“Docket No. 80-7082 SECRETARY OF LABOR, Complainant, v. NU-WAY MOBILE HOME MANUFACTURING, INC., Respondent.OSHRC Docket No. 80-7082DECISIONBefore: BUCKLEY, Chairman; RADER and WALL, Commissioners. BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commission under 29 U.S.C.? 661(i), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”). The Commission is an adjudicatory agency, independent ofthe Department of Labor and the Occupational Safety and Health Administration. It wasestablished to resolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. See section 10(c) of theAct, 29 U.S.C. ? 659(c).Administrative Law Judge E. Carter Botkin affirmed one item of a citation issued by theSecretary to Nu-Way Mobile Home Manufacturing Company (\”Nu-Way\”). The itemalleged that, contrary to 29 C.F.R. ? 1910.132(a), Nu-Way’s employees had not worn safetybelts to protect against a fall hazard while working on the roof of a mobile home. Nu-Waymakes the threshold argument that because its employees are engaged in construction work,general industry standards do not apply to its workplace. We conclude that Nu-Way’semployees are engaged in construction work and that the general industry standard cited bythe Secretary is not applicable.At Nu-Way’s facility mobile homes are constructed from the ground up as they move downan assembly line. The operation appears to be similar in all respects to that described inCardinal 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 theground up by carpenters, roofers, electricians, and plumbers as they moved down anassembly line. In finding that the work being performed at Cardinal’s plant was\”construction work\” within the meaning of section 1910.12,[[1]] we held that thenature of the work rather than its location determines whether it is \”constructionwork\” within the meaning of section 1910.12. Slip op. at 6. The Secretary’s argumentshere that such assembly line work is not \”construction work\” were rejected inCardinal. The facts here warrant no different result. We therefore conclude that Nu-Way’soperation is \”construction work\” within the meaning of section 1910.12.We also find that, as in Cardinal, there are construction standards specificallyapplicable to the danger of falling in the process or operation of construction within themeaning of section 1910.5(c)(1), (for example, 1926. 28(a), 1926.451(u)(3), or1926.105(a), under appropriate circumstances). These standards, among others requiringprotection from falls, represent the considered decision of the Secretary as to thecircumstances under which there is an obligation of the employer in the constructionindustry to provide protection from falls as well as the methods of protection feasible ina construction context. Indeed, the Secretary takes the position in his brief that, ifNu-Way’s operation is construction, then 1926.28(a) is an applicable standard and allegesits violation. We need not address whether this standard or any of these standards wouldhave been violated here, because we find amendment under Rule 15(b) of the Federal Rulesof Civil Procedure inappropriate in this case.Under Rule 15(b) of the Federal Rules of Civil Procedure, pleadings may be amended toconform to the evidence when an issue not raised by the pleadings has been tried byexpress or implied consent of the parties. Chairman Buckley would not amend here becausethere was no express consent to try whether section 1926.28(a) had been violated. He wouldnot find implied consent because he does not find that Nu-Way squarely recognized thatviolation of section 1926.28(a) was in issue, much less that it consented to try thatissue. 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, suasponte, in the absence of an opportunity for Nu-Way to argue whether amendment isappropriate and whether it would be prejudiced. Therefore, the Commission will not amendthe pleadings to allege a violation of section 1926.28(a).Accordingly, item 1 of citation 2 is vacated.FOR THE COMMISSION RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: February 4, 1986RADER, Commissioner, dissenting:I respectfully dissent from the majority’s decision to vacate the citation on theground that a construction standard, rather than the general industry standard cited bythe Secretary, applies to the cited condition. The facts of this case areindistinguishable from those of Cardinal Industries, Inc., No. 82-0427 (December 6, 1985).pet. for review filed, No. 86-3094 (6th Cir. Jan. 31, 1986). As with the modular housingunits involved in Cardinal, Nu-Way builds its mobile homes in a factory setting, awayfrom, and having no direct connection with, the actual site to which the mobile homes willbe transported and where they will be eventually occupied. For the reasons set forth in mydissenting opinion in Cardinal, I conclude that Nu-Way was not engaged in constructionwithin the meaning of 29 C.F.R. ? 1910.12(b), and that therefore the general industrystandards are applicable.[[1]]\u00a0The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-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 are adopted asoccupational safety and health standards under section 6 of the Act and shall apply,according to the provisions thereof, to every employment and place of employment of everyemployee engaged in construction work. (b) Definition. For purposes of this section, \”construction work\” means work forconstruction, alteration, and\/or repair, including painting and decorating. See discussionof these terms in ? 1926.13 of this title.[[1]] The Standard Industrial Classification Manual, which classifies all Americanindustry, lists \”Mobile Homes\” under number 2451 of its manufacturing index.Office of Management and Budget, Standard Classification Manual 93 (1972). As I stated inCardinal, I consider the Standard Classification Manual to be relevant and to provideguidance in classifying Nu-Way’s business activities.”