“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4584 MID-PLAINS CONSTRUCTION COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0ORDER OF REMANDApril2, 1975BeforeMORAN, Chairman; VAN NAMEE and CLEARY, CommissionersCLEARY,COMMISSIONER:On November 16, 1973, Judge Herbert E. Bates issued adecision in this case, granting respondent?s motion to dismiss the Secretary?scomplaint.On December 17, 1973, the Commission directed that thedecision of the Judge be reviewed in accordance with section 12(j) of theOccupational Safety and Health Act of 1970 (29 U.S.C. ? 651 et seq.,hereinafter referred to as ?the Act?).Respondent was issued a citation and a notice of proposedpenalty on August 23, 1973, that alleged a violation of section 5(a)(1) of theAct, the general duty clause. Respondent filed a timely notice of contest. OnOctober 2, 1973, the Secretary amended the citation in his complaint to allegea violation of section 5(a)(2) of the Act for failing to comply with 29 CFR ?\u00a01926.105(a),instead of a violation of section 5(a)(1). The underlying factual allegation,that employees of respondent were working on a roof more than 25 feet aboveground without adequate protection, remained the same.On October 22, 1973, respondent moved to dismiss theSecretary?s complaint because in amending the citation, the complaint failed tostate the reasons for amendment. Respondent argued that in issuing thecomplaint the Secretary failed to comply with rule 33(a)(3) of the Commission?sRules of Procedure.[1] In addition, respondentclaimed that by amending the citation in his complaint, the Secretary violatedsection 9(a) of the Act, which requires that a citation describe the violationalleged with particularity.[2]Judge Bates adopted respondent?s argument, and dismissed thecomplaint on the following three grounds. First, the Secretary failed to fileany objection to respondent?s motion to dismiss. Second, the ?substantialvariance between the Citation and Complaint . . . is contrary to the basicrequisites of procedural due process.? Third, the Secretary?s failure to complywith rule 33(a)(3) warrants dismissal of the complaint.After reviewing the record, we disagree with all three of theJudge?s reasons. To begin with, the Secretary?s brief on review notes that acopy of respondent?s motion to dismiss was not received until a day beforebeing served with a copy of the Judge?s ruling that granted the motion. Thus,the Secretary had no time to respond to the motion to dismiss.[3]The Commission strongly disagrees with the Judge?s statementthat the amendment of a citation in the complaint constitutes a denial of dueprocess. It is well-settled that ?administrative pleadings are very liberallyconstrued and very easily amended.? National Realty & Constr. Co., Inc.v. O.S.H.R.C., 489 F.2d 1257, 1264 (D.C. Cir. 1973) (footnotes omitted).Also, that citations are drafted by non-legal personnel militates in favor ofallowing amendments. See National Realty, supra at 1264. Indeed, underrule 15(a) of the Federal Rules of Civil Procedure[4]a party is entitled to amend his pleadings once as a matter of right.[5]It is difficult to see how respondent could be prejudiced by an amendment of alegal theory far in advance of the hearing. The underlying facts at issueremain the same and respondent has been given notice of the allegations againstit and adequate time to draft responsive pleadings and prepare its defenses.The purpose of pleadings is to provide ?fair notice,?[6]and this due process requirement has been met.Finally, the Judge dismissed the complaint because theSecretary failed to state the reasons for the amendment, as required by rule33(a)(3) of the Commission?s Rules. The Judge was wrong. The complaint clearlyalleged facts that would bring the case within the ambit of section 1926.105,and also clearly stated that the reason for the change is that section1926.105, a specific standard, applies rather than section 5(a)(1) of the Act.See Paragraph VIII of the complaint. In any event, if no reason had beenassigned and if respondent were concerned about the reason for amendment, itcould have raised this point in a motion for clarification, motion for a moredefinite statement, motion for leave to file a later answer, or some otherappropriate motion. Dismissing the complaint is too severe a remedy for apeccadillo of this kind. Cf. Brennan v. O.S.H.R.C. & Bill EcholsTrucking, 487 F.2d 230, 236 (5th Cir. 1973).In support of its motion to dismiss, respondent has alsoasserted that the allegations of the complaint do not constitute a failure tocomply with 29 CFR ? 1926.105(a). Specifically, respondent maintains that inorder for the Secretary to prove a failure to comply with the standard, he mustdemonstrate that it was impractical to use devices such as ladders, scaffolds,catch platforms, temporary floors, safety lines or safety belts. Thisinterpretation of 29 CFR ?\u00a01926.105(a) was specifically rejected by theFifth Circuit in Brennan v. Southern Contractors Service & O.S.H.R.C.,492 F.2d 498 (5th Cir. 1974) and Brennan v. Verne-Woodrow Co. &O.S.H.R.C., 494 F.2d 1181 (5th Cir. 1974).Accordingly, it is ORDERED that the Judge?s order be setaside and that the case be reinstated and remanded for proceedings consistentwith this opinion.?VANNAMEE, COMMISSIONER, concurring:I concur in the order of remand because I believe that to bethe only just result. Aside from the significant fact that Labor had noopportunity to respond to the motion to dismiss, the substance of the chargeagainst Respondent in both the complaint and citation was identical: thefailure to protect employees working at a level more than 25 feet off theground. By amending the citation with the complaint (Cf. Lovell ClayProducts Inc., 10 OSAHRC 237, BNA 2 OSHC 1121, CCH E.S.H.G. para. 18,327(1974), Labor only altered its legal theory of the case. The substance of thecharge was not changed. As I indicated in Diamond Engineering Company,Dkt. 4217, (concurring opinion) (February 12, 1975), motions to dismiss are notto be granted in the usual case merely because one party changes his legaltheory of the case.On the other hand, I express no opinion on the applicabilityof 29 C.F.R. 1926.105(a) to the facts alleged as violative of the Act. I wouldnote, though, that the complaint alleges failure to use safety nets or safetybelts, and we have recently held that 29 C.F.R. 1926.28(a) mandates use ofsafety belts as protection against fall hazards. Hoffman Construction Co.,Dkt. 644, BNA 2 OSHC 1523, CCH E.S.H.G. para. 19,275 (January 31, 1974); CarpenterRigging and Contracting Corp., Dkt. 1399, BNA 2 OSHC 1544, CCH E.S.H.G.para. 19,252 (February 4, 1975).Finally, I would note that the motion to dismiss went only tothe complaint; it did not include the citation. The judge only dismissed thecomplaint; he did not expressly vacate the citation upon which the complaintwas based. There is a question whether the cause of action survives once acomplaint is dismissed. This question might be answered in the affirmative ifit is assumed that the citation does not merge with the complaint. We have notdecided that question, and it has not been argued in this case. It would beinappropriate to decide it herein. Diamond Engineering Co., supra.?MORAN,CHAIRMAN, dissenting:My colleagues, once again, permit an amendment in thecomplaint, even though the complainant blatantly disregarded Rule 33(a)(3) ofthe Commission?s Rules of Procedure by not stating the reasons therefor. Reviewof many cases convinces me that the failure to comply with this proceduralrequirement is becoming the rule rather than the exception. See, e.g.,Secretary v. Pukall Lumber Company (Docket No. 10136, March 18, 1975); Secretaryv. Martin Iron Works, Inc., 15 OSAHRC 33 (1975) (dissenting opinion).Compliance with the Commission?s procedural rules is a prerequisite for theorderly conduct of our proceedings. That objective cannot be achieved when theCommission fails to enforce its rules.In Secretary v. Pukall Lumber Company, supra, Irecently discussed the undesirability of permitting amendments in totaldisregard of our procedural requirements. Rather than repeating the remarksthat I made there, I will simply add that this is another example of theCommission?s failure to provide equal treatment to party litigants. In myopinion, it is wrong to overlook procedural failures by the government and tostrictly enforce procedural requirements that pertain to employers. CompareSecretary v. Advance Air Conditioning, Inc., 7 OSAHRC 736 (1974), with Secretaryv. Penn Central Transportation Company, 13 OSAHRC 604 (1974); see Secretaryv. American Airlines, Inc., 16 OSAHRC 511 (1974).In this case, the Commission has not only countenanced thecomplainant?s failure to comply with Rule 33(a)(3), but it has also amendedthat rule in footnote 8. Thus, the complainant has been relieved of the duty tostate the reasons for an amendment, and the burden has been shifted to therespondent to request the reasons therefor. If such a change is to be made, theCommission?s rules should be changed formally rather than on an ad hoc basis ina particular case.Finally, I note that the lead opinion asserts that thecomplainant could amend the citation as a matter of right without addressingthe question of whether the notice of contest to the citation was a responsivepleading. Under Rule 15(a) of the Federal Rules of Civil Procedure, this rightis limited to the ?time before a responsive pleading is served.?\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 4584 MID-PLAINS CONSTRUCTION COMPANY, \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0November16, 1973BATES,JUDGE:Ruling on Respondent?s motion to dismiss the complaint dated10\/22\/73. The docket file does not contain any opposition to the Respondent?sMotion to Dismiss. The substantial variance between the Citation and theComplaint in re: the description of the alleged violation and the pertinentstatute and regulation is contrary to the basic requisites or procedural dueprocess for that reason, as well as the Secretary?s failure to conform to Rule33(a)(3) of the Commission Rules, the Respondent?s Motion to Dismiss theComplaint is granted.[1]Rule 33(a)(3) states:(3) Where the Secretary seeks in his complaint to amend hiscitation or proposed penalty, he shall set forth the reasons for amendment andshall state with particularity the change sought.\u00a0[2] Section 9(a) of the Act reads inpart:Each citation shall be in writing and shall describe withparticularity the nature of the violation, including a reference to theprovision of the Act, standard, rule, regulation, or order alleged to have beenviolated.\u00a0[3] See Brief for Secretary at 3.\u00a0[4]The Federal Rules of Civil Procedure expressly govern Commission proceedings.See section 12(g) of the Act and rule 2(b) of the Commission?s Rules ofProcedure.\u00a0[5]Fed. R. Civ. P. 15(a).[6]See K. Davis, Administrative Law Text ? 8.02 at 196 (3d ed. 1972).”