SECRETARY OF LABOR,

Complainant,

v.

SEWARD MOTOR FREIGHT, INC.,

Respondent.

OSHRC Docket No. 86-1691

_DECISION _

Before: BUCKLEY, Chairman, and AREY, Commissioner.

BY THE COMMISSION:

The issue before us is whether the Administrative Law Judge erred in
granting the Secretary of Labor's post-hearing motion to amend her
complaint from alleging a serious violation of section 5(a)(1) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. § 654(a)(1))
[[1/]] to alleging a willful violation. We find that the judge did err
in granting the Secretary's motion. Therefore, we reverse the judge's
decision and find a serious violation, as originally alleged.

A

Seward Motor Freight operates a semi-trailer repair facility in Seward,
Nebraska. Some of the work done by employees involves repairs to the
sides and roofs of trailers. Originally, fourteen-foot ladders were used
to gain access to the sides and roofs. However, Mr. Tanderup, the
president of Seward, noticed that employees using ladders would not move
the ladder to repair large areas of damage but would instead lean over
from the ladder and try to fix the damage. Mr. Tanderup spoke to his
shop foreman and told him that he no longer wanted employees to use
ladders for repairing trailers because he was afraid the employees would
fall. Mr. Tanderup and the shop foreman then welded a platform assembly
and attached it to the forks of a forklift. Mr. Tanderup stated that he
had always instructed his mechanics "that an operator hoist the person
[on the platform] up to the top [of the roof] to work on it," but that
he was "unable to see everything that happens in the shop." He
acknowledged that "a lot of times" the mechanics would either crawl up
the forklift onto the platform or place the ladder next to the forklift
and climb onto the platform. Scott Pekarek, a former employee of Seward,
testified that roughly ninety-eight percent of the time a single
employee would take the forklift to a work site, operate the controls to
raise the platform, and then climb up to the platform.

On June 9, 1996, Loren Toovey, an employee of Seward, fell from the top
of the roll cage of the forklift. He had just performed work on top of
the roof of a trailer and was climbing down the forklift mast onto the
roll cage of the forklift when he fell. The roll cage consisted of ribs
spaced roughly four inches apart, and the cage was approximately seven
feet above the floor. Toovey fell from that height, seriously injuring
his wrists during the fall, and on hitting the ground was rendered
unconscious.

After the accident, employees were not told to change their method of
gaining access to the forklift platform. Instead, employees continued to
climb up onto the elevated platform after the accident, and they did not
cease this practice until the worksite was inspected by an OSHA
compliance officer on October 27, 1986. The compliance officer inspected
the platform and told Seward that the platform violated the requirements
of Section 513, American National Standards Institute (ANSI) B56.1-1975,
Safety Standard for Low Lift and High Lift Powered Industrial Trucks.
This ANSI standard governs the safe operation of powered industrial
trucks (including forklifts) while employees are being elevated on a
safety platform. The day after the inspection Seward removed the
platform from the forklift.

B

On November 6, 1986, OSHA issued to Seward a citation alleging a serious
violation of section 5(a)(1). The citation asserted that employees were
exposed to the hazard of falling from the forklift because the platform
should have either been equipped with vertical hoisting controls
elevatable with the lifting carriage, or there should have been an
operator in the control position on the truck when employees were
elevated. Seward contested the citation and the proposed penalty of $350.

A hearing was held on July 21, 1987. Seward was represented by Mr.
Tanderup, who is not a lawyer. After the parties had finished presenting
their evidence, the judge commented that the violation could have been
categorized as willful because Seward did not take any corrective action
until after the OSHA inspection. [[2/]] The judge also suggested that
the proposed penalty was inappropriately low. [[3/]] Seward did not
object to or make any comments on the judge's observations.

On July 28, 1987, the Secretary filed a post-hearing motion under Rule
15(b) of the Federal Rules of Civil Procedure [[4/]] to amend the
pleadings from a serious violation to a willful violation. On September
2, 1987, the Secretary filed a post hearing brief in which he argued
that Seward's violation of section 5(a)(1) was willful, and that the
penalty should be increased to $4,500. Seward, still proceeding without
legal counsel, did not object to the Secretary's motion and did not file
a post-hearing brief.

On September 23, 1987, the judge issued his decision, in which he
granted the Secretary's motion to amend, found Seward to have willfully
violated section 5(a)(1), and assessed a penalty of $1,750. The judge
found that "[o]n a daily basis and for a considerable period of time
[Seward's] employees were exposed to the hazard of falling from various
heights of up to 12 feet" while climbing to the work platform and that
the hazard was recognized by the president of Seward. The judge agreed
with the Secretary's argument that the platform was a hazard recognized
by users of powered industrial trucks, as established by section 513,
ANSI B56.1-1975, Safety Standard for Low Lift and High Lift Powered
Industrial Trucks.[[5/]] The judge found the violation to be willful
because:

To continue to permit the use of the offending equipment after the
accident in the same manner as it was used before the accident and to do
so until investigated and cited by OSHA amounts to [a] willful violation
of the duty imposed on all employers by the Act to " . . . furnish to
each employee employment and a place of employment . . . free from
recognized hazards . . . likely to cause death or serious physical harm
. . . ."

Seward, now represented by counsel, filed a petition for discretionary
review. Seward did not take exception either to the judge's finding of a
section 5(a)(1) violation or to his ruling granting the amendment, but
argued only that the violation was not willful. Nevertheless, when he
directed this case for review, Chairman Buckley specifically included
the correctness of the judge's ruling on the Secretary's Rule 15(b)
motion as an issue to be considered by the Commission.

C

1. _Effect of Seward's Failure to Object to Amendment Before the
Administrative Law Judge._

The Secretary argues that "[b]ecause [Seward] did not raise the issue of
the propriety of the amendment before the judge that issue should not be
considered by the Commission on review" and that doing so "would be an
abuse of discretion." The Secretary asserts that our review of this
issue "would be an injustice" because "[i]t is not the province of the
Commission to act as counsel for a party and search the record for
issues neither raised before the judge nor even raised by a party's
counsel in its petition for discretionary review."

Normally, we will not review issues "that the judge did not have the
opportunity to pass upon." Commission Rule 92(c), 29 CFR § 2200.92(c).
That rule, however, does not apply here. The issue on review is whether
the amendment changing the classification of the violation from serious
to willful was proper. The judge did have the "opportunity to pass upon"
that issue since the Secretary himself raised that issue before the
judge when he moved to amend. The fact that the judge failed to consider
whether the motion was proper under Rule 15(b) and relevant case law
does not mean that the issue was not before him.

Thus, the Secretary is wrong in equating Seward's failure to object to
the amendment with the amendment issue not having been raised before the
judge. In arguing that the issue was not "raised before the judge," the
Secretary is really saying that Seward's failure to object when the
motion was made waived any objection to the motion and justified the
judge's summary granting of the motion. This argument is inconsistent
with Commission precedent and practice. Under Commission precedent, it
is not mandatory that a party respond to a motion. _Smith's Transfer
Corp.,_ 3 BNA OSHC 1088, 1974-75 CCH OSHD ¶ 19,544 (No. 5786, 1975). A
party's failure to object does not relieve the judge from the obligation
of considering the merits of the motion. [[6/]] _Id.,_ 3 BNA OSHC at
1090, 1974-75 CCH OSHD at p. 23,334. And since it is not mandatory for a
party to respond to a motion, the lack of a response cannot waive the
party's right to later object to the granting of the motion. The
circumstances of this case make it particularly inappropriate to_hold
against Seward_ its failure to object to the amendment when the motion
was made. The judge had already announced at the hearing that he
considered the violation willful, and this may well have led Seward to
conclude that an objection would have been futile. Moreover, a Rule
15(b) motion to allege a willful violation of section 5(a)(1) raises
complex legal issues that even an experienced OSHA litigator would have
difficulty analyzing. We would hardly expect a _pro se_ employer to
comprehend the full implications of the events beginning with the
judge's _sua sponte_ interjection of the willfulness issue into the case.

2. _Effect of Seward's Failure to Raise the Amendment in the Petition
for Discretionary Review._

The Secretary also argues that we should not address the propriety of
the amendment because Seward did not raise that as an issue in its
Petition for Discretionary Review. The Secretary asserts that we would
be acting as counsel for Seward if we decide the issue when Seward's
counsel did not first raise it. We reject the argument.

The Commission seeks to provide the parties with "an expeditious,
_just,_ and inexpensive determination of every case." Rule 2(c), 29
C.F.R. § 2200.2(c) (emphasis added). Like any adjudicatory body, that
may require us to go beyond the precise arguments made by a party in
appropriate circumstances. [[7/]] _See, e.g.,_ _Teague v. Lane,_ 109
S.Ct. 1060, 1069 (1989) (Supreme Court resolved case on issue not
presented in petition for certiorari and not argued by parties). Here,
Seward's petition for discretionary review argued that willfulness was
not shown. In reviewing the record on, the issue of willfulness, it
became apparent, as will be discussed later, that the issue of
willfulness had not been expressly or implicitly tried. Thus, the
willfulness argument raised by Seward directly brought into question the
propriety of the amendment that injected willfulness into the case. We
do not believe that we are acting as Seward's counsel by considering
this issue.

We also note that each Commissioner has the authority to direct a case
for review on any or all issues in the case, even in the absence of a
petition for review by a party. 29 U.S.C. § 661(j); Commission Rule
92(b), 29 C.F.R. § 2200.92(b). This necessarily means that Commissioners
have the authority to direct review on issues not raised in a petition
for discretionary review. The Commission's policy in determining the
issues to address on appeal is codified in Rule 92(a), 29 CFR §
2200.92(a), which provides:

(a) _Jurisdiction of the Commission: Issues on Review._ Unless the
Commission orders otherwise, a direction for review establishes
jurisdiction in the Commission to review the entire case. The issues to
be decided on review are within the discretion of the Commission but
ordinarily will be those stated in the direction for review, those
raised in the petitions for discretionary review, or those stated in any
later order.

The Commission has recognized that there are prudential limits to its
power to decide issues not raised by the parties. As noted earlier, the
Commission will rarely address issues that were not raised before the
judge. Such a rule is appropriate because the parties will not have had
the opportunity to present evidence that might be relevant to the issue,
and there will be no judge's decision on the point that can provide a
focus for Commission review. But when as here an issue has been raised
before the judge, similar considerations do not apply, and there is no
unfairness in the Commission raising an issue on which the parties have
not focused in a petition for review, so long as the Commission gives
the parties a fair opportunity to argue the issue before it decides the
case._See,_ _e.g.,_ _Farmers Cooperative Grain & Supply Co.,_ 82 OSAHRC
59/C12, 10 BNA OSHC 2086, 1982 CCH OSHD ¶ 26,301 (No. 79-1177, 1982)
(Commission issued supplemental briefing order after review briefs were
received, the Secretary responded by moving to amend the citation, and
the Commission granted the motion.) The Commission's usual procedure,
when it directs review of an issue that has not been raised in a PDR,
has been to decide that issue when the aggrieved party responds to the
direction for review and argues the issue. _Compare Metropak Containers
Corp.,_ 80 OSAHRC 98/C13, 8 BNA OSHC 2112, 1980 CCH OSHD ¶ 24,613 (No.
77- 3861, 1980) (Commission decided issues raised in _sua sponte_
direction when parties responded) _with Lone Star Steel Co.,_ 81 OSAHRC
105/E7, 10 BNA OSHC 1228, 1982 CCH OSHD ¶ 25,825 (Nos. 77-3893, 77-3894,
1981) (Commission declined to address issues directed for review sua
sponte when aggrieved party did not respond and there was no compelling
public interest in Commission review).

In this case, Seward has argued the propriety of the amendment in
response to the direction for review. Thus, it would be consistent with
our past practice for us to address the issue. The Secretary has offered
no reason why this case is so unique that we should depart from the
practice we have consistently followed of resolving issues stated in a
direction for review when the aggrieved party briefs those issues.

3. _Merits of the Motion to Amend._

In _McWilliams Forge Co.,_ 84 OSAHRC 36/C12, 11 BNA OSHC 2128, 1984-85
CCH OSHD ¶ 26,979 (No. 80-5868, 1984), the Commission held that the text
of Rule 15(b) "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."
11 BNA OSHC at 2129, 1984-85 CCH OSHD at p. 34,669 (emphasis original).
The Commission further held that "consent may be found only when the
parties knew, that is, squarely recognized, that they were trying an
unpleaded issue" and that "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." 11 BNA OSHC at 2129, 2130, 1984-85 CCH OSHD at p.
34,669 (footnote omitted).

We must first determine whether the issue of willfulness was tried.
[[8/]] At the hearing, the Secretary attempted to prove that Seward
violated section 5(a)(1). This required the Secretary to prove, among
other things, that Seward "recognized" a hazard. "A hazard is deemed
'recognized' when the potential danger of a condition or activity is
either actually known to the particular employer or generally known in
the industry." _St. Joe Minerals Corp. v. OSHRC,_ 647 F.2d 840, 845 (8th
Cir. 1981). In order to show that a violation was willful, the Secretary
must also show that the employer exhibited an intentional disregard of,
or plain indifference to, the Act's requirements. _Id._ at 847. Thus,
trial of the issue of willfulness would focus on the employer's state of
mind, e.g., its general attitude toward employee safety or toward
compliance with the law, to a much greater extent than would trial of a
non-willful violation. The Commission has previously observed that the
nature of proof differs when a willful violation is alleged:

It is not enough for the Secretary to show that an employer was aware of
conduct or conditions constituting a violation; such evidence is
necessary to establish any violation, serious or nonserious. ... there
must be evidence of such reckless disregard for employee safety or the
requirements of the law generally that one can infer that if the
employer had known of the standard or provision, the employer would not
have cared that the conduct or conditions violated it. _Williams
Enterprises, Inc.,_ 13 BNA OSHC 1249, 1256-1257, 1986-87 CCH OSHD ¶
27,893, p. 36,589 (No. 85-355, 1987). _See also Brock v.
Morello-Brothers Construction, Inc., _809 F.2d 161, 163-165 (1st Cir.
1987) (distinguishing serious from willful violations); _McLaughlin v.
Union Oil of California,_ _ F.2d ___, 1989 WL 21505 (7th Cir. 1989) (same).

We conclude that the parties did not try the issue of whether Seward
demonstrated the indifference to legal responsibilities or disregard of
employee safety that are characteristic of a willful violation. We first
note that the Secretary's own guidelines recognize that willful
violations involve complex legal and factual inquiries. Citations
alleging willful violations of the Act therefore require the approval of
higher level officials than is required when other citations are issued.
[[9/]] In this case, not only was such approval lacking, but no OSHA
representative even testified to a belief that the violation was
willful. The only OSHA representative who testified was the compliance
officer who inspected Seward's worksite, and nothing in his testimony
suggests that he believed the violation was willful. The main thrust of
the compliance officer's testimony was that Seward violated section
5(a)(1) because its forklift platform did not conform to the technical
requirements found in the ANSI standard. He did not, however, suggest
that Seward's failure to conform to the ANSI standard demonstrated
recklessness or indifference to employee safety. The compliance officer
was aware that an accident had occurred, but he did not suggest that
Seward was reckless or indifferent because it had not changed its
procedures after the accident. Indeed, he testified that he credited
Seward for good faith in calculating his penalty proposal.

The testimony of the other witnesses also fails to demonstrate trial of
an implied willfulness allegation. None of the employees who testified
about the hazardous work practice was asked about supervisory knowledge
of the practice. The word "willful" does not appear in the record until
the judge used it after the close of the evidence. Particularly
significant is the testimony of Seward's president, Mr. Tanderup, who
was Seward's only witness. On direct testimony, Mr. Tanderup explained
that they began to use the forklift platform because it was safer than
the ladders they had used previously, that they were not aware of any
requirement for the type of controls OSHA advocated, and that "[w]e felt
it was a safe way of doing things." The Secretary's cross-examination of
Mr. Tanderup takes up less than 2 1/2 pages of transcript, and explored
only whether Seward had a written safety program. Notably missing from
the cross-examination is any inquiry into the factual issue that the
Secretary now argues is the basis for a willful violation: why Seward
did not change its procedures until after the OSHA inspection. Surely,
if the issue of willfulness had been tried, the cross-examination of Mr.
Tanderup would have been more probing. [[10/]]

The Secretary argues that Seward's failure to object to the motion to
amend shows that the company "consented" to try willfulness. We fail to
perceive how a company could have consented to trial of an issue when
the issue in fact was not tried. Even if it could be found that both
parties tried the unpleaded issue of willfulness, we would still hold
that there was no implied consent because neither party "squarely
recognized" that they were trying the unpleaded issue of willfulness.
All of the evidence introduced at the hearing was relevant to the issue
of whether Seward committed a serious violation of section 5(a)(1). Even
if some of this evidence was also relevant to the unpleaded issue of
willfulness, we would still follow the rule stated in _McWilliams_ chat
consent is not to be implied based on a party's failure to object to
evidence that is relevant to both pleaded and unpleaded issues. 11 BNA
OSHC at 2130, 1984-85 CCH OSHD at p. 34,669. It is almost inconceivable
that Mr. Tanderup, who represented Seward at the hearing, "squarely
recognized" that Seward was consenting to trial of the unpleaded issue
of willfulness by failing to object when the judge, after all the
evidence had been presented, obliquely raised the possibility that the
violation was willful. Indeed, the judge explicitly noted in his comment
that the violation had not been alleged as willful. The lack of response
of _both_ parties to the judge's observation that the violation might
have been willful but had not been alleged as such is inconsistent with
the suggestion that the parties "squarely recognized" they were trying
willfulness.

There is also merit to Seward's argument that it would be prejudiced by
the amendment. The Eighth Circuit has held that, to "[e]ven given facts
suggesting implied consent, amendment of the pleadings should not be
permitted where it would operate to deny a party fair opportunity to
present evidence material to newly added issues." _St. Joe Minerals,_
647 R.2d at 844. Willfulness means an employer demonstrated a reckless
disregard for safety. While the company's failure to change procedures
after an accident might tend to show a reckless disregard, this evidence
is not conclusive, and a company accused of willfulness on this basis
might be able to provide mitigating evidence to prove that it did not
act with reckless disregard. Also, Seward's prejudice argument supports
the conclusion that the issue of willfulness was not tried by consent,
since the failure of a party to present evidence on an issue is a strong
indication that the party did not "squarely recognize" that it was
trying the issue.

D

Since Seward has not taken exception to the finding of a violation, we
affirm the citation as serious, as originally alleged. The record fully
supports the allegation that the violation was "serious" under the test
set forth at 29 U.S.C. § 666(k). Penalties are to be assessed in light
of the gravity of the violation, the employer's size, and good faith and
history of violations. 29 U.S.C. § 666(j). We note that Seward's reason
for using the forklift platform was to alleviate the potentially more
severe fall hazard that existed when employees repaired the trailers
while working on ladders. This demonstrates good faith. Although an
employee was seriously injured, the more probable result of a fall
(given the relatively short distances involved) would have been only
minor injury. Moreover, Seward has no history of previous violations. In
light of all of these factors, we consider appropriate a penalty of $100.

Finally, we note that this case illustrates the perils that can arise
when an employer chooses to proceed to a hearing without representation
by legal counsel or a representative familiar with Commission
procedures. Although we recognize that an employer faced with a $350
proposed penalty might believe it uneconomical to obtain legal counsel,
a representative familiar with judicial procedures will often present an
employer's case more effectively than a businessman whose expertise lies
elsewhere. A lawyer might also enable the employer to avoid procedural
pitfalls.

Accordingly, the judge's ruling granting the Secretary's motion to amend
is set aside. The citation alleging a serious violation of section
5(a)(1) is affirmed. A penalty of $100 is assessed.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

Dated: April 20, 1989

------------------------------------------------------------------------

SECRETARY OF LABOR,

Complainant,

v.

SEWARD MOTOR FREIGHT, INC.,

Respondent.

OSHRC DOCKET NO. 86-1691

_DECISION AND ORDER _

Child, Judge

APPEARANCES:

For the Complainant:
Tobias B. Fritz, Esq., Kansas City, Missouri

For the Respondent:
Wayne O. Tanderup, Seward, Nebraska

_Statement of the Case_

This matter is before the Occupational Safety and Health Review
Commission (the Commission) pursuant to section 10(c) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 _et_ _seq._,
(the Act). Complainant seeks affirmance of Citation No. 01, issued to
respondent November 6, 1986, charging one item of violation of section
5(a)(1) of the Act and of the penalty which was proposed thereon.
Citation No. 02, issued to respondent November 6, 1986, charging an
other-than-serious violation of section 5(a)(2) of the Act was not
contested by the respondent and become a final order of the Commission
by operation of law. (Tr. 82, 83)

The matter came on regularly for hearing at Lincoln, Nebraska, on the
21st day of July 1987. Notice of the hearing was duly given affected
employees. (Tr. 5,6) Except as they may have been called as witnesses,
there was no appearance by affected employees or on their behalf. (Tr.
6) The parties were invited to submit post-hearing briefs in support of
their respective positions; only the complainant has done so.

On July 28, 1987, complainant filed Motion to Amend the complaint herein
to Conform to the Evidence to allege the 5(a)(1) violation, subject of
this action to be Willful. Time permitted by Commission rule to respond
to said motion has expired and no response thereto has been filed by the
respondent. The motion is GRANTED.

Jurisdiction of the subject matter herein has been admitted and is not
an issue; nor is jurisdiction of the parties.

_The Issues:_

Issues raised by the citation and the pleadings to be here determined are:

A. Was the respondent in violation of section 5(a)(1) of the Act as
alleged? [[1/]]

B. If the answer to Issue A, above, is in the affirmative, was that
violation willful?

C. What, if any, penalty would be appropriate?

_Statement of Facts_

On October 27, 1986, a compliance officer of the United States
Occupational Safety and Health Administration (OSHA) was sent to conduct
an inspection at respondent's worksite at Seward, Nebraska. The
inspection resulted from an employee complaint which had been filed with
OSHA. (Tr. 16) The facility inspected was involved in repairing
over-the-highway semi-trailers. Such repairs would include correcting
tears or gouges in the exterior of the trailers which could extend
horizontally several feet and be on occasion at or near the top of said
trailer which would be thirteen and one-half feet above the floor or
ground. (Tr. 65)

Whereas, the trailer mechanics originally undertook to do repairs to the
upper reaches or tops of these trailers by means of an aluminum ladder,
the respondent during or prior to 1985 developed what it considered to
be a more safe method by way of attaching a platform with side rails to
the tongues of a fork lift. (Tr. 70)

There were no controls on the platform to raise or lower it or in any
way to control the operation of the fork lift. (Tr. 19)

Mr. Tanderup, president of the respondent corporation, developed the
fork lift platform concept in conjunction with his shop foreman and
testified ". . . it has always been my instruction that an operator
hoist the person up to the top to work on it." (Tr. 70) However, he was
aware that the trailer mechanics would position the fork lift and then
either ascend to the platform via a ladder or climb up the fork lift to
gain access to the platform. (Tr. 71)

The platform equipped fork lift was utilized by various employees to
work at heights and on a daily basis, but mainly it was utilized by
three trailer mechanics. Ninety-eight percent of the time one person
would operate and work from the fork lift platform wherein the one
employee would move the fork lift to the worksite, raise the platform
and then climb up the fork lift mast to get on the platform. (Tr. 40,
51, 61, 62, 63)

The three trailer mechanics, who were the primary users of the fork lift
platform, generally did so as a one man function and were never told not
to do so (Tr., 38, 39, 41)

On June 9, 1986, one of these trailer mechanics had performed work on
the roof of a trailer. He climbed off the roof into the platform and
thence down the back of the fork lift mast onto the roof of the cage
part of the fork lift. This roof of the cage consists of ribs about 4
inches apart and is approximately seven feet above the floor. He fell
from that point to the floor and was rendered unconscious. He has no
recollection of what happened between arriving at the roof of the cage
and regaining consciousness on the floor surrounded by workers and the
arrival of a rescue squad. (Tr. 41, 63, 65) Aside from some difficulty
in memory resulting from the head injury, this employee further suffered
injury to both wrists when he caught his fall to the floor with both
hands. (Tr. 42)

Notwithstanding the incident of June 9, 1986, resulting in serious
injury and extensive time loss to an employee (Tr. 42-45) respondent
made no alteration in the work practices involving the platform equipped
fork lift. No restricting instructions were issued by management to the
trailer mechanics who continued to use the platform equipped fork lift
in the manner previously described and on a daily basis. (Tr. 52, 53,
59, 64)

Not until the employee-complaint prompted inspection by OSHA on October
27, 1986, was the practice discontinued and the offending equipment
taken out of service. (Tr. 18, 19, 28, 71)

_Discussion_

_Issue A:_

Was the respondent in violation of section 5(a)(1) of the Act as alleged?

To establish a violation of section 5(a)(1) of the Act, commonly
referred to as the "general duty clause," the Secretary must prove by a
preponderance of the evidence (1) that a condition or activity in the
employer's workplace presented a hazard to employees, (2) the hazard was
recognized either by the employer or generally within the employer's
industry, (3) the hazard was likely to cause death or serious physical
harm, and (4) that feasible means existed to eliminate or materially
reduce the hazard. _See Inland Steel, Co.,_ 12 BNA O_SHC 1968, 1986 CCH
OSHD ¶ 27,647 (OSHRC No. 79-3286, 1986); _Phillips Petroleum Co., 11 BNA
OSHC 1776, 1984 CCH OSHD ¶ 26,783 (OSHRC No. 78-1816, 1984) and cases
there cited.

(1)

On a daily basis and for a considerable period of time respondent's
employees were exposed to the hazard of falling from various heights of
up to 12 feet while ascending to or descending from a work platform
elevated on the extended tongues of a fork lift access to which platform
was gained by first climbing on top of the roll cage covering the
operator compartment of the fork lift and from there climbing up the
extended mast of the fork lift to the work platform. (Tr. 39-40, 41, 42,
51, 62; Exhibit C-1)

(2)

The hazard was recognized by respondent's president, who upon devising
the work system claims to have given ". . . instructions that an
operator hoist, the person to the top to work on it." (Tr. 70) There is
no evidence to whom said instruction was given or that it was enforced.
Furthermore, the record is silent as to what instruction, if any, was
given to effect the descent of the employee from the raised work
platform. The record is clear that from the inception of the use of this
platform-rigged fork lift an employee working alone would place the fork
lift at the work position, raise the platform to the desired height and
then scale the fork lift to gain access to the platform from which he
intended to do his work. Management encouraged the men to work alone.
(Tr. 39, 45)

That the hazard attendant upon using such a platform-rigged fork lift
was recognized by users of powered industrial trucks, which include such
equipment, is established by the American National Standards Institute
(ANSI), Safety Standard for Powered Industrial Trucks. (Exhibit C-2)
Section 513, of that Standard requires that whenever a "truck" (here a
fork lift) is used to elevate personnel for any reason, there shall be
an operator in the control position of the truck for the protection of
the person being elevated. Likewise the standard provides that if the
platform is equipped with vertical hoisting controls that for the
protection of the personnel being elevated the personnel on the platform
be provided means of shutting off power to the truck. Here the
respondent omitted the industry required precautions of having an
operator present at all times while personnel was elevated or of
supplying controls on the platform.

(3)

That a fall by an employee while ascending to or descending from a
raised platform as much as 5 feet above the roll cage of the fork lift
is likely to cause death or serious physical harm is amply demonstrated
by the serious physical injuries sustained by respondent's employee on
June 9, 1986, when he fell from the top of the roll cage, 7 feet to the
floor below. (Tr. 36, 42, 43)

(4)
The investigating compliance officer testified that the offending
platform-rigged fork lift would have been rendered free of the hazards
attendant upon accessing or leaving its elevated position if (a) a lift
operator had been in attendance at times when a worker was elevated to
raise and lower the platform, or (b) if the platform had been equipped
with remote controls for raising and lowering the platform and cutting
off power to the fork lift. (Tr. 28; Exhibit C-2 (The ANSI Standard))
Complainant has met its burden of proving a violation of section 5(a)(1)
of the Act.

_Issue B:_

Was respondent's violation of section 5(a)(1) of the Act, as above
found, willful?

As heretofore held by the Commission, a violation is willful if
committed ". . . with intentional, knowing or voluntary disregard for
the requirements of the Act or with plain indifference to employee
safety." _Asbestos Textile Co., _84 OSAHRC 48/B12, 12 BNA OSHC 1062,
1063, 1983-84 CCH OSHD ¶ 27,101, pp. 34,948 (OSHRC-C No. 79-3831, 1984)

Until the accident on June 9, 1986, respondent's continuing failure to
provide a safe workplace for its employees in respect to the offending
platform-rigged fork lift was serious. For the respondent to blind
itself to the welfare of its employees by wishfully attributing its
employee's fall from the top of the fork lift roll cage as possibly
resulting from a "blackout" or "fainting" (Tr. 45, 87) constitutes no
defense. Any employee could "blackout" or "faint" or lose his balance.
"Time and chance happeneth to all men." It is clear that respondent thus
disregarded the requirements of the Act and demonstrated a plain
indifference to employee safety.

To continue to permit the use of the offending equipment after the
accident in the same manner as it was used before the accident and to do
so until investigated and cited by OSHA amounts to willful violation of
the duty imposed on all employers by the Act to " . . . furnish to each
employee employment and a place of employment . . . free from recognized
hazards . . . likely to cause death or serious physical harm . . . ."

_Issue C:_

What, if any, penalty would be appropriate?

A willful violation by respondent of the general duty clause of the Act
having here been established, it is appropriate that a penalty be fixed
and assessed.

The $350.00 penalty proposed in the Notification of Penalty attached to
the Citation assumed a serious violation of the Act. The testimony of
the compliance officer in support of and justification of that proposed
penalty gave evidence that the Secretary gave due consideration to the
statutory requirements in arriving at that proposed penalty which
assumed the violation to be serious only. (Tr. 29-33) If the violation
here found was but serious, the $350.00 penalty would be appropriate in
amount.

Section 17 of the Act, provides for penalties up to ten times greater
for willful violations than those imposed for serious violations, but
not to exceed $10,000 for each violation.

A penalty of $1,750 is here found to be appropriate for respondent's
willful violation of section 5(a)(1) of the Act.

Now having observed the demeanor of the witnesses and having weighed the
credibility thereof, there are here entered the following:

_Findings of Fact_

1. Respondent, Seward Motor Freight, Inc., is a corporation with a
principal office and place of business at I-80 and Highway 15, Seward,
Nebraska, and at all times pertinent hereto was, engaged in freight
terminal and trailer and truck maintenance.

2. Respondent employs approximately 225 employees in its various
business activities, including, at all times pertinent hereto,
approximately 3 employees at the aforesaid workplace at I-80 and Highway
15, Seward, Nebraska. Respondent utilizes goods, equipment and
rnaterials shipped from outside the State of Nebraska and is engaged in
a business affecting commerce.

3. Facts set forth under Statement of Facts herein above are here
incorporated by reference as though specifically again set forth at this
point.

4. The practice pursued by respondent's employees in accessing and
leaving the elevated platform of the platform-rigged fork lift at
respondent's workplace presented the hazard of falling to employees.

5. The hazard of falling thus presented to respondent's employees was
recognized by respondent.

6. The hazard of falling thus presented to respondent's employees was
recognized within the industries utilizing powered industrial trucks
including fork lifts.

7. A fall from a height up to 12 feet while ascending to or descending
from the elevated platform in question was likely to cause death or
serious physical harm to an employee involved.

8. The hazard of falling could have been eliminated or materially
reduced by (a) having a lift operator present at all times employees
worked from the elevated platform, or (b) equipping the platform with
remote vehicle controls and lift power cut-off control: either of which
means existed and were feasible.

9. The hazard of falling under the circumstances here presented was
recognized and known to respondent prior to the actual fall and injury
of an employee on June 9, 1986.

10. The continuation of the unaltered practice and use of the offending
equipment permitted by the respondent after June 9, 1986, and until
inspected by OSHA on October 27, 1986, was done with intentional,
knowing and voluntary disregard for the requirement of the Act that
employees be furnished a place of employment free from recognized
hazards likely to cause death or serious physical harm.

11. The continuation of the unaltered practice and use of the offending
equipment permitted by the respondent after June 9, 1986, and until
inspected by OSHA on October 27, 1986, was done with plain indifference
to employee safety.

12. Respondent's violation here found was willful.

13. An appropriate penalty for the willful violation here found is the
sum of $1, 750.00.

_Conclusions of Law_

1. Respondent is an employer within the meaning of the Act.

2. Jurisdiction of the subject matter of this proceeding is conferred
upon the Commission by section 10(c) of the Act and the Commission has
jurisdiction of the parties hereto.

3. Item 1 of Citation No. 01, issued to respondent November 6, 1986,
charging violation of section 5(a)(1) of the Act should be affirmed as a
willful violation thereof.

4. A penalty of $1,750.00 should be assessed for the violation here found.

_Order_

Item 1 of Citation No. 01, issued to respondent November 6, 1986, is
AFFIRMED as a WILLFUL violation of section 5(a)(1) of the Act and a
penalty of $1,750.00 is ASSESSED.

R. M. Child
Judge, OSHRC

Dated: October 14, 1987


FOOTNOTES:

[[1/]] Section 5(a)(1) of the Act, 29 U.S.C. § 654(a)(1), provides:

Sec. 5.(a) Each employer
(1) shall furnish to each of his employees employment and a 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.

[[2/]] "I think it could well have been a willful violation, but it . .
. has not been alleged as willful. But I personally feel that it was
derelict not to have changed the method of procedures after the accident
took place, if not before."

[[3/]] "...I see no justification for reducing the penalty if the
violation is found. If anything, it should be elevated because of the
observations I have made."

[[4/]] _Rule 15. Amended and Supplemental Pleadings_

(b)_Amendments to Conform to the Evidence._ 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
then to conform to the evidence and to raise these issues may be made
upon motion of any party at any time, even after judgement; . . . .

[[5/]] An ANSI standard is relevant evidence that a hazard is
"recognized" within the meaning of section 5(a)(1)._St. Joe Minerals
Corp. v. OSHRC,_ 647 F.2d 840, 945 n.8 (8th Cir. 1981). Because Seward
has not taken exception to the judge's conclusion that it violated
section 5(a)(1), we assume without deciding that Seward's manner of
using the fork-lift platform failed to conform to the ANSI standard.

[[6/]] It has been the Commission's consistent practice to consider the
merits of motions made before it, even when the motions are unopposed.

[[7/]] Among the circumstances we have considered in this case are the
facts that Seward appeared pro se at the hearing, that the willfulness
issue was raised by the judge_sua_ _sponte_ at the very end of the
hearing, that Seward probably retained counsel only after receiving the
judge's decision, and that counsel probably had very little time to
familiarize himself with the record before Seward's PDR was due.

[[8/]] The Secretary does not address this issue in her brief on review.

[[9/]] The Secretary states in Chapter IV.B.3.d of her Field Operations
Manual:
The determination of whether to issue a citation for a willful or
repeated violation will frequently raise difficult issues of law and
policy and will require the evaluation of complex factual situations.
Accordingly, a citation for a willful violation shall not be issued
without consultation with the Regional Administrator, who shall, as
appropriate, discuss the matter with the Regional Solicitor.

[[10/]] When she moved to amend, the Secretary asserted that Mr.
Tanderup "addressed his subjective knowledge of violation (or lack of
it) in testimony and argument, thereby raising, on his own behalf, the
willfulness of the violation." We find it remarkable that the Secretary
would argue that an employer places in issue the willfulness of a
violation simply by seeking to defend itself against the Secretary's
charges. We find such an argument even more remarkable in the
circumstances of this case, where the Secretary's cross-examination of
the witness who purportedly raised the issue of willfulness did not
touch on the witness's state of mind.

We further note that the Secretary sought to justify seeking the
amendment after the hearing by asserting that she did not know all the
facts surrounding the employer's knowledge of the hazard "[a]t the time
of the filing of the complaint." This explanation is at best
disingenuous. Whatever the Secretary knew when she filed her complaint,
she was certainly not surprised by any testimony presented at the
hearing. The Secretary's First Request for Admissions, filed well in
advance of the hearing, demonstrates that the Secretary was fully aware
of the facts elicited at the hearing. If the Secretary believed those
facts supported a finding of willfulness, she could have moved to amend
before the hearing.


[[1/]] The citation and Section 5(a)(1) read:

_Citation_

1

Section 5(a)(1) of the Occupational Safety and Health Act of 1970: The
employer did not furnish employment and a place of employment which were
free from recognized hazards that were causing or likely to cause death
or serious physical harm to employees in that employees were exposed to
the hazard of falling:

The practice of using a forklift (Powered Industrial Truck), with a
safety platform secured to the lifting carriage and/or forks to elevate
employees. The safety platform was not equipped with vertical hoisting
controls elevatable with the lifting carriage or forks, nor was an
operator in the control position on the truck when employees were elevated.

Among other methods, one feasible and acceptable abatement method to
correct this hazard is to equip the Clark, model C300-40 forklift with
elevatable controls and/or provide an operator in the control position
on the truck as mentioned in Section 513 A and B, American National
Standard Institute (ANSI) B56.1-1975, Low Lift and High Lift Trucks.

_The Act_

Sec. 5(a) Each employer--
(1) shall furnish to each of his employees employment and a 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;