“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 15582 McLEAN-BEHM STEEL ERECTORS, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November 13, 1978DECISIONBefore: CLEARY, Chairman; BARNAKO andCOTTINE, Commissioners.COTTINE, Commissioner:??????????? Adecision of Administrative Law Judge James D. Burroughs is before theCommission for review under ? 12(j) of the Occupational Safety and Health Actof 1970, 29 U.S.C. ? 651 et seq. The issues in this case are whether the Judgeproperly amended the citation and complaint and whether he properly affirmedthe citation as amended. Judge Burroughs found the Respondent, McLean-BehmSteel Erectors, Inc. (?McLean-Behm?), in violation of the safety and healthregulation for construction published at 29 C.F.R. ? 1926.750(b)(1)(ii)[1] and assessed a $300penalty for the violation. The Judge?s decision is affirmed to the extent it isconsistent with the following.??????????? McLean-Behmis an employer engaged in steel erection. Following the inspection of a hotelconstruction site in Atlanta, Georgia, by an authorized compliance officer,McLean-Behm was cited for a serious violation of the construction safetystandard codified at 29 C.F.R. ?\u00a01926.28(a).[2] The citation alleged thatMcLean-Behm had failed to require the employees exposed to the hazard of a30-foot fall to be protected by safety belts while moving from one work stationto another. The evidence indicates that at the time of the inspection twoemployees, a welder and his helper, were installing window framing on the 4thor 5th floor of a multi-story building. They were working from ?monkey bars?, asteel truss structure consisting of top and bottom chords, 2?? feet apart,connected by vertical and diagonal steel bracing. The bracing was spaced at4-foot 6-inch intervals. The truss was parallel to an adjacent building, with a1-foot 6-inch space between the truss and the building.??????????? Thecompliance officer testified that the employees were working 30 to 40 feetabove a cement floor, the fall distance varying because the steel structuresloped. The employees were aligning and welding trusses perpendicular to thetruss supporting them. The perpendicular trusses were joined to the supportingtruss at the points where the steel bracing connected the chords of thetrusses. The employees used safety belts and lanyards tied off to the top chordof the truss while at a work station. However, the employees untied theirlanyards when moved from station to station. They could not slide the lanyardsalong as they moved because of interference from the bracing. To move along thetruss an employee normally straddled the upper chord and walked on the lowerchord. If an obstacle was in an employee?s path, he would step over the upperchord and sidestep along the lower chord to the next work station. He held ontothe upper chord with his hands. With each move to a new work station thelanyards were not tied off for approximately two minutes. This procedure wasconsistent with the Respondent?s usual practice.??????????? McLean-Behm?sforeman at the site testified that he thought the employees observed during theinspection were working as safely as possible. He considered the use oflifelines more hazardous than his employer?s procedure because lifelines wouldinterfere with the employees? performance of their work. Also, he testifiedthat pulling on a lifeline could cause another employee to fall from the truss,and employees would be exposed to an additional falling hazard while installingthe lifeline.[3]On cross-examination, however, the foreman admitted that it was possible for anemployee to use a safety belt with two lanyards. One lanyard would be attachedto the bracing behind the employee. This lanyard would not be released untilthe second lanyard was attached to the forward side of the bracing. McLean-Behmdid not follow that procedure because it required employees to tie and retietheir lanyards every few feet, and the procedure assertedly consumed too muchtime.??????????? Afterthe Secretary rested his case, McLean-Behm moved for dismissal of the citationon the grounds that the working conditions at issue are regulated exclusivelyby the steel erection standards (Subpart R of Part 1926), specifically ? 1926.750(b)(1)(ii).Counsel for McLean-Behm stated that he was not consenting to amendment to thatstandard. He contended that the Secretary had not proved a violation of ?1926.750(b)(1)(ii) and that McLean-Behm was prepared only to defend against the? 1926.28(a) charge. The Secretary?s attorney stated that the Secretary did notwish to move for amendment at that time. The Judge informed the parties that hewas reserving judgment on the issue.??????????? Inhis decision, Judge Burroughs agreed with McLean-Behm that ? 1926.750(b)(1)(ii)is the standard specifically applicable to the facts of this case. He ruledthat a more specifically applicable standard controls to the exclusion of ageneral standard under 29 C.F.R. ?\u00a01910.5(c)(1).[4] Furthermore, the Judgeconcluded that amendment was proper under Rule 15(b) of the Federal Rules ofCivil Procedure[5]and amended the pleadings to allege a violation of ?\u00a01926.750(b)(1)(ii).The Judge stated that he was amending the pleadings to conform to the evidencebecause the record evidence demonstrated that McLean-Behm ?was not utilizingany of the safety measures specified in the standard [? 1926.750(b)(1)(ii)]?.Judge Burroughs concluded that the amendment of the pleadings was not barred byMcLean-Behm?s objection at the close of the evidentiary hearing because theevidence establishing the violation was already in the record at the timeMcLean-Behm objected. Judge Burroughs reasoned,Theamendment did not alter the facts. The amendment simply assists in the properdisposition of the case on its merits. A failure to amend would place a greateremphasis on pleadings than on employee safety.?He also found that the evidenceestablished the employees? exposure to a 30 to 40 foot fall and revealed thatthe exposure could have been prevented. The Judge found that McLean-Behm failedto comply with ? 1926.750(b)(1)(ii). Finally, he rejected McLean-Behm?scontention that using a lifeline would be more hazardous than not using one. Henoted there was no evidence that the lifeline installed after the inspectioneither ?interfered with the employees or unnecessarily restricted theirmovement.? The Judge affirmed the citation as amended. We agree with JudgeBurroughs that the standard more specifically applicable to the facts of thiscase is ?\u00a01926.750(b)(1)(ii). The employees were engaged in steel erectionon a tiered building,[6] and the potential falldistance exceeded 25 feet. We also agree that the evidence establishes thatMcLean-Behm?s employees were not protected by any safety equipment whilechanging work stations. As a result, the violation of 29 C.F.R. ? 1910.750(b)(1)(ii)has been established.[7]??????????? McLean-Behmcontends that the Judge erred in amending the pleadings under Rule 15(b)[8] because the Respondent didnot expressly or impliedly consent to amendment of the pleadings. It alsocontends that the Judge?s conclusion that violations of ? 1926.28(a) and ?\u00a01926.750(b)(1)(ii)involve the same facts is erroneous. McLean-Behm further claims that it wasprejudiced by its inability to present defenses to the amended allegation,including affirmative defenses ?such as that compliance might cause a greaterdanger to employees, and that compliance might be impossible.???????????? McLean-Behmcontends that because its attorney objected to the amendment of the chargesafter all evidence was received, the amendment was improper under the firstpart of Rule 15(b). We conclude that the amendment of the pleadings was proper.It is well-settled by judicial and Commission precedent that pleadings beforethe Commission should be liberally construed and easily amended.[9] ?The Federal Rule rejectthe approach that pleading is a game of skill in which one misstep of counselmay be decisive to the outcome . . ..? Conley v. Givson, 355 U.S. 41, 48(1957). This is consistent with the overall objective of the Federal Rules?. .. to secure the just, speedy and inexpensive determination of every action.?Fed. R. Civ. p. 1. As the Supreme Court observed in Foman v. Davis, ?Itis too late in the day and entirely contrary to the Federal Rules of CivilProcedure for decisions on the merits to be avoided on the basis of such meretechnicalities.? 371 U.S. 178, 181 (1962). See generally Clark, SimplifiedPleading, 2 F.R.D. 456, 467?468 (1943).??????????? Underthe first part of Rule 15(b) pleadings must be amended ?[w]hen issues notraised by the pleadings are tried by the express or implied consent of theparties.?[10]McLean-Behm did not expressly consent to amendment. The issue is thereforewhether it impliedly consented. Normally consent is implied from a party?sfailure to object at trial to the introduction of evidence relevant to theunpleaded charge. 3 Moore?s Federal Practice ?15.13[2] at 994 (2d ed.1974). McLean-Behm did not object to the submission of the evidenceestablishing the ?\u00a01926.750(b)(1)(ii) charge. Instead, its objection waspurely to the amendment of the charges and was therefore an objection to achange in legal theory. ?[A] change in the nature of the cause of action, orthe legal theory of the action, is immaterial as long as the opposing party hasnot been prejudiced in presenting his case.? 3 Moore?s Federal Practice,supra at 985. In accord is Usery v. Marquette Cement Manufacturing Co.,568 F.2d 902 (2d Cir. 1977), an OSHA case in which the employer also objectedto an amendment reflecting purely a change in legal theory. The court concludedthat the key issue was whether the employer was prejudiced by the amendmentunder either part of Rule 15(b). Id. at 907 n. 8. It held that theamendment was proper and should have been allowed by the Commission. Similarly,we hold that where an amendment changes the legal theory from that indicated inthe citation, consent will be implied whenever the party opposing amendment hasnot objected to the introduction of evidence relevant to the unpleaded charge,provided it is not prejudiced by the amendment.[11] This holding promotes themost timely noting of objections to evidence and encourages the introduction ofamendments at the earliest possible point in the adjudicatory process. First,it permits a party to cure any oversight or omission in a pleading by a motionto amend under Rule 15(a) and the second half of Rule 15(b). Second, it permitsan amendment at a time when the amendment is less likely to prejudice theobjecting party. Third, it affords the judge an opportunity to actively cureany prejudice to the opposing party. Fed. R. Civ. P. 15(b). Finally, thisholding eliminates the tactical advantage gained by a party who waits to defendon the applicability of a different standard until all the evidence isreceived, thus attempting to foreclose conforming amendments. See generally Robertsv. Graham, 73 U.S. 578 (1867). This holding reinforces the underlyingobjectives of the Federal Rules and the Commission to secure the just, speedyand inexpensive determination of all issues in every case.??????????? UnderRule 15(b) any prejudice to McLean-Behm is determined on the basis of whetherit had a ?fair opportunity to defend? against the Secretary?s evidentiary caseand whether it could have offered any additional evidence if the case had beentried under the ? 1926.750(b)(1)(ii) charge. See Lomartira v. AmericanAutomobile Insurance Co., 371 F.2d 550 (2d Cir. 1967). Under Rule 15(b) theobjecting party has not shown prejudice if it ?advances an imagined grievanceor seeks to protect some tactical advantage.? 6 C. Wright and A. Miller, FederalPractice and Procedure ? 1495 at 478 (1971). McLean-Behm cannot contendthat it was surprised by the possible application of ? 1926.750(b)(1)(ii) tothe facts of this case by a conforming amendment of the charges. The reason isobvious?McLean-Behm introduced the applicability of ? 1926.750(b)(1)(ii) intothese proceedings. In objecting to amendment, McLean-Behm was attempting tomaintain a ?tactical advantage? by its late introduction of this new charge asa defense against the applicability of the original charge. At the same time,McLean-Behm objected to defending against the newly introduced issue.McLean-Behm was not prejudiced by its lack of opportunity to present a defenseto the new charge.??????????? TheRespondent argues that the Judge erred in concluding that the same factssupport violations of both standards. It contends that the means of abatementprescribed by the two standards differ, and impliedly maintains that it wasprejudiced by the amendment because different facts support violations of thetwo standards. We agree with the Judge that the different requirements of thetwo standards are immaterial under these circumstances because the evidencethat McLean-Behm failed to protect its employees in any way while they movedfrom work station to work station established a prima facie ?1926.750(b)(1)(ii) violation.[12]??????????? Theonly possible defenses available to McLean-Behm were affirmative defenses. Weconclude, however, McLean-Behm could not have been prejudiced by its assertedinability to submit evidence on any affirmative defense to the ?1926.750(b)(1)(ii) charge.[13] The only affirmativedefenses available to McLean-Behm were the ?greater hazard? defense and the?impossibility? defense. To establish either of these defenses it was incumbentupon McLean-Behm to prove that means of protection alternative to thoseprescribed by ? 1926.750(b)(1)(ii) were unavailable to protect employees at thetimes they were changing work stations on the trues.[14] Inasmuch as the evidenceestablishes that an alternative means of protection, the use of a safety beltwith two lanyards, was available,[15] McLean-Behm could nothave prevailed on either defense. For the foregoing reasons, we hold that theamendment of the pleadings was proper under Rule 15(b).??????????? Theevidence establishes that the employees were unprotected by safety equipment,in violation of ? 1926.750(b)(1)(ii), while changing work stations.Accordingly, it is ORDERED that the Judge?s decision is affirmed.FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: NOV 13, 1978?BARNAKO, Commissioner, dissenting:??????????? Thejudge?s amendment of the Secretary?s citation and complaint to allege aviolation of 29 C.F.R. ? 1910.750(b)(1)(ii) was improper, because McLean-Behmdid not expressly or impliedly consent to the amendment and because amendmentsua sponte after the hearing comes too late. Therefore, I dissent.??????????? Inthe Secretary?s citation and complaint; McLean-Behm was charged with aviolation of 29 C.F.R. ? 1926.28(a) for the failure of certain of its employeesto wear safety belts while installing steel trusses at a worksite in Atlanta.McLean-Behm?s answer stated that the cited standard was ?inapplicable to the factualconditions and circumstances in this case.? At trial, following the close ofthe Secretary?s case, McLean-Behm moved to dismiss the citation and complainton the ground that the cited standard was inapplicable because a more specificstandard, 29 C.F.R. ? 1926.750(b)(1)(ii), which requires safety nets, appliedto the circumstances of the case. McLean-Behm?s counsel also stated he wouldoppose a motion to amend to that standard at that point, as he was prepared todefend only against the cited standard. The Secretary?s counsel responded thatshe did not wish to amend to allege a violation of ?\u00a01926.750(b)(1)(ii).The judge reserved ruling on the dismissal motion and McLean-Behm presented itscase.??????????? Followingthe hearing, the judge issued a decision agreeing with McLean-Behm that thecited standard, ? 1926.28(a), was inapplicable but holding that McLean-Behm hadviolated ?\u00a01926.750(b)(1)(ii), despite the Secretary?s refusal to move toamend his citation and complaint to allege a violation of that standard at anytime before the judge. The judge found that the evidence proved a violation of? 1926.750(b)(1)(ii) and that, therefore, the pleadings should be amended toconform to the evidence under Fed. R. Civ. P. 15(b).??????????? Themajority agrees with the judge?s ruling, finding that McLean-Behm impliedlyconsented to trial of the ? 1926.750(b)(1)(ii) charge by failing to object tothe introduction of evidence relevant to that charge. The entire hearing,however, focused on the original ?\u00a01926.28(a) citation, as witnessed bythe Secretary?s refusal to amend to ? 1926.750(b)(1)(ii). Any evidenceintroduced which arguably was relevant to a violation of ? 1926.750(b)(1)(ii)was also relevant to trial of the ? 1926.28(a) charge contained in the citationand complaint. Such evidence cannot serve as the basis for finding impliedconsent to trial of the ? 1926.750(b)(1)(ii) issue. The law is well settled:[T]heintroduction of evidence relevant to an issue already in the case may not beused to show consent to trial of a new issue absent a clear indication that theparty who introduced the evidence was attempting to raise a new issue.?International Harvester Credit Corp. v.East Coast Truck, 547 F.2d 888, 890 (5th Cir. 1977); accord,Bettes v. Stonewall Insurance Co., 480 F.2d 92 (5th Cir. 1973); Schultyv. Cally, 528 F.2d 470 (3d Cir. 1975); Cox v. Fremont County PublicBuilding Authority, 415 F.2d 882 (10th Cir. 1969); Simms v. Andrews,118 F.2d 803 (10th Cir. 1941); 6. C. Wright & A. Miller, FederalPractice and Procedure ? 1493 (1971); cf., Usery v. Marquette CementManufacturing Co., 568 F.2d 902 (2d Cir. 1977) (no implied consent found); PenrodDrilling Co., 76 OSAHRC 115\/B8, 4 BNA OSHC 1654, 1976?77 CCH OSHD para.21,072 (No. 5991, 1976) (same). The Secretary?s express disavowal of any ?1925.750(b)(1)(ii) allegation makes clear that he was not attempting to raisethis issue through the evidence he introduced. Thus, McLean-Behm?s consent totrial of the ? 1926.750(b)(1)(ii) charge cannot be inferred from its failure toobject to this evidence. See Western Waterproofing Co. v. Marshall, 576F.2d 139, 143?144 (8th Cir. 1978). In fact, it is readily apparent that neitherparty thought that issue was being tried.??????????? Themajority attempts to justify its finding of implied consent by arguing thatMcLean-Behm was on notice of the potential relevance of the evidence to ?1926.750(b)(1)(ii) because it was the party that raised the issue of theapplicability of that standard.[16] This argument misses thepoint. A party does not give implicit consent to the trial of an unpleadedissue merely because it knows that the evidence is potentially relevant to theissue; rather, it must be clear from the introduction of that evidence that theopposing party is actually attempting to raise the unpleaded issue. ?[I]tcannot be fairly said that there is any implied consent to try an issue wherethe parties do not squarely recognize it as an issue in the trial.? Usery v.Marquette Cement Manufacturing Co., supra at 907, quoting 3 Moore?sFederal Practice ?15.13(2) at 992 (2nd ed. 1974); accord, InternationalHarvester Credit Corp. v. East Coast Truck, supra. The Secretary?s refusalto amend the citation and complaint underscores the fact that he was not tryingto raise the ?\u00a01926.750(b)(1)(ii) charge. This dispels any doubt that theSecretary?s evidence was aimed solely at the original ? 1926.28(a) charge.??????????? Eventhough amendment under Fed. R. Civ. P. 15(b) is not proper because the issuewas not tried by consent, the Secretary?s argument on review in support ofamendment might conceivably be viewed as a motion to amend under Fed. R. Civ.P. 15(a). See Marquette Cement Manufacturing Co., supra. That ruledeclares that leave to amend ?shall be freely given when justice so requires.?In applying the rule, the Supreme Court has stated:In theabsence of any apparent or declared reason?such as undue delay, bad faith ordilatory motive on the part of the movant, repeated failure to curedeficiencies by amendments previously allowed, undue prejudice to the opposingparty by virtue of allowance of the amendment, etc.?the leave sought should, asthe rules require, be ?freely given.??Foman v. Davis,371 U.S. 178, 182 (1962). Under this test the amendment here after the hearingis not proper because of the Secretary?s undue delay in moving to amend. Whileit is true, as the court of appeals stated in National Realty andConstruction Co. v. OSAHRC, 489 F.2d 1257, 1264 (D.C. Cir. 1973), that?administrative pleadings are very liberally construed and very easilyamended,? the same court also stated:[T]heSecretary has considerable scope before and during a hearing to alter hispleadings and legal theories. But the Commission cannot make these alterationsitself in the face of an empty record.?Id. at 1267; see WesternWaterproofing Co. v. Marshall, supra. Here McLean-Behm?s answer alerted theSecretary to the claim that the standard he cited was inapplicable, yet he madeno attempt to amend his citation and complaint prior to hearing. At thehearing, when McLean-Behm moved to dismiss on the ground that a more specificstandard, ? 1926.750(b)(1)(ii), was applicable, the Secretary?s counselspecifically refused to move to amend the citation and complaint to charge aviolation of that standard. Only now on review does the Secretary argue infavor of amendment.??????????? Inview of this delay, the motion to amend should be denied. As the Fifth CircuitCourt of Appeals has stated: ?It is clear that lack of diligence is reason forrefusing to permit amendment.? Freeman v. Continental Gin Co., 381 F.2d459, 469 (5th Cir. 1967), rehearing denied, 384 F.2d 365 (5th Cir.1967). In the absence of oversight or excusable neglect, leave to amend isproperly denied ?when the moving party knew about the facts on which theproposed amendment was based but omitted the necessary allegation from theoriginal pleading.? 6 C. Wright & A. Miller, Federal Practice andProcedure ? 1488 (1971); accord, Jackson v. American Bar Association,538 F.2d 829 (9th Cir. 1976) (motion to amend on appeal is too late when movanthad made no previous effort to amend); Horn v. Allied Mutual Casualty Co.,272 F.2d 76 (10th Cir. 1959) (motion to amend answer following trial denied, asfacts supporting proposed amendment were not newly discovered); Zucker v.Sable, 426 F.Supp. 658 (S.D.N.Y. 1976) (motion to amend after dismissal ofcomplaint denied, as motion was unreasonably late; facts supporting proposedamendment were known prior to trial); cf., Penrod Drilling Co., supra(late amendment not allowed).??????????? TheSecretary?s refusal to seek amendment earlier was not the result of oversightor excusable neglect; rather, it was knowing and deliberate. Coming this latein the proceedings, it should be denied. The Secretary had ample opportunity toamend his pleadings before and during the hearing. The Commission cannotproperly do for the Secretary now that which he refused to do for himself when presentedwith the opportunity.[17]??????????? Themajority?s holding that amendment is proper is incorrect for another reason.The majority concludes that its holding ?encourages the introduction ofamendments at the earliest possible point in the adjudicatory process.? Justthe opposite is true. By overlooking the Secretary?s failure to move to amendboth before and during the hearing, despite notice of the inapplicability ofthe standard, the majority encourages the Secretary to be dilatory in seekingamendments. This gives the Secretary the ?tactical advantage? that the majorityincorrectly accuses McLean-Behm of seeking. The Secretary need not be concernedwith whether he is proceeding under the proper legal theory, since under themajority?s holding so long as the facts support a violation under any legaltheory, the Commission will amend the pleadings accordingly. Thus, themajority?s holding removes any incentive for the Secretary to introduceamendments promptly. Contrary to the majority?s view, this outcome runs counterto the Federal Rules? objective of ?secur[ing] the just, speedy, and inexpensivedetermination of every action.? Fed. R. Civ. P. 1.??????????? Themajority correctly concludes that ? 1926.750(b)(1)(ii) is the applicablestandard here. Thus, since amendment is improper, the citation should bedismissed, as the more general standard cited by the Secretary is inapplicable.29 C.F.R. ? 1910.5(c)(1),[18] Bristol Steel &Iron Works, Inc., 77 OSAHRC 181\/D6, 5 BNA OSHC 1940, 1977?78 CCH OSHD para.22,240 (No. 14537, 1977), appeal docketed, No. 77-2485 (4th Cir. Nov.28, 1977); cf., Holman Erection Co., 77 OSAHRC 196\/A2, 5 BNA OSHC 2079,1977?78 CCH OSHD ?22, 318 (No. 13529, 1977) (specific steel erection standardprevails over general construction standard).[1] Subpart R?SteelErection? 1926.750Flooring requirements.(b)Temporary?skeleton steel construction in tiered buildings.(1) . . . (ii) Onbuildings or structures not adaptable to temporary floors, and where scaffoldsare not used, safety nets shall be installed and maintained whenever thepotential fall distance exceeds two stories or 25 feet . . . .[2] Subpart C?GeneralSafety and Health Provisions? 1926.28 Personalprotective equipment.(a) The employeris responsible for requiring the wearing of appropriate personal protectiveequipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for using such equipment to reduce thehazards to the employees.[3] After theinspection, McLean-Behm installed and used a lifeline to allow tying off duringmovement between work stations. The foreman testified that the lifeline wasinstalled only to comply with the recommendation of the compliance officer.[4] The regulationprovides in pertinent part, as follows:? 1910.5Applicability of standards.(c)(1) If aparticular standard is specifically applicable to a condition, practice, means,method, operation, or process, it shall prevail over any different generalstandard which might otherwise be applicable to the same condition, practice,means, method, operation, or process. . . .[5] The Rule providesthe following:Rule 15. Amendedand Supplemental Pleadings.(b) Amendments toConform to the Evidence. When issues not raised by the pleadings are tried bythe express or implied consent of the parties, they shall be treated in allrespects as if they had been raised in the pleadings. Such amendment of thepleadings as may be necessary to cause them to conform to the evidence and toraise these issues may be made upon motion of any party at any time, even afterjudgement; but failure so to amend does not affect the result of the trial ofthese issues. If evidence is objected to at trial on the ground that it is notwithin the issues made by the pleadings, the court may allow the pleadings tobe amended and shall do so freely when the presentation of the merits of theaction will be subserved thereby and the objecting party fails to satisfy thecourt that the admission of such evidence would prejudice him in maintaininghis action or defense upon the merits. The court may grant a continuance toenable the objecting party to meet such evidence.[6] A multi-flooredbuilding, such as the structure involved in this case, is a tiered buildingwithin the terms of the ? 1926.750(b) standards. Daniel Const. Co., 77OSAHRC 21\/A2, 5 BNA OSHC 1005, 1976?77 CCH OSHD ?21, 521 (Nos. 7734 & 7672,1977).[7] See Brennan v.Southern Contractors Service, 492 F.2d 498 (5th Cir. 1974); SierraConst. Corp., 78 OSAHRC 2\/E6, 6 BNA OSHC 1278, 1978 CCH OSHD ?22, 506 (No.13638, 1978) (failure to require use of any device listed in 29 CFR ?1926.105(a) establishes a prima facie violation of that standard). See also PimaConstruction, 76 OSAHRC 106\/D3, 4 BNA OSHC 1920, 1976?77 CCH OSHD ?20,998(No. 5221, 1976).[8] Rule 15(b) of theFederal Rules of Civil Procedure is made applicable to Commission proceedingsby 29 C.F.R. ? 2200.2(b), which provides as follows:Rule 2 Scope of Rules; applicability ofFederal Rules of Civil Procedure.(b) In the absence of a specificprovision, procedure shall be in accordance with the Federal Rules of Civil Procedure.[9] See, e.g., Useryv. Marquette Cement Mfg. Co. 568 F.2d 902 (2d Cir. 1977); NationalRealty & Const. Co., Inc. v. O.S.H.R.C., 489 F.2d 1257 (D.C. Cir.1973); Mid-Plains Const. Co., 75 OSAHRC 81\/D2, 2 BNA OSHC 1728, 1974?75CCH OSHD ?19,484 (No. 4584, 1975); Pukall Lumber Co., Inc., ?? OSAHRC??, 2 BNA OSHC 1975, 1974?75 CCH OSHD ?19,433 (No. 10136, 1975).[10] The plain terms ofRule 15(b) require the administrative law judge to consider and decide allissues presented during the hearing. The Judge had before him the substantiveissues involved in this amendment, i.e., whether ? 1926.750(b)(1)(ii) was thestandard applicable to the facts in controversy and whether the pleadingsshould be amended to charge a violation of that standard. The Judge consideredand correctly decided both these issues in his opinion. See Kaiser Aluminum& Chemical Corp., 76 OSAHRC 52\/C10, 4 BNA OSHC 1162, 1975?76 CCH OSHD?20,675 (No. 3685, 1976), aff?d on reconsideration, 77 OSAHRC 39\/E8, BNAOSHC 1180, 1977?78 CCH OSHD ?21,692 (1977), and cases cited therein.[11] McLean-Behmcontends that consent cannot be implied from its failure to object to evidencerelevant to the ? 1926.750(b)(1)(ii) charge because that evidence was alsorelevant to the ? 1926.28(a) charge. The courts do not readily imply consentfrom a party?s failure to object to evidence relevant to pleaded and unpleadedcharges because, as a general rule, it cannot be fairly concluded that theopposing party was on notice that the case was being tried on the unpleadedissue. See Bettes v. Stonewall Insurance Co., 480 F.2d 92, 94 (5th Cir.1973); 6 C. Wright and A. Miller, Federal Practice and Procedure ? 1493at 466 (1971). However, McLean-Behm cannot argue that it was not on notice ofthe potential relevance of the evidence to a ? 1926.750(b)(1)(ii) chargebecause it was the party that raised the issue of the applicability of thatstandard. ?Implied consent usually is found where one party raises an issuematerial to the other party?s case . . ..? Moore?s Federal Practice,supra at 994. Furthermore, subjective declarations regarding consent at theclose of the evidentiary hearing are not the measure of consent contemplated byRule 15(b).[12] McLean-Behm alsoclaims prejudice based on the fact that necessary elements of the twoviolations differ. It argues that a violation of ? 1926.28(a) requires proof ofemployee exposure to hazardous conditions and a feasible means of abatement,while those elements are not part of a prima facie ? 1926.750(b)(1)(ii)violation. The contention is without merit. If the amended charge had requiredadditional elements, conceivably McLean-Behm might have been prejudiced by a lackof opportunity to defend. However, in this case the original charge requiresadditional elements whereas the amended charge required fewer rather than moreelements of proof by the Secretary. Compare Cornell & Co., Inc. v.O.S.H.R.C., 573 F.2d 820 (3d Cir. 1978).Moreover,the Judge correctly found that the evidence would have estabalished a ?1926.28(a) violation if that had been the more applicable standard. The recordshows that the working conditions were hazardous and the use of safety beltswas feasible. We therefore reject McLean-Behm?s contention that evidence doesnot support the Judge?s finding that the employees were exposed to a fallhazard. The fall hazard was obvious. See PPG Industries, Inc., 77 OSAHRC196\/E5, 6 BNA OSHC 1050, 1977?78 CCH OSHD ?22,344 (No. 15426, 1977).Finally,McLean-Behm did not show that use of two lanyards was in any way hazardous. Itsonly objection to their use was that the practice would be too time-consuming.The Commission has previously rejected that argument as a greater hazarddefense. See Carpenter Rigging & Contracting Corp., 75 OSAHRC32\/D13, 2 BNA OSHC 1544, 1974?75 CCH OSHD ?19,252 (No. 1399, 1975).[13] AlthoughMcLean-Behm generally states that it was prejudiced by a lack of opportunity todefend against the new charge, at no stage of these proceedings has itrequested leave to submit further evidence. See Moore?s Federal Practice,supra ?15.14 at 1012.\u00a0[14] See HughesBrothers, Inc., OSHRC Docket No. 12523 (July 27, 1978); Taylor BuildingAssociates, 77 OSAHRC 21\/A10, 5 BNA OSHC 1083, 1977?78 CCH OSHD ? 21,592(No. 3735, 1977) (impossibility defense); Russ Kaller, Inc., T\/ASurfa-Shield, 76 OSAHRC 130\/F10, 4 BNA OSHC 1758, 1976?77 CCH OSHD ?21,152(No. 11171, 1976) (greater hazard defense).[15] See n. 12, supra.[16] The majority alsocontends that McLean-Behm was trying to secure a tactical advantage by lateintroduction of the claim that ? 1926.750(b)(1)(ii) rendered the cited standardinapplicable. This contention is erroneous. McLean-Behm?s introduction of theinapplicability argument was not late, as McLean-Behm?s answer specificallyalleged this defense.[17] The majoritymisconstrues the court of appeals? decision in Usery v. Marquette CementManufacturing Co., supra, as supporting its allowance of the Secretary?s amendmentbased upon implied consent under Fed. R. Civ. P. 15(b). In fact, the court ofappeals in Marquette found no implied consent and did not permit amendment onthat basis. 568 F.2d at 907. The court permitted amendment on the basis ofcriteria developed under Fed. R. Civ. P. 15(a), following Foman v. Davis,which was discussed supra. Amendment in Marquette was proper because, unlikethe present case, the Secretary timely moved to amend his citation andcomplaint before the judge when presented with the contention that the standardhe cited was inapplicable. Thus, amendment under the criteria of Fed. R. Civ.P. 15(a) was appropriate in Marquette, but is not proper in the instant case,where the Secretary made no motion to amend and his argument in favor ofamendment is raised unnecessarily late.[18] See majority?sopinion, note 4.”