“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 9627 NEW ENGLAND TELEPHONE AND TELEGRAPH CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0May 9, 1978DECISIONBefore CLEARY, Chairman;BARNAKO, Commissioner.BARNAKO, Commissioner:??????????? In our previous decision in this case,[1] we concluded that, basedon the evidence then of record, Respondent had violated 29 C.F.R. 1926.501(f).Because the case was tried before we issued out decisions in Anning-JohnsonCo.[2] and Grossman Steel& Aluminum Corp.,[3] we granted Respondent anopportunity to present additional evidence bearing on the defenses available tosubcontractors on a multi-employer construction site announced in those cases.Subsequently, Respondent moved for reconsideration or in the alternative forfurther hearing to adduce additional facts. Both the motion and Respondent?smemorandum in support thereof argued only that Respondent could prevail on the Anning-Johnsonand Grossman Steel defenses. On December 22, 1976, we entered an Order grantingRespondent?s motion for further hearing. In that Order, we set aside ourearlier decision and remanded the case to the trial Judge for furtherproceedings.??????????? On March 17, 1977, Respondent filed with Judge Worceter amotion to vacate or in the alternative to suppress evidence and grant summaryjudgment on the ground that its ?walkaround rights? pursuant to Section 8(e) ofthe Act had been violated.[4] Respondent had neverraised the 8(e) defense previously. At the same time, the parties filedstipulations with the Judge, purportedly dealing with the Anning-Johnsonand Grossman Steel defenses.[5] Respondent declinedfurther hearing on this question, relying instead on the record as supplementedby the stipulations.??????????? On May 31, 1977, Judge Worcester issued a decision inwhich he vacated the citation because the Secretary had failed to comply withSection 8(e). We reverse and reinstate our initial decision. Viewed in thecontext of prior proceedings, our remand Order was issued solely for thepurpose of developing additional evidence on the Anning-Johnson and GrossmanSteel defenses. Respondent had the opportunity but failed to raise itsSection 8(e) argument throughout the original proceeding. It further failed toraise 8(e) in its motion for further hearing and its memorandum in support ofthat motion. We conclude that Respondent?s raising of 8(e) for the first timeat the remand hearing not only exceeded the scope of our remand Order but wasalso untimely, and that Judge Worcester thus erred in considering the 8(e)defense.??????????? Respondent?s only other contention is that, should wereverse the Judge, we should nonetheless remand again. It argues that, sincethe ALJ vacated on 8(e) grounds, it never received an opportunity to adduceadditional evidence on the Grossman Steel and Anning-Johnsondefenses. We reject this contention. Respondent was afforded the opportunitywhich it now seeks at the remand hearing, but instead chose to rely on theoriginal record as supplemented by the stipulations which it filed with theJudge. We therefore find no basis for a further remand.??????????? Moreover, the stipulations do not present any evidence onthe question of employer responsibility not already disclosed by the record. Onthis record, Respondent has failed to establish an Anning-Johnson and GrossmanSteel defense.??????????? Accordingly, the Judge?s decision on remand is reversed,and the previous Review Commission decision (n. 1, supra) is reinstated.?FOR THE COMMISSION:?Ray H. Darling Jr.Executive SecretaryDATE: MAY 9, 1978\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 9627 NEW ENGLAND TELEPHONE AND TELEGRAPH CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 May 31, 1977Appearances:John S. Casler,Esq. for the Secretary\u00a0William J.McDonald, Esq. and Elizabeth Flaherty for the Respondent\u00a0DECISIONON REMAND??????????? On April 16, 1975, I issued a decision holding that theRespondent had violated 29 CFR section 1926.501(f) as alleged in Item 1 of thecitation and vacating Item No. 2 alleging violation of 29 CFR 1926.500(e)(1),both standards promulgated by the Secretary of Labor under authority granted tohim in the Occupational Safety and Health Act of 1970. This decision wasaffirmed on review by this Commission on November 3, 1976. On November 16,1976, the Respondent moved for reconsideration of my affirmance of Citation No.1 or, in the alternative, for a further hearing on the ground that Commissiondecisions issued after my decision in Grossman Steel & Aluminum Corp.,OSHRC No. 12775, and Anning-Johnson Company, OSHRC Nos. 3694 and 4409would support a finding that the Respondent did not violate this standard. OnDecember 22, 1976, this motion was granted. The Commission decision datedNovember 3, 1976, was set aside and the case was remanded for furtherproceedings.??????????? The vacation of the citation for violation of 29 CFR1926.500(e)(1) has become a final order and is not in issue.??????????? On March 17, 1977, the Respondent filed a Motion toVacate, or in the alternative, to Suppress Evidence and Grant Summary Judgmenton the ground that ?walkaround rights? were denied. Section 8(e) of the Actcontains a mandatory provision requiring the Secretary to afford an employer anopportunity to accompany or his authorized representative throughout theinspection. See Secretary of Labor v. Chicago Bridge and Iron Company535 F.2d 371 (7th Cir. 1976).??????????? The Secretary?s inspector while going through a buildingunder construction with a representative of the general contractor passed oneof the Respondent?s installers on an unfinished stairway. He recommended theissuance of the citation in issue without ever making and effort to inform aresponsible supervisory New England Telephone official that a safety inspectioninvolving New England?s employees was taking place. There wasn?t evensubstantial compliance with the statute under those circumstances. There wereno extraordinary circumstances which justify the inspector?s failure to make aneffort to notify the installer?s supervisor that an inspection was beingconducted.??????????? On March 17, 1977, the parties filed the followingstipulation:??????????? The Complainant and the Respondent in the above captionedmatter agree and stipulate to the following facts:??????????? 1. The Respondent?s Supervisor (Logue) visited the worksite in question every day in which one of his installers was there.??????????? 2. The Respondent does not have one-on-one supervision,nor do Respondent?s supervisors usually stay with an installer for an entirework day. Instead, the supervisors of installers divide their time during thework day between the 6 or 7 installer whom they supervise.??????????? 3. On July 14, 1974, Supervisor Logue visited InstallerEvans at the work site. While they were there, temporary hand railings were inplace on the stairs and wooden planks were in the pan-type treads.??????????? 4. Joint Exhibits 3 and 4 had been reviewed withInstaller Evans at some date before he went on the work site.??????????? Subsequently at a prehearing conference on Mary 21, 1977,it was agreed that the parties would be given an opportunity to submit briefson the issue of whether I could dispose of the walkaround issue since it wasfirst raised after remand.??????????? The Respondent argues that under the Federal Rules ofCivil Procedure which are applicable to this proceeding the motion to vacatemust be considered also as a motion to amend the pleadings to conform to theevidence which is permitted under Rule 15(b) F.R. Cir. Pr. citing twoCommission decisions, Secretary of Labor v. Kaiser Aluminum and ChemicalCorporation, OSHRC No. 3685, May 3, 1976, and March 31, 1977, and Secretaryof Labor v. Prince Construction, OSHRC No. 5221. The rationale of theCommission?s conclusion that it can, sua sponte, amend pleadings after thetrial has been concluded is not clear to me, nor can I find any basis fordisagreeing with the conclusion of Commissioner Moran in his dissent in Kaiser(supar) that?. . . a citationis a creature of statute. It is not a pleading. Rule 15(b), Federal Rules ofCivil Procedure, cannot and does not apply to citations. . . ..?\u00a0??????????? However, I do not reach that question.??????????? The Respondent first raised this issue after remand. Nonewly discovered evidence has been presented except the stipulation. Thealleged violation of due process of law could have (but need not have) been setforth in the Respondent?s answer, but it could (and should) have been raised bymotion at the conclusion of the case for the Respondent in the usual case. Buta party need not be penalized if counsel erred in his pleading because herelied upon decisions which had been overruled by the Supreme Court after theanswer was filed. Emich Motors Corp. et al v. General Motors Corp. et al,15 F.R.D. 354, 355, (D.C.N.D. Ill. 1953). Precisely the same question arises inthe case at bar.??????????? The Commission Secretary of Labor v. WesternWaterproofing Inc., OSHRC No. 1087, a case which was not published untilJune 21, 1976, long after the trial in 1974, held that an employer has theright to be present throughout every step of an inspection, that this provisionof section 8(e) of the Act is mandatory nothing that : ?In most cases where theissue arises the records demonstrate an attempt by the Secretary?srepresentatives to comply with the the walkaround provisions.? In the case atbar not even an attempt to contact New England Telephone was made.??????????? On April 4, 1977, in Secretary of Labor v. EnvironmentalUtilities Corporation, OSHRC No. 5324, a majority of the Commissionreaffirmed the position taken in Western Waterproofing (supra). ChairmanBarnako said:?In my opinion, ifthere had been a failure of the compliance officer to substantially comply withSection 8(e), then Respondent would be entitled to relief regardless of whetherit was actually prejudiced in presenting its defense.????????????? Citing Western Waterproofing Commissioner Moran said:?. . . WesternWaterproofing clearly stands for the proposition that an employer is entitledto relief when the Secretary has not complied with section 657(e), [Section8(e) of the Act] irrespective of whether the employer was prejudiced thereby .. ..????????????? The Commission held in Western Waterproofing(supra) that failure to comply with section 8(e) should result in vacation ofall citations.??????????? Both parties have declined to submit additional evidenceand have agreed to submit the issues for decision on the record.Conclusionof Law??????????? Upon consideration of the record as whole I find andconclude that because no supervisory representative of New England Telephonewas given an opportunity to accompany the Secretary?s inspector during his tourof the worksite and that as a matter of law, any citation issued on the basisof observations made during such an unlawful inspection was invalid andunenforceable.ORDER??????????? It is therefore hereby ordered that Citation No. 1 andthe proposed penalty of $55 be vacated and that this proceeding be dismissed.?BEN D. WORCESTERJudge, OSHRCDated: May 31, 1977?Boston, Massachusetts[1] New EnglandTelephone and Telegraph Co., 4 BNA OSHC 1838, 1977?78 CCH OSHD 21,999 (No.9627, 1976).[2] 76 OSAHRC 54\/A2,4 BNA OSHC 1193, 1975?76 CCH OSHD 20,690 (No. 3694 and 4409, 1976).[3] 76 OSAHRC 54\/D9,BNA OSHC 1185, 1975?76 CCH OSHD 20,691 (No. 12775, 1975).[4] Section 8(e)provides:Subject to regulations issued bythe Secretary, a representative of the employer and a representative authorizedby his employees shall be given an opportunity to accompany the Secretary orhis authorized representative during the physical inspection of any workplaceunder subsection (a) for the purpose of aiding such inspection. Where there isno authorized employee representative, the Secretary or his authorizedrepresentative shall consult with a reasonable number of employees concerningmatters of health and safety in the workplace.[5] The stipulationsmerely repeated evidence already in the record. Specifically, they detailedRespondent?s supervisory structure, elements of its safety program, andconditions at the site when a supervisor was present.”