“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 8842 HENKELS & MCCOY, INCORPORATED \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0August 3, 1976DECISIONBEFORE BARNAKO, Chairman;MORAN and CLEARY, Commissioners.CLEARY, Commissioner:I.OnNovember 22, 1974, Judge Joseph L. Chalk issued his decision, denying theSecretary of labor?s motion to amend a citation, declaring 29 CFR ?1926.21(b)(2) unenforceable, and vacating a citation alleging a seriousviolation of section 5(a)(2) of the Occupational Safety and Health Act of 1970(29 U.S.C. ? 651 et seq., hereinafter ?the Act?). The Secretary of Labor?spetition for review of the Judge?s decision was granted. The petition raisedthe following issues:(1)Whether the Administrative Law Judge erred in denying the Secretary of Labor?smotion to amend the citation??(2) Whether the Administrative Law Judge erredin finding the standard at 29 CFR ?\u00a01926.21(b)(2) so broad and nonspecificas to preclude its use as a basis for citation?Weanswer both questions in the affirmative and remand for a full hearing on themerits of the amended citation.OnJune 11, 1974, the respondent employer was issued a citation that alleged aviolation of the ?special duty? requirements of section 5(a)(2) of the Act forfailing to comply with 29 CFR ? 1926.21(b)(2).[1] The citation described theviolation in the following terms:At the outsideelectrical substation adjacent to the Owens Corning Fiberglass Co. the employerfailed to instruct his employees in the recognition and avoidance of unsafeconditions and the regulations applicable to his work environment to eliminatehazards or other exposures to injury n that (2) employees were allowed tooperate a Templeton Kenly 10 Ton Jack, Serial #839, in a unsafe manner. The twoemployees stood on the jack lever to exert force to operate the jack despitethe manufacturer?s recommendation not to stand over the lever while the jack isin operation. One of the employees was subsequently fatally injured due to thejack levers action.?Thealleged violation was characterized as ?serious? within the meaning of section17(k) of the Act; a penalty of ?600 was proposed.Afterrespondent submitted a timely notice of contest, the Secretary filed hisComplaint, which essentially restated the factual allegations of the citation.The Secretary, however, also sought to amend his Complaint to allege in thealternative a violation of section 5(a)(1) of the Act, the ?general duty?clause. In pertinent part, the Complaint reads as follows:On June 6 and 11,1974 at an electrical substation located at Fiberglass Road, Barrington, NewJersey the respondent violated 29 C.F.R. 1926.21(b)(2) promulgated pursuant tosection 6 of the Act in that respondent failed to instruct each employee in therecognition and avoidance of unsafe conditions and in the regulationsapplicable to his work environment for eliminating hazards or exposure toinjury. The Respondent did not instruct two employees in the proper use of aTempleton Kenly 10 ton jack by permitting two employees to operate the jack bystanding on its lever, contrary to recommendations by the manufacture[r] of thejack that persons should stand clear of the lever while in operation. As aresult of respondent?s ommission [sic], an accident occurred which resulted ina fatal injury to Lawrence Duffey, one of the respondent?s employees.?VITheSecretary hereby amends his citation issued on June 18, 1974, pursuant to Rule33 of the Occupational Safety and Health Review Commission Rules of Procedureto plead in the alternative that on June 6 and 11, 1974, at an electricalsubstation located at Fiberglass Road, Barrington, New Jersey, respondentviolated the provisions of section 5(a)(1) of the Act by failing to furnish itsemployees with employment and a place of employment which was free fromrecognized hazards that were causing or were likely to cause death or seriousphysical harm.Therespondent permitted two employees to operate a Templeton Kenly, 10 ton jack bystanding on its lever contrary to recommendations by the manufacturer of thejack that persons should stand clear of the lever while in operation. As aresult, an accident occured [sic] which resulted in a fatal injury to LawrenceDuffey, one of the respondent?s employees.TheSecretary amends his citation to plead the above application provision of theAct in the alternative because the description of the vioaltion [sic] satisfiesthe requirements of either the standard cited in paragraph V above and forsection 5(a)(1) of the Act.Inits Answer, respondent asserted that the motion to amend was improper, andraised the affirmative defense that the cited standard was invalid for want ofspecificity.OnOctober 7, 1974, Judge Chalk ordered the Secretary to show cause why thecitation should not be vacated. After briefs were filed, the Judge vacated thecitation on the ground that the cited standard uses broad, introductorylanguage and cannot be the basis for a valid citation. He also denied theSecretary4?s motion He also denied the Secretary?s motion ?totally new charge.?II.Weshall first deal with the matter of the amendment. We note at once the generalprinciple that a citation is not the sole vehicle by which a contestingemployer may be notified of an alleged violation. See J. L. Mabry Grading, Inc.,9 OSAHRC 98, 108, BNA 1 OSHC 1211, CCH 1971?73 OSHD para. 15,686 (No. 285,April 27, 1973). The Commission has accordingly made provision for theamendment the pleadings of contested citations. Commission Rule 33(a)(3) 29 CFR2200.33(a)(33), states the following:Where the Secretary seeksin his complaint to amend his citation . . . , he shall set forth the reasonsfor the amendment and shall state with particularity the change sought.Onits face, the Secretary?s motion falls well within the plainly worded terms ofthe Rule. The change sought has been stated with particularity. It is alsosufficiently clear that the amendment is sought so that a decision on themerits will be made if the standard is found to be inapplicable or invalid.[2] Respondent suggests,however, that facial compliance with Rule 33(a)(3) is not enough, and that theRule should not be applied in a manner that would do violence to the languageor purpose of the Act. We agree. If so understood and applied, however, Rule33(a)(3) should not transgress these bounds. We have recognized theCongressional concern in section 9(a) of the Act that the prompt abatement ofhazards is aided when employers are informed with particularity of theviolative condition to be corrected. See e.g., Concrete Construction Corp.,BNA 4 OSHC 1133, CCH 1975?76 OSHD para. 20,610 (No. 2490, April 8, 1976). Tothis end Rule 33(a)(3) requires that an amendment of the citation sought by theSecretary be stated with the same degree of particularity that is originally required.The amended citation must enable the employer to identify adequately andcorrect the conditions it addresses. Cf. National Realty & Constr. Co.,Inc. v. O.S.H.R.C., 489 F.2d 1257, 1264 & n.31 (D.C. Cir. 1973).Equally important, however, is the avoidance of a rigid application of the Rulein a manner that may cripple effective enforcement. Initial determinations bythe Secretary?s safety or health experts to refer in the citation to aparticular section or standard may, upon subsequent review by the Secretary?slegal staff, be found wrong. The cited standard may, for example, have beenfound to have been invalid[3] or inapplicable as aresult of previous litigation. These matters are not within the professionalexpertise of compliance personnel who may lack legal skills. It accordinglyfollows that as a matter of administrative practicality, Rule 33(a)(3) may beapplied so as to change the allegations of the original citation.Respondentargues, however, that the Rule?s proper application is limited to insubstantialamendments of form or language, and cannot serve to change the legal theory ofthe case. Plainly stated, respondent argues that once issued, a citationfreezes the legal theory of the case, and cannot be substantially amended. Theargument, however, is founded upon a faulty premise, and must therefore berejected. We are not dealing here with an attempt to amend pleadings inwell-developed litigation. To argue whether the amendment would introduceuntried factual issues misses the mark because there has not yet been ahearing. And in general, questions of prejudice rarely attain significance whenthe case is still in the pleading stage. This is not to say that theintroduction of new matter is necessarily irrelevant. For example, if an attemptto amend occurred more than six months after an alleged violation (section9(c), last sentence), then under Fed. R. Civ. P. 15(c), such considerationswould become important. See Bloomfield Mechanical Contracting, Inc. v.O.S.H.R.C., 519 F.2d 1257, 1262 (3d Cir. 1975). Cf. Vincent RizzoConstr. Co., BNA 3 OSHC 1841, CCH 1975?76 OSHD para. 20,236 (No. 4224,December 22, 1975). Also, if the amendment were to cause a substantialincurable injustice stemming for example from surprise, we would refuse topermit it. But these problems do not appear here. The amendment was filed wellwithin the six-months limitation period. Permitting it can hardly be said tocreate an injustice as a result of surprise, for it would not change theunderlying factual predicate of the case. It would only add an alternate theoryof the case, for which the proof would be essentially the same. Moreover,respondent claims no injustice as a result of surprise.Respondentalso urges that because a citation must be posted, and a complaint need not be,the complaint may not make substantive changes in the citation. Henkels &McCoy has no standing to raise this issue. The posting requirement is providedfor the benefit of employees rather than the employer. See Brennan v.O.S.H.R.C. and Bill Echols Trucking Co., 484 F.2d 230, 236 (5th Cir. 1973).Cf. Lee Way Motor Freight, Inc., BNA 3 OSHC 1843, 1846, CCH 1975?76 OSHDpara. 20,250 at 24,144, 24,145 (No. 7674, December 22, 1975). Moreover, a copyof the complaint would be available for inspection by employees.[4] Also, so far as employeesare concerned, the change could hardly be considered substantive. Under thesecircumstances, we find no reason why Rule 33(a)(3) should not be applied.[5] The Secretary?s motion toamend is granted.Wealso find nothing objectionable about pleading or citing violations ofsubsections (1) and (2) of section 5(a) in the alternative. See SunShipbuilding & Drydock Co., 4 OSAHRC 1020, BNA 1 OSHC 1381, CCH 1971?73OSHD para. 16,725 (No. 161, October 3, 1973) (concurring opinion). Fed. R. Civ.P. 8(a) clearly states that ?[r]elief in the alternative . . . may bedemanded.? Fed. R. Civ. P. 8(e) provides that ?[a] party may set forth two ormore statements of a claim . . . alternatively . . ..? It is no answer that thesection 5(a)(1) claim may eventually be found to lack merit because the section5(a)(2) claim would, if proved, displace it. Fed. R. Civ. P. 8(e) specificallystates that ?[a] party may also state as many claims . . . as he has regardlessof consistency . . .? The complaint states a claim upon which relief may be grantedand that is sufficient.[6]III.Weturn now to the merits of the original section 5(a)(2) allegation. We do notadopt the Judge?s view that 29 CFR ? 1926.21(b)(2) is unenforceable on theground that it is broad, introductory or nonspecific, or that it cannot beapplied when a specific hazard is caused by a failure to instruct one?semployees. Nothing in the Act forbids the adoption of standards which address abroad range of hazards or which speak in general terms. In EichleayCorporation, 15 OSAHRC 635, BNA 2 OSHC 1635, CCH 1974?75 OSHD paras.19,324, 16,811 (No. 2610, February 20, 1975), we specifically approved JudgeBurroughs determination that a similar standard, which refers generally tounsafe conditions and refers the employer to other standards, is enforceable.In his opinion Judge Burroughs stated:The argument thatthe phrase ?hazardous condition? contained in 29 CFR 1926.28(a) contravenesSection 5(a)(1) of the Act in essence infers that the Secretary is prohibitedfrom using the word ?hazard? in a standard. There is nothing in the Act orlegislative history which remotely suggests that Section 5(a)(1) was enacted toachieve this result. The general duty provisions of Section 5(a)(1) were enactedto provide protection for employees where no standards existed to cover acondition which constituted a recognized hazard. In this case the phrase?hazardous conditions? is used in a duly promulgated standard and takesprecedence over the general duty clause. The standard is not unenforceablemerely because it contains the word ?hazard.??Wealso find no merit in respondent?s argument that the cited standard isunconstitutionally vague. The standard is broad but clear. It requires: (1)instruction in safety measures and applicable regulations, and (2) instructionon how employees may recognize and thereby avoid unsafe conditions. See Brennanv. Butler Lime & Cement Co., 520 F.2d 1011 (7th Cir. 1975) (byimplication); Ames Crane & Rental Service, Inc. v. Dunlop, No.75?1591 (8th Cir., April 1, 1976) (same).[7] The scope of the remandwill accordingly reach to the section 5(a)(2) allegations.Wemake one more comment on this issue. In substance, the Judge decided the caseon the pleadings. It is well settled that a motion under Fed. R. Civ. P.12(b)(6) may not be granted ?unless it appears beyond a reasonable doubt thatthe plaintiff can prove no set of facts in support of his claim that wouldentitle him to relief.? Smith?s Transfer Corp., BNA 3 OSHC 1088, CCH1974?75 OSHD para. 19,544 (No. 5786, April 18, 1975), quoting and citingauthorities. Though no hearing was held, the Judge?s conclusion of law that thecited standard is unenforceable relies heavily on ?the factual setting of thiscase.? We therefore note that the Judge?s finding of invalidity should not inany event have been made until the record was fully developed. See RiverTerminal Railway Co., BNA 3 OSHC 1808, CCH 1975?76 OSHD para. 20,215 (No.4419, December 12, 1975).Inview of the delay of this case, we order an expedited and full hearing. TheAdministrative Law Judge shall prepare findings of fact and conclusions of law,based on the presentations of both parties. See generally, White v. RimrockTidelands, Inc., 414 F.2d 1336, 1340 (5th Cir. 1969).TheJudge?s decision is reversed, and the case is remanded for further proceedingsconsistent with this opinion. So ORDERED.?FOR THE COMMISSION:?William S. McLaughlinExecutive SecretaryDATED: AUG 3, 1976?BARNAKO, Chairman, concurring:Iagree that the Judge erred by vacating the citation on the pleadings ratherthan preserving the questions for disposition following a hearing. And pleadingin the alternative is permitted by the letter of the Federal Rules of CivilProcedure although I question whether it is within the spirit of the Rules forthe Secretary to employ this tool of pleading in prosecuting a civil penaltyproceeding.* Accordingly, I concur inthe remand and in permitting the amendment.Ido not at this time venture any opinion as to whether the cited standard isvalid, nor do I venture any opinion as to whether the amendment inserts newfactual matters into the case not growing out of the original citation. Thereis a basis for Judge Chalk?s conclusion that the amendment is in effect a newcitation; the original citation charged a failure to ?instruct? whereas theamendment speaks in terms of permitting employees ?to operate.? But on review,the Secretary asserts that the violation is the same whether under the standardor under section 5(a)(1). As Commissioner Cleary indicates, there is doubt onthe question of the validity of the standard. Since it appears that theamendment only adds an alternative legal theory of the case, I concur.MORAN, Commissioner, Dissenting:JudgeChalk correctly decided this case in a well-reasoned decision, which isattached hereto as Appendix A, and that decision should be affirmed. I am incomplete agreement with Judge Chalk that complainant?s motion to amend thecitation to allege an alternative charge is incorrect in law and, further, that29 C.F.R. ? 1926.21(b)(2) is not enforceable because its vagueness precludes itfrom qualifying as an occupational safety and health standard.Complainant?seffort to insert a 29 U.S.C. ? 654(a)(1) charge into the pleadings by amendmentis a simple contravention of the mandatory requirement that citationsshall describe:?. . . withparticularity the nature of the violation, including a reference to theprovision of the chapter, standard, rule, regulation, or order alleged to havebeen violated.? 29 U.S.C. ? 658(a) (emphasis supplied).\u00a0Inthe case before us the respondent was initially issued a citation alleging afailure to comply with 29 C.F.R. ? 1926.21(b)(2) because respondent failed toinstruct its employees in use of a Templeton Kenly jack. Thereafter, acomplaint was filed which attempted to amend the citation to add an alternativecharge that respondent violated 29 U.S.C. ? 654(a)(1), the so-called generalduty clause, by permitting its employees to operate this jack in an unsafemanner.AsI have previously pointed out in some detail,[8] the liberal amendmentrules provided in Rule 15 Federal Rules of Civil Procedure, do not apply to theamendment of a job safety citation because it is a unique creature of statuteto which Congress attached the particularity requirements enumerated in 29U.S.C. ? 658(a). Considering those requirements, it is clear that at most onlyminor editorial changes are permissible under Commission Rule 33(a)(3).Obviously, the Commission cannot circumvent the intent of Congress byconstruing its own procedural regulations in a manner that conflicts withcongressional intent. However, that is exactly what the Commission is doing byallowing complainant to add a totally new charge in the complaint as nocitation has been issued which sets out that particular allegation.Asone final observation on this matter I note that although my colleagues citefootnote 31 of National Realty and Construction Company, Inc. v. OSAHRC,489 F.2d 1257 (D.C. Cir. 1973), they completely disregard its content indisposing of this case. In particular, I refer to the Circuit Court?s statementthat?[A]nemployer cannot be penalized for failing to correct a condition which the citationdid not fairly characterize.? (Emphasis supplied.)?Acitation, of course, does not fairly characterize an allegation which adds atotally new charge.AsI stated at the outset, I fully agree with Judge Chalk?s conclusions regardingthe vagueness of 29 C.F.R. ? 1926.21(b)(2). Those conclusions are consistentwith several Circuit Court decisions. For example, Brennan v. OSAHRC andRaymond Hendrix, d\/b\/a Alsea Lumber Company, 511 F.2d 1139 (9th Cir. 1975),holds that an employer is not liable for an alleged violation of the Act unlessthe complainant establishes that the employer knew or should have known of theviolation. Where a standard is as vague as the instant one, an employer has nonotice of what he is supposed to do and, therefore, cannot have possessed therequisite knowledge which is necessary to support a violation.Asthe United States Court of Appeals for the Fifth Circuit so appropriatelystated in Diamond Roofing Company v. osahrc, 528 F.2d 645, 649 (5th Cir.1976):The respondentscontend that the regulations should be liberally construed to give broadcoverage because of the intent of Congress to provide safe and healthfulworking conditions for employees. An employer, however, is entitled to fairnotice in dealing with his government. Like other statutes and regulationswhich allow monetary penalties against those who violate them, an occupationalsafety and health standard must give an employer fair warning of the conduct itprohibits or requires, and it must provide a reasonably clear standard ofculpability to circumscribe the discretion of the enforcing authority and itsagents.***?If a violation ofa regulation subjects private parties to criminal or civil sanctions, aregulation cannot be construed to mean what an agency intended but did notadequately express. . . . We recognize that OSHA was enacted by Congress forthe purpose stated by the respondents. Nonetheless, the Secretary as enforcerof the Act has the responsibility to state with ascertainable certainty what ismeant by the standards he has promulgated.?Thestandard here in issue does not meet these requirements.Finally,I must disagree with the ?DECISION? label on the first page of the leadopinion. After attempting to decipher the gibberish in the concurring opinion,it is obvious to me that there is no decision in this case. Chairman Barnakohas simply not taken a position on the two salient issues that are before theCommission.[9]It is quite clear, however, that he has not registered agreement withCommissioner Cleary thereon. Therefore, the action purportedly ordered in thelead opinion is invalid because ?official action can be taken only on theaffirmative vote of at least two members? of the Commission. 29 U.S.C. ?661(e). Since no two members of the Commission have voted to hold the Judge inerror on the issues before it, the action ordered by Commissioner Cleary?sopinion is null and void. See Shaw Construction Inc. v. OSAHRC, ?? F.2d??, 5th Cir., No. 75?3495, decided July 12, 1976.Inmany decisions my colleagues have been making a concentrated effort todowngrade the posture of decisions rendered by Judges of this Commission. Insome of the discussions, consistent with the last paragraph of footnote 5 ofthe lead opinion in the instant case, they have taken the position thatdecisions of Judges which are not reviewed by the Commission members have noprecedential value. See, e.g., Secretary v. Leone Construction Company,OSAHRC Docket No. 4090, February 10, 1976, in which, as in all of thesedecisions, I recorded my disagreement with that concept. Furthermore, ChairmanBarnako has consistently used misnomers such as ?report? or ?recommendation?when referring to decisions of Commission Judge?s. See, e.g., Secretary v.Ringland-Johnson, Inc., OSAHRC Docket No. 3028, June 16, 1976. In view ofsuch action, I am unable to understand how the Chairman can condone the use ofthe ?DECISION? label at the outset of this document.?APPENDIX A\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 8842 HENKELS & MCCOY, INCORPORATED \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0FINAL ORDER DATE:December 23, 1974DECISIONAND ORDERChalk, JudgeThiscase presents the following two questions:Whetherthe charge that Respondent violated 29 USC 654(a)(2) by not complying with 29CFR 1926.21(a)(2) is correct in law, andWhetherthe Secretary, in his Complaint, may be permitted to amend the Citation toallege in the alternative another violation different from that charged in theCitation.Myanswer to both of these questions is in the negative and the Citation forSerious Violation and proposed penalty assessment accordingly will be vacatedwithout a hearing.TheCitation for Serious Violation charged Respondent with the following allegedviolation:29 CFR1926.21(b)(2) ?At the outside electrical substation adjacent to the OwensCorning Fiberglass Co. the employer failed to instruct his employees in therecognition and avoidance of unsafe conditions and the regulations applicableto his work environment to eliminate hazards or other exposures to injury inthat (2) employees were allowed to operate a Templeton Kenly 10 Ton Jack,Serial #839, in an unsafe manner. The two employees stood on the jack lever toexert force to operate the jack despite the manufacturer?s recommendation notto stand over the lever while the jack is in operation. One of the employeeswas subsequently fatally injured due to the jack levers [sic] action.??Respondentduly contested this charge.Whenhe filed his Complaint, the Secretary, in paragraph VI thereof, purported toamend the Citation in the following manner:?The Secretaryhereby amends his citation issued on June 18, 1974, pursuant to Rule 33 of theOccupational Safety and Health Review Commission Rules of Procedure to plead inthe alternative that on June 6 and 11, 1974, at an electrical substationlocated at Fiberglass Road, Barrington, New Jersey, respondent violated theprovisions of section 5(a)(1) of the Act by failing to furnish its employeeswith employment and a place of employment which was free from recognizedhazards that were causing or were likely to cause death or serious physicalharm.??The respondentpermitted two employees to operate a Templeton Kenly, 10 ton Jack by standingon its lever contrary to recommendations by the manufacturer of the jack thatpersons should stand clear of the lever while in operation. As a result, anaccident occured [sic] which resulted in a fatal injury to Lawrence Duffey, oneof the respondent?s employees.??The Secretaryamends his citation to plead the above applicable provision of the Act in thealternative because the description of the violation [sic] satisfies therequirements of either the standard cited in paragraph V above and for section5(a)(1) of the Act.?\u00a0Thetwo questions will be discussed seriatim.I29CFR 1926.21, the basis of the charge in this case, is a part of Subpart C ofthe construction standards entitled ?General Safety and Health Provisions.? Forthe most part, this entire subpart, as its title indicates, is general innature and serves as an introduction to specific standards that follow in othersubparts. Hence, many of its subsections, after making broad and generalstatements, direct attention to other subparts that specifically informemployers what they must do or not do (see 29 CFR 1926.21(b)(5), 29 CFR1926.23, 29 CFR 1926.24, 29 CFR 1926.26, 29 CFR 1926.27, and 29 CFR 1926.28, asexamples).Standingalone, many of the subsections under Subpart C cannot serve as a basis for acharge against an employer, for want of specificity. Thus, Judge James D.Burroughs set aside a charge involving 29 CFR 1926.20(a) on the ground thatthat subsection was nonspecific and did no more than impose a general duty uponemployers not to allow their employees to work under conditions which wereunsanitary, hazardous or dangerous to health and safety (Secretary v. RentenbachEngineering Co., McDowell-Purcell, Inc., 1 OSAHRC 1033(1972)). Other judgesof the Commission have reached the same conclusion with respect to 29 CFR1926.20(b)(1) and (2) (Secretary v. Granite-Seabro Corp., Docket No.923, July 31, 1973; Secretary v. AMP Construction Co., 2 OSAHRC 1251(1973)).29CFR 1926.21, the subsection involved in this case, also employs broad,introductory language that raises a serious question as to whether it islegally sufficient to serve as a basis to charge an employer with a violationof the Act (see Secretary v. Keibler Industries, Inc., Docket No. 1689,June 28, 1973; see also Secretary v. Granite-Seabro Corp., supra). Atthe very least, its language is so broad and nonspecific as to preclude its useas the basis for a charge that involves solely a particular condition believedto constitute a chargeable hazard under the Act (Id.). This subsectionis entitled ?Safety training and education,? and subparagraph (a) thereofplaces responsibility upon the Secretary of Labor to establish and supervisetraining programs for both employers and employees in the recognition,avoidance and prevention of unsafe conditions in the work environment. Afterstating in subparagraph (b)(1) that the employer ?should? avail himself of suchprograms, subparagraph (b)(2), that in issue, provides as follows:?The employershall instruct each employee in the recognition and avoidance of unsafeconditions and the regulations applicable to his work environment to control oreliminate any hazards or other exposure to illness or injury.?\u00a0Thecharge in this case was predicated upon a specific, hazardous condition and arelated fatal accident. Accordingly, it is legally deficient and must be setaside (Secretary v. Keibler Industries, Inc., supra; Secretary v.Granite-Seabro Corp., supra; Secretary v. AMP Construction Co., supra).[10]IIProposedamendments to Citations attempting to charge alternative violations notincluded in the Citation seems to have become a popular practice with counselsince the promulgation of the concurring opinion in Secretary v. SunShipbuilding and Drydock Co., Docket No. 161, October 3, 1973. Indeed, theSecretary relies primarily on this opinion to support his proposed amendment inthis instance. But what the Secretary apparently overlooks is the importantfact that the opinion relied upon addressed itself to ?citations issued in thealternative? or, more precisely, to alternative charges alleged in citations, aprocedure vastly different and apart from that which proposes to introduce newcharges into the proceedings not mentioned in the Citation, as in this case.Such a procedure does not comport with the law (Secretary v. RoofEngineering Corp., Docket No. 6972, September 17, 1974).ACitation is unique to the safety and health statute, setting the stage for manyimportant steps in the enforcement and adjudicatory procedures that follow itsissuance. In the first instance, it is the designated document by which theSecretary is required to notify the employer ?with particularity? of the natureof the violation (29 USC 658(a)). In the last instance, it serves as the final,unimpeachable order of this Commission where no contest is filed by theemployer or an employee or his representative (29 USC 659(a)). In between thesetwo perimeters, it sets the tone for the proceedings before this Commission byinforming the Commission of what the Secretary thinks the employer did wrong,the disputed issue in light of the timely contest of the charge. But even theCitation itself has its limitations, for it is unenforceable against anemployer unless and until the employer is notified of the penalty the Secretaryproposes for the alleged violation (29 USC 659(a)). There are also otherimportant limitations attached to it by statute in that it not only must beissued with reasonable promptness, but it must be issued within six months ofthe occurrence of the alleged violation (29 USC 658(a) and (c)).Wherea contest of a Citation is timely filed, jurisdiction over the causeimmediately vests with this Commission by operation of law (Secretary v. FMCCorp.-Fibers Div., et al, Docket No. 5355, July 17, 1974). The addition of atotally new charge from that stage of the proceedings on, by whatever means,would in effect not only place this Commission in the business of writingCitations, a procedure I am certain the Congress never intended (see Dale M.Madden Construction, Inc. v. James D. Hodgson, Secretary of Labor et al,No. 72?1874 (9th Cir., July 29, 1974)), but would circumvent other importantprocedures required by the statute, such as the issuance of a Citation and itsservice upon the employer, the issuance of the Notification of Proposed Penaltyand its service upon the employer, thereby breathing life into the Citation andinvoking the running of the fifteen working day contest period, The electionaccorded the employer and employee to contest or not to contest, and theposting of Citations.Insum, the Citation is not a document that can be treated lightly, much less castaside, as the Secretary?s proposed amendment and argument of counselnecessarily imply. Yet that would be the result were the Secretary?s motiongranted in this case, for the proceedings would then involve two chargesinstead of the one alleged in the Citation.[11]TheSecretary also argues that National Realty and Construction Company,Incorporated v. Occupational Safety and Health Review Commission et al, 489F2d 1287 (1973) supports his proposed amendment. His reliance on this decision,however, is similarly misplaced, for the Court?s remarks therein must be readin the contest in which they were made (I. A. Watson, Jr., et al v. City ofMemphis, Tenn., 83 Sp. Ct. 1314, 373 US 526 (1963); White v. Aronson,58 Sp. Ct. 95, 302 US 16 (1937); 248 US 113 (1918); Westway Theatre, Inc.248 US 113 (1918); Westway Theatre, inc. v. Twentiety Century-Fox Film Corp.et al, 30 Fed. Sup. 830 (D.C. Md., 1940)).Acursory examination of National Realty reveals that the Court wascarefully analyzing the allegations of the Citation, construing them liberally,and then concluding that these allegations were sufficiently broad to permitthe Secretary to adduce evidence tending to show that National Realty?s lack ofa safety program was the primary cause of the fatal accident. And the Court?sadditional remark that so long as fair notice is afforded the parties, an issuelitigated at the hearing may be decided by the hearing agency ?even though theformal pleadings did not squarely raise the issue,? is consistent with thisinterpretation. In the context of the case, it would be clearly incongruous toconclude that the Court meant to equate the phrase ?did not squarely raise?with the phrase ?did not raise.? Therefore, National Realty was not evenremotely concerned with the proposed in this case. Rather, it dealt withissues, amendments and proof reasonably flowing directly from a liberalconstruction of the allegations of the Citation.Theproposed amendment in this case to introduce an alternative charge into theproceedings is incorrect in law. The motion to amend, accordingly, must bedenied.IIIInherentin the foregoing are the following conclusions of law:1.That this Commission has jurisdiction over the cause.2.That Respondent did not violate 29 USC 654(a)(2) by not complying with 29 CFR1926.21(b)(2), as that regulation cannot serve as a basis for a charge in thefactual setting of this case.3.That the Secretary?s motion to amend the Citation to allege an alternativecharge is incorrect in law.Themotion to amend the Citation is denied and the Citation and Notification ofProposed Penalty are vacated without a hearing.?So ORDERED.?JOSEPH L. CHALKJudge, OSHRCNovember 22, 1974\u00a0[1] ? 1926.21 Safetytraining and education.(b) Employerresponsibility.(2) The employershall instruct each employee in the recognition and avoidance of unsafeconditions and the regulations applicable to his work environment to control oreliminate any hazards or other exposure to illness or injury.[2] Consideration of the motion isappropriate because of the possibility that a developed record may reveal theinapplicability of the cited standard, and the possibility that a reviewingcourt may disagree on the validity issue. Atlantic & Gulf Stevedores,Inc. v. O.S.H.R.C., infra supra, note 3; Arkansas-Best FreightSystem, Inc. v. O.S.H.R.C., 529 F.2d 649 (8th Cir. 1976).[3] In this case,respondent claims that the standard is, and has already been declared, invalid.See note 7, infra. A divided Commission has taken the position that itcan review the validity of standards. Santa Fe Trail Transport Co., BNA1 OSHC 1457, CCH 1973?74 OSHD para. 17,029 (No. 331, December 18, 1973)(dissenting opinion), rev?d, 505 F.2d 869 (10th Cir. 1974). See Atlantic& Gulf Stevedores, Inc. v. O.S.H.R.C., No. 75?1584 (3d Cir., March 26,1976).[4] Commission Rule7(g) requires that employees be informed of where pleadings may be inspected.\u00a0[5] We haveconsidered other objections and we find them to lack force. The Judge?sopinion, for example, disapproves of the Commission rewriting citations. Weagree that the Commission should not engage in a prosecutorial role. Butgranting a timely and otherwise meritorious motion of a party does not do this.General Electric Co., 17 OSAHRC 49, 60, 62 n.20, BNA 3 OSHC 1031, 1039,1040 n.20, CCH 1974?75 OSHD para. 19,567 (No. 2739, April 21, 1975). As to theservice upon the employer of the citation and notification of proposedpenalties, it is enough that he is notified of the amendment to the citationwhen he is served with the Secretary?s Complaint. Rules 33(a)(2)(iii) and33(a)(3) require that he be so informed. As to the 15-day contest period, wenote that in every case where a Complaint amends a citation, the employer hasalready filed a notice of contest.\u00a0Finally, we notethat although not without significance, the Judge?s unreviewed decisionsholding that a citation once issued may not be amended by a complaint are notprecedent binding upon the Commission. Leone Construction Co., BNA 3OSHC 1979, 1981, CCH 1975?76 OSHD para. 20,387 (No. 4090, February 10, 1976),petition for review dismissed per stipulation, No. 76?4070 (2d Cir., May 17,1976).\u00a0[6] The applicationof the displacement principle of Brisk Waterproofing Co., 3 OSAHRC 1132,BNA 1 OSHC 1263, CCH 1973?74 OSHD para. 16,345 (No. 1046, July 27, 1973) mustawait the receipt and evaluation of all the evidence. We note this pointbecause upon the remand we expect that evidence relevant to the alleged section5(a)(1) violation may well be introduced. The displacement principle will notserve as a valid ground to exclude such evidence. The two alternative theoriesmust be treated equally until the section 5(a)(2) allegations may be said tofail for lack of proof.[7] The Commissiondecision in Granite-Seabro Corp., 11 OSAHRC 1, BNA 2 OSHC 1163, CCH1974?75 OSHD para. 18,470 (No. 923, August 16, 1974) does not compel adifferent result. We there affirmed a Judge?s decision on the ground that itcontained no prejudicial error. The Judge?s decision rested primarily on hisfinding that the Secretary failed to carry his burden of proof; theunenforceability finding was but an alternative holding and cannot be consideredto have been finally adopted as correct.* The Federal Ruleapplies since the Commission has not promulgated a rule concerning alternativepleadings.? However, on June 29, 1976, wedid publish an advance notice of proposed rulemaking whereby we requested commentson all of our Rules.? I, for one, wouldwelcome comments on the question of alternative pleadings.[8]Secretary v.Warnel Corporation,OSAHRC Docket No. 4537, March 31, 1976 (dissenting opinion).[9] In Secretaryv. P & M Sales, Inc., OSAHRC Docket No. 3443, May 3, 1976, ChairmanBarnako had no trouble in concluding that a change from a charge of failing toprovide eye and face protection to a charge involving the failure of employeesto wear that equipment would introduce a totally different charge. Accordingly,it is strange that he cannot now see that a charge based on a failure toinstruct is distinguishable from one involving operation of equipment. [10] If a standard covers the hazard,noncompliance with that standard should be charged. If a standard does notcover the hazard, a violation of 29 USC 654(a)(1) should be charged.[11] I note that Judge Donald K. Duvallexpressed somewhat the same view in Secretary v. Dorey Electric Co., UrbanBuilders, Inc., and Craft Construction Co., Docket Nos. 4598, 4626, and4627 (consolidated) (July 29, 1974), where a similar motion was made.”