“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-3944 RODNEY E. FOSSETT d\/b\/a SOUTHERN LIGHTWEIGHT CONCRETE CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0October 29, 1979DECISIONBefore CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.BY THE COMMISSION:??????????? Adecision of Administrative Law Judge Dee C. Blythe is before the Commission forreview pursuant to ? 12(j) of the Occupational Safety and Health Act of 1970,29 U.S.C. ?? 651?678 (?the Act?). The issues in this case are whether the judgeproperly amended sua sponte the standard alleged to be violated in the citationand complaint from 29 C.F.R. ? 1926.451(a)(12)[1] to 29 C.F.R. ? 451(a)(14)[2] and whether the judgeproperly affirmed the alleged violation of 29 C.F.R. ? 1926.451(a)(13).[3]??????????? Respondentis a contractor that was engaged in the application of stucco to the exteriorsurface of a building in an apartment complex located in Amarillo, Texas.During an inspection by an OSHA compliance officer, two of respondent?semployees were working atop a tubular scaffold at a height of twelve feet. Theworking surface of the scaffold consisted of three planks, each two feet bytwelve feet, laid across metal supports. The planks extended beyond the ends ofthe supports in lengths varying from zero inches to eight inches. The employeesreached the working surface of the scaffold by climbing up horizontal membersof the tubular side braces. These ?rungs? were spaced vertically at intervalsof approximately twenty to twenty-two inches; each was six to eight incheslong. Fossett was charged with a violation of ? 1926.451(a)(12) because theplanks did not overlap twelve inches and a violation of ? 1926.451(a)(13) forfailure to have an access ladder or equivalent safe access to the scaffold.[4]??????????? Inhis answer, Fossett, who has represented himself throughout these proceedings,denied that he violated ? 1926.451(a)(12), saying that ?it is impossible forthis violation to exist since only one stand of scaffold is used.? After thefacts pertaining to the scaffold planks were established at the hearing,Fossett questioned the compliance officer on this issue. The compliance officerindicated that Fossett violated the standard because the planks did not extendat least twelve inches over their end supports. Fossett then indicated his beliefthat the standard only applied to a situation in which boards overlap otherboards on adjacent scaffold supports. The judge mentioned the possibleapplicability of ? 1926.451(a)(14), at which point Fossett stated ?[t]hat?s theone I was getting at with Mr. Sayers (the compliance officer).? Uponquestioning by the judge, the compliance officer then stated ? 1926.451(a)(14)was the standard he was ?trying to apply.???????????? Inhis decision, Judge Blythe amended the citation to allege a violation of ?\u00a01926.451(a)(14).The judge noted that Fossett was fully aware of the applicability of ?\u00a01926.451(a)(14)and that the issue of a violation of that standard was fully litigated withoutobjection. Although the Secretary had not moved for an amendment, the judge suasponte amended the citation pursuant to Rule 15(b) of the Federal Rules ofCivil Procedure.[5]He then concluded that Fossett violated ? 1926.451(a)(14) since one plank wasflush with the end supports.??????????? Onreview, Fossett contends that the judge?s amendment of the citation wasimproper. Although not disputing that his scaffold failed to comply with ?1926.451(a)(14), Fossett asserts that, by amending the citation on his ownmotion, the judge demonstrated that he was prejudiced against Fossett anddenied him a fair and impartial hearing.[6] Fossett thus asks that allof the violations that the judge found be set aside.??????????? Weconclude that the judge?s action was proper. It is clear from the testimony ofthe compliance officer that the citation was directed to failure of the planksto extend over the end supports. It is equally clear that the standardapplicable to this condition is ? 1926.451(a)(14), rather than ?1926.451(a)(12).??????????? It iswell established that administrative pleadings are liberally construed andeasily amended. McLean-Behm Steel Erectors, Inc., 78 OSAHRC 93\/A9, 6 BNAOSHC 2081, 1978 CCH OSHD ? 23,139 (No. 15582, 1978), petition for reviewfiled, No. 79?1073 (5th Cir. Jan. 9, 1979); Usery v. Marquette CementMfg. Co., 568 F.2d 902 (2d Cir. 1977); National Realty and ConstructionCo., Inc. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Rule 15(b) of theFederal Rules of Civil Procedure permits amendment of the pleadings to conformto the evidence when the parties have expressly or impliedly consented to thetrial of the unpleaded issues. Rule 15(b) is made applicable to Commissionproceedings by 29 C.F.R. ? 2200.2(b).[7] Inasmuch as neither partyexpressly consented to the trial of the alleged ? 1926.451(a)(14) violation, itis necessary to resolve whether the parties impliedly consented to litigationof that charge.??????????? Twofactors that give rise to a finding of implied consent are the failure of theparties to object to introduction of evidence concerning the unpleaded issueand the introduction of evidence relevant to the unpleaded issue by the partyopposing the amendment. Southwestern Bell Telephone Company, 78 OSAHRC100\/D8, 6 BNA OSHC 2130, 1978 CCH OSHD ?\u00a023,187 (No. 14761, 1978). In thiscase, we note that at the hearing, Fossett specifically referred to the applicabilityof ? 1926.451(a)(14). Moreover, Fossett introduced evidence regarding thedimensions of the scaffold and planks and the amount by which the planksoverlapped the end supports. Fossett did not object to the evidence adduced bythe Secretary pertaining to the size of the planks, the spacing, and theoverlapping. The issue of how far the planks overlapped the end supports of thescaffold was not relevant to the original charge. Thus, the respondent was onnotice that issues pertinent to the unpleaded standard were being tried and hehad an opportunity to present any defenses to the unpleaded charge. Bill C.Carroll Co., OSAHRC Docket No. 76?2748 (??, 1979). Fossett has notrequested leave to present additional evidence relating to the amended allegation.Accordingly, the issue of whether the respondent was in violation of ?\u00a01926.451(a)(14)was tried by consent and the amendment of the pleadings to charge a violationof that standard was proper.[8] In its petition fordiscretionary review, Fossett asserts that his failure to object to theamendment resulted from his ignorance that the original allegation was beingamended. In this case, however, Fossett introduced the issue of theinapplicability of the cited standard, and the evidence adduced by the partieswas relevant only to the unpleaded charge. The respondent failed to object whenthe Secretary introduced evidence pertinent to the unpleaded issue. Therespondent was on notice of the applicability of the amended charge and had afull opportunity to litigate that issue. On the basis of Fossett?s notice andopportunity to be heard, we conclude that the respondent cannot claim prejudiceon the ground that he was unaware that the pleadings were being amended.??????????? Thejudge also concluded that the scaffold rungs were not an access ladder orequivalent safe access within the meaning of ? 1926.451(a)(13), and foundFossett in violation of that standard. On review Fossett contends that thescaffold rungs constituted an access ladder or equivalent safe access and asksthat the citation be vacated. We have consistently held that a scaffold framedoes not provide equivalent safe access for the purpose of satisfying therequirements of ? 1926.451(a)(13) if the means of access provided by the framedoes not comport with the requirements of the ANSI specifications incorporatedinto ? 1926.450(a)(5), the standard for fixed ladders.[9] Rust EngineeringCompany, 77 OSAHRC 37\/C8, 5 BNA OSHC 1183, 1977?78 CCH OSHD ? 21,693 (No.12200, 1977); Charles H. Tompkins, 77 OAHRC 197\/D1, 6 BNA OSHC 1045,1977?78 CCH OSHD ? 22,337 (No. 15428, 1977). Fossett?s scaffold did not meetthese requirements.[10] Accordingly, we affirmthe violation. However, in light of the slight variances from the standard?srequirements,[11]the nearly-uniform configuration of the scaffold braces and the reasonably safeaccess provided by their use, we conclude that the violative condition does nothave a direct and immediate relationship to safety and health. Accordingly, weconclude that the violation is de minimis in nature. Ray Boyd Plaster andTile, Inc., 78 OSAHRC 47\/D8, 6 BNA OSHC 1648, 1978 CCH OSHD ? 22,794 (No.76?814, 1978) appeal dismissed, No. 78?2666 (5th Cir. Sept. 29, 1978); PeriniCorporation, 77 OSAHRC 65\/A2, 5 BNA OSHC 1343, 1977?78 CCH OSHD ? 21,790(No. 12589, 1977); Rust Engineering Company, supra; Charles H. Tompkins,supra.??????????? Thejudge assessed a $300 penalty for Fossett?s violation of five separatestandards, without apportioning the penalty among the various allegations ofthe citation.[12]He based the penalty assessment on the criteria set forth in section 17(j) ofthe Act, 29 U.S.C. 666(i). We find the assessed penalty to be appropriate andwould not reduce it because we conclude that the violation of ? 1926.451(a)(13)is de minimis. Our finding that the ladder violation is de minimis does notsignificantly reduce the overall gravity of the hazards encompassed in thecitation. Moreover, the judge indicated that the ladder violation alone wouldbe nonserious or de minimis, indicating that he gave it little weight in hispenalty assessment.??????????? Accordingly,we modify the judge?s decision to find that the violation of ? 1926.451(a)(13)is de minimis, yet affirm the penalty of $300 as assessed. As so modified, thejudge?s decision is affirmed.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: OCT 29, 1979\u00a0BARNAKO, Commissioner, concurring:??????????? Iagree that the judge properly amended the citation to find Fossett in violationof 29 C.F.R. ? 1926.451(a)(14), but my reasons for reaching this conclusiondiffer from those set forth by my colleagues. In all other respects, I agreewith their opinion.??????????? RodneyFossett was cited for a violation of 29 C.F.R. ? 1926.451(a)(12)[13] because ?all planking onplatforms did not lap a minimum of twelve inches.? Although the cited standardrequires each plank to overlap the adjacent plank by a minimum of 12 inches,the evidence at hearing was directed toward establishing that the planking didnot extend beyond the end supports of the scaffold by 12 inches. Following ahearing, the judge issued a decision amending the pleadings, pursuant to Fed.R. Civ. P. 15(b), to allege a violation of ? 1926.451(a)(14), which requiresall scaffold planks to extend over their end supports not less than six inchesnor more than 12 inches. He further found Rodney Fossett to have violated thisprovision.??????????? Iagree that amendment is proper pursuant to Fed. R. Civ. P. 15(b) in that theparties impliedly consented to trial of the ? 1926.451(a)(14) charge. In McLean-BehmSteel Erectors, Inc., 78 OSAHRC 93\/A9, 6 BNA OSHC 2081, 1978 CCH OSHD ? 23,139(No. 15582, 1978) (dissenting opinion) appeal docketed, No. 79?1073 (5thCir., Jan. 9, 1979), I stated that I would find implied consent for amendmentpursuant to Fed. R. Civ. P. 15(b) only where the parties squarely recognizedthat an unpleaded issue was being tried.??????????? Inthe instant case, both parties recognized that Rodney Fossett?s allegedviolation of ?\u00a01926.451(a)(14) was an issue in the case. From thebeginning of the hearing the evidence was directed toward the failure of theplanks to extend beyond the end supports?evidence which was not relevant to the? 1926.451(a)(12) allegation. Moreover, the compliance officer admitted that ?1926.451(a)(14) applied and further testified that under that standard 12inches is the maximum distance by which planks can extend beyond a scaffold?send supports. He additionally indicated that the scaffold planks must extend atleast 6 inches over the end supports and that one plank on Rodney Fossett?sscaffold was less than 6 inches. The testimony of the compliance officer thusplaced Rodney Fossett on notice that ? 1926.451(a)(14) was an issue in thecase. Indeed Rodney Fossett apparently had no doubt that ? 1926.451(a)(14) wasapplicable since he stated that ? 1926.451(a)(12) applies where ?boards overlapother boards? and that ?\u00a01926.451(a)(14) was the standard ?I was gettingat [in questioning the compliance officer].? Accordingly, I would conclude thatRodney Fossett?s alleged violation of ? 1926.451(a)(14) was tried by impliedconsent and amend the pleadings to allege a violation of ? 1926.451(a)(14).\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-3944 RODNEY E. FOSSETT d\/b\/a SOUTHERN LIGHTWEIGHT CONCRETE CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0DECISION AND ORDERAppearances:Robert E. Luxen, Esq., of Dallas, Texas,for Complainant.\u00a0Rodney E. Fossett, of El Paso, Texas, prose.\u00a0STATEMENT OF THE CASE??????????? Thisis a proceeding brought before the Occupational Safety and Health ReviewCommission (?the Commission?) pursuant to ? 10 of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 651 et seq. (?the Act?), contesting a citationissued by complainant, the Secretary of Labor (?the Secretary?), to therespondent, Rodney E. Fossett, doing business as Southern Lightweight ConcreteCompany,[14]under the authority vested in the Secretary by ? 9(a) of the Act. As the resultof an inspection conducted on August 17, 1976, by the Secretary?s complianceofficer of a housing construction site at 4701 Western Avenue, Amarillo, Texas,on which respondent was a subcontractor, one citation was issued to respondenton September 3, 1976, alleging serious violation of ? 5(a)(2) of the Act by hisfailing to comply with 29 CFR Part 1926, ?? 451(a)(4), (12), (13), (15) and(20), for which a single penalty was proposed. Respondent did not contest item1A, alleging a violation of ? 451(a)(4), but did timely contest the remainingitems. Thereafter a complaint was filed with the Review Commission on September28, 1976. On October 29, 1976, the Secretary filed a motion to affirm thecitation and proposed penalty on the ground that respondent had failed timelyto answer the complaint. By letter dated November 10, 1976, respondentattributed this failure to oversight and again requested a hearing. TheSecretary abandoned his motion at the hearing (Tr. 4), hence the letter ofNovember 10th is considered an answer to the complaint.[15]JURISDICTION AND ISSUES??????????? Respondentat the hearing admitted facts establishing jurisdiction, including that he usesmaterials and equipment in the state of Texas originating outside that stateand that he is an employer engaged in business affecting commerce who hasemployees within the meaning of ? 3 (5) of the Act (Tr. 6, 7). The issuesremaining to be determined are:??????????? 1.Whether the alleged violations may be grouped into one ?serious? citation.??????????? 2.Whether respondent on August 17, 1976, was in violation of 29 CFR1926.451(a)(12).??????????? 3.Whether on said date respondent was in violation of 29 CFR 1926.451(a)(13).??????????? 4.Whether on said date respondent was in violation of 29 CFR 1926.451(a)(15).??????????? 5.Whether on said date respondent was in violation of 29 CFR 1926.451(a)(20).??????????? 6.The appropriate penalty, if any, to be assessed for any violations found.??????????? Thegrouping of the alleged violations.??????????? Respondent?sprincipal contention seems to be that the five alleged violations should nothave been grouped in one ?serious? citation. Grouping of multiple nonseriousviolations in one serious citation has been held permissible by the Commissionwhen the violations are related. Secretary v. Harold A. Simpson &Associates Development Co. apparent that the citation should have Docket No.5572, December 13 1976, OSAHRC Reports 76\/144\/A2, CCH OSHD ?\u00a021,353; Secretaryv. CTM, Inc., Docket No. 5106, July 21, 1976, OSAHRC Reports 76\/87\/D11, CHHOSHD ? 20,912. Here, as will be seen, at least three of the five allegedviolations were ?serious? within the meaning of ? 17(k) of the Act, so itactually was to respondent?s benefit that they were combined, or grouped, intoone serious citation, with a single proposed penalty no larger than usually isproposed for each serious violation. Four of the alleged violations involvedthe same scaffold, so they certainly were related. The fifth involved adifferent scaffold, but it was sufficiently related to the other scaffoldingviolations to be grouped therewith.??????????? Theplanking ?overlap? citation.??????????? Item1B alleges a violation of 29 CFR 1926.451(a)(12) in that the planking of theplatform of a scaffold on the west end of building #18 ?was not overlapped aminimum of 12 inches, or secured from movement.???????????? Thecited standard provides:?All planking of platforms shall wasexacerbated by excessive vibration (minimum 12 inches), or secured frommovement.????????????? Thescaffold in question was of the tube and coupler type, with two sectionsstacked vertically, topped by a platform consisting of three 2? x 12? plankswhich extended past the end support distances varying from zero to about 8inches (Tr. 18). The Secretary interprets the cited standard as requiring theplanks to ?overlap? the end supports a minimum of 12 inches but this is not themeaning of ?overlap,? which refers to endwise overlapping where planks areshorter than the platform. It is apparent that the citation should have allegeda violation of 29 CFR 1926.451(a)(14), which provides:Scaffold planks shall extend over theirend supports not less than 6 inches nor more than 12 inches.\u00a0??????????? Theapplicability of the latter standard was brought out at the hearing (Tr. 43),yet the Secretary has not moved to amend the citation and complaint. Since thematter was fully litigated without objection (and respondent indicated he wasaware of ? 451(a)(14)?s applicability), such an amendment may be (and is) madeby the Judge sua sponte under Rule 15(b) of the Federal Rules of CivilProcedure.[16]Secretary v. Carr Erectors, Inc., Docket No. 7247, January 21, 1977, CCHOSHD ? 21,471.??????????? Under? 451(a)(14), the planks should have projected at least six inches but not morethan 12 inches beyond the end supports. Only one of the planks (which was flushwith the end supports) failed to meet this standard, the other being within thetolerance. It was possible for that one plank to have shifted or ?walked? dueto the movement of employees on the platform, and this possibility wasexacerbated by excessive vibration noted by the compliance officer due in partto an employee?s jumping to the platform from a rooftop a few feet higher thanthe platform (Tr. 13, 14, 16, 25). Further, there was a gap of 10 or 12 inchesbetween this plank and the next one (Tr. 18: Exh. C 1 and 2), and this wouldfacilitate movement of the plank. Two of respondent?s employees were on thescaffold (Tr. 70), and they were exposed to a fall of 12 feet (Tr. 13) onto adirt surface from which there was a substantial probability of resultingserious physical harm (Tr. 14). The violation was clearly visible and couldhave been known to respondent with reasonable diligence. It meets the criteriaof ? 17(k) of the Act[17] for a serious violation.??????????? The?access ladder? citation.??????????? Item1C alleges a violation of 29 CFR 1926.451(a)(13) in that ?[a]n access ladder orequivalent safe access . . . was not provided? for the same scaffold involvedin item 1B. The cited standard requires that ?[a]n access ladder or equivalentsafe access shall be provided.???????????? Accessto the scaffold was by means of braces welded to each corner post. Each braceconsisted of a metal tube joined to its post near the bottom and taperingoutward to about eight inches from it at the top, with the two being joined atintervals of about 20 to 22 inches by horizontal metal tubes which served asladder rungs (Tr. 19 24). These braces do not meet the requirements of 29 CFR1926.450(a)(6) and the ANSI standards adopted thereby for fixed ladders, withregard to minimum length of rung (16 inches under ? 4.1.3 of ANSI 14.3 1956)and distance between rungs (not to exceed 12 inches under ? 4.1.2 of the samestandard). Also, the brace projected only 4 to 6 inches above the platform ontop of the scaffold, whereas 29 CFR 1926.450(a)(9) requires an extension of 36inches above the landing (or grab rails).??????????? Ofcourse, respondent is not cited for violating these specific ladder standards,but resort may be had to them to determine what constitutes ?an access ladderor equivalent safe access.? When confronted with a similar situation in Secretaryv. Ringland-Johnson, Inc., Docket No. 3028, June 16, 1976, OSAHRC Reports76\/63\/A2, CCH OSHD ?20,801, affirmed, Ringland-Johnson, Inc. v. OSHRC,8th Cir., Docket No. 76 1687, March 23, 1977, the Commission unanimously heldthat ? 451(a)(13) was violated. This decision is controlling. See also Secretaryv. Rust Engineering Co., Docket No. 12200, March 28, 1977.??????????? Thisviolation by itself would be nonserious (or de minimis), as held in RustEngineering), but, as previously discussed, it is properly grouped withother scaffolding violations in a serious citation.??????????? Thescaffold bracing citation.??????????? Item1D alleges, with regard to the same scaffold involved in items 1B and 1C,?Upright members . . . were not securely and rigidly braced to prevent swayingand displacement,? in violation of 29 CFR 1926.451(a)(15), a generalrequirement for all scaffolds, which provides,The poles, legs, or uprights of scaffoldsshall be plumb, and securely and rigidly braced to prevent swaying anddisplacement.???????????? Accordingto the compliance officer, the scaffold vibrated and swayed due in part tolooseness of crossbraces which were fastened with bolts and wingnuts that werenot properly tightened. He opined that lockwashers would have helped keep themtight, that some instability was inherent in the short (6 foot) length of thescaffold, and that it would have helped if the scaffold were placed closer toor tied to the building (Tr. 25 29).??????????? Thereis a specific standard pertaining to tube and coupler scaffolds and to thelatter point; 29 CFR 1926.451(c)(12) provides, ?The entire scaffold shall betied to and securely braced against the building at intervals not to exceed 30feet horizontally and 26 feet vertically.? An identical requirement for tubularwelded frame scaffolds is codified at 29 CFR 1926.451(d)(7) and has beeninterpreted as meaning that any such scaffolds should be tied to and bracedagainst the building (not that it must exceed 30 feet horizontally or 26 feetvertically for these requirements to apply). Secretary v. Ray Lien d\/b\/a RayLien Masonry Co., 3 OSAHRC 949 (1973) (Morris, J.).??????????? Thereis no proof in this case to indicate that the scaffold?s uprights were notplumb, but there is uncontradicted evidence that the scaffold swayed. This mustbe taken to mean that the uprights were not ?securely and rigidly braced toprevent swaying,? as required by ? 451(a)(15). Therefore, I find a violation ofthis standard proved. Even though ? 451(b)(12) was violated as well, it wouldserve no useful purpose to amend the citation to make this addition.??????????? Hereagain, the violation standing alone probably would be classified nonserious,but in conjunction with the other items it constitutes a serious violation.??????????? The?lean-to? scaffold citation.??????????? Item1E alleges that respondent used a ?shore? or ?lean-to? scaffold on the northside of building #18 in violation of 29 CFR 1926.451(a)(20), which provides,??????????? The use of shore or lean-toscaffolds is prohibited?.???????????? Thescaffold in question was 10 feet high and built of wood in a fashion similar toa ladder and with an unguarded platform on top, measuring about 20 inches by 24or 28 inches, on which an employee engaged in stuccoing the outside wall wascrouched (Tr. 30 36; Exh. C 3). This scaffold rested against the ground on twolegs and leaned against the building for support. It definitely was of thelean-to type forbidden by the cited standard. Since the employee was exposed toa 10-foot fall to hard ground on which there was some debris, this violationstanding alone would be classified as serious. Not only was there a substantialprobability of serious injury but there was also a high possibility of a fall(Tr.35).??????????? Thepenalty issue.??????????? Thestatutory criteria[18] for assessing penaltiesare the employer?s size, history of previous violations and good faith and thegravity of the violation. Respondent, with less than 20 employees and only fiveon this job (Tr. 38) is classed as a small employer. This was his first inspection,so he had no history of previous violations. His good faith was not questioned.The gravity of the combined violations was fairly high, and at least threeemployees were exposed to fall hazards thereby. He has been found in violationof four standards and he did not contest another item in the same citation.??????????? Afterconsidering all of the criteria, I am of the opinion that the proposed penaltyof $500 is excessive and that $300 is appropriate.FINDINGS OF FACT??????????? 1.The respondent, Rodney E. Fossett, is an individual doing business as a soleproprietorship under the name of Southern Lightweight Concrete Company. He usesmaterials and equipment moving in interstate commerce and is an employerengaged in business affecting commerce who has employees.??????????? 2. OnAugust 17, 1976, respondent was engaged as a subcontractor in stucco work on aconstruction site at 4701 Western Avenue, Amarillo, Texas, and on said datesaid workplace was inspected by a duly authorized compliance officer of theOccupational Safety and Health Administration.??????????? 3. Atsaid time and place two of respondent?s employees were exposed to the hazard offalling 12 feet to the ground from a tube and coupler scaffold on the west endof building #13 which had one plank in its platform which did not extend sixinches beyond the end supports; did not have an access ladder or equivalentsafe access; and the uprights of which were not securely and rigidly braced toprevent swaying.??????????? 4. Atsaid time and place an employee of respondent was exposed to the hazard of a 10foot fall to hard ground from a lean-to scaffold on the north side of saidbuilding. Said scaffold was built of wood similarly to a ladder with anunguarded 20? x 24? or 28? platform on top. It rested on two legs and leanedagainst the building for support, with the employee on the platform.??????????? 5.There was a substantial probability that an employee falling from either ofsaid scaffolds would suffer death or serious physical injury.CONCLUSIONS OF LAW??????????? Onthe basis of the foregoing findings of fact, the following conclusions of laware made:??????????? 1.The Commission has jurisdiction of the parties and of the subject matter ofthis proceeding.??????????? 2. OnAugust 17, 1976, respondent was in violation of 29 CFR 1926. ?? 451(a)(13),(15), and 20).??????????? 3. OnAugust 17, 1976, respondent was not in violation of 29 CFR 1926.451(a)(12), andthe citation and complaint should be amended to allege in lieu thereof aviolation of 29 CFR 1926.451(a)(14) under Rule 15(b)., F.R.C.P., the matterhaving been fully litigated without objection.??????????? 4.The items included in the citation were properly grouped or combined as oneserious violation.ORDER??????????? Onthe basis of the foregoing findings of fact and conclusions of law, it isORDERED that:???????????? 1.Item 1B, as amended, for violation of 29 CFR 1926.451(a)(14), item 1C forviolation of 29 CFR 1926.451(a)(13), item 1D for violation of 29 CFR1925.451(a)(15), and item 1E for violation of 29 CFR 1926.451(a)(20), be andthey hereby are affirmed as one serious violation, and a penalty of $300 isassessed.[19]??????????? 2.This proceeding be and it hereby is terminated.DEE C. BLYTHEADMINISTRATIVE LAW JUDGEDate: May 9, 1977\u00a0\u00a0[1] Subpart L?Laddersand Scaffolds.?1926.451 Scaffolding(a)General Requirements.(12)All planking of platforms shall be overlapped (minimum 12 inches), or securedfrom movement.[2] ? 1926.451Scaffolding(a)General Requirements.(14)Scaffold planks shall extend over their end supports not less than 6 inches normore than 12 inches.[3] ? 1926.451Scaffolding(a)General Requirements.(13)An access ladder or equivalent safe access shall be provided.[4] These two allegedviolations were included in a single citation alleging a serious violation offive separate standards. In addition to the allegations at issue here, the citationalleged a lack of guardrails on a scaffold (? 1926.451(a)(4)); inadequatebracing of the scaffold (?\u00a01926.451(a)(15)); and improper use of a lean-toscaffold (? 1926.451(a)(20)). The judge affirmed the alleged violations of ?1926.451(a)(15) and ? 1926.451(a)(20). Respondent excepted to the judge?sruling on the alleged violation of ? 1926.451(a)(15); however, review was notdirected on that or the alleged violation of ? 1926.451(a)(20). Fossett did notcontest the alleged violation of ? 1926.451(a)(4), and it became a final orderof the Commission pursuant to 29 U.S.C. ? 659(a).[5] Rule 15(b)provides:(b)AMENDMENT TO CONFORM TO THE EVIDENCE. When issues not raised by the pleadingsare tried by express or implied consent of the parties, they shall be treatedin all respects as if they had been raised in the pleadings. Such amendment ofthe pleadings as may be necessary to cause them to conform to the evidence andto raise these issues may be made upon motion of any party at any time, evenafter judgment; but failure so to amend does not affect the result of the trialof these issues. If evidence is objected to at the trial on the ground that itis not within the issues made by the pleadings, the court may allow thepleadings to be amended and shall do so freely when the presentation of themerits of the action will be subserved thereby and the objecting party fails tosatisfy the court that the admission of such evidence would prejudice him inmaintaining his action or defense upon the merits. The court may grant acontinuance to enable the objecting party to meet such evidence.[6] In its letterdated July 5, 1977, the respondent contends that liability based on anunpleaded standard is tantamount to a denial of a fair and impartial hearing.Claims of partiality based on the judge?s substantive rulings do not afford anindependent ground for review. Cf. United States v. Grinnel Corp., 384U.S. 563, 583 (1966) (bias and prejudice are disqualifying only if they resultin an opinion on the merits on some basis other than what the judge learnedfrom his participation in the case).[7] 29 C.F.R. ?2200.2(b) reads as follows:Rule2 Scope of Rules: applicability of Federal Rules of Civil Procedure.(b)In the absence of a specific provision, procedure shall be in accordance withthe Federal Rules of Civil Procedure.[8] In the McLean-Behmcase supra, we held that where, as in this case, an amendment changes the legaltheory from that alleged in the citation, consent to the amendment will beimplied where the party opposing the amendment has not objected to theintroduction of evidence relevant to the unpleaded charge and is not prejudicedby the amendment. In McLean-Behm, the evidence introduced was relevantto both pleaded and unpleaded issues and, therefore, it was not clear that theparties had notice of the trial of an unpleaded issue. Consequently, theCommission considered whether the employer would have been able to introduceadditional evidence or present alternative defenses had the amendment been madebefore or during the hearing.[9] Fossett arguesthat a ladder built into the scaffold is permissible because another standard,?\u00a01926.451(c)(5), requires that manually propelled mobile scaffolds beprovided with ladders built into the scaffold. We agree that ? 1926.451(a)(13)permits the use of a built-in ladder. That, however, is not the question. Theviolation here is predicated, not on the rungs being part of the scaffoldframework, but on their failure to conform to the requirements for ladders. Ourconclusion would be equally applicable to rungs built into a manually propelledmobile scaffold that failed to conform to the requirements for ladders. PeriniCorporation, 77 OSAHRC 65\/A2, 5 BNA OSHC 1343, 1977?78 CCH OSHD ?21,790(No. 12589, 1977).[10] Pursuant to ANSIA14.3?1956, Safety Requirements for Fixed Ladders, adopted by 29 CFR1926.450(a)(5), a conforming ladder must have rungs uniformly spaced atintervals not to exceed twelve inches (? 4.1.2) and be a minimum of sixteeninches in length (? 4.1.3). The rungs here at issue were spaced approximatelytwenty to twenty-two inches apart and were only six to eight inches in length.[11] As indicated atfootnote, 7, supra, the rungs were slightly shorter than required by thestandard, were not uniformly spaced, and were spaced somewhat farther apartthan required.[12] See footnote 4,supra.[13] 29 C.F.R. ?1926.451(a)(12) provides:Allplanking of platforms shall be overlapped (minimum of 12 inches), or securedfrom movement.[14] The citation wasissued to Southern Lighweight Concrete, but at the hearing it was establishedthat this is a sole proprietorship owned by Mr. Fossett (Tr. 3). Accordingly,the caption is changed to its present form.[15] This isconsistent with the Commission?s liberal interpretation of Rule 33(b)(1) of itsRules of Procedure (requiring service of the answer within 15 days afterservice of the complainant) in such situations, e.g., Secretary v. SanitasCleaning Contractors, 10 OSAHRC 107 (1974); Secretary v. Superior BoatWorks, Inc., Docket No. 12463, October 4, 1976, OSAHRC Reports 76\/129\/G2,CCH OSHD ? 21,159.[16] Made applicableby Rule 2(b) of the Commission?s Rules of Procedure.[17] ? 17(k). Forpurposes of this section, a serious violation shall be deemed to exist in aplace of employment if there is a substantial probability that death or seriousphysical harm could result from a condition which exists, or from one or morepractices, means, methods, operations, or processes which have been adopted orare in use, in such place of employment unless the employer did not, and couldnot with the exercise of reasonable diligence, know of the presence of theviolation.[18] Section 17(j) ofthe Act.[19] Although thepenalty for item 1A is not at issue, the assessed penalty is intended to coverthe entire citation since only one penalty was proposed and the fall hazard isthe same for items 1A, 1B, 1C, and 1D. It is understood that no penalty hasbeen paid for item 1A.”