United Cotton Goods, Inc.

Plain-English summary

United Cotton Goods employees used electric knives to cut stacks of fabric. OSHA originally alleged that employees should wear metal-mesh gloves under the personal protective equipment standard, then moved 13 days before the hearing to add an alternative point-of-operation guarding charge. The judge denied the amendment as too late and vacated the original citation. The Commission held that the amendment concerned the same cutting hazard and that a continuance could cure any prejudice caused by the changed abatement theory. It granted the amendment and remanded so the parties could litigate whether the fabric knives required point-of-operation guards. Chairman Rowland dissented because the Secretary had delayed without explanation despite earlier opportunities to amend.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.132(a); 29 C.F.R. § 1910.212(a)(3)(ii)
• Outcome: Denial of amendment reversed and case remanded for trial of the machine-guarding allegation.
• Key point: A prehearing amendment addressing the same hazardous condition should be allowed when a continuance can cure prejudice from a new abatement theory.

Full text (OSHRC public release)

Docket No. 77-1894

UNITED COTTON GOODS, INC.
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OSHRC Docket No. 77-1894

Occupational Safety and Health Review Commission

February 23, 1982

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Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
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COUNSEL:

Office of the Solicitor, USDOL

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Fred M. Richardson, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge J. Paul Brenton is before the Commission pursuant to section 12(j), 29 U.S.C. �
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661(i), of the Occupational Safety and Health Act of 1970, 29 U.S.C. � �
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651-678 ("the Act").
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Judge Brenton vacated a citation alleging that Respondent, United Cotton Goods, Inc., violated the Act by failing to comply with the personal protective equipment standard at 29 C.F.R. �
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1910.132(a). n1 Also, at the hearing, Judge Brenton denied a motion by the Secretary of Labor ("the Secretary") to amend the citation to allege, in the alternative, noncompliance with the machine guarding standard at 29 C.F.R. �
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1910.212(a)(3)(ii). n2 The Secretary filed a petition for discretionary review which Commissioner Cleary granted.
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For the reasons that follow, we reverse the judge's ruling on the Secretary's motion to amend and we remand for further proceedings.

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n1 29 C.F.R. �
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1910.132(a) provides:

Subpart I -- Personal Protective Equipment

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1910.132 General requirements.

(a) Application. Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.

n2 29 C.F.R. �
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1910.212(a)(3)(ii) provides:

Subpart O -- Machinery and Machine Guarding

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1910.212 General requirements for all machines.

(a) Machine guarding --

(3) Point of operation guarding.

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded.
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The guarding device shall be in conformity with any appropriate standards therefor, or, in the absence of applicable specific standards, shall be so designed and constructed as to prevent the operator from having any part of his body in the danger zone during the operating cycle.

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Respondent manufactures linen supplies at its plant in Griffin, Georgia.
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Respondent's employees use electric knives to cut through stacks of material.
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The plant was inspected on May 25, 1977 and on June 2, 1977 the Secretary issued a citation alleging that Respondent failed to comply with section 1910.132(a) in the following manner:

Protective equipment was not used where it was necessary by reason of hazards encountered in a manner capable of causing injury or impairment in the function of any part of the body:

Cutting Room - metal mesh gloves were not worn by employees during fabric cutting operations.

Thirteen days before the hearing on November 10, 1977, n3 the Secretary moved to amend the citation to add the following charge of noncompliance with 29 C.F.R. �
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1910.212(a)(3)(ii):

[R]espondent failed effectively to guard the point of operation of fabric cutting knives in its cutting room with a guard so designed and constructed as to prevent an exposed employee from having any part of his body in the danger zone during the operating cycle.

By order dated November 7, 1977, Judge Brenton denied [*3]
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the Secretary's motion as being "too late."

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n3 The hearing had been postponed twice at the Secretary's request.

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In Brown & Root, Inc., Power Plant Division, 80 OSAHRC 17/B8, 8 BNA OSHC 1055, 1980 CCH OSHD P24,275 (No. 76-3942, 1980) ("Brown & Root"), the Commission upheld an amendment first presented by the Secretary six days before the hearing.
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The Commission stated that, under Rule 15(a) of the Federal Rules of Civil Procedure, n4 "prehearing amendments should be granted as long as the objecting party would not be prejudiced in the preparation and presentation of its case" and that "amendments well before the hearing rarely result in any prejudice." 8 BNA OSHC at 1058-59, 1980 CCH OSHD at p. 29,569. n5 Because the original and amended charges arose out of the same conduct or occurrence, the Commission concluded that the Secretary's claim remained unchanged and therefore that the amendment was not prejudicial.
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The Commission further held that any prejudice that may have arisen in that case, because the
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original and amended charges required different abatement methods, could have been cured by a continuance. The Commission noted that, because the amendment was presented prior to the hearing, Respondent had an adequate opportunity to determine whether a continuance would be necessary to prepare defenses to the amended charge.
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The Secretary's delay in presenting the amendment was rejected as a basis for denying the prehearing amendment.
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8 BNA OSHC 1059, 1980 CCH OSHD at p. 29,569, and cases cited therein.

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n4 Unless the Commission adopts a different rule, its proceedings are governed by the Federal Rules of Civil Procedure. Section 12(g), 29 U.S.C. �
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661(f).

n5 The Commission has consistently allowed amendments to citations under Federal Rule of Civil Procedure 15(a).
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See, e.g., Miller Brewing Co., 80 OSAHRC 5/A2, 7 BNA OSHC 2155, 1980 CCH OSHD P24,168 (No. 78-3216, 1980); P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, 1979), aff'd, 637 F.2d 741 (10th Cir. 1980); Constructura Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD P22,487 (No. 14509, 1978).

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In this case, one condition, exposure to injury at the points of operation of fabric cutting knives, is the basis of both charges.
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Accordingly, the Secretary's claim remained unchanged. As in Brown & Root, the amendment in this case changed the abatement method -- from metal mesh gloves to point of operation guarding -- and this change affected Respondent's defenses, such as impossibility of compliance or greater hazard. See Frank Swidzinski Co., 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1981 CCH OSHD P25,129 (No. 76-4627, 1981); Duncanson-Harrelson Co., 81 OSAHRC 28/A2, 9 BNA OSHC 1539, 1981 CCH OSHD P25,296 (No. 76-1567, 1981).
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However, as Brown & Root indicates, a continuance could have been employed to cure any possible prejudice.
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Accordingly, we grant the amendment and remand the case to the judge for further proceedings so that the parties may try the amended charge. n6 SO ORDERED.

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n6 In Commissioner Cleary's view, the parties should consider whether this alleged violation should be characterized as de minimis. See Febricraft, Inc., 79 OSAHRC 49/A2, 7 BNA OSHC 1540, 1979 CCH OSHD P23,691, (No. 76-1410, 1979); Hood Sailmakers, Inc., 77 OSAHRC 212/C12, 6 BNA OSHC 1206, 1977 CCH OSHD P22,422 (No. 13996, 1977).

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DISSENTBY: ROWLAND

DISSENT:

ROWLAND, Chairman, dissenting:

I dissent from the majority's decision to amend the citation so as to allege noncompliance with section 1910.212(a)(3)(ii).
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I would affirm Judge Brenton because in my view he did not abuse his discretion in denying the amendment.
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I do not reach the question of whether Judge Brenton erred in vacating the alleged violation of section 1910.132(a), the standard originally cited.

Leave to amend under Rule 15(a) is within the discretion of the trial judge, and may be denied for undue and unjustified delay where the movant had sufficient prior opportunity to amend. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971) (discretion); Forman v. Davis, 371 U.S. 178 (1962) (discretion, undue delay); Frank Briscoe Co., 76 OSAHRC 129/A2, 4 BNA OSHC 1729, 1976-77, CCH OSHC P21,162 (No. 7792, 1976) (undue and unexcused delay).

Although this case had been pending for over five months, the Secretary did not move to amend until less than two weeks before trial.
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During the preceding months, the Secretary filed with the judge two motions for a continuance,
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a settlement conference report, and a response to a motion to strike; yet the Secretary did not request leave to amend in any of his prior correspondence with the judge.
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In this regard, I note that the discussions of the case during the settlement negotiations should have alerted the Secretary to the potential section 1910.212(a)(3)(ii) charge.
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Moreover, when the Secretary eventually sought an amendment shortly before trial, he gave no explanation for his delay.
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In light of the Secretary's unexplained delay in requesting an amendment despite prior opportunity to do so, I conclude that Judge Brenton did not abuse his discretion in denying the amendment.

Inasmuch as the majority amends the citation and remands the case for further proceedings on the amended charge, I need not at this time consider whether the judge erred in his disposition of the originally alleged violation of section 1910.132(a).
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Accordingly, I do not now express an opinion as to the merits of the section 1910.132(a) allegation.
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