UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY
OF LABOR, |
|
Complainant, |
|
v. |
OSHRC
DOCKET NO. 15582 |
McLEAN-BEHM STEEL ERECTORS, INC., |
|
Respondent. |
|
November 13, 1978
DECISION
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.
FOR THE COMMISSION:
RAY H. DARLING, JR.
EXECUTIVE SECRETARY
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.