UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4584
MID-PLAINS CONSTRUCTION COMPANY,
Respondent.

ORDER OF REMAND

April 2, 1975

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

CLEARY, COMMISSIONER:

On November 16, 1973, Judge Herbert E. Bates issued a decision in this case, granting respondent’s motion to dismiss the Secretary’s complaint.

On December 17, 1973, the Commission directed that the decision of the Judge be reviewed in accordance with section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq., hereinafter referred to as ‘the Act’).

Respondent was issued a citation and a notice of proposed penalty on August 23, 1973, that alleged a violation of section 5(a)(1) of the Act, the general duty clause. Respondent filed a timely notice of contest. On October 2, 1973, the Secretary amended the citation in his complaint to allege a violation of section 5(a)(2) of the Act for failing to comply with 29 CFR § 1926.105(a), instead of a violation of section 5(a)(1). The underlying factual allegation, that employees of respondent were working on a roof more than 25 feet above ground without adequate protection, remained the same.

On October 22, 1973, respondent moved to dismiss the Secretary’s complaint because in amending the citation, the complaint failed to state the reasons for amendment. Respondent argued that in issuing the complaint the Secretary failed to comply with rule 33(a)(3) of the Commission’s Rules of Procedure.[1] In addition, respondent claimed that by amending the citation in his complaint, the Secretary violated section 9(a) of the Act, which requires that a citation describe the violation alleged with particularity.[2]

Judge Bates adopted respondent’s argument, and dismissed the complaint on the following three grounds. First, the Secretary failed to file any objection to respondent’s motion to dismiss. Second, the ‘substantial variance between the Citation and Complaint . . . is contrary to the basic requisites of procedural due process.’ Third, the Secretary’s failure to comply with rule 33(a)(3) warrants dismissal of the complaint.

After reviewing the record, we disagree with all three of the Judge’s reasons. To begin with, the Secretary’s brief on review notes that a copy of respondent’s motion to dismiss was not received until a day before being served with a copy of the Judge’s ruling that granted the motion. Thus, the Secretary had no time to respond to the motion to dismiss.[3]

The Commission strongly disagrees with the Judge’s statement that the amendment of a citation in the complaint constitutes a denial of due process. It is well-settled that ‘administrative pleadings are very liberally construed and very easily amended.’ National Realty & Constr. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257, 1264 (D.C. Cir. 1973) (footnotes omitted). Also, that citations are drafted by non-legal personnel militates in favor of allowing amendments. See National Realty, supra at 1264. Indeed, under rule 15(a) of the Federal Rules of Civil Procedure[4] a party is entitled to amend his pleadings once as a matter of right.[5] It is difficult to see how respondent could be prejudiced by an amendment of a legal theory far in advance of the hearing. The underlying facts at issue remain the same and respondent has been given notice of the allegations against it and adequate time to draft responsive pleadings and prepare its defenses. The purpose of pleadings is to provide ‘fair notice,’[6] and this due process requirement has been met.

Finally, the Judge dismissed the complaint because the Secretary failed to state the reasons for the amendment, as required by rule 33(a)(3) of the Commission’s Rules. The Judge was wrong. The complaint clearly alleged facts that would bring the case within the ambit of section 1926.105, and also clearly stated that the reason for the change is that section 1926.105, a specific standard, applies rather than section 5(a)(1) of the Act. See Paragraph VIII of the complaint. In any event, if no reason had been assigned and if respondent were concerned about the reason for amendment, it could have raised this point in a motion for clarification, motion for a more definite statement, motion for leave to file a later answer, or some other appropriate motion. Dismissing the complaint is too severe a remedy for a peccadillo of this kind. Cf. Brennan v. O.S.H.R.C. & Bill Echols Trucking, 487 F.2d 230, 236 (5th Cir. 1973).

In support of its motion to dismiss, respondent has also asserted that the allegations of the complaint do not constitute a failure to comply with 29 CFR § 1926.105(a). Specifically, respondent maintains that in order for the Secretary to prove a failure to comply with the standard, he must demonstrate that it was impractical to use devices such as ladders, scaffolds, catch platforms, temporary floors, safety lines or safety belts. This interpretation of 29 CFR § 1926.105(a) was specifically rejected by the Fifth Circuit in Brennan v. Southern Contractors Service & O.S.H.R.C., 492 F.2d 498 (5th Cir. 1974) and Brennan v. Verne-Woodrow Co. & O.S.H.R.C., 494 F.2d 1181 (5th Cir. 1974).

Accordingly, it is ORDERED that the Judge’s order be set aside and that the case be reinstated and remanded for proceedings consistent with this opinion.

VAN NAMEE, COMMISSIONER, concurring:

I concur in the order of remand because I believe that to be the only just result. Aside from the significant fact that Labor had no opportunity to respond to the motion to dismiss, the substance of the charge against Respondent in both the complaint and citation was identical: the failure to protect employees working at a level more than 25 feet off the ground. By amending the citation with the complaint (Cf. Lovell Clay Products Inc., 10 OSAHRC 237, BNA 2 OSHC 1121, CCH E.S.H.G. para. 18,327 (1974), Labor only altered its legal theory of the case. The substance of the charge was not changed. As I indicated in Diamond Engineering Company, Dkt. 4217, (concurring opinion) (February 12, 1975), motions to dismiss are not to be granted in the usual case merely because one party changes his legal theory of the case.

On the other hand, I express no opinion on the applicability of 29 C.F.R. 1926.105(a) to the facts alleged as violative of the Act. I would note, though, that the complaint alleges failure to use safety nets or safety belts, and we have recently held that 29 C.F.R. 1926.28(a) mandates use of safety belts as protection against fall hazards. Hoffman Construction Co., Dkt. 644, BNA 2 OSHC 1523, CCH E.S.H.G. para. 19,275 (January 31, 1974); Carpenter Rigging and Contracting Corp., Dkt. 1399, BNA 2 OSHC 1544, CCH E.S.H.G. para. 19,252 (February 4, 1975).

Finally, I would note that the motion to dismiss went only to the complaint; it did not include the citation. The judge only dismissed the complaint; he did not expressly vacate the citation upon which the complaint was based. There is a question whether the cause of action survives once a complaint is dismissed. This question might be answered in the affirmative if it is assumed that the citation does not merge with the complaint. We have not decided that question, and it has not been argued in this case. It would be inappropriate to decide it herein. Diamond Engineering Co., supra.

MORAN, CHAIRMAN, dissenting:

My colleagues, once again, permit an amendment in the complaint, even though the complainant blatantly disregarded Rule 33(a)(3) of the Commission’s Rules of Procedure by not stating the reasons therefor. Review of many cases convinces me that the failure to comply with this procedural requirement is becoming the rule rather than the exception. See, e.g., Secretary v. Pukall Lumber Company (Docket No. 10136, March 18, 1975); Secretary v. Martin Iron Works, Inc., 15 OSAHRC 33 (1975) (dissenting opinion). Compliance with the Commission’s procedural rules is a prerequisite for the orderly conduct of our proceedings. That objective cannot be achieved when the Commission fails to enforce its rules.

In Secretary v. Pukall Lumber Company, supra, I recently discussed the undesirability of permitting amendments in total disregard of our procedural requirements. Rather than repeating the remarks that I made there, I will simply add that this is another example of the Commission’s failure to provide equal treatment to party litigants. In my opinion, it is wrong to overlook procedural failures by the government and to strictly enforce procedural requirements that pertain to employers. Compare Secretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974), with Secretary v. Penn Central Transportation Company, 13 OSAHRC 604 (1974); see Secretary v. American Airlines, Inc., 16 OSAHRC 511 (1974).

In this case, the Commission has not only countenanced the complainant’s failure to comply with Rule 33(a)(3), but it has also amended that rule in footnote 8. Thus, the complainant has been relieved of the duty to state the reasons for an amendment, and the burden has been shifted to the respondent to request the reasons therefor. If such a change is to be made, the Commission’s rules should be changed formally rather than on an ad hoc basis in a particular case.

Finally, I note that the lead opinion asserts that the complainant could amend the citation as a matter of right without addressing the question of whether the notice of contest to the citation was a responsive pleading. Under Rule 15(a) of the Federal Rules of Civil Procedure, this right is limited to the ‘time before a responsive pleading is served.’

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 4584
MID-PLAINS CONSTRUCTION COMPANY,
Respondent.

November 16, 1973

BATES, JUDGE:

Ruling on Respondent’s motion to dismiss the complaint dated 10/22/73. The docket file does not contain any opposition to the Respondent’s Motion to Dismiss. The substantial variance between the Citation and the Complaint in re: the description of the alleged violation and the pertinent statute and regulation is contrary to the basic requisites or procedural due process for that reason, as well as the Secretary’s failure to conform to Rule 33(a)(3) of the Commission Rules, the Respondent’s Motion to Dismiss the Complaint is granted.

[1] Rule 33(a)(3) states:

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

[2] Section 9(a) of the Act reads in part:

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.

[4] The Federal Rules of Civil Procedure expressly govern Commission proceedings. See section 12(g) of the Act and rule 2(b) of the Commission’s Rules of Procedure.

[6] See K. Davis, Administrative Law Text § 8.02 at 196 (3d ed. 1972).