UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3035
SOUTHERN COLORADO PRESTRESS COMPANY,
Respondent.

August 24, 1976

DECISION

BEFORE BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

BARNAKO, Chairman:

Pursuant to 29 U.S.C. Sec. 661(i) we review whether Judge John A. Carlson properly allowed a serious citation to be amended to allege a violation of the standard set forth at 29 C.F.R. Sec. 1926.105(a) and (b),[1] and whether he properly found that the Respondent had violated that standard. For the reasons that follow we affirm his decision.

Respondent was engaged in the erection of a three-story prestressed concrete building. During an inspection, one of the Secretary’s compliance officers observed an employee of the Respondent standing on a foot-wide perimeter beam at the third floor level. He was using a pry bar to seat the end of a floor slab. The employee was about 27 feet above the ground. Neither safety nets, scaffolds, nor platforms were present or used to protect the employee. The employee was not wearing a safety belt or utilizing any other device designed to prevent him from falling. As a result, a serious citation alleging violation of the standard published at 29 C.F.R. 1926.750(b)(1)(ii)[2] was issued to the Respondent. Respondent contested the citation.

Some six months later, after an informal pre-hearing conference before the Judge and about two weeks prior to the evidentiary hearing in the case, the Secretary filed a motion to amend his citation and complaint to additionally allege violations of the standards at 29 C.F.R. 1926.28(a) and (b) and 105(a) and (b). On the hearing date, the motion was argued and granted only insofar as the additional 105(a) and (b) charge was concerned.

After the close of both the Secretary’s and the employee representative’s case, the Respondent moved for dismissal of the 105(a) and (b) charge. It argued that the practicality of safety devices mentioned in the standard as alternatives to safety nets had been established. Commission precedent[3] clearly called for the dismissal of the charge in such cases even if none of the safety devices were actually utilized as was the case here. Accordingly, the Judge granted the motion.

Respondent then put in its proofs relative to the 1926.750(b)(1)(ii) charge made in the original citation. The Judge took the case under advisement at the conclusion of the hearing. However, before he issued his decision the U.S. Court of Appeals for the Fifth Circuit issued its decision in Brennan v. Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974). The court rejected the Commission’s reasoning as to the construction of 1926.105(a). It held, essentially, that where the standard is applicable an employee must be protected either by means of a safety net, if none of the other safety devices are practical, or by means of one of the other safety devices if the practicality of any such device is established. The failure to use any device at all creates the violation, said the Court.

Relying on the Court’s holding, the Judge issued an order vacating his earlier dismissal of the amended 1926.105(a) and (b) charge and ordered the hearing reopened to permit the Respondent to present defenses under that standard. Respondent’s counsel declined, stating there was no need for expanding the evidentiary record. As a result, the reopened hearing was cancelled.

We hold that the Judge acted properly in allowing the amendment. The amendment did not change the factual basis for the charge (failure to use safety nets); it only changed the standard alleged to have been violated. The motion to amend was made fourteen days prior to the evidentiary hearing, and Respondent fully participated in the trial of all issues relevant to the alleged 1926.105(a) and (b) violations. In fact, it is apparent that the Respondent felt it had developed the issues adequately because it subsequently declined to present further evidence when given the opportunity. Under these circumstances, the amendment was clearly not prejudicial and, therefore, properly allowed.

We also adopt the Judge’s finding that 1926.105(a) and (b) were violated. The employee was standing on a beam that was 27 feet above the ground surface; fall protection was not provided. A steady wind of about forty miles per hour was blowing at the time. The record is clear that safety nets could be and were not rigged to protect the employee. Also, all parties were in substantial agreement that the use of ladders would not be helpful and that catch platforms should not be considered. Scaffolds too were impractical.

Finally, evidence was presented as to the utility of a ‘clothesline’ cable, running between the building’s vertical columns, to which safety lines could be attached. The evidence also made it clear, however, that this arrangement could not have been utilized in the areas of the building above where floor slabs had been placed. That is because the vertical columns upon which the cable would have to be strung had not yet been erected.

We, therefore, adopt the Judge’s decision as to the 1926.105(a) and (b) violations, as to the areas of the building where the evidence showed it was impractical to use any of the devices set forth in the standard as alternatives to safety nets. Judge Carlson also properly concluded that the portion of the citation alleging a violation of 1926.750(b)(1)(ii) be vacated. The standard requires the use of safety nets, under certain circumstances, in steel erection work. But Respondent here, of course, was engaged in prestressed concrete construction.

Accordingly, the Judge’s decision is affirmed. So ORDERED.

BY THE COMMISSION:

WILLIAM S. McLAUGHLIN

EXECUTIVE SECRETARY

DATE: AUG 24, 1976

CLEARY, Commissioner, CONCURRING:

I concur in the result which is consistent with the cited Commission precedent. My own view, however, is that the Administrative Law Judge’s reading of section 1926.105(a) in a manner consistent with the Fifth Circuit’s decision in Southern Contractors Service is more sound.

MORAN, Commissioner, Dissenting:

I agree with my colleagues’ conclusion that 29 C.F.R. § 1926.750(b)(1)(ii), the occupational safety standard under which respondent was originally charged, is not applicable to the work in which respondent was engaged. I disagree however with their affirmance of a § 1926.105(a) and (b) violation on the basis that complainant’s motion to amend the citation was properly allowed. Since that motion was untimely made, the citation should be vacated.

The alleged violation was detected during an inspection by complainant of respondent’s worksite on April 19, 1973. Since complainant did not move to amend the citation until November 1, 1973, more than six months after the inspection, the motion was barred by the Act’s statute of limitations (29 U.S.C. § 658(c)), which provides that:

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

Furthermore, this conclusion is not altered by the provision in Rule 15(c), Federal Rules of Civil Procedure, which permits an amendment to relate back to the date of an original pleading when the claim asserted in an amended pleading arose out of the occurrence set forth therein.

A citation, unlike traditional pleadings, is a unique creature of statute to which requirements for particularity have been attached. The Act states in no uncertain terms:

‘Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the chapter, standard, rule, regulation, or order alleged to have been violated.’ 29 U.S.C. § 658(a) (emphasis added).

Thus, Congress required that the complainant inform employers of the fundamental aspects of the charge in the citation itself. It is imperative that this information be supplied in the citation so that an employer will know, inter alia, how to accomplish abatement where appropriate and be able to make an informed judgment about the crucial and irrevocable decision of whether or not to contest.[4]

The legal significance and statutory requirements for a citation are therefore in sharp contrast to what is commonly known as ‘notice pleading’ under Rule 8 of the Federal Rules of Civil Procedure. When pleading under the Federal Rules, a claimant is not required to set out in detail the facts upon which he bases his claim (Conley v. Gibson, 355 U.S. 41, 47 (1957)), nor to allege the particular law or theory under which recovery is sought (Misco Leasing, Inc. v. Keller, 490 F.2d 545, 548 (10th Cir. 1974)). Quite obviously, Congress did not intend for the Secretary of Labor to have such flexibility when it set forth specific requirements for citations. Therefore, those requirements are not superseded by the Federal Rules, and my colleagues err in allowing an amendment to the citation in reliance on those rules.[5]

Because Judge Carlson’s decision is necessary for a full understanding of the issues presented in this case, it is attached hereto as Appendix A.

APPENDIX A

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 3035
SOUTHERN COLORADO PRESTRESS COMPANY,
Respondent.

December 6, 1974

DECISION AND ORDER

Appearances:

Ronald G. Whiting, Esq. of Denver, Colorado, for the Complainant.

Robert G. Good, Esq. and Kenneth R. Stettner, Esq. of Denver, Colorado, for the Respondent.

Jonathan Wilderman, Esq. of Denver, Colorado for the Employees’ Representative.

STATEMENT OF THE CASE

John A. Carlson, Judge, OSAHRC.

This is a proceeding under 29 U.S.C. 659(c) for an adjudication under the Occupational Safety and Health Act of 1970 (29 USC 651, et seq, sometimes hereinafter ‘the Act’) of a contest of an alleged violation of § 654(a)(2). It arose from a citation issued by complainant to respondent on April 27, 1973 as the result of the inspection of a workplace in Colorado Springs, Colorado where respondent was engaged in the erection of a prestressed concrete building. The citation as issued charged a breach of the standard set forth at 29 CFR 1926.750(b)(1)(ii). The violation was described in these words:

‘The employer did not provide scaffolding or safety nets for an employee who was working at the extreme edge of an open sided, horizontal prestressed concrete and steel beam which was higher than 25 feet above the ground.’

The cited standard reads:

‘(b) Temporary flooring—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. The nets shall be hung with sufficient clearance to prevent contacts with the surface of structures below.’

Abatement was called for immediately upon receipt of the citation. By notification issued the same day as the citation a civil penalty of $600 was proposed. The citation was timely contested by respondent and Carpenters Union, Local 362, an authorized employees’ representative, thereafter asserted its right of party status through counsel.

The ensuing procedural history of the proceeding tends to be somewhat complex and will be reviewed here. Following the granting of an initial motion for continuance filed by complainant (ex. J–7) a stipulation was filed by all parties requesting an informal pre-hearing conference on October 24, 1973, immediately prior to hearing on the merits. The stipulation embraced an understanding that the formal hearing might not proceed beyond preliminary matters on that date.

Upon representations made at the conference it appeared likely that the hearing could not proceed to its conclusion in the two days set aside for it and in view of the pendency of a written motion by respondent (ex. J–11) for a postponement in order to secure additional demonstrative evidence, it was agreed that the record would be opened briefly on October 24th and the evidentiary portion of the hearing adjourned over until November 19, 1973 at which time respondent would have the evidence it lacked and the entire matter could be tried to its conclusion (Tr. 5–8). Certain stipulations were entered upon the record by the parties and, at the request of the judge, counsel for each briefly stated its theory of the case pursuant to Commission Rule 66(k). The parties were specifically advised that amendments to the pleadings, if any, were to be submitted expeditiously (Tr. 18).

Thereafter, on November 1, 1973 complainant filed a motion received on November 5, 1973 to amend his citation and complaint (ex. J–17) to additionally allege violation of 29 CFR 1926.28(a) and (b) and 29 CFR 1926.105(a) and (b). Specifically, complainant sought to add the following language in description of the violation:

Employer did not assure the wearing of appropriate personal protective equipment in operations where there was an exposure to hazardous conditions and where Suppart E indicates a need for using such equipment, such as safety nets, to reduce the hazards to the employees, including, but not limited to, 29 C.F.R 1926.105 (a) and (b).’

The pertinent standard provides:

§ 1926.105 Safety nets.

(a) Safety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.’

(b) Where safety net protection is required by this part, operations shall not be undertaken until the net is in place and has been tested.

Respondent, within the time permitted for response by Commission Rule 37, filed a motion for judgment on the pleadings received November 13, 1974 seeking dismissal of the entire action on the grounds, inter alia, that complainant was attempting to issue a new citation after more than six months from the occurrence of violation, contrary to section 9(c) of the Act (29 USC § 658(c)).

Owing to his absence on the trial of other matters this judge had no opportunity to rule upon either motion in advance of the adjourned hearing date. The motions were taken up at the outset of the hearing and after extensive arguments by all parties were here (Tr. 24–51), respondent’s motion was denied and complainant’s amendment was permitted in a restricted form, eliminating any direct reference to Subpart E and limiting the additional charge to 29 CFR 1926.105(a) and (b). (Tr. 47–49)

A voluminous record upon the merits was then made. After the close of both complainant’s and the employee representative’s case respondent moved, inter alia, for dismissal of that portion of the charge based upon alleged violation of 29 CFR 1926.105(a) and (b) on the grounds that the evidence adduced by complainant and the employees’ representative had affirmately established the ‘practicality’ of the use of the safety devices or means mentioned as alternatives for nets in such standard. Under the then precedent of Secretary v. Drake-Willamette Joint Ventures, 2 OSAHRC 1216 and Secretary v. Verne Woodrow Company, OSAHRC Docket No. 1607, the complainant was bound to prove the ‘impracticality’ of the non-net means, whether or not they were in use, before the standard could be held applicable. In view of the state of the evidence the motion was granted (Tr. 329–332). Respondent that put on its case relative to the question of violation of the steel erection standards cited, 29 CFR 1926.750.

Following the hearing the three parties filed extensive briefs and the case was taken under advisement. Prior to decision, however, on April 12, 1974 the United States Court of Appeals for the Fifth Circuit issued its decision in Brennan v. Southern Contractors Service and Occupational Safety and Health Review Commission, 492 F. 2d 498, which specifically rejected the Commission’s reasoning as to the construction of 29 CFR 1926.105(a). It was held, in essence, that where the standard is applicable an employee must use either a safety net or one of the other devices described; and that failure to use any device creates a violation.

In view of the Court’s holding, this Judge on April 29, 1974 issued an order (ex. J–28) vacating the dismissal of the amended 29 CFR 1926.105(a) and (b) charge and ordered the hearing reopened on May 24, 1974 ‘to permit respondent to present evidence relating to any defenses or otherwise pertinent’ to such standard. Thereafter, all counsel on May 23, 1974 joined in representing through counsel for respondent that no need existed for the expanding of the evidentiary record as to the alleged violation 29 CFR 1926.105. The hearing was cancelled and the parties were granted leave to file supplemental briefs (ex. J–29). The respondent and employees’ representative did so.

ISSUES

The major issues presented for resolution are:

(1) Whether respondent violated 29 CFR 1926.750(b)(1)(ii) relating to use of safety nets or scaffolding in steel erection.

(2) Whether complainant could properly amend to alternatively charge violation of 29 CFR 1926.105(a) and (b).

(3) Whether, if such amendment were otherwise proper, the provisions of section 9(c) of the Act (29 USC § 658(c)) prohibiting the issuance of citations more than 6 months after the occurrence of violation, impose a statutory bar to amendment either in the nature of a statute of limitations, or otherwise.

(4) Whether complainant satisfied the requirements of section 9(a) of the Act (29 USC § 658(a)) relating to specificity of citations.

(5) Whether, if respondent violated any standard properly charged, such violation was ‘serious’ within the meaning of section 17(k) of the Act (29 USC § 666(j)); and what civil penalty, if any, would then be appropriate.

FINDINGS OF FACT

The following material facts are found to be sustained upon the entire record:

(1) Respondent, Southern Colorado Prestress Company, is a division or Prestress Concrete of Colorado, Inc., which division has principal offices at Colorado Springs, Colorado and a principal manufacturing or production facility in Pueblo, Colorado, where it engages in the production and sale of precast and prestressed concrete (Stip.-Joint Ex. 1).

(2) Respondent itself employs an average of 62–70 persons and during the average business year ships approximately $100,000 worth of goods to points outside of Colorado and purchases goods of the same value from sources outside such state. Respondent’s net worth for the fiscal year ending December 31, 1972 was $600,000. It ranks approximately third in size among the five similar competitive producers within the area which includes the State of Colorado. (Stip.-Joint Ex. 1).

(3) On April 19, 1973 respondent was engaged in the erection of a three-story prestressed concrete building at a location in Colorado Springs, Colorado and was on that date inspected by Mr. Harry C. Hutton, a compliance officer working for complainant (Tr. 54).

(4) The weight bearing structural members of the building and the flooring (above the ground-floor level) consisted entirely of prestressed concrete (photos—entire transcript). Prestressed structural members are made by pouring concrete over stretched steel cables (Tr. 325). All those involved in the present case were manufactured off site at a plant in accordance with engineer’s or architect’s specifications and transported to the building location for erection and assembly (Tr. 547–552, entire record).

(5) The basic structural components of the building here in question consisted of vertical prestressed columns, L-shaped horizontal perimeter beams, and twin-T floor slabs which are designed to rest upon the ledge or horizontal leg of the L-beams (Tr. 60, 83, photo—compl’s. ex. 3).

(6) All lifting for the erection process is done by crane and final positioning of the structural components is done by an erection crew consisting of from 3 to 6 of respondent’s employees (Tr. 143). The vertical columns are first lifted into place, plumbed, and bolted to previously laid bases. These uprights have projecting corbels near the various floor levels. The perimeter beams are positioned upon and secured to the corbels. Next in the structural sequence the floor slabs are positioned between the parallel perimeter beams with their double-T legs resting upon the ledge of the perimeter beam. (Tr. 73, 83, 148–149, 154–160, 206–207; photos—compl’s. ex’s. 1–3)

(7) There are many broad similarities, including a falling hazard to connectors or erection crews, between the process of skeletal steel erection and the prestressed erection process shown to be used in the instant case (Tr. 134, 245, 255, 326); but the differences in the materials and technique are far more significant. Dissimilarities include the facts that concrete pieces for a given strength are many times more bulky than steel; that concrete members are uniformly smooth and lack the ‘web’ configuration of the conventional steel beam; that prestressed members can be altered in size only by chipping, rather than cutting as is possible with steel; that concrete erection cranes routinely work from outside the structure, whereas steel erection cranes often work from erection floors from within; and that ‘pure’ prestress work involves use of a permanent original floor slabbing, whereas steel frame structures commonly involve use of temporary decking (Tr. 343, 450, 590).

(8) At the time of compliance officer Hutton’s inspection an employee of respondent, one Stanko, an erection crew member, was standing on a perimeter beam approximately 12 inches wide, at the third floor level using a pry bar in an attempt to seat the stem or end of a double-T floor slab, still attached to the crane, which slab had become lodged (Tr. 10, 56–60, 348, 365, photos—compl’s. ex’s. 2 and 3). He was there for approximately 5 to 10 minutes (Tr. 59, 189). A short time earlier, two unidentified employees were similarly positioned on the beam (Tr. 57, photo—compl’s. ex. 1).

(9) The place where Stanko was standing was 27 feet above the ground surface (Tr. 60). No safety nets were present, nor were scaffolds or catch platforms. Stanko was not wearing a safety belt nor line nor was there any other device, implement, barrier or surface present or in use which would prevent or interrupt an outward fall to ground surface should Stanko have slipped or in some manner have been dislodged from his position (Tr. 61, 65). A steady wind of about 40 miles per hour was blowing at the times in question (Tr. 58, 124).

(10) Had Stanko fallen the probable consequence would have been severe physical injury or death (Tr. 66, 72).

(11) The particular operation in which Stanko was engaged was the seating of a floor slab between the perimeter beams on either side of the third floor level. These beams formed a bay between vertical columns which was approximately 32 feet long and was designed to accommodate four floor slabs (Tr. 314). The beams in question were on the shorter side of the rectangular building structure (Tr. 560). The slabs were eight feet in width, 35 feet in length and weighed somewhere between 6,000 to 11,000 pounds (Tr. 74, 189, 350). They were hoisted by a crane rigged with a ‘spreader’ whose cable ends were attached to the slab by four lifting rings cast into the upper surface of the slab (Tr. 154–160, photos-compl’s. ex’s. 2 and 3).

(12) The installation technique involved bringing the crane-suspended slabs in ‘sideways’, 90° from their ultimate resting position in order to avoid hitting the vertical columns (Tr. 206, 360). Erection crew members standing on the previously laid slab guided each new slab in (Tr. 206–207). Crew members then aided by hand in shoving and swiveling the slab 90°>> so that it could be brought to rest on the perimeter beams. On the building here in question it was also necessary to move the end of the slab out over the edge of the perimeter beam where Stanko was shown standing and then to swing it back in. This maneuver was done in order to avoid striking an exterior precast wall which had already been mounted on the other side of the structure. (Tr. 207, 372)

(13) The ordinary position of the men seating floor slabs is not on the perimeter beams, but on previously laid slabs at about 3 feet from the outer edge of the structure (Tr. 362, 369). The slabs are engineered with a planned tolerance of from 1/2 to 1 inch from the inner edge of the perimeter beam piece (Tr. 400). Often slabs are positioned without the necessity of going on to the perimeter beam (Tr. 364). With reasonable frequency, however, the slabs either lodge as shown in the Stanko photos and with considerable frequency require use of a pry bar to obtain proper tolerance or spacing (Tr. 154–160, 403, 536–537).

(14) On rare occasions when slabs are being positioned they may ‘jerk up’ for small distances (Tr. 221–213, 229).

(15) In addition to the lifting rings cast into the floor slabs hereinbefore referred to, structural beams have similar rings serving as a means to lift them out of casting beds and also for erection purposes. They further have metal welding points and vertical columns may have integral bolts imbedded to facilitate mounting of additional verticals at their tops (Tr. 348–352, 591).

(16) In order to afford protection from falls to the exterior of the structure, nets supported by struts, stiff legs, or outriggers projecting from the vertical columns can be affixed to such columns by means of clamped-on strap brackets (Tr. 92, 248–249, 254). The nets themselves may be raised by a crane and fastened by workers on the structure without significant exposure to hazards of falling (Tr. 249, 285–288, 292). Such use of nets is a known safety technique (Tr. 254). Nets need not be installed at each floor level where the distances between upper levels, as in the instant case, is 12 feet, in order to prevent falls in excess of 25 feet (Tr. 253, 29 CFR 1926.105(c)(1)). Erection of nets would require approximately 30 minutes for each bay in the building which was the subject of citation (Tr. 292–310).

(17) To lay floor slabs in the area where Stanko was working—and assuming ideal conditions with no problems such as a slab’s lodging—would take about 30 minutes (Tr. 545–555). Problems with lodging or wedging would obviously require more time than the ideal or optimum. The process could take as long as four hours (Tr. 314). The time involved in the erection of nets would increase labor costs and would further increase crane rental expense (Tr. 385).

(18) No temporary floors were used in the structure in question. No party contended that ladders or catch platforms were worthwhile safety devices with respect to the laying of floor slabs (Tr. 318–319, entire record).

OPINION

The record herein will not support a conclusion that the activities of respondent toward which the citation was directed fell within the reach of 29 CFR 1926.750(b)(1)(ii). Complainant and the employee’s representative urge that the hazards of falling encountered by steel[6] erection crews are substantially the same as those demonstrated to exist in prestress concrete erection and that many of the construction techniques used are similar. Where a worker is positioned at the edge of an elevated surface without the presence of some means or device to prevent or limit an accidental fall, the hazard and its potential consequences are essentially the same irrespective of what the surface is or why the worker is there. But it surely does not then follow that any random standard designed to prevent falls from the edges of high places would be applicable for enforcement purposes under the Act.

If it were not sufficiently obvious without it, the evidence in this case shows that substantial differences inherent between both the means and materials of construction used in putting up prestressed concrete buildings, as opposed to skeletal steel buildings. To cite but a single example, the bulk and weight to strength ratios of steel and prestressed concrete differ greatly, as do the necessary sizes of structural members.

In the interpretation of administrative rules, as well as statutes, the intent of the drafters, if ascertainable, must govern. Not a phrase or a word anywhere within Subpart R, ‘Steel Erection’, suggests that such Subpart was meant to pertain to anything but skeletal steel structures. Where the drafters, as they did, referred only to ‘steel’ and to the assembly, decking, and other techniques associated with steel erection, their words used must be accorded their known and ordinary signification. If we were to expand the literal terms of the cited portion of the standard to include a material as different from steel as prestressed concrete, we could as well conclude that Subpart R was intended to apply where workers are exposed to falls from upper levels of multi-story structures of wood framing or masonry construction. The language of the standard is clear and will not permit such a result.[7]

Subsequent to the ruling reopening the case, owing to the Fifth Circuit holding in Southern Contractors Service, supra, respondent in its supplemental brief made strenuous objection to this Judge’s determination permitting complainant to amend to allege violation of 29 CFR 1926.105(a) and (b). The general question of amendment has proved a nettlesome one, but appears to me to have been substantially laid to rest by Commission decisions. The Act itself in section 12(g) (29 USC § 661(f)) provides in pertinent part:

Unless the Commission has adopted a different rule, its proceedings shall be in accordance with the Federal Rules of Civil Procedure.

There is no contrary Commission rule. The Commission has in a number of cases made apparent its inclination to follow the liberal amendment philosophy embodied in Federal Rule 15. As was said in Secretary v. W. B. Meredith, II, Inc., OSAHRC Docket No. 810 (June 7, 1974),

The law is clear and Commission precedent well settled that administrative proceedings under the Act are liberally construed and very easily amended.

See, also, Secretary v. J. L. Maybry Grading, Inc., OSAHRC Docket No. 285 (April 27, 1973). The Commission has thus not chosen to be guided by those common law or code principles of amendment forbidding ‘substantial changes in causes of action’ and generally freezing litigants into original pleading postures. Such principles were long ago repudiated with the adoption of the Federal Rules.[8] Without dwelling upon whether ‘administrative’ pleadings before the Commission are more easily amended than those before the Federal District Courts, it is clear that they are as easily amendable. The second portion of Federal Rule 15(a) is interpreted by a host of cases to entrust to the discretion of the trial judge a policy which favors a liberal allowance of amendments, including those at the commencement of, during, and even after trial.[9]4 The keystone to the exercise of discretion in determining the propriety of amendment is the extent to which prejudice may be visited upon the opposing party through permitting the amendment. United States v. Hougham, 364 U.S. 310 (1960); Hanson v. Hunt Oil Company, 398 F. 2d 578 (8th Circ. 1968). In the present case, for reasons which will later be detailed, the amendment is permitted since no substantial prejudice is apparent.

A brief observation will suffice as to whether the pleading of the additional standard in this case should be regarded as alternative in character. Under Federal Rule 8(e)(2) pleading in the alternative is permitted in absolute terms. Under the facts herein respondent could not be in violation of both 29 CFR 1926.1750 and 29 CFR 1926.105 since the former, if applicable, is far more specific than the latter and would hence prevail to the exclusion of the latter. See 29 CFR 1910.5(c)(1); Secretary v. Sun Shipbuilding and Drydock Company, OSAHRC Docket No. 161 (October 3, 1973); Secretary v. Ohio Urethane Specialists, OSAHRC Docket No. 1807 (August 21, 1973).

III

Respondent maintains that no amendment was permissible in this case because of section 9(c) of the Act (29 USC § 658(c)) which provides:

No citation may be issued under the section after the expiration or 6 months following the occurrence of any violation.

Respondent’s argument[10]5 must be rejected since any consideration of 9(c) is essentially subsidiary to the question of whether amendment was properly allowable. Federal Rule 15(c) provides in explicit terms that any amendment so long as ‘. . . the claim or defense asserted . . . arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading relates back to the date of the original pleading . . ..’ The original conduct described in the present case involved an employee working without fall protection at a height above 25 feet. The principle of relation back applies with full force where amendments involve a change to a statute different from that originally alleged so long as both relate to the same allegedly wrongful conduct. Tiller v. Atlantic Coast Line R. R., 323 U. S. 574 (1945); Mach v. Pennsylvania R. R., 198 F. Supp. 471 (1960). What would be true for statutes is also true for regulations.

An associated question is whether section 9(a) of the Act (29 USC § 658(a)) as it relates to ‘particularity’ of citations circumscribes in any way the freedom with which amendment should otherwise be granted under Federal Rule 15. The pertinent portion of 9(a) provides:

‘Each citation should 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.’

An indirect answer is provided by those Commission decisions previously referred to which have allowed amendments, absent prejudice, under either Federal Rule 15(a) or (b). These cases alone show that the ‘particularity’ requirements does not render the charge as originally cast in the citation immutable; nor do they limit amendment to such trifling matters as correction of clerical errors. The purpose of the particularity requirement of 9(a) is well defined in National Realty and Construction Company, Inc. v. O.S.A.H.R.C., 489 F.2d 1257, 1264 (n.31)(1973) as follows:

Allowing subsequent amendment of a citation’s charges will not disturb the central function of the citation, which is to alert a cited employer that it must contest the Secretary’s allegation or pay the proposed fine. In the typical case, the more inaccurate or unhappily drafted is a citation, the more likely an employer will be to contest it. But a citation also serves to order an employer to correct the cited condition or practice, and a failure to so correct is a punishable violation. 29 U.S.C. § 666(d). Obviously an employer cannot be penalized for failing to correct a condition which the citation did not fairly characterize. Thus, before penalizing a failure to correct a cited violation, the Commission must satisfy itself that the citation defines the ‘uncorrected’ violation with particularity. 29 U.S.C. § 658(a).

Where a citation is contested as to violation there can obviously be no ‘penalizing’ until litigation ends and a final order issues. Abatement is tolled until such time under 29 USC § 659(b).

Where the hazardous occurrence, event, condition or practice believed to constitute a violation has been initially identified by complainant, the respondent in a contested case cannot be heard to complain that prejudice is established by the mere fact that complainant is allowed, through amendment, to charge either in the alternative or by substitution a standard which may have the most specific applicability to the hazardous situation described. In a contested case the ‘particularity’ requirement does not per se circumscribe the ability to amend.

In its supplemental brief respondent strenuously urges that the permission given to complainant to amend was prejudicial. Much of what respondent contends may be summarized with its characterization of the offering of the amendment as ‘dirty pool’. The analogy to games is significant as it serves to underscore what this Judge views as the weakness of respondent’s position. As has been said by the Supreme Court:

The Federal rules reject the approach that pleading is a game of skill . . . and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.[11]

As previously emphasized, the allowance of permission to amend is entrusted to the discretion of the trial judge and should be freely granted in the absence of prejudice. In granting the instant amendment this judge considered the time which elapsed before the motion to amend was made, but in balancing this against the rather obvious problem faced by complainant owing to the then prevailing restrictive interpretations of 29 CFR 1926.105, no basis for inferring bad faith could be found. As to the overriding issue of prejudice, it is first noteworthy that when the motion seeking amendment was argued at trial prior to the taking of evidence the only objection ultimately pressed by respondent went to the statute of limitations issue (respondent’s supplemental brief at page 3, Tr. 25–51). For reasons earlier specified herein, that objection was not well founded. At that point in the proceeding, although respondent had had approximately two weeks’ notice of the written motion to amend and had filed its own motion in response, counsel made no specific point as to actual prejudice in terms of case preparation or availability of evidence which would serve as a basis of delay in the taking of testimony. The subsequent record bears out that factual considerations concerning virtually every conceivable facet of the use (or non-use) of alternative safety devices was explored by all parties in exhaustive detail. When the supplemental hearing was scheduled on the 29 CFR 1926.105 issue, occasioned by the Fifth Circuit’s rejection of the commission’s prior construction of that standard, respondent had every opportunity to bring forth any additional evidence or matters relating to that issue. This the respondent affirmatively declined to do, choosing to rest upon the previous record. With regard to that decision respondent merely states in its supplemental brief:

‘Subsequent to the order to reopen, Respondent concluded that the record and evidence therein was all that could be developed at trial and that additional evidence was not available.’

Respondent then proceeded to make in its supplemental brief extensive protestations of prejudice. In the light of the record these protestations, while colorfully worded, must be regarded as generalizations lacking in true substance. It would have been simple for respondent to identify specific ways in which its ability to defend had been or was impeded; and to explain why such specific problems could not have been cured by subsequent hearing. As the record stands the case deserves to be determined upon the merits based upon the applicability of 29 CFR 1926.105.

We now turn to a consideration upon the merits as to whether respondent violated 29 CFR 1926.105(a) and (b). I must conclude that the violation was established. Such determination is based solely upon the hazards encountered in laying the floor slabs as exemplified by the activities of Mr. Stanko. No attempt can properly be made here to consider what measures or standards may or may not have been applicable during other phases of the erection process, though certain of the background evidence did touch upon such other phases.

It is undisputed, of course, that Stanko was working on a perimeter beam without fall protection of any sort. Respondent contends that the nature of the prestressed erection process is such that exposure of this type cannot be avoided—at least not by means referred to in 29 CFR 1926.105(a) and (b). Certain of these means are ruled out by the evidence. All parties are in substantial agreement that no temporary floors are involved; that the use of ladders would not be helpful; and that catch platforms should not be considered.

As to nets, safety lines and scaffolds, respondent, through Mr. Cooper the safety and training director of the parent company, presented much testimony aimed at establishing the use of nets, scaffolds, or safety lines would (1) in fact increase the hazard to employees and (2) effectively preclude the employees from accomplishing their work.[12] In addition, there are the related suggestions that the state of the art, as it were, in the prestressed industry does not yet permit the use of safety devices until uprights, beams and flooring are all in; and that use of nets in particular would be prohibitively expensive in terms of man hours and equipment time.

All of these contentions have been carefully considered and were ultimately rejected. The preponderance of the credible evidence satisfies me that the nature of the floor slab positioning job frequently requires erection crew members to go on the perimeter beams where they involve themselves in strenuous maneuvers to seat or space floor slabs. Respondent maintains that for the spacing tolerance operation crew members could stand on the floor slab, not the beam, to use a pry (Tr. 575). Curiously, however, there is no indication that this procedure was ever suggested to any worker or foreman. Even if the men stood as Mr. Cooper suggested, they would be close enough to the edge to be exposed to a patent danger of falling.

Apropos of nets, respondent maintains that workers would be exposed to an equal or greater danger in putting up or taking down such devices than if they continued to work without them. In this regard I accept the validity of the views of complainant’s and employees’ representative witnesses, and particularly Mr. Jerome J. Williams, Area Director of OSHA, that nets could be set up at either end of the building—the place where the evidence shows that employees were exposed to falling—without significant exposure to employees, particularly when contrasted to the exposure existing without nets (Tr. 317).

The record abounds in competing calculations by witnesses of the parties as to how long it would take to set up nets compared to the length of time required to raise and position floor slabs. Ultimately, however, using the figures most favorable to respondent by assuming that the two levels of bays were floored in the optimum of 30 minutes each—that is to say that each slab went in without a hitch—the ratio of slab laying time to net erection time would be 60/60. This would increase cost in terms of crane rental fees and labor, but would surely not ‘take approximately twice as long to erect the building’ as Mr. Cooper somewhat rashly suggested at one point (Tr. 384). He later retreated rather far from this position (Tr. 555–565). Similarly, respondent’s expert maintained that the use of bands and clamps around the uprights in order to support nets would pose a danger because of the close tolerances within which floor slabs must be placed to uprights. The danger he foresaw was that the presence of bands or clamps would increase the possibility of an incoming slab striking a column and imperiling the entire structure. He later retreated from this position, too (Tr. 405, 539, 541). Logic surely dictated that he do so, since the steel bands would not be at the floor level where it was agreed that tolerances between floor slabs and perimeter beams were an inch or less. If positioning slabs to such close fits posed a genuine threat to the building’s remaining upright, then the whole erection procedure would arguably present unacceptable perils.

Also, respondent’s Mr. Cooper asserted that the presence of nets extending out eight feet beyond the edges of the building would make the job of lifting slabs up to the desired position more hazardous because of the greater clearance required. He explained that for reasons of economy and convenience prestressed pieces are usually unloaded close to the exterior of the structure (Tr. 375). This is undoubtedly true. But he acknowledged that because of the swing radius of cranes the presence of nets would only somewhat complicate the task of hoisting slabs or other members (Tr. 402). Logic dictates that the possible danger of hitting a net in lifting a slab past it would pose no significantly greater hazard to any structural member already in place then would lifting the same piece from a resting place close to the base of the building. It must further be noted that in the particular building with respect to which this contest arose, floor slabs came in from the ‘long’ side of the structure where erection crews did not work in positioning of slabs. No net would obstruct that side except, perhaps, to a certain extent at the corners.

It is thus held that the affirmative evidence of record convincingly demonstrates that nets could effectively be used in compliance with 29 CFR 1926.105 to reduce the hazards of falls of erection crew members whose duties take them to the perimeter of the structure during the laying of floor slabs without substituting comparable hazard to the employees and without preventing them from performing their work.8[13] Respondent was in violation of the standard as its requirements were defined by the Court in Southern Constractors Service, supra.

It should be noted that the force of respondent’s safety director’s assertions that no safety devices could be used was diminished by what this Judge regarded as indications of a less than profound commitment to safety principles—at least where workers at heights were concerned. Mr. Cooper’s philosophy was at one point expressed as follows:

As I mentioned before, the employees on the erection crew are very self-conscious about safety. They’re the ones that get hurt. So they are the ones that are looking out for a situation like this, and they are the ones who generally do not put themselves in this position. (Tr. 373–374).

The same convictions were earlier stated, though less explicitly (Tr. 364). Further, there is an acknowledgement that no directives had ever been given to employees on the subject of working at heights laying floor slabs in high winds, the subject having been left up to ‘their discretion’ (Tr. 531–532).

Doubtless there is a measure of validity to respondent’s position that erecting nets would be time consuming and would increase total construction costs. One would go unnecessarily far to suggest that a situation could never arise where cost considerations alone would not justify noncompliance with a safety or health standard. Within the context of the present case, however, the principle enunciated in Secretary v. Divesco Roofing and Insulation Co., OSAHRC Docket No. 345 (August 13, 1973) to the effect that increased cost factors, even large ones, do not justify disregard of essentially rational safety requirements, is controlling. Moreover, the evidence shows that the prestressed structures of respondent are designed with considerable ingenuity to be erected quickly at the building site. It shows that prestressed members are fitted at the time of manufacture with cast-in rings either for the purpose of lifting them out of molds or lifting them into position for installation or both. Other cast-in fittings include welding points and can include bolts in the top of vertical columns to facilitate mounting of higher uprights. Thus, it seems wholly likely that respondent, with the same resourcefulness used in the general design of its product, could manage to devise brackets for net fittings which would considerably decrease the time and cost of net erection over that required for a clamp and strap method.

The matter of the possible use of safety belts and lines or external scaffolds should be touched upon briefly. Under the evidence efficacy of either of these means was less apparent than for nets. Hence, the conclusion as to nets is regarded as determinative of the issue of violation. Witnesses for complainant and the employee’s representative presented essentially persuasive proof as to the utility of a ‘clothesline’ cable, running between vertical columns, to which safety lines could be attached. Such a scheme would, despite respondent’s many objections appear workable at the level where Stanko was located, but could not be employed on the level above where the photographs show floor (or roof) slabs already in place, since no verticals are present above that point to which a clothesline could be attached. External, ground-standing scaffolds pose problems because of the presence of excavations around the building footings to accommodate plumbers and other mechanical contractors, and because of the height involved (Tr. 385–387).

VII

29 USC § 666(j) provides:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

The evidence herein amply demonstrates that should an employee have fallen 27 feet from near the edge of a floor slab or from a perimeter beam to the outside of the structure the likely consequences of the fall would have been serious. This was not disputed by respondent. As to the knowledge requirement contained in the above cited section it is clear that persons in authority for respondent, including the individual responsible for the company’s safety program, were aware of exposure of employees, but took the fundamental position that no feasible means were available to protect against such exposure. This position having been rejected and violation found, it follows that the violation must be classified as serious.

VIII

We next consider the question of penalty. Jurisdiction to exact civil monetary penalties lies exclusively with the Commission. In the case of serious violations 29 USC 666(b) makes mandatory the assessment of a penalty. Section 666(i) requires that consideration be given to the size of the employer, the gravity of the violation, the employer’s good faith and its history of previous violations. This provision has been extensively construed by the Commission in such cases as Secretary v. Nacirema Operating Co., Inc., 1 OSAHRC 33 (1972) and Secretary v. Baltz Brothers Packing Co., 2 OSAHRC 384 (1973). The former case indicates that the ‘gravity’ of the violation will ordinarily be accorded the greatest weight. The latter indicates that the number of employees exposed; the duration of exposure; the precautions taken against injury; and the degree of probability of occurrence of an accident should be considered in gauging gravity.

In his testimony herein complainant’s compliance officer indicated that in proposing an ultimate penalty of $600 he gave attention to the statutory criteria as interpreted by his superiors and used specifically formulated guidelines as incorporated in a ‘penalty assessment worksheet’ (compl’s. ex. 4; Tr. 66). An unadjusted penalty of $1,000 was reduced by a ‘maximum’ allowable 20% for respondent’s prior good history; and was further reduced a ‘maximum’ 10% for size based upon the fact that 6 employees were at the site. As to ‘good faith’ 10% of a ‘maximum’ of 20% allowable under complainant’s guidelines was allowed. The compliance officer indicated that he did not allow a full 20% because no means of protection of employees were in evidence, but he allowed 10% because of prompt abatement in that (presumably) employees were ordered out of the danger area. Under the criteria adopted by the Commission the lack of any means of protection for employees would appear to go more to gravity than good faith; but as earlier mentioned the safety program of respondent, with its apparent heavy reliance on employees’ instinct for self preservation as a substitute for substantive safety measures or direction is not of a quality commensurate with respondent’s size and resources. The safety director had direct responsibility for nine companies, including respondent, operating in several states (Tr. 338, 424) with a total of 1,400 employees including plant workers and construction workers (Tr. 512). His staff consisted of a secretary, a nurse and a night watchman (Tr. 519). The typical contact with erection crews appears to have been in the form of machine-reproduced copies of various safety handouts from insurance companies and the newspaper, mailed to foreman (Tr. 426, 511, 514).

The gravity of the violation must be regarded as moderately high since the evidence shows that erection crews during floor slab installation were required to be at the edge of the structure with reasonable frequency with no significant steps being taken to guard against falls—even to the extent of forbidding their working in 40 mile an hour winds.

In regard to respondent’s ‘size’ the reasoning used by the compliance officer appears to be at odds with Secretary v. Jasper Construction, Inc., OSAHRC Docket No. 119 (August 1, 1973) wherein it was held that an employer’s size should be determined by consideration of its gross dollar volume and the total number of persons employed (not simply those at the cited workplace). Respondent is not a small employer.

On balance, however, it is my independent judgment that consideration of the evidence in the light of § 666(i) warrants the imposition of a $600 penalty.

CONCLUSIONS OF LAW

Upon the entire record herein it is concluded:

1. That at all times material hereto respondent was an ‘employer’ engaged in a ‘business affecting commerce’ within the meaning of the Act and was subject to the jurisdiction of this Commission.

2. That the evidence fails to establish that respondent was in violation of 29 CFR 1926.750(b)(1)(ii) relating to use of safety devices in steel erection since the proofs disclose that respondent was not engaged in steel erection.

3. That the citation was properly amended to alternatively charge violation of 29 CFR 1926.105(a) and (b).

4. That the provisions of 29 USC § 658(c) did not inhibit such amendment since it properly related back to the time of the original pleading.

5. That complainant satisfied the requirements of 29 USC § 658(a) relating to specificity of citations.

6. That on April 19, 1973 respondent was in violation 29 CFR 1926.105(a) and (b).

7. That such violation was ‘serious’ within the meaning of 29 USC § 666(k).

8. That giving due consideration to the criteria set forth at 29 USC § 666(i), a civil penalty of $600 is reasonable and appropriate for the above specified serious violation.

ORDER

In accordance with the foregoing it is hereby ORDERED:

1. That the citation for serious violation as amended to alternatively charge violation of 29 CFR 1926.105(a) and (b) is hereby affirmed.

2. That a civil penalty in the sum of $600 is hereby assessed in connection with such violation.

John A. Carlson

Judge, OSAHRC

DEC 6, 1974

[1] The standard reads:

(b) Where safety net protection is required by this part, operations shall not be undertaken until the net is in place and has been tested.

[2] The standard reads:

(b) Temporary flooring-skeleton steel construction in tiered buildings (i)(ii). On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained wherever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contacts with the surface of structures below.

[3] Drake-Willamette Joint Ventures, 2 OSAHRC 1216, BNA 1 OSHC 1181, CCH OSHD para. 15,655 (1973); Southern Contractors Service, 3 OSAHRC 234, BNA 1 OSHC 1240, CCH OSHD para. 15,801 (1973).

[4] Employers must decide within 15 working days of receipt of the notification of proposed penalties whether or not to contest the action. 29 U.S.C. § 659(a). If no notice of contest is filed within that time, employers are normally precluded from obtaining any hearing on the matter.

[5] For other cases in which I have stated additional reasons for this position, see my separate opinions in Secretary v. Warnel Corp., OSAHRC Docket No. 4537, March 31, 1976, and Secretary v. California Stevedore and Ballast Company, 16 OSAHRC 800, 806 (1975).

[6] [Placement of this footnote not indicated in original text; it appeared in the range of text starting here, up to where footnote 2 is indicated.] This decision in no way purports to deal with the applicability of the steel erection standards to “hybrid” structures utilizing both prestressed members and steel members. The building in question in this case was wholly prestressed. Neither is it necessary to decide whether, as respondent urges, 29 CFR 1926.750(b)(1)(ii) was intended to apply only to inward falls within the structure.

[7]Extensive testimony (Tr. 440–502) was given by Mr. Robert D. Gidel, former Director of Program Operations for OSHA as to the genesis and lineage of complainant’s construction safety and health standards, with the particular emphasis on Subpart R. It is to be noted that since this Judge’s decision relative to the inapplicability of Subpart R is based on the literal meaning of the standard, the testimony of this witness which was addressed primarily to the ‘legislative history’, as it were, did not play a part in the determination. Resort to such history is unnecessary where a regulation is free of ambiguity. General Electric Co. v. Southern Construction Company, 383 F.2d 135 (5th Cir. 1967, cert. den. 390 U.S. 955). Beyond that, it is highly questionable whether the unofficial, non-contemporaneous recitals of an official associated with the compilation of the standards should be entitled to weight. N. C. Freed Co., Inc. v. Board of Governors of Federal Reserve System, 473 F.2d 1210, 1217 (2d Cir. 1973); National School of Aeronautics v. United States 142 F. Supp. 933 (1956).

[8] Moore’s Federal Practice, ¶15.08[2].

[9] See Wright & Miller, Federal Practice and Procedure: Civil §§ 1484, 1488.

[10] Respondent insists that 9(c) is a statute of limitations. In my view it is more than a mere bar to the bringing of an action, raisable as an affirmative defense. It is instead a specific statutory termination of the existence of the right to commence an enforcement action. See Goodwin v. Townsend, 197 F.2d 970 (3rd Cir. 1952).

[11] United States v. Hougham, supra, at 317, citing Conley v. Gibson, 355 U. S. 41.

[12] The validity of such defenses has been recognized by the Commission. See, respectively, Secretary v. Industrial Steel Erectors, Inc., OSAHRC Docket No. 703 (January 10, 1974); Secretary v. Consolidated Engineering Company, Inc., & Otis Elevator Company, OSAHRC Docket Nos. 394 and 471 (October 17, 1944).

[13] In both Industrial Steel Erectors, supra, and Consolidated Engineering Company, supra, the defenses of ‘greater hazard’ or ‘work impossibility’ are affirmative in character with the burden of proof resting upon respondent. No consideration of the question of burden of proof was necessary herein. The preponderant weight of the evidence from all sources compels the conclusion that nets were an appropriate means of fall protection.