Southern Colorado Prestress Co. v. Occupational Safety and Health Review Com'n

• Decision Date: 06 November 1978
• Docket Number: No. 76-1974,76-1974
• Citation: 586 F.2d 1342
• Parties: 6 O.S.H. Cas.(BNA) 2032, 1979 O.S.H.D. (CCH) P 23,247 SOUTHERN COLORADO PRESTRESS COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Ray Marshall, Secretary of Labor, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1342

586 F.2d 1342

6 O.S.H. Cas.(BNA) 2032, 1979 O.S.H.D. (CCH) P 23,247

SOUTHERN COLORADO PRESTRESS COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Ray Marshall, Secretary of Labor, Respondents.

No. 76-1974.

United States Court of Appeals Tenth Circuit.

Argued Jan. 25, 1978.

Decided Nov. 6, 1978.

Martin Semple, Denver, Colo. (Robert G. Good of Good & Stettner, Denver, Colo., on the brief), for petitioner.

Eric W. Cloud, Atty., Dept. of Labor, Washington, D. C. (Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, Allen H. Feldman, Asst. Counsel for Appellate Litigation, Marc R. Hillson, Atty., U. S. Dept. of Labor, Washington, D. C., on the brief), for respondents.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is an appeal by Southern Colorado Prestress Company (Prestress) from an order of the Occupational Safety and Health Review Commission (the Commission). In that order the Commission affirmed the decision of an administrative law judge holding that Prestress had committed a serious violation of the safety standard set forth at 29 C.F.R. § 1926.105(a) and (b) a standard which Prestress was required to comply with by the duty provisions of the Occupational Safety and Health Act (the Act), 29 U.S.C. § 654(a). More specifically, the violation found was the company's failure to utilize safety nets at the point of erection of a prestressed concrete building where other safety devices were not in use for the protection of employees working over 25 feet above the ground.

I

Prestress is a company engaged in the erection of buildings using prestressed concrete components. These components, including vertical columns, L-shaped horizontal perimeter beams, and "twin-T" floor slabs, are manufactured off the construction site by pouring concrete into molds over stretched steel cables. The finished components are then transported to the construction site where they are lifted to the desired height by crane and guided into place by an erection crew, employees of Prestress.

The alleged violation occurred on April 19, 1973, when Compliance Officer Hutton of the Occupational Safety and Health Administration (OSHA) inspected the site of a three-story building being erected by Prestress in Colorado Springs. Hutton observed a member of the erection crew, one Stanko, standing on a perimeter beam and manipulating a floor slab with a crowbar as it was being lowered into place. No fall protection net, scaffolding, or other such device was utilized at this site, though Stanko was working over 25 feet above the ground. There was a 40 mile per hour wind at the time. As a result of this inspection, Prestress was cited by the Secretary for violation of 29 C.F.R. § 1926.750(b)(1)(ii) ¹ on April 27, 1973, and the company contested the citation and proposed penalty of $600 pursuant to 29 U.S.C. § 659(a).

Following formal complaint by the Secretary to the Commission and answer by Prestress, the matter was set for hearing before an administrative law judge. A union representing Prestress employees, Carpenters Local 362, exercised its right under 29 U.S.C. § 659(c) to participate in the proceeding. At an initial hearing on October 24, 1973, the parties stated their respective positions, apparently exchanged information concerning exhibits and witnesses, and postponed actual hearing of the case until November 19, 1973. ² Prior to that hearing, on November 1 the Secretary moved to amend his complaint and the citation to allege in addition a violation of 29 C.F.R. § 1926.105(a) and (b). ³ This motion was granted at the hearing despite objections by Prestress on statute-of-limitations grounds.

At the hearing before the administrative law judge, the Secretary called on Compliance Officer Hutton to describe the alleged violations which he had witnessed and to give his views on the feasibility of safety nets in prestressed concrete construction. The employees' representative also adduced testimony concerning the feasibility of nets and other safety devices from a former employee of Prestress and from Jerome Williams, the OSHA Area Director who was responsible for actual issuance of the citation. Williams' testimony was admitted over strenuous objections by Prestress that the witness had not been named in a pretrial list of witnesses, that Prestress was therefore unfairly surprised by the testimony, and that Williams was biased and not qualified as an expert.

At the close of this testimony, Prestress moved to dismiss the charge of a violation of 29 C.F.R. § 1926.105, arguing that the Secretary had failed to demonstrate the impracticality in the circumstances of non-net safety devices, such as safety belts, safety lines, and scaffolds. Reliance was placed on prevailing Commission precedent for a literal interpretation of .105(a) that would not require the use of nets if any of the specified non-net devices were usable regardless of whether they were in fact used. The judge dismissed the .105 allegation on this ground.

The balance of the hearing was devoted to witnesses called by Prestress to testify as to the infeasibility of safety nets, in the context of the remaining allegation under 29 C.F.R. § 1926.750(b), and as to the inapplicability of .750(b) (entitled, in pertinent part, "skeleton steel construction") to prestressed concrete work.

Following the hearing, but before decision by the judge, the Fifth Circuit decided Brennan v. Southern Contractors Service, 492 F.2d 498, holding, contrary to Commission precedent, that 29 C.F.R. § 1926.105(a) requires the use of safety nets when other safety devices are not used, regardless of the practicality or impracticality of those other devices. In light of this decision the judge vacated his ruling dismissing the Secretary's .105 allegation. However, the parties waived reopening of the hearing for additional evidence on that allegation and merely filed supplemental briefs on the new issue.

In his written decision the administrative law judge held that 29 C.F.R. § 1926.750(b)(1)(ii) applies only to steel erection, not prestressed concrete construction, and vacated that portion of the citation and complaint. The Commission later agreed with this holding, and the Secretary does not appeal this ruling.

As to the allegation under .105(a) and (b), the judge concluded that there was a serious violation, ⁴ citing Brennan v. Southern Contractors Service, supra. He found that employee Stanko had been exposed to the hazard of a fall of over 25 feet, that safety nets had not been used to protect him though the evidence showed their practicality, and that, while safety lines and belts were apparently practical to use, they were not in fact used at the site.

The Commission upheld this result. The lead opinion by Chairman Barnako found violations of § 1926.105(a) and (b) as to the areas of the building where the evidence showed it was impractical to use any of the alternative devices. Commissioner Cleary concurred in the result which was consistent with Commission precedent, but stated that the administrative law judge's ruling applying Southern Contractors was more sound. Commissioner Moran dissented.

On appeal Prestress argues essentially: (1) that amendment of the citation and complaint to allege violation of 29 C.F.R. § 1926.105(a) and (b) was barred by the applicable statute of limitations and further that allowing the amendment was an abuse of discretion; (2) that the testimony of OSHA Area Director Williams should have been excluded; (3) that the Secretary's case as to .105(a) and (b) failed for lack of proof by him of impracticality of non-net devices, Southern Contractors having been wrongly decided; and (4) that the holding of a violation of .105(a) and (b) was wrong as a matter of law, Prestress having sustained a defense on both "impracticality" and "greater hazard" grounds.

II

Amendment of the citation and the complaint

Prestress challenges the amendment of the citation and the complaint on several grounds. Its basic premise for these arguments is that the motion to amend on November 1, 1973, came more than six months after the alleged violation on April 19, 1973, and thus such amendment was barred by the six-month limitation on the issuance of citations contained in 29 U.S.C. § 658(c). ⁵ Prestress says that there could be no relation back as to the amendment which added an allegation of violation of a different standard, and that it was an abuse of discretion to allow the late amendment since Prestress was prejudiced in that it had prepared to defend against one theory and then was required to change to defend against a new case calling for a different defense. Prestress contends further that reasons for the amendment were not set out in the amendment itself as required by Commission rule so that due process was denied.

Prestress gives particular emphasis to 29 U.S.C. § 658(a), which provides in part that:

. . . (e)ach citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the (Act), standard, rule, regulation, or order alleged to have been violated. . . . (Brief of Petitioner, p. 9)

Because of this provision and the Secretary's position taken at the administrative hearing that under the amendment both 29 C.F.R. § 1926.750 and § 1926.105 were being relied on, Prestress says that a new charge and totally new citation were being pursued, in violation of the limitations provision. (Brief of Petitioner, 8-9).

The administrative law judge rejected the limitations contentions, saying (Administrative Law Judge's Decision and Order, 16-17):

Respondent's argument must be rejected since any consideration of (the limitation provision) is essentially subsidiary to the question of whether amendment was properly allowable. Federal Rule 15(...