November 13, 1978


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

COTTINE, Commissioner:

            A decision of Administrative Law Judge James D. Burroughs is before the Commission for review under § 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. The issues in this case are whether the Judge properly amended the citation and complaint and whether he properly affirmed the citation as amended. Judge Burroughs found the Respondent, McLean-Behm Steel Erectors, Inc. (‘McLean-Behm’), in violation of the safety and health regulation for construction published at 29 C.F.R. § 1926.750(b)(1)(ii)[1] and assessed a $300 penalty for the violation. The Judge’s decision is affirmed to the extent it is consistent with the following.

            McLean-Behm is an employer engaged in steel erection. Following the inspection of a hotel construction site in Atlanta, Georgia, by an authorized compliance officer, McLean-Behm was cited for a serious violation of the construction safety standard codified at 29 C.F.R. § 1926.28(a).[2] The citation alleged that McLean-Behm had failed to require the employees exposed to the hazard of a 30-foot fall to be protected by safety belts while moving from one work station to another. The evidence indicates that at the time of the inspection two employees, a welder and his helper, were installing window framing on the 4th or 5th floor of a multi-story building. They were working from ‘monkey bars’, a steel truss structure consisting of top and bottom chords, 2–½ feet apart, connected by vertical and diagonal steel bracing. The bracing was spaced at 4-foot 6-inch intervals. The truss was parallel to an adjacent building, with a 1-foot 6-inch space between the truss and the building.

            The compliance officer testified that the employees were working 30 to 40 feet above a cement floor, the fall distance varying because the steel structure sloped. The employees were aligning and welding trusses perpendicular to the truss supporting them. The perpendicular trusses were joined to the supporting truss at the points where the steel bracing connected the chords of the trusses. The employees used safety belts and lanyards tied off to the top chord of the truss while at a work station. However, the employees untied their lanyards when moved from station to station. They could not slide the lanyards along as they moved because of interference from the bracing. To move along the truss an employee normally straddled the upper chord and walked on the lower chord. If an obstacle was in an employee’s path, he would step over the upper chord and sidestep along the lower chord to the next work station. He held onto the upper chord with his hands. With each move to a new work station the lanyards were not tied off for approximately two minutes. This procedure was consistent with the Respondent’s usual practice.

            McLean-Behm’s foreman at the site testified that he thought the employees observed during the inspection were working as safely as possible. He considered the use of lifelines more hazardous than his employer’s procedure because lifelines would interfere with the employees’ performance of their work. Also, he testified that pulling on a lifeline could cause another employee to fall from the truss, and employees would be exposed to an additional falling hazard while installing the lifeline.[3] On cross-examination, however, the foreman admitted that it was possible for an employee to use a safety belt with two lanyards. One lanyard would be attached to the bracing behind the employee. This lanyard would not be released until the second lanyard was attached to the forward side of the bracing. McLean-Behm did not follow that procedure because it required employees to tie and retie their lanyards every few feet, and the procedure assertedly consumed too much time.

            After the Secretary rested his case, McLean-Behm moved for dismissal of the citation on the grounds that the working conditions at issue are regulated exclusively by the steel erection standards (Subpart R of Part 1926), specifically § 1926.750(b)(1)(ii). Counsel for McLean-Behm stated that he was not consenting to amendment to that standard. He contended that the Secretary had not proved a violation of § 1926.750(b)(1)(ii) and that McLean-Behm was prepared only to defend against the § 1926.28(a) charge. The Secretary’s attorney stated that the Secretary did not wish to move for amendment at that time. The Judge informed the parties that he was reserving judgment on the issue.

            In his decision, Judge Burroughs agreed with McLean-Behm that § 1926.750(b)(1)(ii) is the standard specifically applicable to the facts of this case. He ruled that a more specifically applicable standard controls to the exclusion of a general standard under 29 C.F.R. § 1910.5(c)(1).[4] Furthermore, the Judge concluded that amendment was proper under Rule 15(b) of the Federal Rules of Civil Procedure[5] and amended the pleadings to allege a violation of § 1926.750(b)(1)(ii). The Judge stated that he was amending the pleadings to conform to the evidence because the record evidence demonstrated that McLean-Behm ‘was not utilizing any of the safety measures specified in the standard [§ 1926.750(b)(1)(ii)]’. Judge Burroughs concluded that the amendment of the pleadings was not barred by McLean-Behm’s objection at the close of the evidentiary hearing because the evidence establishing the violation was already in the record at the time McLean-Behm objected. Judge Burroughs reasoned,

The amendment did not alter the facts. The amendment simply assists in the proper disposition of the case on its merits. A failure to amend would place a greater emphasis on pleadings than on employee safety.


He also found that the evidence established the employees’ exposure to a 30 to 40 foot fall and revealed that the exposure could have been prevented. The Judge found that McLean-Behm failed to comply with § 1926.750(b)(1)(ii). Finally, he rejected McLean-Behm’s contention that using a lifeline would be more hazardous than not using one. He noted there was no evidence that the lifeline installed after the inspection either ‘interfered with the employees or unnecessarily restricted their movement.’ The Judge affirmed the citation as amended. We agree with Judge Burroughs that the standard more specifically applicable to the facts of this case is § 1926.750(b)(1)(ii). The employees were engaged in steel erection on a tiered building,[6] and the potential fall distance exceeded 25 feet. We also agree that the evidence establishes that McLean-Behm’s employees were not protected by any safety equipment while changing work stations. As a result, the violation of 29 C.F.R. § 1910.750(b)(1)(ii) has been established.[7]

            McLean-Behm contends that the Judge erred in amending the pleadings under Rule 15(b)[8] because the Respondent did not expressly or impliedly consent to amendment of the pleadings. It also contends that the Judge’s conclusion that violations of § 1926.28(a) and § 1926.750(b)(1)(ii) involve the same facts is erroneous. McLean-Behm further claims that it was prejudiced by its inability to present defenses to the amended allegation, including affirmative defenses ‘such as that compliance might cause a greater danger to employees, and that compliance might be impossible.’

            McLean-Behm contends that because its attorney objected to the amendment of the charges after all evidence was received, the amendment was improper under the first part of Rule 15(b). We conclude that the amendment of the pleadings was proper. It is well-settled by judicial and Commission precedent that pleadings before the Commission should be liberally construed and easily amended.[9] ‘The Federal Rule reject the approach that pleading is a game of skill in which one misstep of counsel may be decisive to the outcome . . ..’ Conley v. Givson, 355 U.S. 41, 48 (1957). This is consistent with the overall objective of the Federal Rules’. . . to secure the just, speedy and inexpensive determination of every action.’ Fed. R. Civ. p. 1. As the Supreme Court observed in Foman v. Davis, ‘It is too late in the day and entirely contrary to the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities.’ 371 U.S. 178, 181 (1962). See generally Clark, Simplified Pleading, 2 F.R.D. 456, 467–468 (1943).

            Under the first part of Rule 15(b) pleadings must be amended ‘[w]hen issues not raised by the pleadings are tried by the express or implied consent of the parties.’[10] McLean-Behm did not expressly consent to amendment. The issue is therefore whether it impliedly consented. Normally consent is implied from a party’s failure to object at trial to the introduction of evidence relevant to the unpleaded charge. 3 Moore’s Federal Practice ¶15.13[2] at 994 (2d ed. 1974). McLean-Behm did not object to the submission of the evidence establishing the § 1926.750(b)(1)(ii) charge. Instead, its objection was purely to the amendment of the charges and was therefore an objection to a change in legal theory. ‘[A] change in the nature of the cause of action, or the legal theory of the action, is immaterial as long as the opposing party has not been prejudiced in presenting his case.’ 3 Moore’s Federal Practice, supra at 985. In accord is Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902 (2d Cir. 1977), an OSHA case in which the employer also objected to an amendment reflecting purely a change in legal theory. The court concluded that the key issue was whether the employer was prejudiced by the amendment under either part of Rule 15(b). Id. at 907 n. 8. It held that the amendment was proper and should have been allowed by the Commission. Similarly, we hold that where an amendment changes the legal theory from that indicated in the citation, consent will be implied whenever the party opposing amendment has not objected to the introduction of evidence relevant to the unpleaded charge, provided it is not prejudiced by the amendment.[11] This holding promotes the most timely noting of objections to evidence and encourages the introduction of amendments at the earliest possible point in the adjudicatory process. First, it permits a party to cure any oversight or omission in a pleading by a motion to amend under Rule 15(a) and the second half of Rule 15(b). Second, it permits an amendment at a time when the amendment is less likely to prejudice the objecting party. Third, it affords the judge an opportunity to actively cure any prejudice to the opposing party. Fed. R. Civ. P. 15(b). Finally, this holding eliminates the tactical advantage gained by a party who waits to defend on the applicability of a different standard until all the evidence is received, thus attempting to foreclose conforming amendments. See generally Roberts v. Graham, 73 U.S. 578 (1867). This holding reinforces the underlying objectives of the Federal Rules and the Commission to secure the just, speedy and inexpensive determination of all issues in every case.

            Under Rule 15(b) any prejudice to McLean-Behm is determined on the basis of whether it had a ‘fair opportunity to defend’ against the Secretary’s evidentiary case and whether it could have offered any additional evidence if the case had been tried under the § 1926.750(b)(1)(ii) charge. See Lomartira v. American Automobile Insurance Co., 371 F.2d 550 (2d Cir. 1967). Under Rule 15(b) the objecting party has not shown prejudice if it ‘advances an imagined grievance or seeks to protect some tactical advantage.’ 6 C. Wright and A. Miller, Federal Practice and Procedure § 1495 at 478 (1971). McLean-Behm cannot contend that it was surprised by the possible application of § 1926.750(b)(1)(ii) to the facts of this case by a conforming amendment of the charges. The reason is obvious—McLean-Behm introduced the applicability of § 1926.750(b)(1)(ii) into these proceedings. In objecting to amendment, McLean-Behm was attempting to maintain a ‘tactical advantage’ by its late introduction of this new charge as a defense against the applicability of the original charge. At the same time, McLean-Behm objected to defending against the newly introduced issue. McLean-Behm was not prejudiced by its lack of opportunity to present a defense to the new charge.

            The Respondent argues that the Judge erred in concluding that the same facts support violations of both standards. It contends that the means of abatement prescribed by the two standards differ, and impliedly maintains that it was prejudiced by the amendment because different facts support violations of the two standards. We agree with the Judge that the different requirements of the two standards are immaterial under these circumstances because the evidence that McLean-Behm failed to protect its employees in any way while they moved from work station to work station established a prima facie § 1926.750(b)(1)(ii) violation.[12]

            The only possible defenses available to McLean-Behm were affirmative defenses. We conclude, however, McLean-Behm could not have been prejudiced by its asserted inability to submit evidence on any affirmative defense to the § 1926.750(b)(1)(ii) charge.[13] The only affirmative defenses available to McLean-Behm were the ‘greater hazard’ defense and the ‘impossibility’ defense. To establish either of these defenses it was incumbent upon McLean-Behm to prove that means of protection alternative to those prescribed by § 1926.750(b)(1)(ii) were unavailable to protect employees at the times they were changing work stations on the trues.[14] Inasmuch as the evidence establishes that an alternative means of protection, the use of a safety belt with two lanyards, was available,[15] McLean-Behm could not have prevailed on either defense. For the foregoing reasons, we hold that the amendment of the pleadings was proper under Rule 15(b).

            The evidence establishes that the employees were unprotected by safety equipment, in violation of § 1926.750(b)(1)(ii), while changing work stations. Accordingly, it is ORDERED that the Judge’s decision is affirmed.





DATED: NOV 13, 1978


BARNAKO, Commissioner, dissenting:

            The judge’s amendment of the Secretary’s citation and complaint to allege a violation of 29 C.F.R. § 1910.750(b)(1)(ii) was improper, because McLean-Behm did not expressly or impliedly consent to the amendment and because amendment sua sponte after the hearing comes too late. Therefore, I dissent.

            In the Secretary’s citation and complaint; McLean-Behm was charged with a violation of 29 C.F.R. § 1926.28(a) for the failure of certain of its employees to wear safety belts while installing steel trusses at a worksite in Atlanta. McLean-Behm’s answer stated that the cited standard was ‘inapplicable to the factual conditions and circumstances in this case.’ At trial, following the close of the Secretary’s case, McLean-Behm moved to dismiss the citation and complaint on the ground that the cited standard was inapplicable because a more specific standard, 29 C.F.R. § 1926.750(b)(1)(ii), which requires safety nets, applied to the circumstances of the case. McLean-Behm’s counsel also stated he would oppose a motion to amend to that standard at that point, as he was prepared to defend only against the cited standard. The Secretary’s counsel responded that she did not wish to amend to allege a violation of § 1926.750(b)(1)(ii). The judge reserved ruling on the dismissal motion and McLean-Behm presented its case.

            Following the hearing, the judge issued a decision agreeing with McLean-Behm that the cited standard, § 1926.28(a), was inapplicable but holding that McLean-Behm had violated § 1926.750(b)(1)(ii), despite the Secretary’s refusal to move to amend his citation and complaint to allege a violation of that standard at any time before the judge. The judge found that the evidence proved a violation of § 1926.750(b)(1)(ii) and that, therefore, the pleadings should be amended to conform to the evidence under Fed. R. Civ. P. 15(b).

            The majority agrees with the judge’s ruling, finding that McLean-Behm impliedly consented to trial of the § 1926.750(b)(1)(ii) charge by failing to object to the introduction of evidence relevant to that charge. The entire hearing, however, focused on the original § 1926.28(a) citation, as witnessed by the Secretary’s refusal to amend to § 1926.750(b)(1)(ii). Any evidence introduced which arguably was relevant to a violation of § 1926.750(b)(1)(ii) was also relevant to trial of the § 1926.28(a) charge contained in the citation and complaint. Such evidence cannot serve as the basis for finding implied consent to trial of the § 1926.750(b)(1)(ii) issue. The law is well settled:

[T]he introduction of evidence relevant to an issue already in the case may not be used to show consent to trial of a new issue absent a clear indication that the party who introduced the evidence was attempting to raise a new issue.


International Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888, 890 (5th Cir. 1977); accord, Bettes v. Stonewall Insurance Co., 480 F.2d 92 (5th Cir. 1973); Schulty v. Cally, 528 F.2d 470 (3d Cir. 1975); Cox v. Fremont County Public Building Authority, 415 F.2d 882 (10th Cir. 1969); Simms v. Andrews, 118 F.2d 803 (10th Cir. 1941); 6. C. Wright & A. Miller, Federal Practice and Procedure § 1493 (1971); cf., Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902 (2d Cir. 1977) (no implied consent found); Penrod Drilling Co., 76 OSAHRC 115/B8, 4 BNA OSHC 1654, 1976–77 CCH OSHD para. 21,072 (No. 5991, 1976) (same). The Secretary’s express disavowal of any § 1925.750(b)(1)(ii) allegation makes clear that he was not attempting to raise this issue through the evidence he introduced. Thus, McLean-Behm’s consent to trial of the § 1926.750(b)(1)(ii) charge cannot be inferred from its failure to object to this evidence. See Western Waterproofing Co. v. Marshall, 576 F.2d 139, 143–144 (8th Cir. 1978). In fact, it is readily apparent that neither party thought that issue was being tried.

            The majority attempts to justify its finding of implied consent by arguing that McLean-Behm was on notice of the potential relevance of the evidence to § 1926.750(b)(1)(ii) because it was the party that raised the issue of the applicability of that standard.[16] This argument misses the point. A party does not give implicit consent to the trial of an unpleaded issue merely because it knows that the evidence is potentially relevant to the issue; rather, it must be clear from the introduction of that evidence that the opposing party is actually attempting to raise the unpleaded issue. ‘[I]t cannot be fairly said that there is any implied consent to try an issue where the parties do not squarely recognize it as an issue in the trial.’ Usery v. Marquette Cement Manufacturing Co., supra at 907, quoting 3 Moore’s Federal Practice ¶15.13(2) at 992 (2nd ed. 1974); accord, International Harvester Credit Corp. v. East Coast Truck, supra. The Secretary’s refusal to amend the citation and complaint underscores the fact that he was not trying to raise the § 1926.750(b)(1)(ii) charge. This dispels any doubt that the Secretary’s evidence was aimed solely at the original § 1926.28(a) charge.

            Even though amendment under Fed. R. Civ. P. 15(b) is not proper because the issue was not tried by consent, the Secretary’s argument on review in support of amendment might conceivably be viewed as a motion to amend under Fed. R. Civ. P. 15(a). See Marquette Cement Manufacturing Co., supra. That rule declares that leave to amend ‘shall be freely given when justice so requires.’ In applying the rule, the Supreme Court has stated:

In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’


Foman v. Davis, 371 U.S. 178, 182 (1962). Under this test the amendment here after the hearing is not proper because of the Secretary’s undue delay in moving to amend. While it is true, as the court of appeals stated in National Realty and Construction Co. v. OSAHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973), that ‘administrative pleadings are very liberally construed and very easily amended,’ the same court also stated:

[T]he Secretary has considerable scope before and during a hearing to alter his pleadings and legal theories. But the Commission cannot make these alterations itself in the face of an empty record.


Id. at 1267; see Western Waterproofing Co. v. Marshall, supra. Here McLean-Behm’s answer alerted the Secretary to the claim that the standard he cited was inapplicable, yet he made no attempt to amend his citation and complaint prior to hearing. At the hearing, when McLean-Behm moved to dismiss on the ground that a more specific standard, § 1926.750(b)(1)(ii), was applicable, the Secretary’s counsel specifically refused to move to amend the citation and complaint to charge a violation of that standard. Only now on review does the Secretary argue in favor of amendment.

            In view of this delay, the motion to amend should be denied. As the Fifth Circuit Court of Appeals has stated: ‘It is clear that lack of diligence is reason for refusing to permit amendment.’ Freeman v. Continental Gin Co., 381 F.2d 459, 469 (5th Cir. 1967), rehearing denied, 384 F.2d 365 (5th Cir. 1967). In the absence of oversight or excusable neglect, leave to amend is properly denied ‘when the moving party knew about the facts on which the proposed amendment was based but omitted the necessary allegation from the original pleading.’ 6 C. Wright & A. Miller, Federal Practice and Procedure § 1488 (1971); accord, Jackson v. American Bar Association, 538 F.2d 829 (9th Cir. 1976) (motion to amend on appeal is too late when movant had made no previous effort to amend); Horn v. Allied Mutual Casualty Co., 272 F.2d 76 (10th Cir. 1959) (motion to amend answer following trial denied, as facts supporting proposed amendment were not newly discovered); Zucker v. Sable, 426 F.Supp. 658 (S.D.N.Y. 1976) (motion to amend after dismissal of complaint denied, as motion was unreasonably late; facts supporting proposed amendment were known prior to trial); cf., Penrod Drilling Co., supra (late amendment not allowed).

            The Secretary’s refusal to seek amendment earlier was not the result of oversight or excusable neglect; rather, it was knowing and deliberate. Coming this late in the proceedings, it should be denied. The Secretary had ample opportunity to amend his pleadings before and during the hearing. The Commission cannot properly do for the Secretary now that which he refused to do for himself when presented with the opportunity.[17]

            The majority’s holding that amendment is proper is incorrect for another reason. The majority concludes that its holding ‘encourages the introduction of amendments at the earliest possible point in the adjudicatory process.’ Just the opposite is true. By overlooking the Secretary’s failure to move to amend both before and during the hearing, despite notice of the inapplicability of the standard, the majority encourages the Secretary to be dilatory in seeking amendments. This gives the Secretary the ‘tactical advantage’ that the majority incorrectly accuses McLean-Behm of seeking. The Secretary need not be concerned with whether he is proceeding under the proper legal theory, since under the majority’s holding so long as the facts support a violation under any legal theory, the Commission will amend the pleadings accordingly. Thus, the majority’s holding removes any incentive for the Secretary to introduce amendments promptly. Contrary to the majority’s view, this outcome runs counter to the Federal Rules’ objective of ‘secur[ing] the just, speedy, and inexpensive determination of every action.’ Fed. R. Civ. P. 1.

            The majority correctly concludes that § 1926.750(b)(1)(ii) is the applicable standard here. Thus, since amendment is improper, the citation should be dismissed, as the more general standard cited by the Secretary is inapplicable. 29 C.F.R. § 1910.5(c)(1),[18] Bristol Steel & Iron Works, Inc., 77 OSAHRC 181/D6, 5 BNA OSHC 1940, 1977–78 CCH OSHD para. 22,240 (No. 14537, 1977), appeal docketed, No. 77-2485 (4th Cir. Nov. 28, 1977); cf., Holman Erection Co., 77 OSAHRC 196/A2, 5 BNA OSHC 2079, 1977–78 CCH OSHD ¶22, 318 (No. 13529, 1977) (specific steel erection standard prevails over general construction standard).

[1] Subpart R—Steel Erection

§ 1926.750 Flooring requirements.

(b) Temporary—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 . . . .

[2] Subpart C—General Safety and Health Provisions

§ 1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

[3] After the inspection, McLean-Behm installed and used a lifeline to allow tying off during movement between work stations. The foreman testified that the lifeline was installed only to comply with the recommendation of the compliance officer.

[4] The regulation provides in pertinent part, as follows:

§ 1910.5 Applicability of standards.

(c)(1) If a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. . . .

[5] The Rule provides the following:

Rule 15. Amended and Supplemental Pleadings.

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by the 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 judgement; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at 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] A multi-floored building, such as the structure involved in this case, is a tiered building within the terms of the § 1926.750(b) standards. Daniel Const. Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1976–77 CCH OSHD ¶21, 521 (Nos. 7734 & 7672, 1977).

[7] See Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974); Sierra Const. Corp., 78 OSAHRC 2/E6, 6 BNA OSHC 1278, 1978 CCH OSHD ¶22, 506 (No. 13638, 1978) (failure to require use of any device listed in 29 CFR § 1926.105(a) establishes a prima facie violation of that standard). See also Pima Construction, 76 OSAHRC 106/D3, 4 BNA OSHC 1920, 1976–77 CCH OSHD ¶20,998 (No. 5221, 1976).

[8] Rule 15(b) of the Federal Rules of Civil Procedure is made applicable to Commission proceedings by 29 C.F.R. § 2200.2(b), which provides 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.

[9] See, e.g., Usery v. Marquette Cement Mfg. Co. 568 F.2d 902 (2d Cir. 1977); National Realty & Const. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir. 1973); Mid-Plains Const. Co., 75 OSAHRC 81/D2, 2 BNA OSHC 1728, 1974–75 CCH OSHD ¶19,484 (No. 4584, 1975); Pukall Lumber Co., Inc., —— OSAHRC ——, 2 BNA OSHC 1975, 1974–75 CCH OSHD ¶19,433 (No. 10136, 1975).

[10] The plain terms of Rule 15(b) require the administrative law judge to consider and decide all issues presented during the hearing. The Judge had before him the substantive issues involved in this amendment, i.e., whether § 1926.750(b)(1)(ii) was the standard applicable to the facts in controversy and whether the pleadings should be amended to charge a violation of that standard. The Judge considered and correctly decided both these issues in his opinion. See Kaiser Aluminum & Chemical Corp., 76 OSAHRC 52/C10, 4 BNA OSHC 1162, 1975–76 CCH OSHD ¶20,675 (No. 3685, 1976), aff’d on reconsideration, 77 OSAHRC 39/E8, BNA OSHC 1180, 1977–78 CCH OSHD ¶21,692 (1977), and cases cited therein.

[11] McLean-Behm contends that consent cannot be implied from its failure to object to evidence relevant to the § 1926.750(b)(1)(ii) charge because that evidence was also relevant to the § 1926.28(a) charge. The courts do not readily imply consent from a party’s failure to object to evidence relevant to pleaded and unpleaded charges because, as a general rule, it cannot be fairly concluded that the opposing party was on notice that the case was being tried on the unpleaded issue. See Bettes v. Stonewall Insurance Co., 480 F.2d 92, 94 (5th Cir. 1973); 6 C. Wright and A. Miller, Federal Practice and Procedure § 1493 at 466 (1971). However, McLean-Behm cannot argue that it was not on notice of the potential relevance of the evidence to a § 1926.750(b)(1)(ii) charge because it was the party that raised the issue of the applicability of that standard. ‘Implied consent usually is found where one party raises an issue material to the other party’s case . . ..’ Moore’s Federal Practice, supra at 994. Furthermore, subjective declarations regarding consent at the close of the evidentiary hearing are not the measure of consent contemplated by Rule 15(b).

[12] McLean-Behm also claims prejudice based on the fact that necessary elements of the two violations differ. It argues that a violation of § 1926.28(a) requires proof of employee exposure to hazardous conditions and a feasible means of abatement, while those elements are not part of a prima facie § 1926.750(b)(1)(ii) violation. The contention is without merit. If the amended charge had required additional elements, conceivably McLean-Behm might have been prejudiced by a lack of opportunity to defend. However, in this case the original charge requires additional elements whereas the amended charge required fewer rather than more elements of proof by the Secretary. Compare Cornell & Co., Inc. v. O.S.H.R.C., 573 F.2d 820 (3d Cir. 1978).

Moreover, the Judge correctly found that the evidence would have estabalished a § 1926.28(a) violation if that had been the more applicable standard. The record shows that the working conditions were hazardous and the use of safety belts was feasible. We therefore reject McLean-Behm’s contention that evidence does not support the Judge’s finding that the employees were exposed to a fall hazard. The fall hazard was obvious. See PPG Industries, Inc., 77 OSAHRC 196/E5, 6 BNA OSHC 1050, 1977–78 CCH OSHD ¶22,344 (No. 15426, 1977).

Finally, McLean-Behm did not show that use of two lanyards was in any way hazardous. Its only objection to their use was that the practice would be too time-consuming. The Commission has previously rejected that argument as a greater hazard defense. See Carpenter Rigging & Contracting Corp., 75 OSAHRC 32/D13, 2 BNA OSHC 1544, 1974–75 CCH OSHD ¶19,252 (No. 1399, 1975).

[13] Although McLean-Behm generally states that it was prejudiced by a lack of opportunity to defend against the new charge, at no stage of these proceedings has it requested leave to submit further evidence. See Moore’s Federal Practice, supra ¶15.14 at 1012.


[14] See Hughes Brothers, Inc., OSHRC Docket No. 12523 (July 27, 1978); Taylor Building Associates, 77 OSAHRC 21/A10, 5 BNA OSHC 1083, 1977–78 CCH OSHD ¶ 21,592 (No. 3735, 1977) (impossibility defense); Russ Kaller, Inc., T/A Surfa-Shield, 76 OSAHRC 130/F10, 4 BNA OSHC 1758, 1976–77 CCH OSHD ¶21,152 (No. 11171, 1976) (greater hazard defense).

[15] See n. 12, supra.

[16] The majority also contends that McLean-Behm was trying to secure a tactical advantage by late introduction of the claim that § 1926.750(b)(1)(ii) rendered the cited standard inapplicable. This contention is erroneous. McLean-Behm’s introduction of the inapplicability argument was not late, as McLean-Behm’s answer specifically alleged this defense.

[17] The majority misconstrues the court of appeals’ decision in Usery v. Marquette Cement Manufacturing Co., supra, as supporting its allowance of the Secretary’s amendment based upon implied consent under Fed. R. Civ. P. 15(b). In fact, the court of appeals in Marquette found no implied consent and did not permit amendment on that basis. 568 F.2d at 907. The court permitted amendment on the basis of criteria developed under Fed. R. Civ. P. 15(a), following Foman v. Davis, which was discussed supra. Amendment in Marquette was proper because, unlike the present case, the Secretary timely moved to amend his citation and complaint before the judge when presented with the contention that the standard he cited was inapplicable. Thus, amendment under the criteria of Fed. R. Civ. P. 15(a) was appropriate in Marquette, but is not proper in the instant case, where the Secretary made no motion to amend and his argument in favor of amendment is raised unnecessarily late.

[18] See majority’s opinion, note 4.