J.L. Mabry Grading, Inc.

Plain-English summary

OSHA cited J.L. Mabry Grading for operating dump trucks with obstructed rear vision without backing alarms or a signalman and proposed a $600 serious penalty. The citation identified a regulatory subsection that was not in effect when the alleged violation occurred. The judge denied the Secretary's request to substitute an effective provision covering essentially the same practice and granted judgment to the employer. The Commission reversed because the citation's factual description gave adequate notice of the alleged condition. Applying the rule that amendments should be freely allowed when justice requires, it found no showing that the corrected regulatory reference would mislead or prejudice the employer. The Commission granted the amendment and remanded for further proceedings.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1518.602(a)(9)(i); 29 C.F.R. § 1518.602(a)(9)(ii); 29 C.F.R. § 1518.602(a)(9)(iii); 29 C.F.R. § 1518.601(b)(4)(i); 29 C.F.R. § 1518.601(b)(4)(ii); 29 C.F.R. § 1926.601(b)(4)(i); 29 C.F.R. § 1926.601(b)(4)(ii); 29 C.F.R. § 1910.12
• Outcome: The dismissal was set aside, the Secretary's amendment was granted, and the case was remanded for further proceedings.
• Key point: A citation that adequately described the alleged condition could be cured by amending an incorrect regulatory reference when the employer was not misled or prejudiced.

Full text (OSHRC public release)

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EN-US
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UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

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Complainant,

������������������������ v.

OSHRC DOCKET NO. 285

J.L. MABRY GRADING, INC.,

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Respondent.

ORDER OF REMAND

April
27, 1973

Before
VAN NAMEE and BURCH, Commissioners

VAN
NAMEE, COMMISSIONER:

On June 22, 1972, Judge John J. Larkin issued an Order
denying the Secretary�s motion to amend its Complaint and granting Respondent�s
motion for judgment on the pleadings in its favor.

Pursuant to the authority vested in the members of the
Commission by section 12(j) of the Occupational Safety and Health Act of 1970
(29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the �Act�),
on July 10, 1972, I directed that the Judge�s order be reviewed by the
Commission. For the reasons given hereafter we reverse and remand.

On November 22, 1971, Complainant issued to Respondent a
citation for an alleged serious violation of 29 C.F.R. 1518.602(a)(9)(i�iii)
for failure to provide backing alarms or a signalman for dump trucks with
obscured rear vision. A penalty of $600 was proposed. Thereafter Respondent
duly filed a notice of contest and proceedings were initiated before this
Commission.

The record reflects that on January 26, 1972, Respondent
filed its motion for judgment on the pleadings based on the ground that the
cited subsection of the regulation was not in effect at the time of the alleged
violation. [1]

�

In
response, Complainant moved to amend the complaint to allege a violation of 29
C.F.R. 1518.601(b)(4)(i�ii) (now 29 C.F.R. 1926.601(b)(4)(i�ii)), prohibiting
the operation of �any motor vehicle equipment� with an obstructed rear view
unless an audible reverse signal alarm or observer is provided.

This motion was denied by the Judge, primarily on the basis
that the citation charging a violation of a regulation not then in effect must
be dismissed for failure to comply with section 9(a) of the Act. This statutory
provision requires that a citation must 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.�

We are of the opinion that the trial Judge in disposing of
this matter has framed and decided the wrong issue. The subject citation
comports with the notice requirements set forth in Section 9(a) of the Act. It
provides a plain statement of the factual conditions considered to constitute a
violation of the Regulations. The Respondent was apprised of the subject facts
so that it could take proper corrective action and/or file a notice of contest
or otherwise defend itself in this matter. Consequently the citation complies
with the concept of proper notice in an administrative proceeding as expressed
in American Newspaper Publishers Association v. NLRB , 193 F.2d 782, 800
(7th Cir. 1951), aff�d 345 U.S. 100 (1953), quoting, NLRB v. Piqua
Munising Wood Products Co ., 109 F.2d 552, 557 (6th Cir. 1940):

The [National Labor Relations] Act does not require the
particularity of pleading of an indictment or information, nor the elements of
a cause like a declaration at law or a bill in equity. All that is requisite in
a valid complaint . . . is that there be a plain statement of the things
claimed to constitute an unfair labor practice that respondent may be put upon
his defense.

In view of the above, we find that the issue is not whether
the citation must be dismissed for failure to comply with Section 9(a) of the
Act. Rather the threshold issue in this case is whether a defective citation
may be cured by a subsequent pleading in a proceeding brought pursuant to
Section 10 of the Act.

The Commission has not elected to regard the citation as the
sole vehicle by which an employer would be notified of its alleged violation
once a notice of contest has been filed. Pursuant to Section 12(g) of the Act
we provided for the issuance of a Complaint and Answer in our Interim Rules, in
effect at the time the Judge rendered his decision herein, should a citation be
contested. In addition, Interim Rule 2(a) provided that in the absence of a
Commission Rule all proceedings shall be conducted in accordance with the
Federal Rules of Civil Procedure.

Since no provision respecting amendments of pleadings existed
in the Interim Rules, Federal Rule 15 is controlling in this case. This Rule
provides for amended and supplemental pleadings and states inter alia that
leave to amend shall �be freely given when justice so requires.� [2]

Accordingly we find that the defective citation in this case
may be cured by a subsequent pleading. However, the answer to this threshold
question does not, standing alone, dictate the proper disposition of this
matter. For we must still determine if the Complainant in the particular
circumstances of this case should have been granted leave to amend its
Complaint.

The Supreme Court in interpreting Rule 15 has observed that,
�The Federal Rules 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.� Conley v. Gibson , 355 U.S. 41, 48 (1957).

Indeed this very philosophy underlies the decision in American
Newspaper, supra, where the Complaint before the National Labor Relations Board
incorrectly identified the subsection of the National Labor Relations Act which
the Respondent in that case was alleged to have violated. In holding that the
Board erred in dismissing the Complaint the Seventh Circuit Court of Appeals
stated:

Where, as here, the complaint clearly
describes an action which is alleged to constitute an unfair labor practice but
fails to allege which subsection of the Act has been violated or alleges the
wrong subsection, such failure or mistake, if it does not mislead the parties
charged, does not prevent the Board from considering and deciding the charge so
presented (193 F.2d at 800).

The particular circumstances of the matter on review do not
raise the issue of whether Complainant by amendment of its citation may change
the basic factual allegations of its citation. Nor do they present the issue of
whether Complainant may change the legal basis of its case by amendment of the
citation. Rather, Complainant seeks only to amend its citation and Complaint,
filed herein, to set forth a different section of the governing regulations. In
addition the newly alleged provision prohibits essentially the same practices
as those regulated by the originally cited but inapplicable regulation.

We conclude that in the circumstances of this case Respondent
was not misled or otherwise prejudiced by the allegation in the citation and
Complaint of an inapplicable section of the governing regulations. Therefore we
are of the opinion that to allow Complainant�s proposed amendment would be
entirely consistent with the aforementioned principles as well as with the
scheme of the Act itself.

Accordingly, it is ORDERED that (1) the order of the Judge be
and the same is hereby set aside, (2) Complainant�s motion to amend is granted
(3) the case is remanded to the Judge for further proceedings.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

��������������������������������������������
Complainant,

������������������������ v.

OSHRC DOCKET NO. 285

J.L. MABRY GRADING, INC.,

���������������������������������������������
Respondent.

June
22, 1972

LARKIN,
JUDGE, OSAHRC:

On November 22, 1971, the Secretary of Labor issued a
Citation to respondent for serious violation of the Occupational Safety and
Health Act citing Standard 29 CFR 1508.602(a)(9)(i�iii). The alleged violation
is described as �Rear vision on dump trucks blocked by dirt carrier and not
equipped with required backing alarms or presence of a required signalman.� On
December 10, 1971, respondent filed Notice of Contest. On December 17, 1971,
the Secretary filed Complaint and alleged �On or about November 15, 1971,
respondent violated 29 CFR 1518.602(a)(9)(i�iii) [cited as
1508.602(a)(9)(i�iii) in citation due to typographical error] and promulgated
pursuant to section 6 of the Act at 29 CFR � 1910.12 . . .� On December 27,
1971, respondent filed answer denying the foregoing allegation and on January
26, 1972, filed motion for judgment on the pleadings as �Said Section
1518.602(a)(9)(i�iii) was not in effect at the time of the alleged violation,
nor is it now in effect, because it is only a proposed standard to which public
hearings were held on November 10, 1971, and this standard has not to this date
been finally promulgated.� On February 4, 1972, the Secretary filed motion to
amend the Complaint by substituting 29 CFR 1518.601(b)(4)(i�iii). In support of
the motion to amend, the Secretary concedes that the standard cited in the
Citation and Complaint was not effective on the date of the occurrence alleged.
Prior to a ruling on these motions, respondent filed a motion for continuance
as it had pending before the United States District Court, Northern District of
Georgia, Atlanta, Division, a suit contesting the constitutionality of the Act.
On order to afford respondent an opportunity to contest the constitutionality
of the Act prior to litigating the case on its merits, the motion for
continuance was granted on March 30, 1972. On May 23, 1972, the District Court
decided that respondent�s action was premature as it had not exhausted its
lower administrative appeals.

The Secretary relies upon the provisions of Rule 15(c) of the
Federal Rules of Procedure pertaining to the relation back of an amendment to
the original pleading if arising out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original pleadings. The Secretary
emphasizes that there is no suggestion or showing by respondent that the
Secretary�s motion to amend in any way prejudices the respondent�s ability to
defend itself. The Secretary also cites Rule 15(a) of the Federal Rules of
Civil Procedure specifying that leave to amend �. . . shall be freely given
when justice requires . . ..� The Secretary asserts that the statute is
remedial in nature affecting the safety and health of all workers and its
enforcement should not be hampered by procedural mechanics such as the right to
amend pleadings.

The fallacy in the Secretary�s argument is that the issue
involved goes beyond the question of the right to amend pleadings. Actually,
the question that must be decided is whether the case should be dismissed as
the Citation does not conform to the requirements of the Act and is
ineffective.

Section 9(a) of the Act authorizes the Secretary to issue a
citation which reasonable promptness if the Secretary believes

. . . an employer has violated a requirement of section 5
of this Act, or any standard, rule or order promulgated pursuant to section 6
of this Act, or of any regulations prescribed pursuant to this Act . . .

Each 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.

�

Each citation issued under this section, or a copy or
copies thereof, shall be prominently posted, as prescribed in regulations
issued by the Secretary, at or near each place a violation referred to in the
citation occurred.

�

No citation may be issued under this section after the
expiration of six months following the occurrence of any violation.

�

The importance that the required detail be contained in the
citation is self evident from the foregoing language as the citation provides
notification not only to the employer but to the employee as well.

Under Section 6 of the Act, the Secretary is given authority
to issue standards. As the Federal Register will verify, these standards run
into the thousands covering voluminous pages. The difficulty in finding the
appropriate standard is self evident in the present case as the incorrect
standard was quoted not only in the citation, but the complaint as well. Even
when properly cited, many of these standards propose difficulty for the legal
profession to interpret, much less an employer, and especially a small employer
without access to guidance.

Moreover, Section 10 of the Act is far reaching. An employer
is without recourse if the time requirement elapses without filing a notice of
contest after receipt of a citation. The impact of Section 17 is even far more
devastating. The monetary penalty for a violation, whether serious or
non-serious in nature can amount to $1,000 per violation. If willful or
repeated, it can amount to $10,000 per violation. Failure to abate the
condition can amount to $100 per day for a violation not of a serious nature
and $1,000 per day if of a serious nature. Certainly, under such far-reaching
provisions, an employer is entitled to receive proper initial notification and
one in strict conformance with the requirements of Section 9 of the Act.

Such conclusion does not deprive the Secretary of recourse
under the Act to correct his mistake. Under the provisions of Section 9, he has
within six months from the occurrence to issue a corrected citation. Forcing
such alternative is far better than misleading an employer to take incorrect action
and fall victim through misunderstanding to the provisions of Sections 10 and

17. Moreover, to allow an invalid citation to be corrected by pleading could
    render the six-month limitation provision ineffective because the Secretary
    could extend the time limitation by correcting an invalid citation by pleading
    six months after the infraction.

The conclusion drawn herein is not meant to imply the
Secretary cannot correct by pleading a typographical error or similar matter in
the Citation. It does, however, conclude that the Secretary cannot use his
pleading as a substitute for his responsibility to conform with the
requirements of proper initial notification to an employer, and indirectly to
an employee, as specified by the precise requirements of Section 9(a) of the
Act. This is the only fair conclusion to be drawn to afford justice and due
process under the specific terms of an act as far reaching as the provisions of
this Act.

WHEREFORE,
IT IS ORDERED:

That the Secretary�s motion to amend his pleading is denied
and respondent�s motion for judgment on the pleadings is granted. The
Secretary�s Citation for serious violation of �1508.602(a)(9)(i�iii) is not
affirmed and no penalty is to be assessed against the respondent.

[1] While the regulation in question was proposed
initially on September 28, 1971, (36 Fed. Reg. 19083 et seq.) it was not
formally adopted until February 17, 1972 (37 Fed. Reg. 3512, 3517), well after
the inspection of respondent�s worksite. Former part 1518 of title 29 C.F.R.
having been redesignated part 1926 on December 30, 1971 (36 Fed. Reg. 25232),
the standard was promulgated as 29 C.F.R. 1926.602(a)(9)(i) and (ii), requiring
horns on all bidirectional machines, such as �rollers, compacters, front-end loaders,
bulldozers, and similar equipment� and prohibiting the operation of
�earthmoving or compacting equipment� in reverse gear with obstructed view
unless a reverse alarm or signalman is provided.

[2] The Commission has made
such provision in Rule 33(a)(3) of its revised Rules now in effect.