Mineral Industries & Heavy Const. Group v. Occupational Safety and Health Review Com'n

• Citation: 639 F.2d 1289
• Decision Date: 19 March 1981
• Docket Number: No. 79-2224,79-2224
• Parties: 9 O.S.H. Cas.(BNA) 1387 MINERAL INDUSTRIES & HEAVY CONSTRUCTION GROUP, Brown & Root, Inc., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, & Ray Marshall, Secretary of Labor, Respondents. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1289

639 F.2d 1289

9 O.S.H. Cas.(BNA) 1387

MINERAL INDUSTRIES & HEAVY CONSTRUCTION GROUP, Brown & Root, Inc., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, & Ray

Marshall, Secretary of Labor, Respondents.

No. 79-2224.

United States Court of Appeals, Fifth Circuit.

Unit A

March 19, 1981.

Powell, Brown & Maverick, William L. Bedman, Joe M. Stevens, Jr., Houston, Tex., for petitioner.

Anthony J. Steinmeyer, Dept. of Justice, Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol., Allen H. Feldman, Acting Counsel for Appellate Litigation, John A. Bryson, John R. Bradley, U. S. Dept. of Labor, Washington, D. C., Marshall Harris, Regional Sol., U. S. Dept. of Labor, Philadelphia, Pa., for respondents.

Petition for review of an Order of the Occupational Safety and Health Review Commission.

Before GOLDBERG, POLITZ and SAM D. JOHNSON, Circuit Judges.

GOLDBERG, Circuit Judge:

Mineral Industries & Heavy Construction Group, Brown & Root, Inc. ("Brown & Root") has filed this petition, pursuant to § 11(a) of the Occupational Safety and Health Act ("Act"), 29 U.S.C.A. § 660(a) (West 1976), for review of an order of the Occupational Safety and Health Review Commission ("OSHRC"). The order affirmed a penalty of $8100 against Brown & Root for the serious and willful violation of a regulation governing the operation of certain earthmoving machinery. In contesting the OSHRC order, Brown & Root seems to argue that "accidents will happen." However, finding the OSHRC choice of maxims "better safe than sorry" and "an ounce of prevention is worth a pound of cure" to be more fitting when regulating the operation of hazardous construction equipment, we affirm the decision of the OSHRC.

I. LAYING THE FOUNDATION: BACKGROUND FACTS

During 1975, Brown & Root was engaged in a three year construction project of the north yard of the Newport News Shipbuilding and Drydock Company in Newport News, Virginia. On May 14, 1975, Brown & Root's general foreman, Earl Joyner, was struck and killed by a caterpillar scraper. At the time of the accident, the scraper was being backed into a reclamation pit from which Joyner was directing the earthmoving operation.

As a result of the tragedy, two Occupational and Safety compliance officers conducted an investigation of the Brown & Root construction site, and issued a citation. The company contested the citation and an administrative hearing was conducted. The administrative law judge ("ALJ") hearing the case concluded that Brown & Root had committed a serious and willful violation of safety regulation 29 CFR 1962.602(a)(9)(ii) ¹ by permitting the scraper involved in the accident to be operated in reverse without the use of a reverse signal alarm or employee signals.

On appeal from the decision of the ALJ, OSHRC concluded that there was insufficient evidence to establish a violation in connection with the fatal accident of May 14. However, OSHRC also found that Brown & Root had violated the same standard several times prior to May 14, and that the issue of their compliance with the standard during times prior to the accident had been fully and fairly litigated. Thus, OSHRC amended the pleadings to allege a violation of the safety standard "on or before May 14." Based on the amended pleadings, OSHRC affirmed the finding of a serious and willful violation.

Brown & Root has raised three issues on appeal in this Court. The company first argues that the amendment of the original complaint was improper; therefore, the OSHRC conclusion that there was insufficient evidence on which to find a violation based on the original complaint should be dispositive of the case. Second, Brown & Root claims that even assuming the amended complaint to be proper, the OSHRC erred in finding a violation "on or before May 14." Finally, Brown & Root suggests that there is insufficient evidence to find that the alleged violation was committed "willfully."

II. ADDING A NEW WING: THE RULE 15(b) AMENDMENT

The Commission amended the complaint pursuant to Federal Rule of Civil Procedure 15(b). ² In allowing for the amendment of pleadings, Rule 15(b) is designed to ensure that poor foresight on the part of scriveners is not converted into tunnelvision on the part of judges. The amendment process prevents "technicalities" in pleading from impeding the just resolution of the merits of cases. See United States v. Stephen Brothers Line, 384 F.2d 118, 124 (5th Cir. 1967) (quoting Foman v. Davis, 371 U.S. 178, 181 (1962)). To effectuate the policy underlying Rule 15(b), and in recognition of the spirit of the Federal Rules of Civil Procedure, this Circuit has pursued "a course of strong liberality * * * in allowing amendments." United States v. Stephen Brothers Line, supra, 384 F.2d at 124-125 (quoting Hall v. National Supply Co., 270 F.2d 379, 383 (5th Cir. 1959)); see Wansor v. George Hantscho Co., Inc., 570 F.2d 1202, 1208 (5th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978).

More importantly for the present case, it is well settled that administrative pleadings are "liberally construed" and "easily amended." NLRB v. Fant Milling Co., 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243 (1959); Usery v. Marquette Cement Manufacturing Co., 568 F.2d 902, 906 (2nd Cir. 1977); National Realty and Construction Co., Inc. v. Occupational Safety and Health Review Commission, 489 F.2d 1257, 1264 (D.C.1973). An agency charged with the duty of enforcing a regulatory act must be afforded some leeway to discover by virtue of the evidence presented at its hearing the precise nature and scope of the violations committed by a defendant company. As one commentator has noted "The most important characteristic of pleadings in the administrative process is their unimportance. And experience shows that unimportance of pleadings is a virtue." 1 K. Davis, Administrative Law Treatise § 8.04 at 523 (1958).

However, neither reliance on a "course of liberality" nor recognition of the exigencies of effective agency operation can serve as a subterfuge for the unfair or prejudicial application of Rule 15(b). See International Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888, 890 (5th Cir. 1977). Therefore, pleadings should be amended only when evidence relevant to an unpleaded issue has been introduced at trial, without objection, from which consent to the consideration of that issue can be implied. See International Harvester Credit Corp. v. East Coast Truck, supra, 568 F.2d at 890; Usery v. Marquette Cement Manufacturing Co., supra, 568 F.2d at 906. Additionally, an implied amendment of the pleadings should not be permitted where it would operate to deny a party a fair opportunity to present evidence material to newly-added issues. International Harvester Credit Corp. v. East Coast Truck, supra, 547 F.2d at 890.

Applying these broad standards and policy considerations to the present case, it is clear that the OSHRC amendment alleging a violation "on or before May 14" was completely proper. Throughout the course of the administrative hearing, both parties contested the existence and sufficiency of a company workrule regarding the reverse operations of scrapers, as well as the procedures for backing-up actually employed by scraper drivers during the construction project. Brown & Root cross-examined the three scraper drivers called as witnesses by the Secretary; during each cross-examination, the driver was quizzed on the training and instruction offered by the company concerning the reverse operation of scrapers. The drivers were also questioned on the procedures that they generally used in backing-up the scrapers on the project. Additionally, the company called the project manager and the safety supervisor to testify as to the extent of the Brown & Root safety program and to assess the degree of compliance by the project's scraper drivers with the relevant safety standard. At no time during the course of the administrative proceedings did Brown & Root object to the introduction of evidence on the grounds that such evidence was related to issues outside the scope of the pleadings. Moreover, even after the issuance of the OSHRC's decision and the amendment of the complaint, the company failed to move to have the case reconsidered or remanded to the administrative law judge for the presentation of evidence on the unpleaded issue.

Our finding of implied consent to an amendment of the pleading is further strengthened by the company's attempt to prove the unpleaded defense ³ of "isolated occurrence" or employee misconduct. In order for Brown & Root to establish this defense, the company was required to prove that any reverse operation of a scraper without a signaler was the result of idiosyncratic employee behavior which contravened company policy and practice. Murphy Pacific Marine Salvage Co., 1974-1975 CCH OSHD P 19,205; General Dynamics v. Occupational Safety and Health Review Commission, 599 F.2d 453 (1st Cir. 1979). By raising this defense, Brown & Root not only implicitly consented to trying the issues of the existence of a duly-enforced workrule and the ongoing employee compliance with such a rule, but indeed attempted to concentrate the entire litigation on the resolution of these questions. ⁴ There can be no doubt that the company's compliance with the safety standard "on or before May 14" was tried with the implied consent of both parties.

As to the second requirement of Rule 15(b) the absence of prejudice and unfair surprise Brown & Root has failed to point out, and this court cannot identify, any specific additional item of material evidence which the company could and would have produced had the complaint originally alleged a violation "on or before May 14." The OSHRC changed neither the applicable standard nor the legal theory of liability; the defenses available to Brown & Root remained the same despite the amendment. The OSHRC's decision to amend the complaint did not in any way...