“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 285 J.L. MABRY GRADING, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0ORDER OF REMANDApril27, 1973BeforeVAN NAMEE and BURCH, CommissionersVANNAMEE, COMMISSIONER:On June 22, 1972, Judge John J. Larkin issued an Orderdenying the Secretary?s motion to amend its Complaint and granting Respondent?smotion for judgment on the pleadings in its favor.Pursuant to the authority vested in the members of theCommission by section 12(j) of the Occupational Safety and Health Act of 1970(29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the ?Act?),on July 10, 1972, I directed that the Judge?s order be reviewed by theCommission. For the reasons given hereafter we reverse and remand.On November 22, 1971, Complainant issued to Respondent acitation for an alleged serious violation of 29 C.F.R. 1518.602(a)(9)(i?iii)for failure to provide backing alarms or a signalman for dump trucks withobscured rear vision. A penalty of $600 was proposed. Thereafter Respondentduly filed a notice of contest and proceedings were initiated before thisCommission.The record reflects that on January 26, 1972, Respondentfiled its motion for judgment on the pleadings based on the ground that thecited subsection of the regulation was not in effect at the time of the allegedviolation.[1]?Inresponse, Complainant moved to amend the complaint to allege a violation of 29C.F.R. 1518.601(b)(4)(i?ii) (now 29 C.F.R. 1926.601(b)(4)(i?ii)), prohibitingthe operation of ?any motor vehicle equipment? with an obstructed rear viewunless an audible reverse signal alarm or observer is provided.This motion was denied by the Judge, primarily on the basisthat the citation charging a violation of a regulation not then in effect mustbe dismissed for failure to comply with section 9(a) of the Act. This statutoryprovision requires that a citation must describe ?with particularity the natureof the violation, including a reference to the provision of the Act, standard,rule, regulation, or order alleged to have been violated.?We are of the opinion that the trial Judge in disposing ofthis matter has framed and decided the wrong issue. The subject citationcomports with the notice requirements set forth in Section 9(a) of the Act. Itprovides a plain statement of the factual conditions considered to constitute aviolation of the Regulations. The Respondent was apprised of the subject factsso that it could take proper corrective action and\/or file a notice of contestor otherwise defend itself in this matter. Consequently the citation complieswith the concept of proper notice in an administrative proceeding as expressedin American Newspaper Publishers Association v. NLRB, 193 F.2d 782, 800(7th Cir. 1951), aff?d 345 U.S. 100 (1953), quoting, NLRB v. PiquaMunising Wood Products Co., 109 F.2d 552, 557 (6th Cir. 1940):The [National Labor Relations] Act does not require theparticularity of pleading of an indictment or information, nor the elements ofa cause like a declaration at law or a bill in equity. All that is requisite ina valid complaint . . . is that there be a plain statement of the thingsclaimed to constitute an unfair labor practice that respondent may be put uponhis defense.\u00a0In view of the above, we find that the issue is not whetherthe citation must be dismissed for failure to comply with Section 9(a) of theAct. Rather the threshold issue in this case is whether a defective citationmay be cured by a subsequent pleading in a proceeding brought pursuant toSection 10 of the Act.The Commission has not elected to regard the citation as thesole vehicle by which an employer would be notified of its alleged violationonce a notice of contest has been filed. Pursuant to Section 12(g) of the Actwe provided for the issuance of a Complaint and Answer in our Interim Rules, ineffect at the time the Judge rendered his decision herein, should a citation becontested. In addition, Interim Rule 2(a) provided that in the absence of aCommission Rule all proceedings shall be conducted in accordance with theFederal Rules of Civil Procedure.Since no provision respecting amendments of pleadings existedin the Interim Rules, Federal Rule 15 is controlling in this case. This Ruleprovides for amended and supplemental pleadings and states inter alia thatleave to amend shall ?be freely given when justice so requires.?[2]Accordingly we find that the defective citation in this casemay be cured by a subsequent pleading. However, the answer to this thresholdquestion does not, standing alone, dictate the proper disposition of thismatter. For we must still determine if the Complainant in the particularcircumstances of this case should have been granted leave to amend itsComplaint.The Supreme Court in interpreting Rule 15 has observed that,?The Federal Rules reject the approach that pleading is a game of skill inwhich one misstep by counsel may be decisive to the outcome and accept theprinciple that the purpose of pleading is to facilitate a proper decision onthe merits.? Conley v. Gibson, 355 U.S. 41, 48 (1957).Indeed this very philosophy underlies the decision in AmericanNewspaper, supra, where the Complaint before the National Labor Relations Boardincorrectly identified the subsection of the National Labor Relations Act whichthe Respondent in that case was alleged to have violated. In holding that theBoard erred in dismissing the Complaint the Seventh Circuit Court of Appealsstated:Where, as here, the complaint clearlydescribes an action which is alleged to constitute an unfair labor practice butfails to allege which subsection of the Act has been violated or alleges thewrong subsection, such failure or mistake, if it does not mislead the partiescharged, does not prevent the Board from considering and deciding the charge sopresented (193 F.2d at 800).\u00a0The particular circumstances of the matter on review do notraise the issue of whether Complainant by amendment of its citation may changethe basic factual allegations of its citation. Nor do they present the issue ofwhether Complainant may change the legal basis of its case by amendment of thecitation. Rather, Complainant seeks only to amend its citation and Complaint,filed herein, to set forth a different section of the governing regulations. Inaddition the newly alleged provision prohibits essentially the same practicesas those regulated by the originally cited but inapplicable regulation.We conclude that in the circumstances of this case Respondentwas not misled or otherwise prejudiced by the allegation in the citation andComplaint of an inapplicable section of the governing regulations. Therefore weare of the opinion that to allow Complainant?s proposed amendment would beentirely consistent with the aforementioned principles as well as with thescheme of the Act itself.Accordingly, it is ORDERED that (1) the order of the Judge beand the same is hereby set aside, (2) Complainant?s motion to amend is granted(3) the case is remanded to the Judge for further proceedings.\u00a0___________________________________________________________________________________________________\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 285 J.L. MABRY GRADING, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June22, 1972LARKIN,JUDGE, OSAHRC:On November 22, 1971, the Secretary of Labor issued aCitation to respondent for serious violation of the Occupational Safety andHealth Act citing Standard 29 CFR 1508.602(a)(9)(i?iii). The alleged violationis described as ?Rear vision on dump trucks blocked by dirt carrier and notequipped with required backing alarms or presence of a required signalman.? OnDecember 10, 1971, respondent filed Notice of Contest. On December 17, 1971,the Secretary filed Complaint and alleged ?On or about November 15, 1971,respondent violated 29 CFR 1518.602(a)(9)(i?iii) [cited as1508.602(a)(9)(i?iii) in citation due to typographical error] and promulgatedpursuant to section 6 of the Act at 29 CFR ? 1910.12 . . .? On December 27,1971, respondent filed answer denying the foregoing allegation and on January26, 1972, filed motion for judgment on the pleadings as ?Said Section1518.602(a)(9)(i?iii) was not in effect at the time of the alleged violation,nor is it now in effect, because it is only a proposed standard to which publichearings were held on November 10, 1971, and this standard has not to this datebeen finally promulgated.? On February 4, 1972, the Secretary filed motion toamend the Complaint by substituting 29 CFR 1518.601(b)(4)(i?iii). In support ofthe motion to amend, the Secretary concedes that the standard cited in theCitation and Complaint was not effective on the date of the occurrence alleged.Prior to a ruling on these motions, respondent filed a motion for continuanceas it had pending before the United States District Court, Northern District ofGeorgia, Atlanta, Division, a suit contesting the constitutionality of the Act.On order to afford respondent an opportunity to contest the constitutionalityof the Act prior to litigating the case on its merits, the motion forcontinuance was granted on March 30, 1972. On May 23, 1972, the District Courtdecided that respondent?s action was premature as it had not exhausted itslower administrative appeals.The Secretary relies upon the provisions of Rule 15(c) of theFederal Rules of Procedure pertaining to the relation back of an amendment tothe original pleading if arising out of the conduct, transaction, or occurrenceset forth or attempted to be set forth in the original pleadings. The Secretaryemphasizes that there is no suggestion or showing by respondent that theSecretary?s motion to amend in any way prejudices the respondent?s ability todefend itself. The Secretary also cites Rule 15(a) of the Federal Rules ofCivil Procedure specifying that leave to amend ?. . . shall be freely givenwhen justice requires . . ..? The Secretary asserts that the statute isremedial in nature affecting the safety and health of all workers and itsenforcement should not be hampered by procedural mechanics such as the right toamend pleadings.The fallacy in the Secretary?s argument is that the issueinvolved goes beyond the question of the right to amend pleadings. Actually,the question that must be decided is whether the case should be dismissed asthe Citation does not conform to the requirements of the Act and isineffective.Section 9(a) of the Act authorizes the Secretary to issue acitation which reasonable promptness if the Secretary believes. . . an employer has violated a requirement of section 5of this Act, or any standard, rule or order promulgated pursuant to section 6of this Act, or of any regulations prescribed pursuant to this Act . . .\u00a0Each citation shall be in writing and shall describe withparticularity the nature of the violation, including a reference to the provisionof the Act, standard, rule, regulation, or order alleged to have been violated.?Each citation issued under this section, or a copy orcopies thereof, shall be prominently posted, as prescribed in regulationsissued by the Secretary, at or near each place a violation referred to in thecitation occurred.?No citation may be issued under this section after theexpiration of six months following the occurrence of any violation.?The importance that the required detail be contained in thecitation is self evident from the foregoing language as the citation providesnotification not only to the employer but to the employee as well.Under Section 6 of the Act, the Secretary is given authorityto issue standards. As the Federal Register will verify, these standards runinto the thousands covering voluminous pages. The difficulty in finding theappropriate standard is self evident in the present case as the incorrectstandard was quoted not only in the citation, but the complaint as well. Evenwhen properly cited, many of these standards propose difficulty for the legalprofession to interpret, much less an employer, and especially a small employerwithout access to guidance.Moreover, Section 10 of the Act is far reaching. An employeris without recourse if the time requirement elapses without filing a notice ofcontest after receipt of a citation. The impact of Section 17 is even far moredevastating. The monetary penalty for a violation, whether serious ornon-serious in nature can amount to $1,000 per violation. If willful orrepeated, it can amount to $10,000 per violation. Failure to abate thecondition can amount to $100 per day for a violation not of a serious natureand $1,000 per day if of a serious nature. Certainly, under such far-reachingprovisions, an employer is entitled to receive proper initial notification andone in strict conformance with the requirements of Section 9 of the Act.Such conclusion does not deprive the Secretary of recourseunder the Act to correct his mistake. Under the provisions of Section 9, he haswithin six months from the occurrence to issue a corrected citation. Forcingsuch alternative is far better than misleading an employer to take incorrect actionand fall victim through misunderstanding to the provisions of Sections 10 and17. Moreover, to allow an invalid citation to be corrected by pleading couldrender the six-month limitation provision ineffective because the Secretarycould extend the time limitation by correcting an invalid citation by pleadingsix months after the infraction.The conclusion drawn herein is not meant to imply theSecretary cannot correct by pleading a typographical error or similar matter inthe Citation. It does, however, conclude that the Secretary cannot use hispleading as a substitute for his responsibility to conform with therequirements of proper initial notification to an employer, and indirectly toan employee, as specified by the precise requirements of Section 9(a) of theAct. This is the only fair conclusion to be drawn to afford justice and dueprocess under the specific terms of an act as far reaching as the provisions ofthis Act.WHEREFORE,IT IS ORDERED:That the Secretary?s motion to amend his pleading is deniedand respondent?s motion for judgment on the pleadings is granted. TheSecretary?s Citation for serious violation of ?1508.602(a)(9)(i?iii) is notaffirmed and no penalty is to be assessed against the respondent.[1] While the regulation in question was proposedinitially on September 28, 1971, (36 Fed. Reg. 19083 et seq.) it was notformally adopted until February 17, 1972 (37 Fed. Reg. 3512, 3517), well afterthe inspection of respondent?s worksite. Former part 1518 of title 29 C.F.R.having been redesignated part 1926 on December 30, 1971 (36 Fed. Reg. 25232),the standard was promulgated as 29 C.F.R. 1926.602(a)(9)(i) and (ii), requiringhorns on all bidirectional machines, such as ?rollers, compacters, front-end loaders,bulldozers, and similar equipment? and prohibiting the operation of?earthmoving or compacting equipment? in reverse gear with obstructed viewunless a reverse alarm or signalman is provided.[2] The Commission has madesuch provision in Rule 33(a)(3) of its revised Rules now in effect.”