McWilliams Forge Company, Inc.

Plain-English summary

Two McWilliams Forge employees lost consciousness while cleaning a pump with solvent in a pit and remained there for about four hours. OSHA cited the company under the general duty clause for failing to test the atmosphere, provide standby rescue assistance, and use respiratory protection. On review, the Secretary conceded that specific respiratory-protection standards applied and sought to amend the citation after the hearing. The Commission denied the amendment because the parties had not knowingly tried the specific-standard issues and McWilliams had not presented defenses tailored to those provisions. It reversed the judge and vacated the citation without deciding the safety allegations on their merits. Commissioner Cleary dissented and would have allowed amendment with a remand for McWilliams to present additional defenses.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1), 29 C.F.R. § 1910.134(a)(1), 29 C.F.R. § 1910.134(b)(8), and 29 C.F.R. § 1910.134(e)(3)(i)
• Outcome: Motion to amend denied; general duty clause citation vacated.
• Key point: Evidence relevant to both pleaded and unpleaded theories does not establish consent to try a new OSHA-standard charge unless the parties recognized that issue was being litigated.

Full text (OSHRC public release)

Docket No. 80-5868

SECRETARY OF LABOR,

Complainant,

v.

MCWILLIAMS FORGE COMPANY, INC.,

Respondent.

OSHRC Docket No. 80-5868

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners:

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. � 661(i), section 12(j) of the Occupational Safety and Health Act of
1970, 29 U.S.C. �� 651-678 ("the Act").  The Commission is an
adjudicatory agency, independent of the Department of Labor and the Occupational Safety
and Health Administration.  It was established to resolve disputes arising out of
enforcement actions brought by the Secretary of Labor under the Act and has no regulatory
functions.  See section 10(c) of the Act, 29 U.S.C. � 659(c).

The Secretary of Labor has moved, pursuant to Federal Rule of Civil Procedure
15(b),[[1]] to amend a citation issued to McWilliams Forge Company to allege violations of
three occupational safety and health standards.  The citation now alleges violations
of the general duty clause, section 5(a)(1) of the Act, 29 U.S.C. � 654(a)(1).[[2]] The
Secretary concedes that the citation should not have alleged violations of the general
duty clause because there are specifically applicable standards.

McWilliams Forge Company produces alloy forgoings at a plant in Rockaway, New
Jersey.  On June 22, 1980, two of its employees were cleaning a pump in a pit with a
solvent alleged to be forty percent trichloroethylene.  This work was performed on a
Sunday afternoon when the plant was not operating and when the nearest person was a
security guard at the plant entrance.  While cleaning the pump, the employees lost
consciousness and remained in the pit for about four hours.  The atmosphere in the
pit had not been tested and the employees had not been wearing respirators.

Item one of the citation now alleges that a qualified person did not test the
atmosphere in the pit before and during the cleaning operation to determine whether there
were "concentrations of toxic contaminants or a deficiency or excess of oxygen that
were hazards to life or health."  The Secretary moves to amend this item to
allege a "failure to test the atmosphere in the pit" in alleged violation of the
occupational health standard at 29 C.F.R. � 1910.134(b)(8).  That standard states
that "[a]ppropriate surveillance of work area conditions and degree of employee
exposure or stress shall be maintained."[[3]]

Item three of the citation now alleges that "an employee within voice or
visual range was not available in the immediate vicinity to render such emergency
assistance as may have been required."  The abatement requirement of the item
included training the employee in emergency rescue procedures, supplying him with the
"applicable" personal protective equipment, and requiring him to

remain in the vicinity of the confined space until replaced.  The Secretary moves to
amend this item to allege a violation of section 1910.134(e)(3)(i), which provides:

� 1910.134 Respiratory Protection .

(e) Use of respirators .

(3) Written procedures shall be prepared covering safe use of respirators in
dangerous atmospheres that might be encountered in normal operations or in emergencies.
  Personnel shall be familiar with these procedures and the available respirators.

(i) In areas where the wearer, with failure of the respirator, could be
overcome by a toxic or oxygen-deficient atmosphere, at least one additional man shall be
present.  Communications (visual, voice, or signal line) shall be maintained between
both or all individuals present.  Planning shall be such that one individual will be
unaffected by any likely incident and have the proper rescue equipment to be able to
assist the other(s) in case of emergency.

Item four of the citation now alleges that the two employees in the pit
"did not use applicable respiratory protective equipment as required by the nature of
the atmosphere contaminants."  The Secretary moves to amend this item to allege
a violation of section 1910.134(a)(1), which provides:

(a) Permissible practice.  (1) In the control of those occupational
diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists,
gases, smokes, sprays, or vapors, the primary objective shall be to prevent atmospheric
contamination.  This shall be accomplished as far as feasible by accepted engineering
control measures (for example, enclosure or confinement of the operation, general and
local ventilation and substitution of less toxic materials).  When effective
engineering controls are not feasible, or while they are being instituted, appropriate
respirators shall be used pursuant to the following requirements.

The Secretary maintains that a post-hearing amendment is proper under Rule
15(b) if the amendment adds only a new legal theory, not new questions of fact, and if the
party opposing the amendment either introduced or failed to object to evidence relevant to
the unpleaded issues and would not be prejudiced if the amendment were granted.  The
Secretary also maintains that prejudice can be found only if the party opposing amendment
lacked a fair opportunity to defend or could have offered additional evidence "if the
case had been tried under the amended charge."  The Secretary points to the
surface resemblances between the pleaded and unpleaded charges and states that "[n]o
additional evidence could have been offered by [McWilliams Forge] to rebut the Secretary's
evidentiary case if a 29 C.F.R. � 1910.134 theory had been tried initially."

Rule 15(b) provides:

(b) Amendments to Conform to the Evidence.

[1] When issues not raised by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the
pleadings.  Such amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made upon motion of any party at
any time, even after judgment; but failure so to amend does not affect the result of the
trial of these issues.

[2] If evidence is objected to at the trial on the ground that it is not within the issues
made by the pleadings, the court may allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the action will be subserved thereby and the
objecting party fails to satisfy the court that the admission of such evidence would
prejudice him in maintaining this action or defense upon the merits.  The court may
grant a continuance to enable the objecting party to meet such evidence.  (Bracketed
numbers added.)  The text of the rule makes plain that an amendment under the first
half of Rule 15(b) is proper only if two findings can be made--that the parties tried an
unpleaded issue and that they consented to do so.  If amendment is proper under the
first half of Rule 15(b), a remand for further trial on the merits of the action is
pointless, because under the rule, if amendment is allowed, the unpleaded issues have
already been tried by consent.

Trial by consent may be found only when the parties knew, that is, squarely
recognized,[[4]] that they were trying an unpleaded issue.  This does not mean that
the party against whom the amendment is offered must have expressly consented to trial of
the unpleaded issue.  Consent may also be implied by the parties' words and conduct,
even if neither party openly voices his consent. For example, the second half of Rule
15(b) suggests that the admission without objection of evidence that is not relevant to a
pleaded issue is some evidence of consent. 

Conversely, consent is not implied by a party's failure to object to evidence
that is relevant to both pleaded and unpleaded issues, at least in the absence of some
obvious attempt to raise the unpleaded issue.  McLean-Behm Steel Erectors v. OSHRC,
608 F.2d 580, 582 (5th Cir. 1979), rev'g 79 OSAHRC 93/A9, 6 BNA OSHC 2081, 1978 CCH OSHD
� 23,139 (No. 15582, 1978).  "[A] court may not base its decision upon an issue
that was tried inadvertently.  Implied consent to the trial of an unpleaded issue is
not established merely because evidence relevant to that issue was introduced without
objection.  At least it must appear that the parties understood the evidence to be
aimed at the unpleaded issue."  MBI Motor Co. v. Lotus/East, Inc., 506 F.2d 709,
711 (6th Cir. 1974), quoted with approval in Consolidated Data Terminals v. Applied
Digital Data Systems, 708 F.2d 385, 397 (9th Cir. 1983); see also, e.g., McLeod v.
Stevens, 617 F.2d 1038, 1040-41 (4th Cir. 1980); Cook v. City of Price, 566 F.2d 699, 702
(10th Cir. 1977); Standard Title Insurance Co. v. Roberts 349 F.2d 613, 620-22 (8th Cir.
1965); Niedland v. U.S., 338 F.2d 254, 258 (3d Cir. 1964).[[5]]  The record convinces
us that neither party consented to try the unpleaded allegation that McWilliams Forge
violated sections 1910.134(a)(1), (b)(8) and (e)(3)(i).

All the evidence cited by the Secretary in support of the amendment was
offered as relevant to the pleaded issues.  That this evidence was not objected to
does not suggest or imply consent to try the unpleaded issues.  MBI Motor Co., 506
F.2d at 711.  Nor was there an obvious attempt to raise these issues.  On the
contrary, the circumstances of the hearing reveal that neither party consented to the
trial of these unpleaded matters.  During cross-examination of the industrial
hygienist who conducted the inspection resulting in the citation, McWilliams Forge
elicited much testimony as to whether the general duty clause was preempted by OSHA
standards in section 1910.134.  The industrial hygienist maintained that the citation
to the general duty clause was proper. On re-direct examination, the Secretary did not
attempt to prove that specific standards were applicable and had been violated. Instead,
he attempted to make the opposite point:  that the standards did not preempt the
general duty clause because the standards did not apply.  The parties neither
consented to litigate nor squarely recognized that they were litigating violations of
sections 1910.134(a)(1), (b)(8) and (e)(3)(i).

The issues raised by the original general duty clause allegations may have
some similarity to those raised by the Secretary's allegations that McWilliams violated
the standards.  However, elements of proof and defenses to general duty clause
citations differ substantially from those which are raised by citations for section
5(a)(2) violations.  In the instant case, defenses which could have been raised to
rebut alleged violations of the standards (but were not necessary to defend the general
duty clause violations) were not made.

For example, item 1 of the citation originally alleged that a "qualified
person" did not "test the atmosphere" for "concentrations of toxic
contaminants or a deficiency or excess of oxygen that were hazards to life or health"
in the pit before and while McWilliams Forge employees worked there.  The Secretary
now alleges that the employer violated section 1910.134(b)(8) by its "failure to test
the atmosphere in the pit."  The standard states that "[a]ppropriate
surveillance of work area conditions and degree of employee exposure or stress shall be
maintained."  At trial under the standard the parties might have litigated a
number of issues not raised by the 5(a)(1) allegation, including the meaning of the
critical phrases "appropriate surveillance," "work area conditions,"
and "degree of employee exposure or stress."  These issues were not tried.
 Indeed, it is not clear, and we have found no Commission or court decisions
suggesting, that "appropriate surveillance" necessarily includes atmospheric
testing.

What we have said for item one applies as well to the other items.  With
respect to item three, for example, the parties might have litigated additional issues
such as whether the Secretary cited the most specifically applicable standard.  The
Secretary suggests at one point in his review brief that McWilliams Forge should have
equipped its employees with "self-contained breathing apparatus;" at another
point he suggests an "air-supply respirator."  Yet, there are separate
provisions covering standby assistance where these devices are used.  See 29 C.F.R.
�� 1910.134(e)(3)(ii) (self-contained breathing apparatus) and (iii) (air line
respirators); see also OSHA Industrial Hygiene Technical Manual V-22, Table V-1 (March
1984), reprinted in 2 BNA OSHR Reference File 77:8001, 77:8210 (June 1984), CCH Employ.
  Safety & Health Guide No. 680 (May 1984).

Item four of the citation alleged originally that "employees did not use
applicable respiratory protective equipment as required by the nature of the atmospheric
contaminants."  Section 1910.134(a)(1), the standard that the Secretary now
claims was tried by the parties, requires that "appropriate respirators shall be used
pursuant to the following requirements."  The standard that follows, 29 C.F.R.
� 1910.134(a)(2), states that respirators shall be provided "when such equipment is
necessary to protect the health of the employee."  As the Secretary recognizes
in his brief, this provision arguably is susceptible to a vagueness attack, which might
have caused the parties to litigate whether the standard was valid as applied--an issue
that was not tried.

We find that the parties did not consent to try the unpleaded allegations and that issues
relevant to the unpleaded allegations were not tried.  The Secretary's motion must be
denied.  We recognize that the result of this ruling is that the Secretary's
allegations against McWilliams Forge will not be resolved on the merits and that the
considerable time and attention paid by the parties and the judge to the allegations will
have been wasted.  To avoid a recurrence of this situation, we suggest that the
Secretary's attorneys follow a course which has been suggested in other cases:  When
it is claimed or suggested that a standard preempts the general duty clause, (or is more
specifically applicable), move to amend to allege in the alternative a violation of that
standard.  E.g., Henkels & McCoy, 76 OSAHRC 143/C2, 4 BNA OSHC 1502, 1976-77 CCH
OSHD � 20,944 (No. 8842, 1976); Sun Shipbuilding & Drydock Co., 73 OSAHRC 44/A9, 1
BNA OSHC 1381, 1973-74 CCH OSHD � 16,725 (No. 161, 1973) (concurring opinion); Cf. J.L.
Manta Plant Services Co., 82 OSAHRC 61/A2, 10 BNA OSHC 2162, 1982 CCH OSHD � 26,303 (No.
78-4923, 1982)(invalidity).

A final matter raised by the proceedings in this case should be addressed.
  In the past, parties have submitted motions in appeal briefs, in petitions for
discretionary review, and even in footnotes to briefs and petitions.  In this
instance, the motion for an amendment was made in the Secretary's appeal brief.  We
will no longer accept this as a matter of course.  The Commission believes that it is
the better practice to require parties to file motions in separate documents as is the
practice in the federal courts. See Fed.R.Civ.P. 7(b)(1) and Fed.R.App.P. 27(a).
  This will, we believe, ensure that motions are more carefully made and
supported.[[6]]

Accordingly, the motion to amend is denied.  The judge's decision is
reversed and the citation is vacated.

FOR THE COMMISSION

Ray H. Darling, Jr.

Executive Secretary

DATED:  JUL 20 1984

CLEARY, Commissioner, dissenting:

I dissent from the majority view of this case and would allow an amendment
and remand. 

The gravamen of the violation with which the Respondent was charged in this
case, regardless of whether it was brought under section 5(a)(1) or the standard found at
29 C.F.R. � 1910.134 is the failure to test the confined atmosphere for toxic substances
before employees were permitted to enter, a failure to maintain any type of surveillance
for the protection of employees, and a failure to provide respirators where so required.
  The relevant factual issues have been litigated.  As to the first allegation,
section .134(b)(8) contemplates surveillance of work conditions and degree of employee
exposure.  This should alert an employer that he not be cognizant of a possible
exposure of employees to toxic substantives, particularly when entering confined
areas.  However, I agree that Respondent was not made aware of the Secretary's intent
to amend his charge to � 1910.134 until it was raised on appeal, and then at a time when
Respondent might not have had an opportunity to object.[[1]]  Thus, I would remand
the case to allow the Respondent to indicate whether he was prejudiced, and raise any
defenses he might have to the application of � 1910.134 to these facts.

The decision of the majority in this case would essentially prohibit
amendment of pleadings in Commission cases, in this case an amendment from section 5(a)(1)
to a standard on the grounds that the majority can visualize some grounds that may be
stated as objections to the application of a particular standard.  In so doing,
however, they are reversing longstanding precedent and running contra to several Circuit
Courts of Appeals which have addressed this issue.

This Commission has frequently permitted amendments of pleadings.  Pleadings have
never been considered a serious obstacle to reaching the merits of a case, whether the
amendments were from one standard to another or from an alleged 5(a)(1) violation to an
alleged violation of a standard:  see Mabry, J. L. Grading, Inc., 74 OSAHRC 37/A14, 1
BNA OSHC 1211, 1974-1975 CCH OSHD � 15,141; Bethlehem Steel Corp., 1975 OSAHRC 44/A2, 2
BNA OSHC 1732, 1975-76 CCH OSHD � 16,956; California Stevedore & Ballast Co., 75
OSAHRC 47/C4, 3 BNA OSHC 1080, 1975-76 CCH OSHD � 16,798; Konkolville Lumber Co., Inc.,
76 OSAHRC 147/A2, 3 BNA OSHC 1796, 1976-77 CCH OSHD � 18,296; Southern Colorado Prestress
Co., 76 OSAHRC 107/D8, 4 BNA OSHC 1638, 1976-77 CCH OSHD � 17,881; Claude Neon Federal
Co., 77 OSAHRC 104/A2, 5 BNA OSHD 1546, 1977-78 CCH OSHD � 20,279; McKee Wellman Power
Gas, 77 OSAHRC 133/A2, 5 BNA OSHC 1592, 1977-78 CCH OSHD � 20,142.

In Dunlop v. Uriel G. Ashworth, CA 4 (1976) 538 F.2d 562, 3 BNA 2065, the
Fourth Circuit considered a case presenting similar issues to McWilliams.  The
Secretary alleged a violation of a standard which was determined to be inapplicable by the
Administrative Law Judge and by the Commission.  2 BNA OSHC 1552.  However, the
Fourth Circuit decided the case as follows:

Uriel Ashworth was cited by the Secretary of Labor for a serious violation of
the Occupational Safety and Health Act of 1970 [[1]] and was assessed a $600 fine. 
Ashworth contested this citation and succeeded in persuading the Administrative Law Judge
who heard his case that the specific provision he was cited under (Sec. 5(a)(2) of the
Act) did not proscribe the conduct attributed to him.  This determination was upheld
by the Occupational Safety and Health Review Commission [2 OSHC 1552], and the Secretary
appealed to this court.  We affirm the decision below insofar as it holds that
Ashworth is not guilty of violating Sec. 5(a)(2) of the Act; however, we remand the case
in order to allow the Secretary to amend his pleadings to allege a violation of Sec.
5(a)(1), the so-called General Duty Clause.

In Morgan & Culpepper, Inc. v. OSAHRC and Donovan, CA 5 (1982), 676 F.2d
1065, 10 BNA 1629, it was said,

Liberal construction and easy amendment of pleadings are accepted procedure
in an administrative law context.  Administrative tribunals, as well as courts, have
often heeded one commentator's advice that "[t]he most important characteristic about
pleadings in the administrative process is their unimportance." 1 K. Davis,
Administrative Law 523 (1958).  Federal Rule of Civil Procedure 15(b) allows for
amendment of pleadings not only after issues have been tried by express or implied
consent, but also when such amendment will facilitate the presentation of the merits of
the action and the objecting party fails to demonstrate prejudice.[[1]]  As this
Court recently noted in Mineral Industries & Heavy Construction Group v. Occupational
Safety and Health Review Commission, 639 F.2d 1289 [9 OSHC 1387] (5th Cir. 1981),
"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
the cases."

The Court then said that "While it is true that amendments to pleadings
should be freely granted, it is just as certain that the company charged should be given
an opportunity to fully respond to the new theories presented."  It then went on
to say that "The Commission should remand cases in which amendment of pleadings is
allowed so that the party cited will have a full opportunity to present its defense to the
altered charge.  Where amendment of pleadings is permitted on the basis of the second
half of Fed.R.Civ.P. 15(b), the Commission may not deny the petitioner the opportunity to
present new defenses..."

Thus, the majority overlooks the fact that Respondent would have the
opportunity in this case to raise any defenses to � 1910.134, which it may not have
raised before the administrative law judge previously.

In Brown & Root, Inc. v. OSAHRC and Marshall, 9 BNA 1387, (again, the 5th
Cir.), 639 F.2d 1289, the Court said,

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, 903, [5 OSHC 1793, 1796] (2nd Cir. 1977); National Realty
and Construction Co., Inc. v. Occupational Safety and Health Review Commission, 489 F.2d
1257, 1264 [1 OSHC 1422, 1426] (D.C. 1973)...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).

The majority concludes an amendment is not proper where the Respondent could
raise some objection to an amendment to charge a violation of a standard such as the
validity of promulgation of the standard, it is void for vagueness, etc.  But this
will always be true, and this statement can only construed as a conclusion by the majority
that they will never allow an amendment under Fed.R.Civ.P. 15(b).  The majority has
said that the Secretary can't amend from a 5(a)(1) charge to a standard because there are
different elements of proof and methods of trial.  For this reason, he couldn't amend
from a standard to 5(a)(1).  Also, there can be no amendment from one standard to
another because the majority can suggest a challenge to the validity of promulgation of
the substitute standard, or its vagueness.  There is no possibility of amendment
left.  With one stroke the majority has eliminated Fed.R.Civ.P. 15(b) from Commission
proceedings, reversed years of precedent, put this agency out of step with other
administrative courts, and ignores 38 years, more or less, in the development of
administrative law.

I also dissent from the majority's sua sponte decisional rulemaking that
reverses without just cause almost 14 years of precedent, that motions may no longer be
incorporated in briefs.  This is not reflected in the Commission's Rules of
Procedure, and is a matter more appropriately handled by an amendment to the procedural
rules with concomitant notice and opportunity for comment.  Rule 30(a) of the
Commission Rules says, "[E]xcept as provided herein, there are no specific
requirements as to the form of any pleading."  Moreover, in the instant case,
the relevant portion of the Secretary's brief was clearly labeled a motion to amend, and I
see no reason to require him to submit two separate documents.  The Secretary could,
of course, have styled his submission as a "Brief of the Secretary, and Motion to
Amend," but certainly no one was misled in this case, particularly since the
amendment issue was directed for review.

The Administrative Law Judge decision in this matter is unavailable in this
format.  To obtain a copy of this document, please request one from our Public
Information Office by e-mail ( [email protected]
), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).

FOOTNOTES:

[[1]] Federal Rule 15 applies to Commission proceedings because the Commission has not
prescribed a different rule on the point. See section 12(g) of the Act, 29 U.S.C. �
661(f); Commission Rule 2(b), 29 C.F.R. � 2200.2(b).

[[2]] Section 5(a)(1) of the Act states that "[e]ach employer shall
furnish to each of his employees employment and place of employment which are free from
recognized hazards that are causing or are likely to cause death or serious physical harm
to his employees[.]"

[[3]] Item two of the citation was withdrawn by the Secretary on review.

[[4]] International Harvester Credit Corp. v. East Coast Truck, 547 F.2d 888
(5th Cir. 1977); 3 Moore's Federal Practice � 15.13[2] at 15-171, 15-172 (1980).

[[5]] "The reasoning behind this view is sound since . . . the opposing
party may not be conscious of [the evidence's] relevance to issues not raised by the
pleadings unless that fact is specifically brought to his attention." 6 Wright and
Miller, Federal Practice & Procedure: Civil � 1493 at 466-7 (1971). To the extent
that Commission cases hold or intimate that prejudice to the party opposing the motion
determines whether amendments will be allowed under the first half of Rule 15(b) without
regard to whether implied consent to try the issues was present, e.g., Crawford
Construction Co., 82 OSAHRC 16/A2, 10 BNA OSHC 1522, 1525, 1982 CCH OSHD � 25,984, p.
32,605 (No. 79-928, 1982), rev'd without published opinion, No. 82-3350 (6th Cir. Aug. 10,
1983), they are overruled.  Reliance on prejudice necessarily requires the Commission
to rest its ruling entirely on speculation about how the parties might have presented
their claims and defenses if they had recognized that an unpleaded issue was being tried.
Aside from the practical difficulties of predicting what might have been, reliance on
prejudice would be inconsistent with the text of the first half of Rule 15(b) and its very
hypothesis--that unpleaded issues were tried by the parties' consent. Where there is
evidence sufficient to demonstrate implied consent to try an unpleaded issue, the party
opposing the motion may show that amendment nevertheless is inappropriate by showing
prejudice.

[[6]] A party opposing a motion has ten days under Commission Rule 37, 29
C.F.R. � 2200.37, to file a response in opposition to the motion.  Without leave of
the Commission, parties have no right to file reply briefs, however.  See Commission
Rule 93(b)(4), 29 C.F.R. 2200.93(b)(4).  A party opposing a motion made in an
answering brief may therefore be misled into believing that he is not entitled as of right
to respond to the motion, may not notice the short time in which to do so, and may go
unnecessarily through the extra trouble and expense of filing a motion for leave to file a
reply brief to respond to the motion.  Here, however, the amendment was suggested in
the direction for review, and respondent had ample opportunity to brief the issue even if
it did not respond to the motion.  Here, however, the amendment was suggested in the
direction for review, and respondent had ample opportunity to brief the issue even if it
did not respond to the motion in the Secretary's brief.

[[1]] I note that the issue of whether to amend was in the Direction for
Review and should have alerted Respondent to this question.

[[1]] 29 U.S.C. Sec. 651 et seq. (1970).

[[1]] The Federal Rules of Civil Procedure are made applicable to the
proceedings of the Occupational Safety and Health Review Commission (OSHRC) by Rule 2(b)
of the OSHRC's Rules of Procedure, 29 C.F.R. � 2002.2(b).