UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 285

J.L. MABRY GRADING, INC.,

 

                                              Respondent.

 

 

ORDER OF REMAND

April 27, 1973

Before VAN NAMEE and BURCH, Commissioners

VAN NAMEE, COMMISSIONER:

On June 22, 1972, Judge John J. Larkin issued an Order denying the Secretary’s motion to amend its Complaint and granting Respondent’s motion for judgment on the pleadings in its favor.

Pursuant to the authority vested in the members of the Commission by section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the ‘Act’), on July 10, 1972, I directed that the Judge’s order be reviewed by the Commission. For the reasons given hereafter we reverse and remand.

On November 22, 1971, Complainant issued to Respondent a citation for an alleged serious violation of 29 C.F.R. 1518.602(a)(9)(i–iii) for failure to provide backing alarms or a signalman for dump trucks with obscured rear vision. A penalty of $600 was proposed. Thereafter Respondent duly filed a notice of contest and proceedings were initiated before this Commission.

The record reflects that on January 26, 1972, Respondent filed its motion for judgment on the pleadings based on the ground that the cited subsection of the regulation was not in effect at the time of the alleged violation.[1]

 

In response, Complainant moved to amend the complaint to allege a violation of 29 C.F.R. 1518.601(b)(4)(i–ii) (now 29 C.F.R. 1926.601(b)(4)(i–ii)), prohibiting the operation of ‘any motor vehicle equipment’ with an obstructed rear view unless an audible reverse signal alarm or observer is provided.

This motion was denied by the Judge, primarily on the basis that the citation charging a violation of a regulation not then in effect must be dismissed for failure to comply with section 9(a) of the Act. This statutory provision requires that a citation must describe ‘with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.’

We are of the opinion that the trial Judge in disposing of this matter has framed and decided the wrong issue. The subject citation comports with the notice requirements set forth in Section 9(a) of the Act. It provides a plain statement of the factual conditions considered to constitute a violation of the Regulations. The Respondent was apprised of the subject facts so that it could take proper corrective action and/or file a notice of contest or otherwise defend itself in this matter. Consequently the citation complies with the concept of proper notice in an administrative proceeding as expressed in American Newspaper Publishers Association v. NLRB, 193 F.2d 782, 800 (7th Cir. 1951), aff’d 345 U.S. 100 (1953), quoting, NLRB v. Piqua Munising Wood Products Co., 109 F.2d 552, 557 (6th Cir. 1940):

The [National Labor Relations] Act does not require the particularity of pleading of an indictment or information, nor the elements of a cause like a declaration at law or a bill in equity. All that is requisite in a valid complaint . . . is that there be a plain statement of the things claimed to constitute an unfair labor practice that respondent may be put upon his defense.

 

In view of the above, we find that the issue is not whether the citation must be dismissed for failure to comply with Section 9(a) of the Act. Rather the threshold issue in this case is whether a defective citation may be cured by a subsequent pleading in a proceeding brought pursuant to Section 10 of the Act.

The Commission has not elected to regard the citation as the sole vehicle by which an employer would be notified of its alleged violation once a notice of contest has been filed. Pursuant to Section 12(g) of the Act we provided for the issuance of a Complaint and Answer in our Interim Rules, in effect at the time the Judge rendered his decision herein, should a citation be contested. In addition, Interim Rule 2(a) provided that in the absence of a Commission Rule all proceedings shall be conducted in accordance with the Federal Rules of Civil Procedure.

Since no provision respecting amendments of pleadings existed in the Interim Rules, Federal Rule 15 is controlling in this case. This Rule provides for amended and supplemental pleadings and states inter alia that leave to amend shall ‘be freely given when justice so requires.’[2]

Accordingly we find that the defective citation in this case may be cured by a subsequent pleading. However, the answer to this threshold question does not, standing alone, dictate the proper disposition of this matter. For we must still determine if the Complainant in the particular circumstances of this case should have been granted leave to amend its Complaint.

The Supreme Court in interpreting Rule 15 has observed that, ‘The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.’ Conley v. Gibson, 355 U.S. 41, 48 (1957).

Indeed this very philosophy underlies the decision in American Newspaper, supra, where the Complaint before the National Labor Relations Board incorrectly identified the subsection of the National Labor Relations Act which the Respondent in that case was alleged to have violated. In holding that the Board erred in dismissing the Complaint the Seventh Circuit Court of Appeals stated:

Where, as here, the complaint clearly describes an action which is alleged to constitute an unfair labor practice but fails to allege which subsection of the Act has been violated or alleges the wrong subsection, such failure or mistake, if it does not mislead the parties charged, does not prevent the Board from considering and deciding the charge so presented (193 F.2d at 800).

 

The particular circumstances of the matter on review do not raise the issue of whether Complainant by amendment of its citation may change the basic factual allegations of its citation. Nor do they present the issue of whether Complainant may change the legal basis of its case by amendment of the citation. Rather, Complainant seeks only to amend its citation and Complaint, filed herein, to set forth a different section of the governing regulations. In addition the newly alleged provision prohibits essentially the same practices as those regulated by the originally cited but inapplicable regulation.

We conclude that in the circumstances of this case Respondent was not misled or otherwise prejudiced by the allegation in the citation and Complaint of an inapplicable section of the governing regulations. Therefore we are of the opinion that to allow Complainant’s proposed amendment would be entirely consistent with the aforementioned principles as well as with the scheme of the Act itself.

Accordingly, it is ORDERED that (1) the order of the Judge be and the same is hereby set aside, (2) Complainant’s motion to amend is granted (3) the case is remanded to the Judge for further proceedings.

 

___________________________________________________________________________________________________

 

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 

 

SECRETARY OF LABOR,

 

                                             Complainant,

 

                         v.

OSHRC DOCKET NO. 285

J.L. MABRY GRADING, INC.,

 

                                              Respondent.

 

 

June 22, 1972

LARKIN, JUDGE, OSAHRC:

On November 22, 1971, the Secretary of Labor issued a Citation to respondent for serious violation of the Occupational Safety and Health Act citing Standard 29 CFR 1508.602(a)(9)(i–iii). The alleged violation is described as ‘Rear vision on dump trucks blocked by dirt carrier and not equipped with required backing alarms or presence of a required signalman.’ On December 10, 1971, respondent filed Notice of Contest. On December 17, 1971, the Secretary filed Complaint and alleged ‘On or about November 15, 1971, respondent violated 29 CFR 1518.602(a)(9)(i–iii) [cited as 1508.602(a)(9)(i–iii) in citation due to typographical error] and promulgated pursuant to section 6 of the Act at 29 CFR § 1910.12 . . .’ On December 27, 1971, respondent filed answer denying the foregoing allegation and on January 26, 1972, filed motion for judgment on the pleadings as ‘Said Section 1518.602(a)(9)(i–iii) was not in effect at the time of the alleged violation, nor is it now in effect, because it is only a proposed standard to which public hearings were held on November 10, 1971, and this standard has not to this date been finally promulgated.’ On February 4, 1972, the Secretary filed motion to amend the Complaint by substituting 29 CFR 1518.601(b)(4)(i–iii). In support of the motion to amend, the Secretary concedes that the standard cited in the Citation and Complaint was not effective on the date of the occurrence alleged. Prior to a ruling on these motions, respondent filed a motion for continuance as it had pending before the United States District Court, Northern District of Georgia, Atlanta, Division, a suit contesting the constitutionality of the Act. On order to afford respondent an opportunity to contest the constitutionality of the Act prior to litigating the case on its merits, the motion for continuance was granted on March 30, 1972. On May 23, 1972, the District Court decided that respondent’s action was premature as it had not exhausted its lower administrative appeals.

The Secretary relies upon the provisions of Rule 15(c) of the Federal Rules of Procedure pertaining to the relation back of an amendment to the original pleading if arising out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleadings. The Secretary emphasizes that there is no suggestion or showing by respondent that the Secretary’s motion to amend in any way prejudices the respondent’s ability to defend itself. The Secretary also cites Rule 15(a) of the Federal Rules of Civil Procedure specifying that leave to amend ‘. . . shall be freely given when justice requires . . ..’ The Secretary asserts that the statute is remedial in nature affecting the safety and health of all workers and its enforcement should not be hampered by procedural mechanics such as the right to amend pleadings.

The fallacy in the Secretary’s argument is that the issue involved goes beyond the question of the right to amend pleadings. Actually, the question that must be decided is whether the case should be dismissed as the Citation does not conform to the requirements of the Act and is ineffective.

Section 9(a) of the Act authorizes the Secretary to issue a citation which reasonable promptness if the Secretary believes

. . . an employer has violated a requirement of section 5 of this Act, or any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act . . .

 

Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.

 

Each citation issued under this section, or a copy or copies thereof, shall be prominently posted, as prescribed in regulations issued by the Secretary, at or near each place a violation referred to in the citation occurred.

 

No citation may be issued under this section after the expiration of six months following the occurrence of any violation.

 

The importance that the required detail be contained in the citation is self evident from the foregoing language as the citation provides notification not only to the employer but to the employee as well.

Under Section 6 of the Act, the Secretary is given authority to issue standards. As the Federal Register will verify, these standards run into the thousands covering voluminous pages. The difficulty in finding the appropriate standard is self evident in the present case as the incorrect standard was quoted not only in the citation, but the complaint as well. Even when properly cited, many of these standards propose difficulty for the legal profession to interpret, much less an employer, and especially a small employer without access to guidance.

Moreover, Section 10 of the Act is far reaching. An employer is without recourse if the time requirement elapses without filing a notice of contest after receipt of a citation. The impact of Section 17 is even far more devastating. The monetary penalty for a violation, whether serious or non-serious in nature can amount to $1,000 per violation. If willful or repeated, it can amount to $10,000 per violation. Failure to abate the condition can amount to $100 per day for a violation not of a serious nature and $1,000 per day if of a serious nature. Certainly, under such far-reaching provisions, an employer is entitled to receive proper initial notification and one in strict conformance with the requirements of Section 9 of the Act.

Such conclusion does not deprive the Secretary of recourse under the Act to correct his mistake. Under the provisions of Section 9, he has within six months from the occurrence to issue a corrected citation. Forcing such alternative is far better than misleading an employer to take incorrect action and fall victim through misunderstanding to the provisions of Sections 10 and 17. Moreover, to allow an invalid citation to be corrected by pleading could render the six-month limitation provision ineffective because the Secretary could extend the time limitation by correcting an invalid citation by pleading six months after the infraction.

The conclusion drawn herein is not meant to imply the Secretary cannot correct by pleading a typographical error or similar matter in the Citation. It does, however, conclude that the Secretary cannot use his pleading as a substitute for his responsibility to conform with the requirements of proper initial notification to an employer, and indirectly to an employee, as specified by the precise requirements of Section 9(a) of the Act. This is the only fair conclusion to be drawn to afford justice and due process under the specific terms of an act as far reaching as the provisions of this Act.

WHEREFORE, IT IS ORDERED:

That the Secretary’s motion to amend his pleading is denied and respondent’s motion for judgment on the pleadings is granted. The Secretary’s Citation for serious violation of §1508.602(a)(9)(i–iii) is not affirmed and no penalty is to be assessed against the respondent.


[1] While the regulation in question was proposed initially on September 28, 1971, (36 Fed. Reg. 19083 et seq.) it was not formally adopted until February 17, 1972 (37 Fed. Reg. 3512, 3517), well after the inspection of respondent’s worksite. Former part 1518 of title 29 C.F.R. having been redesignated part 1926 on December 30, 1971 (36 Fed. Reg. 25232), the standard was promulgated as 29 C.F.R. 1926.602(a)(9)(i) and (ii), requiring horns on all bidirectional machines, such as ‘rollers, compacters, front-end loaders, bulldozers, and similar equipment’ and prohibiting the operation of ‘earthmoving or compacting equipment’ in reverse gear with obstructed view unless a reverse alarm or signalman is provided.

[2] The Commission has made such provision in Rule 33(a)(3) of its revised Rules now in effect.