on the validity issue. Atlantic & Gulf Stevedores, Inc. v. O.S.H.R.C., infra supra, note 3; Arkansas-Best Freight System, Inc. v. O.S.H.R.C., 529 F.2d 649 (8th Cir. 1976).

[3] In this case, respondent claims that the standard is, and has already been declared, invalid. See note 7, infra. A divided Commission has taken the position that it can review the validity of standards. Santa Fe Trail Transport Co., BNA 1 OSHC 1457, CCH 1973–74 OSHD para. 17,029 (No. 331, December 18, 1973) (dissenting opinion), rev’d, 505 F.2d 869 (10th Cir. 1974). See Atlantic & Gulf Stevedores, Inc. v. O.S.H.R.C., No. 75–1584 (3d Cir., March 26, 1976).

[4] Commission Rule 7(g) requires that employees be informed of where pleadings may be inspected.

[5] We have considered other objections and we find them to lack force. The Judge’s opinion, for example, disapproves of the Commission rewriting citations. We agree that the Commission should not engage in a prosecutorial role. But granting a timely and otherwise meritorious motion of a party does not do this. General Electric Co., 17 OSAHRC 49, 60, 62 n.20, BNA 3 OSHC 1031, 1039, 1040 n.20, CCH 1974–75 OSHD para. 19,567 (No. 2739, April 21, 1975). As to the service upon the employer of the citation and notification of proposed penalties, it is enough that he is notified of the amendment to the citation when he is served with the Secretary’s Complaint. Rules 33(a)(2)(iii) and 33(a)(3) require that he be so informed. As to the 15-day contest period, we note that in every case where a Complaint amends a citation, the employer has already filed a notice of contest.

Finally, we note that although not without significance, the Judge’s unreviewed decisions holding that a citation once issued may not be amended by a complaint are not precedent binding upon the Commission. Leone Construction Co., BNA 3 OSHC 1979, 1981, CCH 1975–76 OSHD para. 20,387 (No. 4090, February 10, 1976), petition for review dismissed per stipulation, No. 76–4070 (2d Cir., May 17, 1976).

[6] The application of the displacement principle of Brisk Waterproofing Co., 3 OSAHRC 1132, BNA 1 OSHC 1263, CCH 1973–74 OSHD para. 16,345 (No. 1046, July 27, 1973) must await the receipt and evaluation of all the evidence. We note this point because upon the remand we expect that evidence relevant to the alleged section 5(a)(1) violation may well be introduced. The displacement principle will not serve as a valid ground to exclude such evidence. The two alternative theories must be treated equally until the section 5(a)(2) allegations may be said to fail for lack of proof.

[7] The Commission decision in Granite-Seabro Corp., 11 OSAHRC 1, BNA 2 OSHC 1163, CCH 1974–75 OSHD para. 18,470 (No. 923, August 16, 1974) does not compel a different result. We there affirmed a Judge’s decision on the ground that it contained no prejudicial error. The Judge’s decision rested primarily on his finding that the Secretary failed to carry his burden of proof; the unenforceability finding was but an alternative holding and cannot be considered to have been finally adopted as correct.

* The Federal Rule applies since the Commission has not promulgated a rule concerning alternative pleadings. However, on June 29, 1976, we did publish an advance notice of proposed rulemaking whereby we requested comments on all of our Rules. I, for one, would welcome comments on the question of alternative pleadings.

[8]Secretary v. Warnel Corporation, OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion).

[9] In Secretary v. P & M Sales, Inc., OSAHRC Docket No. 3443, May 3, 1976, Chairman Barnako had no trouble in concluding that a change from a charge of failing to provide eye and face protection to a charge involving the failure of employees to wear that equipment would introduce a totally different charge. Accordingly, it is strange that he cannot now see that a charge based on a failure to instruct is distinguishable from one involving operation of equipment.

[10] If a standard covers the hazard, noncompliance with that standard should be charged. If a standard does not cover the hazard, a violation of 29 USC 654(a)(1) should be charged.

[11] I note that Judge Donald K. Duvall expressed somewhat the same view in Secretary v. Dorey Electric Co., Urban Builders, Inc., and Craft Construction Co., Docket Nos. 4598, 4626, and 4627 (consolidated) (July 29, 1974), where a similar motion was made.