“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 ingranting the Secretary of Labor’s post-hearing motion to amend hercomplaint from alleging a serious violation of section 5(a)(1) of theOccupational 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 errin granting the Secretary’s motion. Therefore, we reverse the judge’sdecision and find a serious violation, as originally alleged.ASeward Motor Freight operates a semi-trailer repair facility in Seward,Nebraska. Some of the work done by employees involves repairs to thesides and roofs of trailers. Originally, fourteen-foot ladders were usedto gain access to the sides and roofs. However, Mr. Tanderup, thepresident of Seward, noticed that employees using ladders would not movethe ladder to repair large areas of damage but would instead lean overfrom the ladder and try to fix the damage. Mr. Tanderup spoke to hisshop foreman and told him that he no longer wanted employees to useladders for repairing trailers because he was afraid the employees wouldfall. Mr. Tanderup and the shop foreman then welded a platform assemblyand attached it to the forks of a forklift. Mr. Tanderup stated that hehad 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 thathe was \”unable to see everything that happens in the shop.\” Heacknowledged that \”a lot of times\” the mechanics would either crawl upthe forklift onto the platform or place the ladder next to the forkliftand climb onto the platform. Scott Pekarek, a former employee of Seward,testified that roughly ninety-eight percent of the time a singleemployee would take the forklift to a work site, operate the controls toraise the platform, and then climb up to the platform.On June 9, 1996, Loren Toovey, an employee of Seward, fell from the topof the roll cage of the forklift. He had just performed work on top ofthe roof of a trailer and was climbing down the forklift mast onto theroll cage of the forklift when he fell. The roll cage consisted of ribsspaced roughly four inches apart, and the cage was approximately sevenfeet above the floor. Toovey fell from that height, seriously injuringhis wrists during the fall, and on hitting the ground was renderedunconscious.After the accident, employees were not told to change their method ofgaining access to the forklift platform. Instead, employees continued toclimb up onto the elevated platform after the accident, and they did notcease this practice until the worksite was inspected by an OSHAcompliance officer on October 27, 1986. The compliance officer inspectedthe platform and told Seward that the platform violated the requirementsof 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 industrialtrucks (including forklifts) while employees are being elevated on asafety platform. The day after the inspection Seward removed theplatform from the forklift.BOn November 6, 1986, OSHA issued to Seward a citation alleging a seriousviolation of section 5(a)(1). The citation asserted that employees wereexposed to the hazard of falling from the forklift because the platformshould have either been equipped with vertical hoisting controlselevatable with the lifting carriage, or there should have been anoperator in the control position on the truck when employees wereelevated. 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 presentingtheir evidence, the judge commented that the violation could have beencategorized as willful because Seward did not take any corrective actionuntil after the OSHA inspection. [[2\/]] The judge also suggested thatthe proposed penalty was inappropriately low. [[3\/]] Seward did notobject to or make any comments on the judge’s observations.On July 28, 1987, the Secretary filed a post-hearing motion under Rule15(b) of the Federal Rules of Civil Procedure [[4\/]] to amend thepleadings from a serious violation to a willful violation. On September2, 1987, the Secretary filed a post hearing brief in which he arguedthat Seward’s violation of section 5(a)(1) was willful, and that thepenalty should be increased to $4,500. Seward, still proceeding withoutlegal counsel, did not object to the Secretary’s motion and did not filea post-hearing brief.On September 23, 1987, the judge issued his decision, in which hegranted the Secretary’s motion to amend, found Seward to have willfullyviolated section 5(a)(1), and assessed a penalty of $1,750. The judgefound that \”[o]n a daily basis and for a considerable period of time[Seward’s] employees were exposed to the hazard of falling from variousheights of up to 12 feet\” while climbing to the work platform and thatthe hazard was recognized by the president of Seward. The judge agreedwith the Secretary’s argument that the platform was a hazard recognizedby users of powered industrial trucks, as established by section 513,ANSI B56.1-1975, Safety Standard for Low Lift and High Lift PoweredIndustrial Trucks.[[5\/]] The judge found the violation to be willfulbecause:To continue to permit the use of the offending equipment after theaccident in the same manner as it was used before the accident and to doso until investigated and cited by OSHA amounts to [a] willful violationof the duty imposed on all employers by the Act to \” . . . furnish toeach employee employment and a place of employment . . . free fromrecognized hazards . . . likely to cause death or serious physical harm. . . .\”Seward, now represented by counsel, filed a petition for discretionaryreview. Seward did not take exception either to the judge’s finding of asection 5(a)(1) violation or to his ruling granting the amendment, butargued only that the violation was not willful. Nevertheless, when hedirected this case for review, Chairman Buckley specifically includedthe correctness of the judge’s ruling on the Secretary’s Rule 15(b)motion as an issue to be considered by the Commission.C1. _Effect of Seward’s Failure to Object to Amendment Before theAdministrative Law Judge._The Secretary argues that \”[b]ecause [Seward] did not raise the issue ofthe propriety of the amendment before the judge that issue should not beconsidered by the Commission on review\” and that doing so \”would be anabuse of discretion.\” The Secretary asserts that our review of thisissue \”would be an injustice\” because \”[i]t is not the province of theCommission to act as counsel for a party and search the record forissues neither raised before the judge nor even raised by a party’scounsel in its petition for discretionary review.\”Normally, we will not review issues \”that the judge did not have theopportunity to pass upon.\” Commission Rule 92(c), 29 CFR ? 2200.92(c).That rule, however, does not apply here. The issue on review is whetherthe amendment changing the classification of the violation from seriousto willful was proper. The judge did have the \”opportunity to pass upon\”that issue since the Secretary himself raised that issue before thejudge when he moved to amend. The fact that the judge failed to considerwhether the motion was proper under Rule 15(b) and relevant case lawdoes not mean that the issue was not before him.Thus, the Secretary is wrong in equating Seward’s failure to object tothe amendment with the amendment issue not having been raised before thejudge. In arguing that the issue was not \”raised before the judge,\” theSecretary is really saying that Seward’s failure to object when themotion was made waived any objection to the motion and justified thejudge’s summary granting of the motion. This argument is inconsistentwith Commission precedent and practice. Under Commission precedent, itis not mandatory that a party respond to a motion. _Smith’s TransferCorp.,_ 3 BNA OSHC 1088, 1974-75 CCH OSHD ? 19,544 (No. 5786, 1975). Aparty’s failure to object does not relieve the judge from the obligationof considering the merits of the motion. [[6\/]] _Id.,_ 3 BNA OSHC at1090, 1974-75 CCH OSHD at p. 23,334. And since it is not mandatory for aparty to respond to a motion, the lack of a response cannot waive theparty’s right to later object to the granting of the motion. Thecircumstances of this case make it particularly inappropriate to_holdagainst Seward_ its failure to object to the amendment when the motionwas made. The judge had already announced at the hearing that heconsidered the violation willful, and this may well have led Seward toconclude that an objection would have been futile. Moreover, a Rule15(b) motion to allege a willful violation of section 5(a)(1) raisescomplex legal issues that even an experienced OSHA litigator would havedifficulty analyzing. We would hardly expect a _pro se_ employer tocomprehend the full implications of the events beginning with thejudge’s _sua sponte_ interjection of the willfulness issue into the case.2. _Effect of Seward’s Failure to Raise the Amendment in the Petitionfor Discretionary Review._The Secretary also argues that we should not address the propriety ofthe amendment because Seward did not raise that as an issue in itsPetition for Discretionary Review. The Secretary asserts that we wouldbe acting as counsel for Seward if we decide the issue when Seward’scounsel 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), 29C.F.R. ? 2200.2(c) (emphasis added). Like any adjudicatory body, thatmay require us to go beyond the precise arguments made by a party inappropriate circumstances. [[7\/]] _See, e.g.,_ _Teague v. Lane,_ 109S.Ct. 1060, 1069 (1989) (Supreme Court resolved case on issue notpresented in petition for certiorari and not argued by parties). Here,Seward’s petition for discretionary review argued that willfulness wasnot shown. In reviewing the record on, the issue of willfulness, itbecame apparent, as will be discussed later, that the issue ofwillfulness had not been expressly or implicitly tried. Thus, thewillfulness argument raised by Seward directly brought into question thepropriety of the amendment that injected willfulness into the case. Wedo not believe that we are acting as Seward’s counsel by consideringthis issue.We also note that each Commissioner has the authority to direct a casefor review on any or all issues in the case, even in the absence of apetition for review by a party. 29 U.S.C. ? 661(j); Commission Rule92(b), 29 C.F.R. ? 2200.92(b). This necessarily means that Commissionershave the authority to direct review on issues not raised in a petitionfor discretionary review. The Commission’s policy in determining theissues 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 theCommission orders otherwise, a direction for review establishesjurisdiction in the Commission to review the entire case. The issues tobe decided on review are within the discretion of the Commission butordinarily will be those stated in the direction for review, thoseraised in the petitions for discretionary review, or those stated in anylater order.The Commission has recognized that there are prudential limits to itspower to decide issues not raised by the parties. As noted earlier, theCommission will rarely address issues that were not raised before thejudge. Such a rule is appropriate because the parties will not have hadthe 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 afocus for Commission review. But when as here an issue has been raisedbefore the judge, similar considerations do not apply, and there is nounfairness in the Commission raising an issue on which the parties havenot focused in a petition for review, so long as the Commission givesthe parties a fair opportunity to argue the issue before it decides thecase._See,_ _e.g.,_ _Farmers Cooperative Grain & Supply Co.,_ 82 OSAHRC59\/C12, 10 BNA OSHC 2086, 1982 CCH OSHD ? 26,301 (No. 79-1177, 1982)(Commission issued supplemental briefing order after review briefs werereceived, the Secretary responded by moving to amend the citation, andthe 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 thedirection for review and argues the issue. _Compare Metropak ContainersCorp.,_ 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 OSAHRC105\/E7, 10 BNA OSHC 1228, 1982 CCH OSHD ? 25,825 (Nos. 77-3893, 77-3894,1981) (Commission declined to address issues directed for review suasponte when aggrieved party did not respond and there was no compellingpublic interest in Commission review).In this case, Seward has argued the propriety of the amendment inresponse to the direction for review. Thus, it would be consistent withour past practice for us to address the issue. The Secretary has offeredno reason why this case is so unique that we should depart from thepractice we have consistently followed of resolving issues stated in adirection 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, 1984-85CCH OSHD ? 26,979 (No. 80-5868, 1984), the Commission held that the textof Rule 15(b) \”makes plain that an amendment under the first half ofRule 15(b) is proper only if two findings can be made — that theparties _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 theparties knew, that is, squarely recognized, that they were trying anunpleaded issue\” and that \”consent is not implied by a party’s failureto object to evidence that is relevant to both pleaded and unpleadedissues, at least in the absence of some obvious attempt to raise theunpleaded 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 Sewardviolated section 5(a)(1). This required the Secretary to prove, amongother things, that Seward \”recognized\” a hazard. \”A hazard is deemed’recognized’ when the potential danger of a condition or activity iseither actually known to the particular employer or generally known inthe industry.\” _St. Joe Minerals Corp. v. OSHRC,_ 647 F.2d 840, 845 (8thCir. 1981). In order to show that a violation was willful, the Secretarymust 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 ofmind, e.g., its general attitude toward employee safety or towardcompliance with the law, to a much greater extent than would trial of anon-willful violation. The Commission has previously observed that thenature of proof differs when a willful violation is alleged:It is not enough for the Secretary to show that an employer was aware ofconduct or conditions constituting a violation; such evidence isnecessary to establish any violation, serious or nonserious. … theremust be evidence of such reckless disregard for employee safety or therequirements of the law generally that one can infer that if theemployer had known of the standard or provision, the employer would nothave cared that the conduct or conditions violated it. _WilliamsEnterprises, 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 Sewarddemonstrated the indifference to legal responsibilities or disregard ofemployee safety that are characteristic of a willful violation. We firstnote that the Secretary’s own guidelines recognize that willfulviolations involve complex legal and factual inquiries. Citationsalleging willful violations of the Act therefore require the approval ofhigher level officials than is required when other citations are issued.[[9\/]] In this case, not only was such approval lacking, but no OSHArepresentative even testified to a belief that the violation waswillful. The only OSHA representative who testified was the complianceofficer who inspected Seward’s worksite, and nothing in his testimonysuggests that he believed the violation was willful. The main thrust ofthe compliance officer’s testimony was that Seward violated section5(a)(1) because its forklift platform did not conform to the technicalrequirements found in the ANSI standard. He did not, however, suggestthat Seward’s failure to conform to the ANSI standard demonstratedrecklessness or indifference to employee safety. The compliance officerwas aware that an accident had occurred, but he did not suggest thatSeward was reckless or indifferent because it had not changed itsprocedures after the accident. Indeed, he testified that he creditedSeward for good faith in calculating his penalty proposal.The testimony of the other witnesses also fails to demonstrate trial ofan implied willfulness allegation. None of the employees who testifiedabout the hazardous work practice was asked about supervisory knowledgeof the practice. The word \”willful\” does not appear in the record untilthe judge used it after the close of the evidence. Particularlysignificant is the testimony of Seward’s president, Mr. Tanderup, whowas Seward’s only witness. On direct testimony, Mr. Tanderup explainedthat they began to use the forklift platform because it was safer thanthe ladders they had used previously, that they were not aware of anyrequirement for the type of controls OSHA advocated, and that \”[w]e feltit was a safe way of doing things.\” The Secretary’s cross-examination ofMr. Tanderup takes up less than 2 1\/2 pages of transcript, and exploredonly whether Seward had a written safety program. Notably missing fromthe cross-examination is any inquiry into the factual issue that theSecretary now argues is the basis for a willful violation: why Sewarddid 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 toamend shows that the company \”consented\” to try willfulness. We fail toperceive how a company could have consented to trial of an issue whenthe issue in fact was not tried. Even if it could be found that bothparties tried the unpleaded issue of willfulness, we would still holdthat there was no implied consent because neither party \”squarelyrecognized\” that they were trying the unpleaded issue of willfulness.All of the evidence introduced at the hearing was relevant to the issueof whether Seward committed a serious violation of section 5(a)(1). Evenif some of this evidence was also relevant to the unpleaded issue ofwillfulness, we would still follow the rule stated in _McWilliams_ chatconsent is not to be implied based on a party’s failure to object toevidence that is relevant to both pleaded and unpleaded issues. 11 BNAOSHC at 2130, 1984-85 CCH OSHD at p. 34,669. It is almost inconceivablethat Mr. Tanderup, who represented Seward at the hearing, \”squarelyrecognized\” that Seward was consenting to trial of the unpleaded issueof willfulness by failing to object when the judge, after all theevidence had been presented, obliquely raised the possibility that theviolation was willful. Indeed, the judge explicitly noted in his commentthat the violation had not been alleged as willful. The lack of responseof _both_ parties to the judge’s observation that the violation mighthave been willful but had not been alleged as such is inconsistent withthe suggestion that the parties \”squarely recognized\” they were tryingwillfulness.There is also merit to Seward’s argument that it would be prejudiced bythe amendment. The Eighth Circuit has held that, to \”[e]ven given factssuggesting implied consent, amendment of the pleadings should not bepermitted where it would operate to deny a party fair opportunity topresent evidence material to newly added issues.\” _St. Joe Minerals,_647 R.2d at 844. Willfulness means an employer demonstrated a recklessdisregard for safety. While the company’s failure to change proceduresafter an accident might tend to show a reckless disregard, this evidenceis not conclusive, and a company accused of willfulness on this basismight be able to provide mitigating evidence to prove that it did notact with reckless disregard. Also, Seward’s prejudice argument supportsthe 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 strongindication that the party did not \”squarely recognize\” that it wastrying the issue.DSince Seward has not taken exception to the finding of a violation, weaffirm the citation as serious, as originally alleged. The record fullysupports the allegation that the violation was \”serious\” under the testset forth at 29 U.S.C. ? 666(k). Penalties are to be assessed in lightof the gravity of the violation, the employer’s size, and good faith andhistory of violations. 29 U.S.C. ? 666(j). We note that Seward’s reasonfor using the forklift platform was to alleviate the potentially moresevere fall hazard that existed when employees repaired the trailerswhile working on ladders. This demonstrates good faith. Although anemployee was seriously injured, the more probable result of a fall(given the relatively short distances involved) would have been onlyminor injury. Moreover, Seward has no history of previous violations. Inlight of all of these factors, we consider appropriate a penalty of $100.Finally, we note that this case illustrates the perils that can arisewhen an employer chooses to proceed to a hearing without representationby legal counsel or a representative familiar with Commissionprocedures. Although we recognize that an employer faced with a $350proposed penalty might believe it uneconomical to obtain legal counsel,a representative familiar with judicial procedures will often present anemployer’s case more effectively than a businessman whose expertise lieselsewhere. A lawyer might also enable the employer to avoid proceduralpitfalls.Accordingly, the judge’s ruling granting the Secretary’s motion to amendis set aside. The citation alleging a serious violation of section5(a)(1) is affirmed. A penalty of $100 is assessed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDated: April 20, 1989————————————————————————SECRETARY OF LABOR,Complainant,v.SEWARD MOTOR FREIGHT, INC.,Respondent.OSHRC DOCKET NO. 86-1691_DECISION AND ORDER _Child, JudgeAPPEARANCES:For the Complainant:Tobias B. Fritz, Esq., Kansas City, MissouriFor the Respondent:Wayne O. Tanderup, Seward, Nebraska_Statement of the Case_This matter is before the Occupational Safety and Health ReviewCommission (the Commission) pursuant to section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 _et_ _seq._,(the Act). Complainant seeks affirmance of Citation No. 01, issued torespondent November 6, 1986, charging one item of violation of section5(a)(1) of the Act and of the penalty which was proposed thereon.Citation No. 02, issued to respondent November 6, 1986, charging another-than-serious violation of section 5(a)(2) of the Act was notcontested by the respondent and become a final order of the Commissionby operation of law. (Tr. 82, 83)The matter came on regularly for hearing at Lincoln, Nebraska, on the21st day of July 1987. Notice of the hearing was duly given affectedemployees. (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 oftheir respective positions; only the complainant has done so.On July 28, 1987, complainant filed Motion to Amend the complaint hereinto Conform to the Evidence to allege the 5(a)(1) violation, subject ofthis action to be Willful. Time permitted by Commission rule to respondto said motion has expired and no response thereto has been filed by therespondent. The motion is GRANTED.Jurisdiction of the subject matter herein has been admitted and is notan 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 asalleged? [[1\/]]B. If the answer to Issue A, above, is in the affirmative, was thatviolation willful?C. What, if any, penalty would be appropriate?_Statement of Facts_On October 27, 1986, a compliance officer of the United StatesOccupational Safety and Health Administration (OSHA) was sent to conductan inspection at respondent’s worksite at Seward, Nebraska. Theinspection resulted from an employee complaint which had been filed withOSHA. (Tr. 16) The facility inspected was involved in repairingover-the-highway semi-trailers. Such repairs would include correctingtears or gouges in the exterior of the trailers which could extendhorizontally several feet and be on occasion at or near the top of saidtrailer which would be thirteen and one-half feet above the floor orground. (Tr. 65)Whereas, the trailer mechanics originally undertook to do repairs to theupper reaches or tops of these trailers by means of an aluminum ladder,the respondent during or prior to 1985 developed what it considered tobe a more safe method by way of attaching a platform with side rails tothe tongues of a fork lift. (Tr. 70)There were no controls on the platform to raise or lower it or in anyway to control the operation of the fork lift. (Tr. 19)Mr. Tanderup, president of the respondent corporation, developed thefork lift platform concept in conjunction with his shop foreman andtestified \”. . . it has always been my instruction that an operatorhoist the person up to the top to work on it.\” (Tr. 70) However, he wasaware that the trailer mechanics would position the fork lift and theneither ascend to the platform via a ladder or climb up the fork lift togain access to the platform. (Tr. 71)The platform equipped fork lift was utilized by various employees towork at heights and on a daily basis, but mainly it was utilized bythree trailer mechanics. Ninety-eight percent of the time one personwould operate and work from the fork lift platform wherein the oneemployee would move the fork lift to the worksite, raise the platformand 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 liftplatform, generally did so as a one man function and were never told notto do so (Tr., 38, 39, 41)On June 9, 1986, one of these trailer mechanics had performed work onthe roof of a trailer. He climbed off the roof into the platform andthence down the back of the fork lift mast onto the roof of the cagepart of the fork lift. This roof of the cage consists of ribs about 4inches apart and is approximately seven feet above the floor. He fellfrom that point to the floor and was rendered unconscious. He has norecollection of what happened between arriving at the roof of the cageand regaining consciousness on the floor surrounded by workers and thearrival of a rescue squad. (Tr. 41, 63, 65) Aside from some difficultyin memory resulting from the head injury, this employee further sufferedinjury to both wrists when he caught his fall to the floor with bothhands. (Tr. 42)Notwithstanding the incident of June 9, 1986, resulting in seriousinjury and extensive time loss to an employee (Tr. 42-45) respondentmade no alteration in the work practices involving the platform equippedfork lift. No restricting instructions were issued by management to thetrailer mechanics who continued to use the platform equipped fork liftin the manner previously described and on a daily basis. (Tr. 52, 53,59, 64)Not until the employee-complaint prompted inspection by OSHA on October27, 1986, was the practice discontinued and the offending equipmenttaken 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, commonlyreferred to as the \”general duty clause,\” the Secretary must prove by apreponderance of the evidence (1) that a condition or activity in theemployer’s workplace presented a hazard to employees, (2) the hazard wasrecognized either by the employer or generally within the employer’sindustry, (3) the hazard was likely to cause death or serious physicalharm, and (4) that feasible means existed to eliminate or materiallyreduce the hazard. _See Inland Steel, Co.,_ 12 BNA O_SHC 1968, 1986 CCHOSHD ? 27,647 (OSHRC No. 79-3286, 1986); _Phillips Petroleum Co., 11 BNAOSHC 1776, 1984 CCH OSHD ? 26,783 (OSHRC No. 78-1816, 1984) and casesthere cited.(1)On a daily basis and for a considerable period of time respondent’semployees were exposed to the hazard of falling from various heights ofup to 12 feet while ascending to or descending from a work platformelevated on the extended tongues of a fork lift access to which platformwas gained by first climbing on top of the roll cage covering theoperator compartment of the fork lift and from there climbing up theextended 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 devisingthe work system claims to have given \”. . . instructions that anoperator hoist, the person to the top to work on it.\” (Tr. 70) There isno evidence to whom said instruction was given or that it was enforced.Furthermore, the record is silent as to what instruction, if any, wasgiven to effect the descent of the employee from the raised workplatform. The record is clear that from the inception of the use of thisplatform-rigged fork lift an employee working alone would place the forklift at the work position, raise the platform to the desired height andthen scale the fork lift to gain access to the platform from which heintended 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 liftwas recognized by users of powered industrial trucks, which include suchequipment, 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 afork lift) is used to elevate personnel for any reason, there shall bean operator in the control position of the truck for the protection ofthe person being elevated. Likewise the standard provides that if theplatform is equipped with vertical hoisting controls that for theprotection of the personnel being elevated the personnel on the platformbe provided means of shutting off power to the truck. Here therespondent omitted the industry required precautions of having anoperator present at all times while personnel was elevated or ofsupplying controls on the platform.(3)That a fall by an employee while ascending to or descending from araised platform as much as 5 feet above the roll cage of the fork liftis likely to cause death or serious physical harm is amply demonstratedby the serious physical injuries sustained by respondent’s employee onJune 9, 1986, when he fell from the top of the roll cage, 7 feet to thefloor below. (Tr. 36, 42, 43)(4)The investigating compliance officer testified that the offendingplatform-rigged fork lift would have been rendered free of the hazardsattendant upon accessing or leaving its elevated position if (a) a liftoperator had been in attendance at times when a worker was elevated toraise and lower the platform, or (b) if the platform had been equippedwith remote controls for raising and lowering the platform and cuttingoff 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 abovefound, willful?As heretofore held by the Commission, a violation is willful ifcommitted \”. . . with intentional, knowing or voluntary disregard forthe requirements of the Act or with plain indifference to employeesafety.\” _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 toprovide a safe workplace for its employees in respect to the offendingplatform-rigged fork lift was serious. For the respondent to blinditself to the welfare of its employees by wishfully attributing itsemployee’s fall from the top of the fork lift roll cage as possiblyresulting from a \”blackout\” or \”fainting\” (Tr. 45, 87) constitutes nodefense. Any employee could \”blackout\” or \”faint\” or lose his balance.\”Time and chance happeneth to all men.\” It is clear that respondent thusdisregarded the requirements of the Act and demonstrated a plainindifference to employee safety.To continue to permit the use of the offending equipment after theaccident in the same manner as it was used before the accident and to doso until investigated and cited by OSHA amounts to willful violation ofthe duty imposed on all employers by the Act to \” . . . furnish to eachemployee employment and a place of employment . . . free from recognizedhazards . . . 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 Acthaving here been established, it is appropriate that a penalty be fixedand assessed.The $350.00 penalty proposed in the Notification of Penalty attached tothe Citation assumed a serious violation of the Act. The testimony ofthe compliance officer in support of and justification of that proposedpenalty gave evidence that the Secretary gave due consideration to thestatutory requirements in arriving at that proposed penalty whichassumed the violation to be serious only. (Tr. 29-33) If the violationhere found was but serious, the $350.00 penalty would be appropriate inamount.Section 17 of the Act, provides for penalties up to ten times greaterfor willful violations than those imposed for serious violations, butnot to exceed $10,000 for each violation.A penalty of $1,750 is here found to be appropriate for respondent’swillful violation of section 5(a)(1) of the Act.Now having observed the demeanor of the witnesses and having weighed thecredibility thereof, there are here entered the following:_Findings of Fact_1. Respondent, Seward Motor Freight, Inc., is a corporation with aprincipal office and place of business at I-80 and Highway 15, Seward,Nebraska, and at all times pertinent hereto was, engaged in freightterminal and trailer and truck maintenance.2. Respondent employs approximately 225 employees in its variousbusiness activities, including, at all times pertinent hereto,approximately 3 employees at the aforesaid workplace at I-80 and Highway15, Seward, Nebraska. Respondent utilizes goods, equipment andrnaterials shipped from outside the State of Nebraska and is engaged ina business affecting commerce.3. Facts set forth under Statement of Facts herein above are hereincorporated by reference as though specifically again set forth at thispoint.4. The practice pursued by respondent’s employees in accessing andleaving the elevated platform of the platform-rigged fork lift atrespondent’s workplace presented the hazard of falling to employees.5. The hazard of falling thus presented to respondent’s employees wasrecognized by respondent.6. The hazard of falling thus presented to respondent’s employees wasrecognized within the industries utilizing powered industrial trucksincluding fork lifts.7. A fall from a height up to 12 feet while ascending to or descendingfrom the elevated platform in question was likely to cause death orserious physical harm to an employee involved.8. The hazard of falling could have been eliminated or materiallyreduced by (a) having a lift operator present at all times employeesworked from the elevated platform, or (b) equipping the platform withremote vehicle controls and lift power cut-off control: either of whichmeans existed and were feasible.9. The hazard of falling under the circumstances here presented wasrecognized and known to respondent prior to the actual fall and injuryof an employee on June 9, 1986.10. The continuation of the unaltered practice and use of the offendingequipment permitted by the respondent after June 9, 1986, and untilinspected by OSHA on October 27, 1986, was done with intentional,knowing and voluntary disregard for the requirement of the Act thatemployees be furnished a place of employment free from recognizedhazards likely to cause death or serious physical harm.11. The continuation of the unaltered practice and use of the offendingequipment permitted by the respondent after June 9, 1986, and untilinspected by OSHA on October 27, 1986, was done with plain indifferenceto employee safety.12. Respondent’s violation here found was willful.13. An appropriate penalty for the willful violation here found is thesum 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 conferredupon the Commission by section 10(c) of the Act and the Commission hasjurisdiction 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 awillful 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, isAFFIRMED as a WILLFUL violation of section 5(a)(1) of the Act and apenalty of $1,750.00 is ASSESSED.R. M. ChildJudge, OSHRCDated: October 14, 1987FOOTNOTES:[[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 ofemployment which are free from recognized hazards that are causing orare 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 wasderelict not to have changed the method of procedures after the accidenttook place, if not before.\”[[3\/]] \”…I see no justification for reducing the penalty if theviolation is found. If anything, it should be elevated because of theobservations I have made.\”[[4\/]] _Rule 15. Amended and Supplemental Pleadings_(b)_Amendments to Conform to the Evidence._ When issues not raised bythe 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 thepleadings. Such amendment of the pleadings as may be necessary to causethen to conform to the evidence and to raise these issues may be madeupon 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 MineralsCorp. v. OSHRC,_ 647 F.2d 840, 945 n.8 (8th Cir. 1981). Because Sewardhas not taken exception to the judge’s conclusion that it violatedsection 5(a)(1), we assume without deciding that Seward’s manner ofusing the fork-lift platform failed to conform to the ANSI standard.[[6\/]] It has been the Commission’s consistent practice to consider themerits of motions made before it, even when the motions are unopposed.[[7\/]] Among the circumstances we have considered in this case are thefacts that Seward appeared pro se at the hearing, that the willfulnessissue was raised by the judge_sua_ _sponte_ at the very end of thehearing, that Seward probably retained counsel only after receiving thejudge’s decision, and that counsel probably had very little time tofamiliarize 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 OperationsManual:The determination of whether to issue a citation for a willful orrepeated violation will frequently raise difficult issues of law andpolicy and will require the evaluation of complex factual situations.Accordingly, a citation for a willful violation shall not be issuedwithout consultation with the Regional Administrator, who shall, asappropriate, 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 ofit) in testimony and argument, thereby raising, on his own behalf, thewillfulness of the violation.\” We find it remarkable that the Secretarywould argue that an employer places in issue the willfulness of aviolation simply by seeking to defend itself against the Secretary’scharges. We find such an argument even more remarkable in thecircumstances of this case, where the Secretary’s cross-examination ofthe witness who purportedly raised the issue of willfulness did nottouch on the witness’s state of mind.We further note that the Secretary sought to justify seeking theamendment after the hearing by asserting that she did not know all thefacts surrounding the employer’s knowledge of the hazard \”[a]t the timeof the filing of the complaint.\” This explanation is at bestdisingenuous. Whatever the Secretary knew when she filed her complaint,she was certainly not surprised by any testimony presented at thehearing. The Secretary’s First Request for Admissions, filed well inadvance of the hearing, demonstrates that the Secretary was fully awareof the facts elicited at the hearing. If the Secretary believed thosefacts supported a finding of willfulness, she could have moved to amendbefore the hearing.[[1\/]] The citation and Section 5(a)(1) read:_Citation_1Section 5(a)(1) of the Occupational Safety and Health Act of 1970: Theemployer did not furnish employment and a place of employment which werefree from recognized hazards that were causing or likely to cause deathor serious physical harm to employees in that employees were exposed tothe hazard of falling:The practice of using a forklift (Powered Industrial Truck), with asafety platform secured to the lifting carriage and\/or forks to elevateemployees. The safety platform was not equipped with vertical hoistingcontrols elevatable with the lifting carriage or forks, nor was anoperator in the control position on the truck when employees were elevated.Among other methods, one feasible and acceptable abatement method tocorrect this hazard is to equip the Clark, model C300-40 forklift withelevatable controls and\/or provide an operator in the control positionon the truck as mentioned in Section 513 A and B, American NationalStandard 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 ofemployment which are free from recognized hazards that are causing orare likely to cause death or serious physical harm to his employees;”