St. Joe Minerals Corp. v. Occupational Safety and Health Review Com'n

• Decision Date: 06 May 1981
• Docket Number: No. 79-1873,79-1873
• Parties: 9 O.S.H. Cas.(BNA) 1646, 1981 O.S.H.D. (CCH) P 25,376 ST. JOE MINERALS CORPORATION, d/b/a St. Joe Lead Co. Smelting Division, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray Marshall, Secretary of Labor, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 840

647 F.2d 840

9 O.S.H. Cas.(BNA) 1646, 1981 O.S.H.D. (CCH) P 25,376

ST. JOE MINERALS CORPORATION, d/b/a St. Joe Lead Co Smelting Division, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Ray Marshall, Secretary of Labor, United States Department of Labor, Respondents.

No. 79-1873.

United States Court of Appeals Eighth Circuit.

Submitted May 23, 1980.

Decided May 6, 1981.

Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Allen H. Feldman, Counsel for Appellate Litigation, John A. Bryson, Asst. Counsel for Appellate Litigation, James Culp (argued), U.S. Dept. of Labor, Washington, D. C., for respondents.

Robert G. Brady, Thomas C. Walsh (argued), Kathleen R. Sherby, St. Louis, Mo., for petitioner.

Before LAY, Chief Judge, and BRIGHT and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

Petitioner, St. Joe Minerals Corporation (St. Joe) seeks review, pursuant to 29 U.S.C. § 660(a), of a decision of the Occupational Safety and Health Review Commission holding that St. Joe willfully violated § 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a)(1). We grant the petition in part and remand for further proceedings consistent with this opinion.

The present controversy stems from an August 9, 1978 accident involving a freight elevator at St. Joe's lead smelting plant at Herculaneum, Missouri. The freight elevator was located in the blast furnace area of the plant. It was used, in part, to carry dross, a by-product of the smelting process, from the first floor to the furnace on the third floor of the plant.

The elevator was equipped with standard safety devices. It had two sets of doors; an inside door to prevent egress from the elevator car during operation, and an outside door to protect against entrance into the elevator shaft when the elevator was not present on the landing. The elevator also had an interlock or electrical safety system. This system rendered the elevator inoperative unless all doors and gates were closed. In this way, the interlock system prevented the elevator from ascending or descending while any person or equipment was not completely inside the elevator and protected persons from falling into the elevator shaft.

The interlock device, however, could easily be "bypassed," i. e., the electrical circuitry could be altered to permit the elevator to operate without having all doors closed. The record shows that St. Joe used this procedure when the elevator malfunctioned. While the interlock system was inoperative, an alternative safety measure was implemented. An employee was assigned to open and close the elevator doors and to operate manually a stop button which would immobilize the elevator.

On the evening of August 8, 1978 the elevator door fell off its track, triggering the interlock system and causing the elevator to become inoperative. Larry Pettus, the head foreman in the blast furnace area, called Billy Boedecker, a St. Joe electrician, to repair the elevator. Instead of making the repairs, Boedecker, apparently on his own initiative, chose to bypass the interlock system so that the elevator could operate despite the problem with the elevator door. Boedecker informed a foreman in the blast furnace area that he had placed a "bypass jumper" on the elevator door.

Sometime after learning of the bypass, Larry Pettus telephoned Boedecker and told him to remove the bypass jumper from the interlock device before the end of the evening shift. Boedecker, however, never returned to the blast furnace area to remove the bypass nor informed Pettus or the other foremen that the bypass remained in place.

Nevertheless, during the evening shift on August 9, 1978, Larry Pierce, a laborer, was assigned to ensure that the doors were closed during movement of the elevator and to operate the stop button while Mark Ashe and Bob Coplin hauled loads of dross up to the third floor. The accident occurred as Coplin was driving off the elevator and Ashe was driving onto the elevator with another load of dross. Pierce was assisting Ashe with the elevator doors. As Ashe drove the front two wheels of his vehicle called a "bobcat" onto the elevator, the elevator began ascending; the movement caused the bobcat to overturn with the load of dross. Ashe fell into the elevator shaft and died from his injuries.

Following the accident, the Secretary of Labor issued a citation to St. Joe alleging that the company had violated section 5(a)(1) of the Act, commonly known as the "general duty clause." ¹ The citation charged that The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that: (a) Electrical protective devices (door switches and gate interlocks) of the Blast Furnace freight elevator were electrically bypassed (jumped) and rendered inoperative thereby permitting the freight elevator to operate or be operated with the doors and gates open.

The Secretary alleged that the violation was willful and proposed assessment of the maximum statutory penalty of $10,000.00. ²

St. Joe filed a notice of contest, pursuant to 29 U.S.C. § 659(a), and the matter was heard before an administrative law judge. On July 22, 1979 the ALJ entered his decision affirming the citation and penalty. The Commission denied St. Joe's petition for discretionary review of the ALJ's decision. On August 23, 1979 that decision became a final order pursuant to 29 U.S.C. § 661(i).

On petition to this court seeking review of the Commission's decision, St. Joe contends that the Commission erred in (1) permitting the Secretary to amend his complaint after the hearing had begun; (2) holding that the evidence supported a finding that St. Joe violated the general duty clause; and (3) holding that the violation was willful.

Secretary's Amendment of the Complaint.

In the course of the first day of the hearing, the Secretary moved orally to amend the complaint to charge that the company had violated the Act "on or about August 9, 1978 and times prior thereto." ³ The complaint originally had charged a violation "on or about August 9, 1978." St. Joe objected to the Secretary's motion and requested a continuance. The ALJ granted leave to amend the complaint but also granted a continuance to permit St. Joe to prepare a defense to the amended complaint. The petitioner subsequently waived the continuance.

St. Joe now contends that the ALJ erred in permitting the Secretary to amend his complaint. St. Joe argues that the amendment was beyond the scope of Federal Rule of Civil Procedure 15(b) ⁴ as well as contrary to section 9(c) of the Act, 29 U.S.C. § 658(c). ⁵

These arguments are without merit. First, we note that Rule 15(b) permits any party to amend his pleadings to conform to the evidence, and to raise issues which were tried by the express or implied consent of the parties. Consent may be implied when evidence relevant to an unpleaded issue has been introduced at trial without objection. Mineral Industries & Heavy Constr. Group v. OSHRC, 639 F.2d 1289, 1292-93 (5th Cir. 1981); Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 906 (2d Cir. 1977). We believe it is plain that St. Joe impliedly consented to the amendment here. For example, testimony by Donald Gebhard and Earl Brown that bypasses had been used on the elevator at times prior to August 9, 1978 was admitted without objection.

Even given facts suggesting implied consent, amendment of the pleadings should not be permitted where it would operate to deny a party fair opportunity to present evidence material to newly added issues. Mineral Industries, 639 F.2d at 1293. St. Joe, however, alleges no prejudice resulting from the amendment which could not have been cured by a continuance. See, id.; Duane Smelser Roofing Co. v. Marshall, 617 F.2d 448, 449 (6th Cir. 1980). In such circumstances, we believe that the ALJ was not prohibited by Fed.R.Civ.P. 15(b) from granting leave to amend.

We also note that the Secretary's amendment was not barred by the six month limitations period in section 9(c) of the Act, 29 U.S.C. § 658(c). Although the written amendment alleged violations over a four year period, the ALJ limited his findings to conduct which occurred within the six month period. The ALJ considered acts prior to the six month period only in determining whether the violation was willful. See Georgia Electric Co. v. Marshall, 595 F.2d 309, 320 (5th Cir. 1979).

In sum, we conclude that the ALJ properly limited the scope of the violation charged in the amended complaint and that petitioner suffered no prejudice from the amendment.

Violation of Section 5(a)(1).

Petitioner also urges that the Commission erred in holding that St. Joe violated section 5(a)(1) of the Act, the general duty clause. We find substantial evidence to support the Commission's determination and affirm.

To establish a violation of the general duty clause, "the Secretary must prove (1) that the employer failed to render its workplace 'free' of a hazard which was (2) 'recognized' and (3) 'causing or likely to cause death or serious physical harm.' " National Realty & Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1265 (D.C.Cir.1973). See also Empire-Detroit Steel v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978); Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 909 (2d Cir. 1977).

To prove that the employer failed to render its workplace "free" of hazard, the Secretary may be required to "specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures." National Realty, 489 F.2d at 1268. See also Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1164 (3d Cir. 1980); Empire-Detroit Steel, 579 F.2d at 384. Petitioner here contends that the Secretary failed to suggest a feasible means to abate the hazard. Moreover, St....