Usery v. Marquette Cement Mfg. Co., 301
| Decision Date | 29 August 1977 |
| Docket Number | No. 301,D,301 |
| Citation | 568 F.2d 902 |
| Parties | , 5 O.S.H. Cas.(BNA) 1793, 1977-1978 O.S.H.D. ( 22,099 W. J. USERY, Jr., Secretary of Labor, Petitioner, v. MARQUETTE CEMENT MANUFACTURING COMPANY, Respondent, and Occupational Safety and Health Review Commission, Intervenor-Respondent. ocket 76-4083. |
| Court | U.S. Court of Appeals — Second Circuit |
Nancy L. Southard, Atty., Dept. of Labor, Washington, D. C. (William J. Kilberg, Solicitor of Labor, Benjamin W. Mintz, Associate Solicitor for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, Allen H. Feldman, Asst. Counsel for Appellate Litigation, Dept. of Labor, Washington, D. C., on the brief), for petitioner Secretary of Labor.
George W. Moehlenhof, Chicago, Ill. (McDermott, Will & Emery, Chicago, Ill., on the brief), for respondent Marquette Cement Manufacturing Co.
Rex E. Lee, Asst. Atty. Gen., and Allen H. Sachsel, Atty., Dept. of Justice, Washington, D. C., filed a brief for intervenor-respondent Occupational Safety and Health Review Commission.
Before MOORE, OAKES, and TIMBERS, Circuit Judges.
The Secretary of Labor (Secretary) petitions us to review a decision of the Occupational Safety and Health Review Commission (Commission) which vacated the Secretary's citation of Marquette Cement Manufacturing Company (Marquette) for violating § 5(a)(1) ("general duty clause") of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 654(a)(1) (1970). 1 We grant the petition to review, set aside the order of the Commission, and remand for further proceedings.
On August 29, 1973 Frank F. Rysavy, a Marquette employee of twenty-seven years, was killed while working on Marquette's premises. He died instantaneously from a crushed skull, after having been struck by a large load of bricks and debris which had been dumped from a hole in the exterior wall of Marquette's kiln building.
The dumping of this debris was part of Marquette's process of relining the interior of its kiln, a process that requires about five days and takes place four or five times a year. During this relining process Marquette disposes of worn-out bricks by placing them in a chute in the kiln building. The chute leads to a large hole in the exterior wall of the building. From that hole the bricks fall by gravity to an alleyway twenty-six feet below. The alleyway is between the kiln building and the adjacent crane storage building. Both buildings are part of Marquette's cement manufacturing plant. The alleyway is not barricaded. There is no warning sign to alert employees to the danger of free-falling bricks nor is there an enclosed chute to contain the bricks.
In response to a report of this fatality an OSHA compliance officer inspected Marquette's cement plant on September 5, 1973. On September 14 the Secretary cited Marquette, under § 17(k) of the Act, 29 U.S.C. § 666(j) (1970), 2 for a serious violation of § 5(a)(1) of the Act, the general duty clause. The citation described the hazards and the means to protect employees from such hazards. 3 The Secretary proposed a penalty of $600 and ordered abatement by October 8. Marquette contested the citation. On October 17 the Secretary filed a formal complaint with the Commission.
Unlike the citation, which had charged a violation of § 5(a)(1) of the Act, the Secretary's formal complaint charged a violation of § 5(a)(2) of the Act, 29 U.S.C. § 654(a)(2) (1970). 4 Under § 5(a)(2) the Secretary charged Marquette with failure to comply with the relevant safety standard which provides that "(n)o material shall be dropped to any point lying outside the exterior walls of the structure unless the area is effectively protected." 29 C.F.R. § 1926.852(a) (1976). The Secretary amended the citation to charge a violation of a specific standard because he believed that "respondent was engaged in the demolition and reconstruction of a brick kiln and therefore the safety and health regulations for construction found at 29 C.F.R. Part 1926 properly apply to this alleged violation." 5
In April 1974 the case was submitted to an administrative law judge (ALJ) on a stipulation of facts and accompanying briefs. Among the most relevant facts, as stipulated, were the following:
"6. Respondent disposes of debris resulting from the demolition of the kiln brick by dropping the material outside the exterior wall into the alleyway between the Kiln Building and the Crane Storage Building by means of an unprotected chute approximately 26 feet above the ground.
7. Respondent did not provide any protection to employees working near the alleyway between the Kiln Building and the Crane Storage Building from hazards created by falling bricks. Protective devices such as danger signs, barricades or an enclosed chute were not provided as a means of preventing employee exposure to falling bricks.
8. At approximately 8:45 p. m. on August 29, 1973 Respondent's employee, Frank F. Rysavy, while in the alleyway separating the Kiln Building and the Crane Storage Building, was struck by a large quantity of debris being dumped out of the chute from the interior of the Kiln Building. Mr. Rysavy was killed immediately as a result of a crushed skull caused by the falling bricks.
9. The condition of said chute described above was known to respondent's representatives."
In its brief submitted to the ALJ, Marquette contested both the applicability of the safety standard referred to and the allegation of a violation of § 5(a) (1). The Secretary moved before the ALJ to amend the complaint to reallege a violation of the general duty clause in the event the ALJ should determine that Marquette's relining of its kiln did not constitute "construction", thus making 29 C.F.R. § 1926.852(a) inapplicable. Marquette, having anticipated that the Secretary would move to amend the complaint, contended in its brief that amendment should not be permitted. 6
On September 24, 1974 the ALJ filed his decision which vacated the citation. On January 27, 1976 the Commission affirmed. Their respective reasons however differed. The ALJ held that the standards of Part 1926 of the Regulation, applicable to construction work, were not applicable to kiln relining; he allowed amendment of the complaint to charge a violation of the general duty clause; but he concluded that Marquette had not violated that clause. The Commission agreed that Part 1926 was inapplicable 7 and that there had been no violation of the general duty clause; but it held that the ALJ had erred in permitting amendment of the complaint. The result under either theory was the same: the Secretary's citation was vacated.
For the reasons below, we hold that the Commission erred in refusing to permit the Secretary to amend the complaint.
The purpose of the Federal Rules of Civil Procedure, which apply to OSHA proceedings by virtue of § 12(g) of the Act, 29 U.S.C. § 661(f), " reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." United States v. Hougham, 364 U.S. 310, 317 (1960), quoting Conley v. Gibson,355 U.S. 41, 48 (1957). Rule 15 "re-emphasizes and assists in attaining the objective of the rules on pleadings: that pleadings are not an end in themselves, but are only a means to the proper presentation of a case; that at all times they are to assist, not deter, the disposition of litigation on the merits." 3 Moore's Federal Practice P 15.02(1), at 813 (2d ed. 1974). Furthermore, "administrative pleadings are very liberally construed and very easily amended." (footnotes omitted) National Realty, supra, 489 F.2d at 1264. As one commentator has succinctly observed, "(t)he most important characteristic of pleadings in the administrative process is their unimportance." 1 Davis, Administrative Law Treatise § 8.04, at 523 (1958), quoted in National Realty, supra, 489 F.2d at 1264 n. 29.
In view of the unimportance of adhering to strict rules of pleading under the Federal Rules generally and especially in administrative proceedings, and having in mind the particular course of these proceedings, the Commission's refusal to permit the amendment sought by the Secretary strikes us as singularly unjustifiable. The condition alleged to be violative of the Act, under either § 5(a)(1) or § 5(a)(2), was identical. It was described in identical terms in the citation and the complaint. The Secretary proposed the same means of abatement in both. The particular safety standard embodied in 29 C.F.R. § 1926.852(a) requires the same kind of protection from falling debris as would the general duty clause in situations not covered by a specific standard.
On the basis of these factors the ALJ concluded that Marquette would not be prejudiced if the pleading were amended to conform to the proof pursuant to Fed.R.Civ.P. 15(b). The Commission disagreed. It held that amendment "could prejudice (Marquette) by not allowing it an opportunity to introduce rebuttal evidence on elements of a (§ 5(a)(1)) violation which are not part of a (§ 5(a) (2)) charge, such as whether the alleged violative condition constituted a recognized hazard."
On appeal the parties have proceeded on the same assumption as the Commission and the ALJ did that Rule 15(b) is the relevant rule. They have not discussed Rule 15(a) despite the fact that neither of the two branches of Rule 15(b) applies squarely to the facts of this case. We tend to agree with the ALJ that there was implied consent to trial on the § 5(a)(1) theory. But we hold that, even if there were not, the Commission abused its discretion in not permitting the Secretary to amend pursuant to Rule 15(a).
The Secretary argues that Marquette impliedly consented to trial on the § 5(a) (1) theory by stipulating...
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