“SECRETARY OF LABOR,Complainant,v.NU-WAY MOBILE HOME MANUFACTURING, INC.,Respondent.OSHRC Docket No. 80-7082_DECISION_Before: BUCKLEY, Chairman; RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).Administrative Law Judge E. Carter Botkin affirmed one item of acitation issued by the Secretary to Nu-Way Mobile Home ManufacturingCompany (\”Nu-Way\”). The item alleged that, contrary to 29 C.F.R. ?1910.132(a), Nu-Way’s employees had not worn safety belts to protectagainst a fall hazard while working on the roof of a mobile home. Nu-Waymakes the threshold argument that because its employees are engaged inconstruction work, general industry standards do not apply to itsworkplace. We conclude that Nu-Way’s employees are engaged inconstruction work and that the general industry standard cited by theSecretary is not applicable.At Nu-Way’s facility mobile homes are constructed from the ground up asthey move down an assembly line. The operation appears to be similar inall respects to that described in Cardinal Industries, Inc., No. 82-0427(December 6, 1985), pet. for rev. filed, No. 86-3094 (6th Cir. Jan. 31,1986). In Cardinal, housing modules were constructed from the ground upby carpenters, roofers, electricians, and plumbers as they moved down anassembly line. In finding that the work being performed at Cardinal’splant was \”construction work\” within the meaning of section1910.12,[[1]] we held that the nature of the work rather than itslocation determines whether it is \”construction work\” within the meaningof section 1910.12. Slip op. at 6. The Secretary’s arguments here thatsuch assembly line work is not \”construction work\” were rejected inCardinal. The facts here warrant no different result. We thereforeconclude that Nu-Way’s operation is \”construction work\” within themeaning of section 1910.12.We also find that, as in Cardinal, there are construction standardsspecifically applicable to the danger of falling in the process oroperation of construction within the meaning of section 1910.5(c)(1),(for example, 1926. 28(a), 1926.451(u)(3), or 1926.105(a), underappropriate circumstances). These standards, among others requiringprotection from falls, represent the considered decision of theSecretary as to the circumstances under which there is an obligation ofthe employer in the construction industry to provide protection fromfalls as well as the methods of protection feasible in a constructioncontext. Indeed, the Secretary takes the position in his brief that, ifNu-Way’s operation is construction, then 1926.28(a) is an applicablestandard and alleges its violation. We need not address whether thisstandard or any of these standards would have been violated here,because we find amendment under Rule 15(b) of the Federal Rules of CivilProcedure inappropriate in this case.Under Rule 15(b) of the Federal Rules of Civil Procedure, pleadings maybe amended to conform to the evidence when an issue not raised by thepleadings has been tried by express or implied consent of the parties.Chairman Buckley would not amend here because there was no expressconsent to try whether section 1926.28(a) had been violated. He wouldnot find implied consent because he does not find that Nu-Way squarelyrecognized that violation of section 1926.28(a) was in issue, much lessthat it consented to try that issue. See McWilliams Forge Co., 84 OSARHC___, 11 BNA OSHC 2128, 2129-30, 1984 CCH OSHD ? 26,979, p. 34,669 (No.80- 5868, 1984). Commissioner Wall also would not amend, sua sponte, inthe absence of an opportunity for Nu-Way to argue whether amendment isappropriate and whether it would be prejudiced. Therefore, theCommission will not amend the pleadings to allege a violation of section1926.28(a).Accordingly, item 1 of citation 2 is vacated.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: February 4, 1986RADER, Commissioner, dissenting:I respectfully dissent from the majority’s decision to vacate thecitation on the ground that a construction standard, rather than thegeneral industry standard cited by the Secretary, applies to the citedcondition. The facts of this case are indistinguishable from those ofCardinal Industries, Inc., No. 82-0427 (December 6, 1985). pet. forreview filed, No. 86-3094 (6th Cir. Jan. 31, 1986). As with the modularhousing units involved in Cardinal, Nu-Way builds its mobile homes in afactory setting, away from, and having no direct connection with, theactual site to which the mobile homes will be transported and where theywill be eventually occupied. For the reasons set forth in my dissentingopinion in Cardinal, I conclude that Nu-Way was not engaged inconstruction within the meaning of 29 C.F.R. ? 1910.12(b), and thattherefore the general industry standards are applicable.[[1]]———————————————————————— The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] Section 1910.12 provides in part:? 1910.12 Construction work.(a) Standards. The standards prescribed in Part 1926 of this chapter areadopted as occupational safety and health standards under section 6 ofthe Act and shall apply, according to the provisions thereof, to everyemployment and place of employment of every employee engaged inconstruction work.(b) Definition. For purposes of this section, \”construction work\” meanswork for construction, alteration, and\/or repair, including painting anddecorating. See discussion of these terms in ? 1926.13 of this title.[[1]] The Standard Industrial Classification Manual, which classifiesall American industry, lists \”Mobile Homes\” under number 2451 of itsmanufacturing index. Office of Management and Budget, StandardClassification Manual 93 (1972). As I stated in Cardinal, I consider theStandard Classification Manual to be relevant and to provide guidance inclassifying Nu-Way’s business activities.”