P.A.F. EQUIPMENT CO., INC.

OSHRC Docket No. 14315

Occupational Safety and Health Review Commission

March 22, 1979

[*1]

Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

T. A. Housh, Jr., Regional Solicitor, U.S. Department of Labor

William S. Harding, for the employer

OPINIONBY: COTTINE

OPINION:

DECISION

COTTINE, Commissioner:

The issues before the Commission are whether a citation alleging a serious violation of 29 C.F.R. 1910.217(c)(1)(i) n1 may be amended by the complaint to allege a willful violation of the same standard and, if so, whether a willful violation was shown on the facts of this case. In proceedings below, Administrative Law Judge Alan M. Wienman concluded that a citation alleging a serious violation may not be amended to charge a willful or repeated violation after an employer files a notice of contest. He ruled that the Respondent, P.A.F. Equipment Co., Inc. ["P.A.F."], was in serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ["the Act"], for failure to comply with the requirements of 1910.217(c)(1)(i). P.A.F. was engaged in the manufacture of various types of hand tools at its Hiawatha, Kansas worksite when it was inspected by an OSHA compliance officer on July 18, 1975. [*2] A citation n2 alleging a serious violation of 1910.217(c)(1)(i) and a notification proposing a penalty of $700 were issued on July 22, 1975. P.A.F. timely contested. Subsequently, the Secretary filed his complaint. Paragraphs V and VI of the complaint sought to amend the citation to allege a willful violation of the standard with a proposed penalty of $5600 or alternatively a serious violation and $700 penalty as originally proposed. In its answer, P.A.F. objected to the amendment as "an arbitrary and capricious abuse of administrative discretion."

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n1 The standard provides as follows:

1910.217 Mechanical power presses.

* * *

(c) Safeguarding the point of operation -- (1) General requirements. (i) It shall be the responsibility of the employer to provide and insure the usage of "point of operation guards" or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press. See Table 0-10.

n2 The citation described the alleged violation as follows:

Point of operation guarding or point of operation devices that will prevent the operator from having any part of his body in the danger zone during the operation cycle is not provided on the following mechanical power presses:

(a) The Niagara #24296 and the Bliss #16436 located in the vise grip area.

(b) Presses #1, #2, #3, #4, #5, #6, #7, #8, #10, #11, and #12 located in the press room.

[*3]

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At the commencement of the hearing on October 29, 1975, P.A.F. moved to strike the paragraphs of the complaint alleging a willful violation and proposing an increased penalty on the ground that the amendment substantially altered the cause of action. The judge initially denied the Respondent's motion to strike the willful allegation from the complaint. However, in view of the continuance granted in response to P.A.F.'s motion, Judge Wienman indicated that he would reconsider his denial of the Respondent's motion to strike the amended paragraphs of the complaint before reconvening the hearing.

On December 9, 1975, Judge Wienman issued an order denying the Respondent's motion to dismiss paragraphs V and VI of the complaint. He concluded that the amendment was in conformity with Commission Rule 33(a)(3), 29 C.F.R. 2200.33(a)(3), and that it was not prohibited by the Federal Rules of Civil Procedure. In the same order, the judge granted P.A.F.'s request that the issue be certified to the Commission for interlocutory appeal under Commission Rule 75, 29 C.F.R. 2200.75. Without expressing any view [*4] on the merits of the amendment issue, the Commission dismissed the certification of interlocutory appeal as improvidently granted. On February 24, 1976, the hearing was reconvened. The issue tried was whether P.A.F. willfully violated 1910.217(c)(1)(i) or, in the alternative, whether it committed a serious violation of that standard. On September 2, 1976, Judge Wienman issued his decision and order in which he reconsidered and reversed his earlier ruling on the amendment issue. He then considered only the allegation that the violation was serious and held that P.A.F. had committed a serious violation of the cited standard. The Secretary filed a timely petition for discretionary review. In that petition he excepted to Judge Wienman's denying the amendment and to the judge's conclusion that the violation was serious rather than willful. Chairman Cleary directed that the case be reviewed by the Commission under 12(j) of the Act, 29 U.S.C. 666(i).

I

A number of inspections have been conducted at P.A.F.'s worksite. Three of those inspections involved P.A.F.'s failure to use point of operation guarding on its mechanical power presses used in the routine production process. [*5] In order to manufacture various tools, different dies are installed in the Respondent's punch presses. Compliance officers Hansen and Foster testified at the hearing that the hazard resulting from the absence of guarding is the potential smashing or amputation of the operator's hands and arms. P.A.F. does not dispute this description of the hazard.

The first inspection involving P.A.F.'s failure to maintain point of operation guarding occurred on January 27, 1972. At that time, compliance officer Hansen advised P.A.F.'s President and General Manager, Paul Froeschl, that those presses without point of operation guards would be in violation of 29 C.F.R. 1910.212(a)(3)(ii) n3 when that standard became effective on February 15, 1972. No citation was issued due to the delayed effective date of the standard.

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n3 That standard provides:

1910.212 General requirements for all machines.

(a) Machine guarding.

* * *

(i) Point of operation guarding.

(ii) The point of operation of machines whose operation exposes an employee to injury, shall be guarded. 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.

[*6]

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The second inspection of P.A.F.'s facility was conducted by compliance officer Foster on September 12, 1973. The compliance officer observed a number of presses. No point of operation guarding or protective devices of any kind were provided. Foster liscussed the unguarded presses with President and General Manager Froeschl during the walkaround inspection, and a citation was issued on September 19, 1973, alleging lack of point of operation guarding on mechanical power presses in violation of 1910.212(a)(3)(ii). Both parties agreed at that time that 1910.217(c)(1)(i) dealing with mechanical power presses was more specifically applicable than 1910.212 (a)(3)(ii), the general machine guarding standard. According to the testimony of the Secretary's counsel, the citation was withdrawn based on the delayed effective date of August 31, 1974 for 1910.217(c)(1)(i) and on the assurance by the Respondent's attorney that when 1910.217(c)(1)(i) became effective P.A.F.'s machines would be in compliance. n4 Settlement was accomplished by an agreement in which the Secretary withdrew this citation.

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n4 At the February 24th hearing, P.A.F.'s attorney denied making that promise. In view of the judge's holding that the willful allegation was not before him, Judge Wienman did not resolve the conflict in the testimony as to the alleged promise of compliance.

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The third inspection was conducted by compliance officer Foster on July 18, 1975. That inspection resulted in the issuance of the present citation. At the hearing, Foster testified that P.A.F.'s President and General Manager stated that the machines in question were the same machines observed without point of operation guarding during the 1973 inspection. The hazard of smashing or amputation assertedly remained unchanged. The compliance officer stated that machine guards in compliance with 1910.217(c)(1)(i) would effectively remove that hazard by keeping parts of the operator's body out of the point of operation.

Judge Wienman concluded that a citation alleging a serious violation may not be amended to charge a willful or repeated violation after an employer [*8] files a notice of contest. Such an amendment, he reasoned, would deprive the employer of an essential element of procedural due process -- the right to adequate notice. According to the judge, adequate notice requires full disclosure of the nature of the charge before the employer is required to decide whether it will contest the citation. The judge emphasized that none of the documents served on P.A.F. indicated that an employer who chose to contest the citation could be assessed a penalty in excess of $1,000. n5 Therefore, he concluded that the Respondent was given inadequate notice of the nature of the amended charge.

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n5 The original citation alleged a serious violation of the standard. Section 17(b) of the Act, 29 U.S.C. 666(b), provides that the maximum penalty for a serious violation is $1000. However, 17(a) of the Act, 29 U.S.C. 666(a), provides that, "Any employer who willfully or repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than $10,000 for each violation."

[*9]

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Judge Wienman found that P.A.F. operated a number of machines not in compliance with 29 C.F.R. 1910.217(c)(1)(i). Since the absence of point of operation guards was known to P.A.F. and presented a substantial probability of serious physical harm, he affirmed the violation as serious. Based on the criteria of 17(j) of the Act, 29 U.S.C. 666(i), the judge assessed the $700 penalty originally proposed by the Secretary.

II

In his petition for discretionary review and brief, the Secretary maintains that a prehearing amendment that alleges a more severe charge and a higher penalty does not deny the employer his due process rights. Instead, the Secretary asserts that every employer is "on notice" as part of its continuing duty to comply with the Act that a $10,000 penalty could be assessed against it if a "willful" violation is proven. Thus, the Secretary argues that the requirements of procedural due process are met so long as the Complainant must prove the elements of a willful violation, and the employer has an opportunity to be heard.

The Secretary further argues that, consistent with National [*10] Realty and Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973), the Commission should liberally construe amendments to citations drafted by nonlegal personnel. Furthermore, the Secretary claims that the amendment sought in this case would not prejudice the employer because the amendment was offered nearly six months before the hearing. Finally, the Secretary argues that the change in the characterization of the underlying violation from serious to willful does not amount to the substitution of a new cause of action because the basic factual allegations remain constant and only serve to prove a more severe violation of the same standard.

P.A.F. contends that an amendment by the Secretary that substantially alters the cause of action is improper because the Respondent is denied procedural due process. On these facts, P.A.F. argues that a new cause is introduced by the amendment inasmuch as the potential penalty increases from $1000 to $10,000. In addition, it argues that there are significant differences between a serious and a willful violation, the latter requiring a showing of an "intentional and knowing" violation of the Act.

P.A.F. further contends that the amendment [*11] in this case would be improper on the grounds that the Secretary did not comply with the requirements set forth in sections B.2.a. and B.4.b of Chapter X of the Field Operations Manual n6 or with Commission Rule 33(a)(3). n7 The Respondent asserts that the attempted amendment is invalid because the Secretary ignored his own procedure by failing to amend the citation before the timely filing of the Respondent's notice of contest. Moreover, it contends that the Secretary failed to adequately state the reason for the amendment as required by Commission Rule 33(a)(3) and that the proferred reasons were invalid. Endorsing the judge's reasoning below, P.A.F. argues that the effect of the Secretary's amendment would be to place a "chilling effect" on the Respondent's exercise of its statutory rights. It argues that the proposed amendment would contravene constitutional requirements as well as principles of fundamental fairness.

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n6 Sections B.2.a. and B.4.b. of Chapter X of the Field Operations Manual states:

2.a. An amendment to, or withdrawal of, a citation is permissible only if the employer has not filed a notice of contest as to that citation and the 15-working-day period for filing a notice of contest has not yet expired.

4.b. If the proposed amendment to a citation would change the nature of classification of the original citation; e.g., nonserious to serious, the original citation should be withdrawn and a new, appropriate citation issued.

n7 Rule 33(a)(3), 29 C.F.R. 2200.33(a), states:

Where the Secretary seeks in his complaint to amend his citation or proposed penalty, he shall set forth the reasons for amendment and shall state with particularity the change sought.

[*12]

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III

Where fair notice is given, administrative pleadings are liberally construed and easily amended. As noted by the U.S. Court of Appeals for the District of Columbia Circuit in National Realty and Construction Company, Inc. v. OSHRC, supra at 1264, "the rule has particular pertinence here for citations under the 1970 Act are drafted by nonlegal personnel, acting with the necessary dispatch. Enforcement of the Act would be crippled if the Secretary were inflexibly held to a narrow construction of citations issued by his inspectors." n8

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n8 In his brief, the Secretary argues that the above statement has particular relevance to the amendment issue in this case since "[t]he appropriate characterization of a violation is particularly a matter of legal judgment, especially where, as in the case of a willful violation, the law is unclear."

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The Commission has consistently approved the granting of pre-hearing amendments where [*13] there is no showing by the party objecting to the amendment that it would be prejudiced in the preparation or presentation of its case. Constructora Maza, Inc., 78 OSAHRC 6/E2, 6 BNA OSHC 1309, 1977-78 CCH OSHD P22,487 (Nos. 13680 & 14509, 1978); Schiavone Construction Company, 77 OSAHRC 78/A2, 5 BNA OSHC 1385, 1977-1978 CCH OSHD P21,815 (No. 12767, 1977), appeal dismissed, No. 77-1807 (3d Cir. 1978); Mid-Plains Construction Co., n9 75 OSAHRC 81/D2, 2 BNA OSHC 1728, 1974-1975 CCH OSHD P19,484 (No. 4584, 1975). Amendment well before the hearing will rarely result in any prejudice. Henkels & McCoy, Inc. 76 OSAHRC 143/C2, 4 BNA OSHC 1502, 1976-1977 CCH OSHD P20,944 (No. 8842, 1976); See Coastal Pile Driving, Inc., 77 OSAHRC 206/F3, 6 BNA OSHC 1133, 1977-1978 CCH OSHD P22,375 (No. 15043, 1977). Moreover, the introduction of new factual material is not precluded where the citation is amended by the complaint. Otis Elevator Company, 78 OSAHRC 88/E5, 6 BNA OSHC 2048, 1978 CCH OSHD P23,135 (No. 16057, 1978); Henkels & McCoy, Inc., supra.

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n9 In Mid-Plains Construction Company, supra, it was noted that under Fed. R. Civ. P. 15(a) a party is entitled to amend its pleadings once as a matter of right before a responsive pleading is served. For purposes of proceedings before the Commission other than those involving Fed. R. Civ. P. 41(a)(1), the answer is the first responsive pleading. See IMC Chemical Group, Inc., 6 BNA OSHC 2075, 1978 CCH OSHD P23,149 (No. 76-4761, 1978).

[*14]

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In this case, the parties disagree as to whether the amendment of the citation in the complaint to allege a willful rather than a serious violation would result in a new and unrelated cause of action or claim for relief. The general test for determining whether there is a change in the cause of action is whether the original and the amended charges arise out of the same conduct, transaction or occurrences. Diamond Engineering Company, 2 BNA OSHC 1585, 1974-1975 CCH OSHD P19,304 (No. 4217, 1975). See Fed. R. Civ. P. 15(c); See, e.g., Flaherty v. United Engineers & Constructors, Inc., 213 F. Supp. 835 (E.D. Pa. 1961). P.A.F.'s contention that the amendment alleged a different cause of action and is therefore not permissible under the Federal Rules of Civil Procedure is rejected. The "willful" characterization of a violation is addressed only in the penalty section of the Act. Inasmuch as the appropriateness of the penalty is always before the Commission in a contested case, n10 an amendment to allege a willful rather than a serious violation does not change the underlying cause [*15] of action. It merely serves to charge a more severe violation of the same standard. n11

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n10 Brennan v. OSHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973); Thorleif Larsen and Son, Inc., 74 OSAHRC 74/C8, 1 BNA OSHC 1095, 1971-1973 CCH OSHD P15,401 (No. 370, 1973), appeal dismissed, No. 73-1232 (7th Cir. 1974).

Section 17(j) of the Act, 29 U.S.C. 661(i), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

n11 To the extent that amendment from a serious to a willful allegation amounts to a change in the legal theory of the case, amendment is nevertheless proper in the absence of the objecting party being prejudiced in the presentation of its case. Otis Elevator Company, supra; See McLean-Behm Steel Erectors, Inc., 6 BNA OSHC 2081, 1978 CCH OSHD P23,139 (No. 15582, 1978) (where the amendment is sought under Fed. R. Civ. P. 15(b), the relevant consideration to determine the appropriateness of an amendment is whether there is prejudice to the objecting party).

[*16]

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With respect to the Respondent's claim that amendment would have a "chilling effect" on the exercise of its statutory rights, it is settled that OSHA enforcement procedures do not violate the due process requirements of the Constitution by "chilling" an employer's right to initiate a hearing even though a higher penalty may be assessed by the Commission. Clarkson Construction Co. v. OSHRC, 531 F.2d 451 (10th Cir. 1976); Dan J. Sheehan Co. v. OSHRC, 520 F.2d 1036 (5th Cir. 1975), cert. denied, 424 U.S. 965 (1976); Worcester Pressed Steel Co., 75 OSAHRC 89/A2, 3 BNA OSHC 1661 1975-1976 CCH OSHD P20,104 (Nos. 4237 & 4430, 1975); Havens Steel Company, 78 OSAHRC 53/C11, 6 BNA OSHC 1740, 1978 CCH OSHD P22,875 (No. 15538, 1978).

Furthermore, P.A.F. would not be prejudiced by the amendment of the citation in the complaint to allege a willful rather than a serious violation. In Long Manufacturing Co., 554 F.2d 903 (8th Cir. 1977), the court approved an amendment of the citation and proposed penalty in the complaint where the initial charge involved repeated violations with [*17] penalties of $350 and the amendment alleged failure to abate previously cited violations with a proposed penalty of $8,700. In rejecting the employer's claim that the amendment was improper, the court stated:

Petitioner was not surprised or prejudiced in any way by the change in the nature of the charge, and it was not prejudiced by the increase in the amount of the proposed penalty except in the sense that if petitioner had accepted the initial proposal it would probably not have been faced with a higher proposal later. That however, is not legal prejudice.

554 F.2d at 907-908.

The court further stated:

An employer may accept the citation and proposed penalty without protest if he chooses to do so, but in our view if he chooses to contest the matter before the Commission, he does not have any vested right to go to trial on the specific charge mentioned in the citation or to be free from exposure to a penalty in excess of that originally proposed.

554 F.2d at 907.

In the present case, evidence concerning the factors relevant to the issue of willfulness, such as P.A.F.'s intent to comply or carelessness in not complying, its good faith or lack of good faith, and its history [*18] of previous inspections and violations was readily available to the Respondent. Moreover, P.A.F. does not contend that the preparation of its case was hampered by changing conditions or the disappearance of witnesses or that any other prejudice would arise from the amendment. In fact, the issue of willfulness was thoroughly tried at the hearing. Thus, the Respondent's assertion that the amendment of the charge from serious to willful deprived it of adequate notice and opportunity to prepare its defense is without factual basis. n12

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n12 Inasmuch as the judge found the Secretary's amendment to be improper, he considered exclusively the merits of the original allegation charging a "serious" violation. On review, however, the Commission is obligated to consider the record as a whole. Consequently, we are not precluded from making findings of fact or conclusions of law regarding the issue of willfulness as long as that issue was fully tried at the hearing. Accu-Namics, Inc. v. OSAHRC & Dunlop, 515 F.2d 828 (5th Cir. 1975), cert. denied, 425 U.S. 903 (1976).

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Respondent additionally contends that the amendment is invalid because the Secretary did not comply with the requirements of the Field Operations Manual, supra at n. 7. However, the Respondent misinterprets the meaning of the Manual's provisions. These provisions deal only with amendments prior to the filing of a notice of contest. They do not purport to deal with amendments occurring after a notice of contest has been filed, presumably in recognition of the fact that this type of amendment is governed by the Commission's Rules and cannot be accomplished unilaterally by the Secretary. Moreover, the Secretary's Field Operations Manual is merely directory and serves only as an internal administrative guide for OSHA. It does not have the force of law and is thus not binding on the Secretary or on the Commission. FMC Corporation, 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-1978 CCH OSHD P22,060 (No. 13155, 1977). For the foregoing reasons, the Secretary's amendment of the citation in the complaint to allege a willful rather than a serious violation of the cited standard is proper, and Judge Wienman erred in denying [*20] the amendment.

IV

P.A.F. does not dispute the existence of the violation. Instead, it challenges the definition of a "willful" violation and asserts that the evidence does not support finding a willful violation in this case. P.A.F. relies upon the definitions of "willful" set forth in Frank Irey, Jr., Inc. v. OSHRC, 519 F.2d 1200 (3d Cir. 1974), and U.S. v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975). The Respondent contends that its failure to comply was not willful because its conduct did not amount to an obstinate refusal to comply and it never deliberately or knowingly "flaunted" the Act. Furthermore, P.A.F. asserts that its conduct does not indicate the intentional disregard of a standard required to find a willful violation under Dye Construction Co., supra.

The Secretary argues that P.A.F. has demonstrated a deliberate and knowing disregard of the requirements of the Act. He argues that P.A.F. "was, in effect, warned twice about the inadequacy of the protection it was providing its employees" and that P.A.F. had notice of the applicability of that standard as a defense to a citation issued in 1973. Moreover, the Secretary emphasizes that P.A.F. [*21] had actual knowledge of the violative conditions in July, 1975.

The Commission defines a "willful" violation as action taken knowledgeably by one subject to the statutory provisions of the Act in disregard of the action's legality. No showing of malicious intent is necessary. A conscious, intentional, deliberate, voluntary decision is properly described as willful. Kent Nowlin Construction, Inc., 77 OSAHRC 22/A2, 5 BNA OSHC 1051, 1977-1978 CCH OSHD P21,550 (No. 9483 et al., 1977), appeal docketed, No. 77-1258 (10th Cir., April 18, 1977). This position is consistent with the views of the U.S. Courts of Appeals for the First, Fourth, Sixth, and Tenth Circuits. Empire Detroit Steel Division, Detroit Steel Corp. v. OSHRC and Marshall, 579 F.2d 378 (6th Cir. 1978); Intercounty Construction Company v. OSHRC, 522 F.2d 777 (4th Cir. 1975) cert. denied 423 U.S. 1072 (1976); U.S. v. Dye Construction Company, supra; F.X. Messina Construction Corp. v. OSHRC, 505 F.2d 701 (1st Cir. 1974). Furthermore, the Commission has found a willful violation based on conduct marked by a careless disregard of the standard or of employee safety. National [*22] Steel & Shipbuilding Company, 78 OSAHRC 48/A2, 6 BNA OSHC 1680, 1978 CCH OSHD P22,808 (Nos. 11011 & 11769, 1978), appeal docketed, No. 78-2695 (9th Cir., August 3, 1978); Constructora Maza, Inc., supra.

P.A.F. argues against the willful characterization on the basis of two facts which, it argues, show that the violation was not willful. First, it stresses that its President and General Manager Froeschl was never informed of the precise deficiencies of the presses or how to correct any problems. Second, P.A.F. argues that the only reason for the Secretary's amendment to a willful allegation is the purported promise of P.A.F.'s attorney.

We conclude that the Respondent's first contention is without merit. The compliance officers repeatedly informed Froeschl that P.A.F.'s mechanical power presses were deficient because they lacked point of operation guarding. As for the failure to specify how the machines should be guarded, the proper inquiry is one of "impossibility" rather than feasibility. The burden of proving "impossibility" of compliance rests with the employer as an affirmative defense. Hughes Brothers, Inc., 78 OSAHRC 65/A2, 6 BNA OSHC 1830, 1978 CCH [*23] OSHD P22,909 (No. 12523, 1978). Moreover, the Respondent does not assert that it had a good faith belief that it was in compliance with the standard nor does it directly claim that it was confused as to its obligations under the standard. It offers no justification for its failure to comply. Under these circumstances its contention that the violation was not willful because OSHA did not adequately inform it of its obligations is rejected. As stated in National Steel & Shipbuilding Co., supra, "Where the standard unambiguously forecloses an employer from deciding that [compliance is] unnecessary, such conduct, at the least, constitutes careless disregard of the standard and is therefore properly denominated willful."

In determining whether the violation is willful we do not consider the asserted promise of the Respondent's attorney that P.A.F. would comply with 1910.217(c)(1)(i) when that standard became effective. Instead, we rely on the Respondent's past history with respect to the various provisions for mechanical power presses. At the January 27, 1972 inspection, compliance officer Hansen observed mechanical power presses without point of operation guarding. At [*24] that time the compliance officer discussed with P.A.F.'s President and General Manager the standard and the delayed effective dates for compliance.

During the second inspection on September 12, 1973, compliance officer Foster observed and noted the absence of point of operation guards on the mechanical power presses. After the issuance of a citation alleging non-compliance with 1910.212(a)(3)(ii), the general machine guarding standard, an informal conference was held where P.A.F.'s attorney asserted that a more specific standard, 1910.217, applied to the Respondent's mechanical power presses. P.A.F. was aware of this specifically applicable standard and its August 31, 1974 effective date to such an extent that it apparently persuaded the Secretary to agree to a settlement agreement which withdrew the citation. P.A.F.'s demonstrated knowledge of the two standards, in combination with the previous warnings from officers Hansen and Foster that compliance was necessary, establishes that P.A.F.'s violation of 1910.217(c)(1)(i) at the time of the third inspection on July 18, 1975, was a product of its careless disregard of the standard. The violation was therefore willful. [*25] National Steel & Shipbuilding Company, supra; Constructora Maza, Inc, supra.

V

A penalty in the amount of $5600 was proposed by the Secretary for the willful violation of the Act. The appropriateness of the penalty must be determined in light of the Respondent's size, good faith, history of previous violations and the gravity of the violation. 29 U.S.C. 666(i). At its Hiawatha, Kansas worksite, P.A.F. employed 150 workers. The Respondent had been advised twice previously that compliance was necessary, but no prior citation for violation of 1910.217(c)(1)(i) had been issued because of the standard's delayed effective date. Despite these warnings, P.A.F. made no effort to guard the point of operation on its machines. In the event of an accident, the probable resultant injury to a power press operator would have been the severe smashing or amputation of hands and arms. On balance, we conclude that the proposed penalty of $5600 is appropriate under 29 U.S.C. 666(i).

Accordingly, the order of the Administrative Law Judge is reversed, a willful violation of 1910.217(c)(1)(i) is affirmed, and a penalty of $5600 is assessed. IT IS SO ORDERED.

CONCURBY: BARNAKO

CONCUR:

BARNAKO, [*26] Commissioner, Concurring:

Although I agree, for the reasons stated in the lead opinion, that P.A.F. committed a willful violation of the standard at 29 C.F.R. 1910.217(c)(1)(i), I dissociate myself from a statement made in footnote 9 of that opinion.

The statement cites IMC Chemical Group, Inc., 78 OSAHRC    /   , 6 BNA OSHC 2075, 1979 CCH OSHD P23,149 (No. 76-4761, 1978), for the following proposition: "For purposes of proceedings before the Commission other than those involving Fed. R. Civ. P. 41(a)(1), the answer is the first responsive pleading." The majority in IMC Chemical, however, from which I dissented, do not anywhere state that proposition. Rather they appear to hold that an answer is never the first responsive pleading in proceedings before the Commission but that instead a notice of contest is.

In finding that a notice of contest is analagous to an answer, and that therefore a notice of contest is the first responsive pleading, the majority in IMC Chemical carefully set forth all the similarities they perceived between answers and notices of contests that justified their finding. In now asserting that notices of contest are not the first responsive [*27] pleadings for purposes of Rule 15(a), even though they are for purposes of Rule 41, my colleagues have not only created a prodigious inconsistency but they have failed to give any reasons for such action. Indeed by simply noting the inconsistency, the majority lend credence to my position that a notice of contest should not be treated as an answer in any Commission proceeding.