May 9, 1978


Before CLEARY, Chairman; BARNAKO, Commissioner.

BARNAKO, Commissioner:

            In our previous decision in this case,[1] we concluded that, based on the evidence then of record, Respondent had violated 29 C.F.R. 1926.501(f). Because the case was tried before we issued out decisions in Anning-Johnson Co.[2] and Grossman Steel & Aluminum Corp.,[3] we granted Respondent an opportunity to present additional evidence bearing on the defenses available to subcontractors on a multi-employer construction site announced in those cases. Subsequently, Respondent moved for reconsideration or in the alternative for further hearing to adduce additional facts. Both the motion and Respondent’s memorandum in support thereof argued only that Respondent could prevail on the Anning-Johnson and Grossman Steel defenses. On December 22, 1976, we entered an Order granting Respondent’s motion for further hearing. In that Order, we set aside our earlier decision and remanded the case to the trial Judge for further proceedings.

            On March 17, 1977, Respondent filed with Judge Worceter a motion to vacate or in the alternative to suppress evidence and grant summary judgment on the ground that its ‘walkaround rights’ pursuant to Section 8(e) of the Act had been violated.[4] Respondent had never raised the 8(e) defense previously. At the same time, the parties filed stipulations with the Judge, purportedly dealing with the Anning-Johnson and Grossman Steel defenses.[5] Respondent declined further hearing on this question, relying instead on the record as supplemented by the stipulations.

            On May 31, 1977, Judge Worcester issued a decision in which he vacated the citation because the Secretary had failed to comply with Section 8(e). We reverse and reinstate our initial decision. Viewed in the context of prior proceedings, our remand Order was issued solely for the purpose of developing additional evidence on the Anning-Johnson and Grossman Steel defenses. Respondent had the opportunity but failed to raise its Section 8(e) argument throughout the original proceeding. It further failed to raise 8(e) in its motion for further hearing and its memorandum in support of that motion. We conclude that Respondent’s raising of 8(e) for the first time at the remand hearing not only exceeded the scope of our remand Order but was also untimely, and that Judge Worcester thus erred in considering the 8(e) defense.

            Respondent’s only other contention is that, should we reverse the Judge, we should nonetheless remand again. It argues that, since the ALJ vacated on 8(e) grounds, it never received an opportunity to adduce additional evidence on the Grossman Steel and Anning-Johnson defenses. We reject this contention. Respondent was afforded the opportunity which it now seeks at the remand hearing, but instead chose to rely on the original record as supplemented by the stipulations which it filed with the Judge. We therefore find no basis for a further remand.

            Moreover, the stipulations do not present any evidence on the question of employer responsibility not already disclosed by the record. On this record, Respondent has failed to establish an Anning-Johnson and Grossman Steel defense.

            Accordingly, the Judge’s decision on remand is reversed, and the previous Review Commission decision (n. 1, supra) is reinstated.




Ray H. Darling Jr.

Executive Secretary

DATE: MAY 9, 1978

















May 31, 1977


John S. Casler, Esq. for the Secretary


William J. McDonald, Esq. and Elizabeth Flaherty for the Respondent



            On April 16, 1975, I issued a decision holding that the Respondent had violated 29 CFR section 1926.501(f) as alleged in Item 1 of the citation and vacating Item No. 2 alleging violation of 29 CFR 1926.500(e)(1), both standards promulgated by the Secretary of Labor under authority granted to him in the Occupational Safety and Health Act of 1970. This decision was affirmed on review by this Commission on November 3, 1976. On November 16, 1976, the Respondent moved for reconsideration of my affirmance of Citation No. 1 or, in the alternative, for a further hearing on the ground that Commission decisions issued after my decision in Grossman Steel & Aluminum Corp., OSHRC No. 12775, and Anning-Johnson Company, OSHRC Nos. 3694 and 4409 would support a finding that the Respondent did not violate this standard. On December 22, 1976, this motion was granted. The Commission decision dated November 3, 1976, was set aside and the case was remanded for further proceedings.

            The vacation of the citation for violation of 29 CFR 1926.500(e)(1) has become a final order and is not in issue.

            On March 17, 1977, the Respondent filed a Motion to Vacate, or in the alternative, to Suppress Evidence and Grant Summary Judgment on the ground that ‘walkaround rights’ were denied. Section 8(e) of the Act contains a mandatory provision requiring the Secretary to afford an employer an opportunity to accompany or his authorized representative throughout the inspection. See Secretary of Labor v. Chicago Bridge and Iron Company 535 F.2d 371 (7th Cir. 1976).

            The Secretary’s inspector while going through a building under construction with a representative of the general contractor passed one of the Respondent’s installers on an unfinished stairway. He recommended the issuance of the citation in issue without ever making and effort to inform a responsible supervisory New England Telephone official that a safety inspection involving New England’s employees was taking place. There wasn’t even substantial compliance with the statute under those circumstances. There were no extraordinary circumstances which justify the inspector’s failure to make an effort to notify the installer’s supervisor that an inspection was being conducted.

            On March 17, 1977, the parties filed the following stipulation:

            The Complainant and the Respondent in the above captioned matter agree and stipulate to the following facts:

            1. The Respondent’s Supervisor (Logue) visited the work site in question every day in which one of his installers was there.

            2. The Respondent does not have one-on-one supervision, nor do Respondent’s supervisors usually stay with an installer for an entire work day. Instead, the supervisors of installers divide their time during the work day between the 6 or 7 installer whom they supervise.

            3. On July 14, 1974, Supervisor Logue visited Installer Evans at the work site. While they were there, temporary hand railings were in place on the stairs and wooden planks were in the pan-type treads.

            4. Joint Exhibits 3 and 4 had been reviewed with Installer Evans at some date before he went on the work site.

            Subsequently at a prehearing conference on Mary 21, 1977, it was agreed that the parties would be given an opportunity to submit briefs on the issue of whether I could dispose of the walkaround issue since it was first raised after remand.

            The Respondent argues that under the Federal Rules of Civil Procedure which are applicable to this proceeding the motion to vacate must be considered also as a motion to amend the pleadings to conform to the evidence which is permitted under Rule 15(b) F.R. Cir. Pr. citing two Commission decisions, Secretary of Labor v. Kaiser Aluminum and Chemical Corporation, OSHRC No. 3685, May 3, 1976, and March 31, 1977, and Secretary of Labor v. Prince Construction, OSHRC No. 5221. The rationale of the Commission’s conclusion that it can, sua sponte, amend pleadings after the trial has been concluded is not clear to me, nor can I find any basis for disagreeing with the conclusion of Commissioner Moran in his dissent in Kaiser (supar) that

‘. . . a citation is a creature of statute. It is not a pleading. Rule 15(b), Federal Rules of Civil Procedure, cannot and does not apply to citations. . . ..’


            However, I do not reach that question.

            The Respondent first raised this issue after remand. No newly discovered evidence has been presented except the stipulation. The alleged violation of due process of law could have (but need not have) been set forth in the Respondent’s answer, but it could (and should) have been raised by motion at the conclusion of the case for the Respondent in the usual case. But a party need not be penalized if counsel erred in his pleading because he relied upon decisions which had been overruled by the Supreme Court after the answer was filed. Emich Motors Corp. et al v. General Motors Corp. et al, 15 F.R.D. 354, 355, (D.C.N.D. Ill. 1953). Precisely the same question arises in the case at bar.

            The Commission Secretary of Labor v. Western Waterproofing Inc., OSHRC No. 1087, a case which was not published until June 21, 1976, long after the trial in 1974, held that an employer has the right to be present throughout every step of an inspection, that this provision of section 8(e) of the Act is mandatory nothing that : ‘In most cases where the issue arises the records demonstrate an attempt by the Secretary’s representatives to comply with the the walkaround provisions.’ In the case at bar not even an attempt to contact New England Telephone was made.

            On April 4, 1977, in Secretary of Labor v. Environmental Utilities Corporation, OSHRC No. 5324, a majority of the Commission reaffirmed the position taken in Western Waterproofing (supra). Chairman Barnako said:

‘In my opinion, if there had been a failure of the compliance officer to substantially comply with Section 8(e), then Respondent would be entitled to relief regardless of whether it was actually prejudiced in presenting its defense.’


            Citing Western Waterproofing Commissioner Moran said:

‘. . . Western Waterproofing clearly stands for the proposition that an employer is entitled to relief when the Secretary has not complied with section 657(e), [Section 8(e) of the Act] irrespective of whether the employer was prejudiced thereby . . ..’


            The Commission held in Western Waterproofing (supra) that failure to comply with section 8(e) should result in vacation of all citations.

            Both parties have declined to submit additional evidence and have agreed to submit the issues for decision on the record.

Conclusion of Law

            Upon consideration of the record as whole I find and conclude that because no supervisory representative of New England Telephone was given an opportunity to accompany the Secretary’s inspector during his tour of the worksite and that as a matter of law, any citation issued on the basis of observations made during such an unlawful inspection was invalid and unenforceable.


            It is therefore hereby ordered that Citation No. 1 and the proposed penalty of $55 be vacated and that this proceeding be dismissed.



Judge, OSHRC

Dated: May 31, 1977


Boston, Massachusetts

[1] New England Telephone and Telegraph Co., 4 BNA OSHC 1838, 1977–78 CCH OSHD 21,999 (No. 9627, 1976).

[2] 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975–76 CCH OSHD 20,690 (No. 3694 and 4409, 1976).

[3] 76 OSAHRC 54/D9, BNA OSHC 1185, 1975–76 CCH OSHD 20,691 (No. 12775, 1975).

[4] Section 8(e) provides:

Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

[5] The stipulations merely repeated evidence already in the record. Specifically, they detailed Respondent’s supervisory structure, elements of its safety program, and conditions at the site when a supervisor was present.