“SECRETARY OF LABOR,Complainant,v.COPPERWELD STEEL COMPANY,Respondent.OSHRC Docket No. 80-7330_DECISION_Before: BUCKLEY, Chairman and CLEARY Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_section 10(c) of the Act, 29 U.S.C. ? 659(c).Copperweld Steel Company (\”Copperweld\”) has petitioned for review of thedecision of the administrative law judge finding Copperweld in violationof section 5(a)(1) of the Act, 29 U.S.C. ? 654(a)(1). The allegedviolation involves an unguarded elevated runway in Copperweld’s plant. We conclude that section 5(a)(1) does not apply to the cited conditions,in light of the specific provisions of 29 C.F.R. ? 1910.23(c)(2).[[2]] We remand the case to the judge to determine whether an amendment of thepleadings to charge a violation of section 1910.23(c)(2) would beappropriate, and, if so, to determine whether a violation of thatstandard has been established.Copperweld operates a steel manufacturing plant in Warren, Ohio. Themelt shop, where molten metal pouring operations take place, is about400 feet long. The runway in question runs parallel to tracks on whichthree cranes operate. The runway is bounded on one side by the shop’swall. The other side, adjacent to the crane tracks and eight feet abovethe pouring platform, is open. The runway is about 4 1\/2 feet wideexcept at the building support columns, where the width is reduced to 181\/4 inches. The runway provides the only access to the three cranes,which operate on the pouring platform.The primary purpose of the runway is to provide a means of escape forthe hot metal crane operators during an explosion or other emergency. It is undisputed that guardrails cannot be placed along the open side ofthe runway because they would block the operator’s escape in anemergency. However, crane operators also walk along the runway aboutonce or twice a week to enter and exit a crane when a shift changeoccurs during a lengthy pour, and the crane cannot be moved to the pointwhere the relieving crane operator enters the runway. There is noevidence that the runway ever is used for any purpose other thanentering and exiting the cranes.At the hearing, Copperweld moved to dismiss the Secretary’s case on theground that section 1910.23(c)(2) applies to the cited conditions andthus citation to section 5(a)(l) is inappropriate. Copperweld furtherargued that the runway fell under the \”special purpose\” exception insection 1910.23(c)(2) and therefore that it was not required to have aguardrail on its open side. The Secretary continued to contend thatsection 5(a)(1) of the Act was the applicable provision. The judgeruled that Copperweld did not use the runway exclusively for emergencyescape and concluded that this was a violation of section 5(a)(1) of theAct.The Secretary now agrees with Copperweld that section 1910.23(c)(2)applies to the facts and that section 5(a)(1) does not. He argues thatthe judge should have amended the pleadings _sua_ _sponte_ at thehearing after Copperweld had raised the standard’s applicability. Hemoves to have the Commission amend the citation under Rule 15(b) of theFederal Rules of Civil Procedure to allege a violation of section1910.23(c)(2). Copperweld argues that a violation of section1910.23(c)(2) was not tried below and argues that an amendment now wouldcome too late. Copperweld states that it would be prejudiced by anamendment because it would have presented additional evidence in defenseif it had known that a violation of section 1910.23(c)(2) was being tried.Because the elevated walkway is a runway [[3]] and is more that fourfeet above the adjacent floor level (the pouring platform), section1910.23(c)(2) applies here and citation to section 5(a)(1) of the Act isinappropriate, as Copperweld and the Secretary agree. _E.g_., _A.Prokosch & Sons Sheet Metal, Inc_., 80 OSAHRC 96\/A2, 8 BNA OSHC 2077,1980 CCH OSHD ? 24,840 (No. 76-406, 1980). The next question is whetherthe pleadings should be amended as the Secretary requests to chargenoncompliance with section 1910.23(c)(2). The judge did not rule onthis issue because no motion to amend was made to him. We thereforeremand the case to the judge to determine initially whether an amendmentof the pleadings under Rule 15(b) to allege a violation of that standardshould be allowed. If the judge determines that the motion to amendshould be granted, he is to decide whether Copperweld should bepermitted an opportunity to present further evidence regarding theamended charge, as it requests, and he is to make appropriate findingsand conclusions.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: AUG 31 1984————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Section 5(a)(1) provides:Each employer . . . shall furnish to each of his employees employmentand a place of employment which are free from recognized hazards thatare causing or are likely to cause death or serious physical harm to hisemployees.[[2]] ? 1910.23 _Guarding floor and wall openings and holes_(c) _Protection of open-sided floors, platforms, and runways_.(2) Every runway shall be guarded by a standard railing (or theequivalent . . . ) on all open sides 4 feet or more above floor orground level. Wherever tools, machine parts, or materials are likely tobe used on the runway, a toeboard shall also be provided on each exposedside.Runways used exclusively for special purposes (such as oiling, shafting,or filling tank cars) may have the railing on one side omitted whereoperating conditions necessitate such omission, providing the fallinghazard is minimized by using a runway of not less than 18 inches wide. Where persons entering upon runways become thereby exposed to machinery,electrical equipment, or other danger not a falling hazard, additionalguarding than is here specified way be essential for protection.[[3]] Section 1910.21(a)(5) provides:_Runway_. A passageway for persons, elevated above the surroundingfloor or ground level, such as a footwalk along shafting or a walkwaybetween buildings.”