“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16235 TURNER WELDING & ERECTION CO., INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0June 18, 1980DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.COTTINE, Commissioner:??????????? Thiscase is before the Commission for review under 29 U.S.C. ? 661(i), ? 12(j) ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651?678 (?theAct?). In the proceedings below the Secretary alleged that the Respondent,Turner Welding and Erection Co., Inc. (?Turner?), failed to comply with thesafety standards published at 29 C.F.R. ?\u00a01926.28(a)[1]and 29 C.F.R.1926.450(a)(9).[2]Administrative Law Judge Jerry W. Mitchell vacated these citation items on thebasis that the violative conditions resulted from unpreventable employeemisconduct.[3]The Secretary petitioned for review and review was granted.I??????????? Thecitations in issue resulted from a November 17, 1975 inspection of a Turnerjobsite located on Interstate Highway 10, N.W., in San Antonio, Texas. Turner,a subcontractor at the site, was responsible for the fabrication and erectionof concrete panels forming the base of a building under construction. Turner?spresident, Earl Achilles, testified about this method of construction. Panelsare lifted by crane and set onto pre-poured pads on the foundation. The panelsare not fastened to the pads, but are braced by ?knee? jacks in a verticalposition. In this process the panels are erected side by side to form the fourwalls at the base of the building. Thereafter, a concrete floor is poured andthe panels are fastened to the foundation. Each panel measures approximately 15feet wide, 29 feet high, and six-inches thick in its standing position andweighs between 32,000 and 40,000 pounds.??????????? Theallegedly violative condition occurred during the alignment stage of theerection process. Alignment is accomplished after the panels are lifted intoposition. First, the panel at each end of the wall is plumbed straight with aleveling instrument. A member of the work crew then stands on a ladder orplatform at one end of the wall and ?sights? down the length of the wall. Therest of the crew on the ground adjusts the position of the panels. Thisprocedure is repeated several times until the foreman considers the wall to bestraight. Turner had employed this type of panel erection procedure in onlyfive or six of the 800 erection jobs it had performed prior to the hearing inthis case.??????????? Onthe day of the inspection, Turner had five employees at the jobsite, includingMike Castillo, a laborer, and Fred Leal, the foreman. The compliance officertestified that upon arrival at the site he observed Castillo standingunprotected atop the 29 foot-high, six-inch wide wall. He also observed anextension ladder leaning against the wall. The top of the ladder wasapproximately two rung spaces below the top of the wall. According to Leal,prior to the date of inspection sighting had been either his responsibility orthat of Achilles. On this particular occasion, Leal decided to stay on the groundto assist in bracing the panels, and he instructed Castillo to perform thesighting work. Leal testified that he did not give Castillo specificinstructions regarding how the job was to be performed and that Castillo hadnever sighted panels prior to that date. In addition, Leal testified that hisattention was concentrated on the bottom of the wall where the crew was bracingthe individual panels and that he did not observe Castillo atop the panel untilshortly before the compliance officer arrived at the site. However, upon seeingCastillo atop the wall, Leal did not order him to descend, and Castillo did notdescend until the compliance officer informed Leal of the alleged violation.??????????? Castillotestified that he used the ladder to gain access to the panel top and that hethought he would be able to sight the panels more accurately by standing abovea joint where two panels met. According to his testimony, he was atop the wallfor approximately ten minutes, walking back and forth along 20 to 25 feet of itslength, alternately standing and squatting.??????????? Turnerwas cited for failing to require its employee to use personal protectiveequipment and for failing to provide a ladder that extended not less than 36inches above the landing, alleged violations of ?? 1926.28(a) and1926.450(a)(9), respectively. In his May 4, 1977 decision, Judge Mitchellvacated both items, finding that the violations were the result of an ?isolatedoccurrence.? Based upon Leal?s testimony, the judge round that industrypractice calls for sighting to be accomplished from a ladder so that theemployee?s line of vision is level with the entire length of the panel tops. Hereasoned that Turner could not reasonably have expected Castillo to climb atopthe panels because Castillo had not been instructed to work on the panel topsand because the job would actually be more difficult to accomplish from thatposition.II??????????? Citationnumber 2 alleges a serious violation of the Act for noncompliance with ?\u00a01926.28(a)in that Turner failed to require the use of personal protective equipment by anemployee exposed to a fall of 29 feet. Under Commission precedent, theSecretary has the burden under ? 1926.28(a) of establishing the existence of ahazardous condition warranting the use of personal protective equipment andidentifying the appropriate form of personal protective equipment. S & HRiggers and Erectors, Inc, 79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD? 23,480 (No. 15855, 1979), appeal filed, No. 79?2358 (5th Cir. June 7,1979). In this case, the Secretary met his prima facie burden by establishingthat Turner?s employee was exposed to a fall hazard and by identifying safetybelts, lanyards, or lifelines as appropriate forms of personal protective equipment.In response, Turner argues that the exposed employee should have beenpositioned on a ladder and that his failure to use a ladder was violative ofcompany policy. Turner does not argue that Castillo was not exposed to ahazardous condition, nor does Turner challenge the feasibility of the personalprotective equipment identified by the Secretary. However, a review of therecord, including photographs introduced into evidence by the Secretary thatdepict the panels in issue, reveals that neither safety lines nor safety beltscould have been attached to the wall panels. Where the record indicates thatthe identified form of personal protective equipment is inappropriate under thecited conditions, the Secretary?s prima facie case has been successfullyrebutted. Accordingly, Turner cannot be found in violation of ?\u00a01926.28(a).??????????? Turner?sdefense that Castillo should have been positioned on a ladder, however, raisesthe issue of whether Turner was in noncompliance with safety standardsrequiring the use of a ladder as a method of protection when employees areexposed to fall hazards. The construction safety standard published at 29C.F.R. ? 1926.105(a)[4] requires fall protectionto be provided for workers who are exposed to fall hazards of more than 25 feet.A prima facie violation of ?\u00a01926.105(a) is established when an employeeis exposed to a fall of more than 25 feet and none of the devices listed in ?1926.105(a) are used. S. & H. Riggers, supra, 7 BNA OSHC at 1261n.7, 1979 CCH OSHD at p. 28,434 n.7, and cases cited therein. A ladder is oneof the fall protection devices enumerated in ? 1926.105(a). A ladder wasavailable but was not used to prevent employee exposure to the 29 foot fallhazard. Nor was any other method of employee protection used. Accordingly, theevidence of record establishes a prima facie failure to comply with therequirements of ? 1926.105(a), and we must determine whether an amendment ofthe pleadings to conform to the evidence is appropriate.III??????????? Rule15(b) of the Federal Rules of Civil Procedure requires amendment of thepleadings when issues not specifically raised by the pleadings are neverthelesstried by the express or implied consent of the parties.[5] The Federal Rules are madeapplicable to Commission proceedings by 29 C.F.R. ? 2000.2(b).[6] It is well settled, inaccordance with the Federal Rules, that pleadings before the Commission shouldbe liberally construed and easily amended. Bill C. Carroll Company, ___OSAHRC ___, 7 BNA OSHC 1806, 1979 CCH OSHD ? 23,940 (No. 76?2748, 1979); RogersManufacturing Co., ___ OSAHRC ___, 7 BNA OSHC 1617, 1979 CCH OSHD ? 23,800(No. 76?896, 1979); Usery v. Marquette Cement Manufacturing Co., 568F.2d 902 (2nd Cir. 1977); see generally National Realty Corp. v. OSAHRC,489 F.2d 1257 (D.C. Cir. 1973). Because neither party in this case expresslyconsented to try an alleged violation of ? 1926.105(a), the appropriate inquiryis whether the parties impliedly consented to try the charge.[7] See Bill C. CarrollCompany, supra; Kaiser Aluminum & Chemical Corp., 76 OSAHRC52\/C10, 5 BNA OSHC 1180, 1977?78 CCH OSHD ?21,692 (No. 3685, 1977), appealdismissed, No. 77?2280 (9th Cir. June 12, 1978).??????????? Where,as here, an amendment changes the legal theory, consent will be impliedwhenever the cited employer has not objected to the introduction of evidencerelevant to the unpleaded charge and prejudice would not result from theamendment. Rogers Manufacturing, supra; John & Roy Garlstromd\/b\/a Carlstrom Brothers Construction, 7. OSAHRC 96\/A2, 6 BNA OSHC 2101,1978 CCH OSHD ? 23, 155 (No. 13502, 1978). Prejudice is determined on the basisof whether the employer had a fair opportunity to defend against theSecretary?s evidentiary case and whether the employer could have offered anyadditional evidence if the case had been tried under the amended charge.[8] Rogers Manufacturing Co.,supra; John & Roy Carlstrom, supra.??????????? Inthe instant case, the testimony of the compliance officer and of Turner?semployees focused on the factual allegation that Turner?s employee was exposedto a fall hazard of 29 feet, was unprotected at that height, and under companypolicy should have remained on the ladder. Turner did not object to anyevidence in support of that allegation and did not attempt to refute it.Rather, Turner admitted its employee was exposed to a fall hazard, introducedthe issue concerning the use of a ladder, but sought to be relieved ofliability by adducing other evidence that would support the affirmative defenseof unpreventable employee misconduct. In addition, no other defenses areavailable to Turner with respect to the merits of the amended charge. It wouldbe anomalous for Turner to rely on either a ?greater hazard? or ?impossibilityof compliance? defense because Turner?s basic contention is that the exposed employeeshould have been positioned on a ladder to begin with. Turner?s ?unpreventableemployee misconduct? defense was considered by the judge and is reviewed laterin this decision. Accordingly, Turner is not prejudiced in the presentation ofits case by an amendment from ? 1926.28(a) to ?\u00a01926.105(a) under Fed. R.Civ. P. 15(b). Therefore, the record indicates that issues relevant to the useor non-use of the ladder as a method of fall protection were tried by theparties and were fully defended by Turner. Accordingly, an amendment under Fed.R. Civ. P. 15(b) to allege noncompliance with ? 1926.105(a) is appropriate.IV??????????? Turnermaintains that the cited violative conduct resulted from the exposed employee?sfailure to follow proper work practices. In order for the affirmative defenseof unpreventable employee misconduct to prevail, an employer must establishthat it had safety rules designed to prevent the violation and the rules wereadequately communicated to its employees and effectively enforced. Jensen ConstructionCo., 79 OSAHRC 49\/D3, 7 BNA OSHC 1477, 1979 CCH OSHD ?23,664 (No. 76?1538,1979); Niagara Mohawk Power Corp., 79 OSAHRC 36\/A2, 7 BNA OSHC 1447,1979 CCH OSHD ? 23,670 (No. 76?2414, 1979). The defense fails where there is noevidence of work rules, safety instructions, or employee training designed toprevent employee exposure to a cited hazard. Brown & Root, Inc., 79OSAHRC 20\/A2, 7 BNA OSHC 1215, 1979 CCH OSHD ?23,435 (No. 13685, 1979), appealfiled, No. 79?2224 (5th Cir. May 21, 1979).??????????? Theevidence in this case establishes that Turner failed to provide instruction toan employee of limited experience who was assigned a task that he had notperformed previously. An employer cannot escape liability under the Act byrelying on the judgment of employees who are inadequately trained in safe workprocedures. See Butler Line and Cement Co., ___ OSAHRC ___, 7 BNA OSHC1973, 1979 CCH OSHD ?24,091 (No. 855, 1979), appeal filed, No. 80?1121 (7th CirJan. 31, 1980). The employer?s duty extends to ensuring that employeesunderstand proper safety procedures. General Dynamics Corp., QuincyShipbuilding Division v. OSAHRC, 599 F.2d 453 (1st Cir. 1979). Accordingly,Turner?s defense based on the assertedly unpreventable conduct of its employeeis rejected and a violation of ? 1926.105(a) is affirmed.[9]V??????????? Wereach a different conclusion with respect to Citation No. 1, item 1, whichalleged noncompliance with ? 1926.450(a)(9). The cited standard requires thatladder side rails extend at least 36 inches above the landing or that grabrails be installed so that a secure grip is available for an employee climbingfrom the ladder onto the landing. If a ladder is used as a fall protectiondevice under ? 1926.105(a) rather than as a means of access to an elevation,the employee would not climb onto the landing and the extension or grab railswould not be necessary. In this case, the alleged violations of ? 1926.105(a)and ? 1926.450(a)(9) are mutually exclusive. Accordingly, the judge?s vacationof Citation No. 1, item 1 is affirmed.VI??????????? Inassessing penalties under the Act the Commission must take into considerationthe employer?s history, its good faith, the size of its business and thegravity of the violation. 29 U.S.C. ? 666(i). The Respondent in this case wasinspected on one previous occasion and was cited for an unrelated nonseriousviolation that was not contested. Good faith was demonstrated by the foreman incooperating fully with the compliance officer and in immediately removing theexposed employee from danger. Respondent?s business is small, with an annualgross income of approximately $200,000. Finally, although the likely result ofan accident resulting from this hazard would be death or serious injury, onlyone employee was exposed to the fall hazard and his exposure was brief induration. Considering the foregoing criteria, we conclude that the Secretary?sproposed penalty of $600 is excessive and that a penalty of $150 isappropriate.VII??????????? Althoughwe conclude that the issue of whether Turner was in violation of ? 1926.105(a)has been tried by the parties and that the record establishes a violation ofthat standard, we recognize that Turner has not had an opportunity tospecifically demonstrate whether it would be prejudiced by this amendment.Therefore, we will affirm a citation for a serious violation of ?\u00a01926.105(a)and assess a penalty of $150 unless within ten days from the date of thisdecision Turner requests reconsideration on the ground that it has beenprejudiced by the amendment to the citation. In the event a motion forreconsideration of the amendment is received, we will allow the parties anopportunity to brief this issue and will reconsider our order in light of thearguments and affidavits presented.?It is so ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: JUN 18, 1980?BARNAKO, Commissioner, dissenting:??????????? Iagree with my colleagues that Turner Welding and Erection Company did notviolate 29 C.F.R. ? 1926.28(a) by permitting an employee to stand on the top of29-foot high concrete panels.[10] However, I do not agreethat a violation of 29 C.F.R. ? 1926.105(a) was tried by express or impliedconsent of the parties.[11] Therefore, amendment ofthe pleadings to find a violation of that standard is improper. Thus, I wouldaffirm the judge?s vacation of the citation for alleged violation of 29 C.F.R.? 1926.28(a) and would not find Turner in violation of 29 C.F.R. ?\u00a01926.105(a).[12]??????????? Myviews concerning establishment of a violation of 29 C.F.R. ? 1926.28(a) are setforth in my concurring opinion in S. & H Riggers & Erectors, Inc.,79 OSAHRC 23\/A2, 7 BNA OSHC 1260, 1979 CCH OSHD ?23,480 (No. 15855, 1979), appealdocketed, No. 79?2358 (5th Cir. June 7, 1979). As I noted there, I wouldfind that a hazard within the meaning of ?\u00a01926.28(a) exists if areasonable person familiar with the cited employer?s industry would recognizethe cited condition as constituting a hazard. Here, one of Turner?s employeesstood without protective equipment on the top edge of concrete panels whichwere only six inches wide and were about 27 feet above the ground. I find thatthese circumstances present an obvious fall hazard within the meaning of ?1926.28(a). See Forest Park Roofing Co., 80 OSAHRC ??, 8 BNA OSHC 1181,1186, 1980 CCH OSHD ?24,344 (No. 76?1884, 1980) (concurring opinion), and casescited therein.??????????? As Ialso noted in S. & H. Riggers, supra, an additional element inestablishing a violation of ? 1926.28(a) is demonstrating that another standardcontained in 29 C.F.R. Part 1926 indicates the need for using the protectiveequipment which the Secretary asserts should have been used by Respondent?semployees. Here the Secretary asserts that Respondent?s employees should haveused safety belts. The standard at 29 C.F.R. ? 1926.104 establishesspecifications for safety belts, lanyards, and lifelines and thereby placesemployers on notice that use of such equipment constitutes an appropriate meansof protecting against fall hazards. Thus, fall hazards for which such equipmentprovides appropriate protection may be cited under ? 1926.28(a).??????????? Finally,to establish a violation of ? 1926.28(a) the Secretary must demonstrate thatthere is a feasible means of protecting against the cited hazard through theuse of personal protective equipment. The Secretary failed to do so here. Heput forth no evidence to show how a safety belt and lanyard system could havebeen installed on the top edge of the upright concrete panels. Moreover, thephotographic evidence shows that safety lines or belts could not have beenanchored to the panels so as to protect and employee working on top of them andthat there were no other adjacent structures to which such equipment could havebeen anchored. Therefore, a violation of ? 1926.28(a) was no shown.??????????? Unlikethe majority, I would not amend the citation and complaint to find Turner inviolation of a different standard, 29 C.F.R. ? 1926.105(a), for failing torequire an employee to work from a ladder rather than on top of the concretepanels. My colleagues err in finding trial of this new charge on the basis ofimplied consent of the parties, since the evidence concerning use of a ladderon which they base their amendment was introduced as part of Turner?s defenseto the ? 1926.28(a) charge and was relevant to that charge.[13] As the court of appealsstated in reversing my colleagues in McLean-Behm Steel Erector, Inc. v.OSHRC, 608 F.2d 580, 582 (5th Cir. 1979), ?the unchallenged admission ofevidence relevant to both pleaded and unpleaded issues does not imply consentto trial of the unpleaded issues, absent some obvious attempt to raise a newissue.? There was no attempt, obvious or otherwise, to raise the ? 1926.105(a)charge at trial here.??????????? Mycolleagues? amendment to find violation of a different standard is premisedalso on their determination that Turner could not have offered any additionalevidence if the case had been tried on the amended charge. It is unclear howthey can purport to divine whether Turner could have offered other evidence hadit actually been charged with the violation which they find it committed. Thus,this basis for amendment is uncertain at best.??????????? Forthese reasons, I would affirm the judge?s holding vacating the allegedviolation of 29 C.F.R. ? 1926.28(a) and would not amend the citation andcomplaint to find a violation of 29 C.F.R. ? 1926.105(a).\u00a0\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 16235 TURNER WELDING & ERECTION CO., INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0May 4, 1977Appearances:James F. Gruben, Esquire,Dallas, Texas for Complainant.\u00a0Earl S. Achilles,President of Turner, Welding & Erection Co., Inc., Ballad, Texas forRespondent.\u00a0There was noappearance by or on behalf of any affected employees.?STATEMENTOF THE CASEJerry W. Mitchell, Judge??????????? This is a proceeding pursuant to Section 10 of theOccupational Safety and Health Act of 1970 (29 U.S.C. ? 651 et seq.) contestinga Citation issued against Turner Welding & Erection Co., Inc. (Respondent)by the Secretary of Labor (Complainant) under the authority vested inComplainant by Section 9(a) of the Act.??????????? A place of business and employment under the operationand control of Respondent, described as ?Steel erection? located at 7500 I.H.10 N.W., San Antonio, Texas, was inspected by a representative of the Secretaryof Labor on 17?19 November 1975. During that inspection alleged violations ofthree separate safety standards were noted. As a result of the inspectionCitation Number 1 (Non-serious, 2 Items) and Citation Number 2 (Serious, 1Item) were issued to Respondent on 3 December 1975. The safety standardsallegedly violated were promulgated by the Secretary of Labor pursuant toSection 6 of the Act.??????????? Pursuant to the enforcement procedure provided in Section10(a) of the Act, Respondent was duly advised by a Notice of Proposed Penaltydated 3 December 1975 of the proposal to assess penalties of $50 and $600 inconnection with Citations Number 1 and Number 2, respectively. In a timelymanner Respondent filed a letter contesting these citations and proposedpenalties.??????????? The alleged violations are described in the citations inthe following language with the cited safety standards quoted immediatelythereafter:\u00a0 Citation Number 1 \u00a0 \u00a0 Item 1?29 CFR 1926.450(a)(9) \u00a0 Ladder at the following location was not positioned so that the side rails extended at least 36 inches above the landing and there were no grab rails provided: One portable ladder located on the southeast corner of the south wall did not extend 36 inches above the landing. \u00a0 ABATE??one day upon receipt of this citation? \u00a0 Item 2?28 CFR 1926.450(a)(10) \u00a0 ?Portable ladder being used at the following location was not tied, blocked or otherwise secured to prevent displacement: One portable ladder located on the southeast corner of the south wall was not secured. \u00a0 ABATE??one day upon receipt of this citation? \u00a0 Citation Number 2 \u00a0 \u00a0 \u00a0 Item 1?29 CFR 1926.28(a) \u00a0 Employer did not require employees to wear appropriate personal protective equipment: One man exposed to a fall of 29 feet from the top of the south wall. \u00a0 ABATE??immediately upon receipt of this citation? \u00a0 \u00a0SAFETY STANDARDS?29 CFR? Subpart C?GeneralSafety and Health Provisions1926.28 Personalprotective equipment.(a) The employeris responsible for requiring the wearing of appropriate personal protectiveequipment in all operations where there is an exposure to hazardous conditionsor where this part indicates the need for using such equipment to reduce thehazards to the employees.\u00a0Subpart L?Laddersand Scaffolding? 1926.450 Ladders.(a) Generalrequirements.?(9) The side railsshall extend not less than 36 inches above the landing. When this is notpractical, grab rails, which provide a secure grip for an employee moving to orfrom the point of access, shall be installed.?(10) Portableladders in use shall be tied, blocked, or otherwise secured to prevent theirbeing displaced.???????????? Complaintwas duly filed but Respondent did not answer until after he was served with anOrder to show cause why his Notice of Contest should not be dismissed forfailure to answer the complaint. His answer was filed pro se. Trial was held atSan Antonio, Texas.? PROCEEDINGSAND EVIDENCE??????????? When the trial convened Complainant was represented bycounsel and Respondent by its President, appearing pro se. At this timeComplainant withdrew its previously filed motion to affirm the citations andproposed penalties. The parties entered into a stipulation on the record thatthe welding equipment, cranes, etc., used by Respondent were from outside theState of Texas. Jurisdiction was stipulated to at this time.??????????? Complainant presents its case through the testimony ofthree witnesses. Respondent?s President (Earl S. Achilles) states that he had asuperintendent (Fred Leal) in charge at the construction site at the time ofthe inspection. Four men were working under that superintendent?s direction. Hedescribes the work being done and the equipment in use. The men were erectingprefabricated concrete panels. Each panel was approximately 15 feet wide and 29feet high when standing erect. He also describes the physical layout of theworksite.??????????? One of Respondent?s employees (Mike Castillo) describesthe work he was doing at the time of the inspection. He admits that there wasno life line or any other safety device on top of the wall where he wasworking. He states that he walked along the top of the wall (panels) for 20 to25 feet. The top of the wall was 6 inches wide and smooth.??????????? The Compliance Officer (Charles W. McGlothlin) testifiesconcerning his inspection of Respondent?s work place. He describes the work inprogress when he arrived and identifies the hazards involved. No safety netswere present at the worksite. The employee (Castillo) on top of the wall wasnot wearing any safety equipment.??????????? Respondent presents its case through the testimony of itsSuperintendent (Fred Leal) who was in charge of Respondent?s employees at thetime of the inspection. He describes the work in progress and states that hedid not send Castillo to the top of the wall. Castillo was instructed to sightalong the panels from the ladder. This witness was personally working with thejacks being used to align the panels.??????????? Respondent?s President testified as the final witness.His testimony is that the ladder was not used for access to the top of thepanels. Its sole use was to permit Castillo to bring his eye to the level ofthe top of the panels so as to align them. He admits that Castillo was notwearing safety gear and insists he did not need the gear because he was notsupposed to be on top of the panels. Respondent?s gross annual business isabout $200,000.??????????? Subsequent to receipt of the transcript Complainant filedproposed Findings of Fact and Conclusions of Law. Respondent has not submittedanything further.DISCUSSION??????????? JURISDICTION???????????? Respondent admits on the record that the weldingequipment, cranes, etc., in use were from outside the state of Texas.Jurisdiction is stipulated.??????????? THE VIOLATIONS???????????? Citation Number 1?Item 1?This Item alleges that theladder in use did not extend 36 inches above the ?landing? and was not fittedwith ?grab rails?.??????????? The evidence clearly shows that the ladder in use did notextend above the top of the wall panels and was not fitted with any ?grabrails?. However, the evidence also establishes that the sole intended use ofthe ladder was for a platform from which a man could sight along the panels soas to align them. The ladder was not for use as access to the top of the panelsas a working position.??????????? It is obvious from Exhibit 3 that the ladder was ofsufficient length to satisfy this intended use. If the man on the ladder inExhibit 3 were standing so as to sight along the top, rather than climbing downfrom on top of the panels, his feet would be at least 2 and possibly 3 rungslower on the ladder. Such a lower position is clearly within safe and adequatereach of the side rails. In the lower position the side rails would extend atleast 36 inches above the position of his feet and thereby satisfy therequirements of the standard. The actual use of the ladder to gain the top ofthe panels was an isolated occurrence (see discussion under Citation Number 2below) and does not constitute a violation of the cited standard for whichRespondent should be held responsible.??????????? Citation Number 1?Item 2?This Item alleges that theladder in use was not ?. . . tied, blocked, or otherwise secured to preventdisplacement. . .?.??????????? It is clear from the evidence that the ladder was nottied or blocked. (See Exhibit 4.) There is some indication in the record thatanother employee may have held the ladder while Castillo climbed it and againwhile he descended. But it is absolutely clear that no one was holding theladder while he was sighting from it to align the panels. The other 4 menpresent (including the Superintendent) were all adjusting jacks on the braceswhile aligning the panels. At the same time Castillo was calling instructionson how to move the panels. The Superintendent was facing so that the other 3men were in his view. He should have known that no one was holding the ladder.Complainant has established the existence of this violation.??????????? Citation Number 2?This Citation alleges that an employeewas exposed to a fall of 29 feet from the top of a wall without being requiredto wear appropriate personal protective equipment.??????????? The evidence establishes the location of the employee(Castillo) on top of the wall while not wearing any personal protectiveequipment. It also shows, however, that Castillo was only instructed to go upthe ladder to align the panels. He was not told to go on top of them and it wasnot necessary for him to do so. In fact, it was actually more difficult toalign from a position on top. Castillo unexpectedly took it upon himself toclimb on top of the panels.??????????? Complainant urges that Respondent?s Superintendent knewor at least should have known, that Castillo was on the panel top. The evidencedoes not clearly establish this. The manner in which the work of plumbing thepanels was being done required that all of the Superintendent?s attention befocused on the jacks in use on the braces. There was no reason for him to lookhigher. Likewise, there was no reason for the Superintendent to anticipate thatCastillo would leave the ladder. He had been with Respondent for 3 years andwas apparently considered to be reliable. In addition, it is common practicethat aligning panels is always accomplished from a ladder where the eye islevel with the top of the panels?not from a position on top of them.??????????? In short, it appears that Respondent did not and couldnot reasonably have known that Castillo would climb to the top as opposed toproperly remaining on the ladder. The facts in this record are sufficient toestablish that this was indeed an ?isolated occurrence? within the holding ofthe Commission?s decision in Secretary v. Murphy Pacific Marine Salvage Co.,15 OSAHRC 1 (1975). The evidence is sufficient in extent to sustainRespondent?s burden on this affirmative defense. The conclusion here is thatthe presence of Castillo on top of the wall is an isolated occurrence whichRespondent could not have reasonably anticipated or foreseen.??????????? APPROPRIATE PENALTY???????????? In determining the appropriateness of any penalty to beassessed in connection with the violation proven in connection with Item 2 ofCitation Number 1 it is necessary to give due consideration to the criteriahistory, size of business, good faith and gravity) set forth in section inSection 17(j) of the Act.??????????? 1. Respondent had been inspected on 1 previous occasionand cited for a hard hat violation.??????????? 2. Respondent?s business is very small. OneSuperintendent and 4 other employees were at the work place. Respondent?s grossannual business is about $200,000.??????????? 3. There is no indication of any lack of good faith. TheSuperintendent cooperated fully and immediately removed the man from danger.??????????? 4. Only one employee was exposed to the hazard of theunsecured ladder and his exposure was not long in duration.??????????? Consideration of the foregoing criteria leads to theconclusion here that a penalty of $25 is appropriate under these circumstances.??????????? Consequently, based upon the evidence adduced, thearguments made, and the brief submitted, we make the following:FINDINGSOF FACT??????????? 1. On 17 November 1975 and at all times material heretoTurner Welding & Erection Co., Inc., Respondent herein, was engaged in theconstruction industry at a work place at San Antonio, Texas. Welding equipment,cranes, etc., in use at the work place were from outside the state of Texas.Five employees were working at the inspected work place. Respondent was engagedin a construction business affecting commerce. (Transcript pgs 10?15 and23?25.)??????????? 2. On 17 November 1975 a Compliance Safety and HealthOfficer inspected Respondent?s work place at San Antonio, Texas on behalf ofthe Secretary of Labor. As a result of that inspection two Citations wereissued to Respondent on 3 December 1975. The Notification of Proposed Penaltyissued to Respondent on that same date sought penalties of $50 and $600,respectively. Respondent contested the Citations and proposed penalties in atimely manner on 18 December 1975. (File and Transcript pgs 18?19.)??????????? 3. On 17 November 1975 Respondent?s employees wereplumbing and aligning prefabricated concrete panels in an upright position.Each panel was about 15 feet wide and 29 feet long (high) and weighed between30,000 and 40,000 pounds. The top of the wall was about 6 inches wide andsmooth surfaced. They were raised into vertical position with a crawler-typecrane and held there by braces. Screw jacks, incorporated in the braces, wereused to plumb and align the panels. (Transcript pgs 18?24, 39?41, 67?71, 78?82and Exhibits 1, 2, 3, and 4.)??????????? 4. Final aligning of the panels requires that someoneclimb a ladder located at one end of the series of panels and sight along theirtop. This person then gives instructions to the men on the ground so that theycan adjust the jacks until the panels are aligned. Sighting along the tops ofthe panels is done with the eye level with the tops. The sighting is done froma ladder?not from on top of the panels. (Transcript pgs 21?29, 33?34, 37?42,67?74, 78?98, 102?104 and Exhibit 3.)??????????? 5. Respondent?s employee (Castillo) was instructed by theSuperintendent to go up on the ladder and sight along the panels. Castillo wasnot told to go on top of the panels. There was no need for him to climb on topin order to direct the aligning of the panels. Castillo climbed on top of thepanels of his own volition and walked along the top for about 20 to 25 feet. Hewas on top of them in a position approximately 29 feet above the ground forabout 10 minutes. He was not wearing or protected by any personal protectiveequipment. (Transcript pgs 32?42, 44?59, 67?74, 77?98, 101?104 and Exhibits 1,2, and 3.)??????????? 6. Castillo climbed a ladder to sight along the panelsfor aligning. The ladder did not reach all of the way to the top of the panelsbut was adequate in length to put him in position to sight along the tops ofthe panels. If he had remained at the height on the ladder where his eye waslevel with the top of the panels his position would have been such as to havethe ladder?s side rails project more than 36 inches above the level of hisfeet. (Transcript pgs 25?26, 33?42, 67?72, 83?92, 101, and Exhibit 3.)??????????? 7. The bottom of the ladder used by Castillo was not tiedor blocked. The bottom of the ladder was held by another employee whileCastillo ascended and during part of his descent. It was not held by anyoneduring the time he was sighting along the wall or during part of the time hewas descending. (Transcript pgs 34?38, 42, 59, 95, and Exhibit 4.)??????????? 8. It was not necessary for Castillo to climb on top ofthe panels to do the aligning. There was no reason for the Superintendent toanticipate that Castillo would leave the usual aligning position on the ladderfor the top of the panels. (Transcript pgs 22?24, 38?42, 67?73, 76?98, 101, andExhibit 3.)??????????? 9. There is no showing that Respondent?s Superintendentwas negligent in sending Castillo to do the aligning or that he should haveobserved Castillo climb on to the top of the panels. (Transcript pgs 42, 69?82,97, and 103?104.)??????????? 10. Respondent?s business grossed $200,000 annually.(Transcript pg 107.)??????????? From the foregoing Findings of Fact we now make and enterthe following:CONCLUSIONSOF LAW??????????? 1. At all times material hereto Turner Welding &Erection Company, Inc., Respondent herein, was an employer engaged in aconstruction business affecting commerce within the meaning of Section 3 of theOccupational Safety and Health Act of 1970. On 24 December 1975 Respondentfiled a letter contesting the Citations and penalties involved here. Respondentthereby brought itself and the subject matter of this proceeding within thejurisdiction of the Occupational Safety and Health Review Commission pursuantto Section 10 of the Act.??????????? 2. The side rails of the ladder covered by Item 1 ofCitation Number 1 did project at least 36 inches above the place where it wasintended that a user?s feet should be located in the normal use of the ladder.The circumstances found in Finding 6 do not constitute a violation of 29 CFR1926.450(a)(9).??????????? 3. Respondent?s failure to tie, block or otherwise securethe bottom of the ladder as found in Finding 7 is a non-serious violation of 29CFR 1926.450(a)(10).??????????? 4. The presence of Respondent?s employee on top of thewall, 29 feet above the ground, without any personal protective equipment ornets as found in Finding 5 was an isolated brief occurrence. Respondent was NOTin violation of 29 CFR 1926(a). as alleged in Citation Number 2.ORDER??????????? Based upon the foregoing Findings of Fact and Conclusionsof Law and for good cause shown, it is??????????? ORDERED that:??????????? 1. Item 1 of Citation Number 1 be, and the same herebyis, VACATED;??????????? 2. Item 2 of Citation Number 1 be, and the same herebyis, AFFIRMED;??????????? 3. Citation Number 2 and the penalty proposed thereforbe, and the same hereby are, VACATED; and that??????????? 4. A penalty of $25 be, and the same hereby is, ASSESSEDin connection with the violation of 29 CFR 1926.450(a)(10) as set forth in Item2 of Citation Number 1.??JERRY W. MITCHELLJudge, OSHRCDATED: May 4, 1977?OSHRC, San Francisco, CA[1] Section1926.28(a) provides:?1926.28(a) Personal protective equipment.(a)The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.[2] Section1926.450(a)(9) provides, in pertinent part:?1926.450 Ladders.(a)General requirements.(9)The side rails shall extend not less than 36 inches above the landing. Whenthis is not practical, grab rails, which provide a secure grip for an employeemoving to or from the point of access, shall be installed.[3] Although thejudge used the phrase ?isolated occurrence,? rather than ?unpreventableemployee misconduct,? we consider the two to be indistinguishable. See, e.g., JensenConstruction Co., 79 OSAHRC 49\/D3, 7 BNA OSHC 1477, 1478 n. 4, 1979 CCHOSHD ?23,664, at p. 28,694 n. 4 (No. 76?1538, 1979); Briscoe Arace\/Conduit,a Joint Venture, 77 OSAHRC 35\/C13, 5 BNA OSHC 1167, 1977?78 CCH OSHD ?21,631 (No. 12135, 1977).[4] Section1926.105(a) provides:?1926.105 Safety nets.(a)Safety nets shall be provided when workplaces are more than 25 feet above theground or water surface, or other surfaces where the use of ladders, scaffolds,catch platforms, temporary floors, safety lines, or safety belts isimpractical.[5] The Ruleprovides, in pertinent part:Rule 15. Amended and SupplementalPleadings(b)Amendments 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. . . .[6] 29 C.F.R. ?2000.2 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.[7] Although thequestion of amendment to ? 1926.105(a) was raised by the Secretary in hisPetition for Discretionary Review, the Secretary did not specifically move toamend.[8] If the evidenceadmitted without objection is relevant to prove both the original and amendedcharges, consent will not be implied unless it is determined that additionalrelevant and material evidence in defense of the amended charge could not havebeen adduced. See, e.g., Bill C. Carroll Co., supra, 7 BNA OSHC at 1810n.11, 1979 CCH OSHD at p. 29,032 n. 11.[9] The judge made acredibility determination that Leal did not know of Castillo?s presence atopthe panels. However, this determination is unsupported by the weight of theevidence. Foreman Leal testified as follows:Q:So you told him to get down after Mr. McGlothlin came up, did you?A:As soon as he mentioned the fact I told him to get down.Q:But you had seen him up there before Mr. McGlothlin got there. Is that a fact?A:Yes, sir.Hearing Transcript at 69?70.Accordingly, we reject the judge?s determination, see Okland Construction Co.,76 OSAHRC 30\/F4, 3 BNA OSHC 2023, 1975?76 CCH OSHD ?20,441 (No. 3395, 1976),and find that Turner?s foreman had actual knowledge of Castillo?s presence onthe panel tops. A supervisor?s knowledge, whether actual or constructive, isimputable to his employer. Niagara Mohawk Power Corp., supra. Evenwithout the finding of actual knowledge, the instant record establishes thatthe foreman could have known of the violation with the exercise of reasonablediligence. Niagara Mohawk Power Corp., supra.[10] 29 C.F.R. ?1926.28(a) states:Personalprotective equipment.(a)The employer is responsible for requiring the wearing of appropriate personalprotective equipment in all operations where there is an exposure to hazardousconditions or where this part indicates the need for using such equipment toreduce the hazards to the employees.[11] 29 C.F.R. ?1926.105(a) states:Safetynets.(a)Safety nets shall be provided when work-places are more than 25 feet above theground or water surface, or other surfaces where the use of ladders, scaffolds,catch platforms temporary floors, safety lines, or safety belts is impractical.[12] I would affirmthe citation charging Turner with violation of 29 C.F.R. ? 1926.450(a)(9), inthat a ladder used by an employee did not extend 36 inches above the top of theconcrete panel and grab rails were not installed. For the reasons stated by mycolleagues, I reject the argument that this violative condition was caused byunpreventable employee misconduct.[13] Since turner alsowas charged with two violations concerning the ladder, evidence regarding theladder also was introduced in relation to these charges. As noted in note 3,supra, Turner was charged with violating 29 C.F.R. ? 1926.450(a)(9) for failureof the ladder to extend 36 inches above the panel. Also Turner was charged withviolating 29 C.F.R. ? 1926.450(a)(10) for not having the ladder secured. Thelatter violation was affirmed by the judge and is not before the Commission onreview.”