“Docket No. 86-1691 SECRETARY OF LABOR,Complainant,v.SEWARD MOTOR FREIGHT, INC.,Respondent.OSHRC Docket No. 86-1691DECISION Before: BUCKLEY, Chairman, and AREY, Commissioner. BY THE COMMISSION:The issue before us is whether the Administrative Law Judgeerred in granting the Secretary of Labor’s post-hearing motion to amend her complaint fromalleging a serious violation of section 5(a)(1) of the Occupational Safety and Health Actof 1970 (29 U.S.C. ? 654(a)(1)) [[1\/]] to alleging a willful violation. We find that thejudge did err in 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 inSeward, Nebraska. Some of the work done by employees involves repairs to the sides androofs of trailers. Originally, fourteen-foot ladders were used to gain access to the sidesand roofs. However, Mr. Tanderup, the president of Seward, noticed that employees usingladders would not move the ladder to repair large areas of damage but would instead leanover from the ladder and try to fix the damage. Mr. Tanderup spoke to his shop foreman andtold him that he no longer wanted employees to use ladders for repairing trailers becausehe was afraid the employees would fall. Mr. Tanderup and the shop foreman then welded aplatform assembly and attached it to the forks of a forklift. Mr. Tanderup stated that hehad always instructed his mechanics \”that an operator hoist the person [on theplatform] up to the top [of the roof] to work on it,\” but that he was \”unable tosee everything that happens in the shop.\” He acknowledged that \”a lot oftimes\” the mechanics would either crawl up the forklift onto the platform or placethe ladder next to the forklift and climb onto the platform. Scott Pekarek, a formeremployee of Seward, testified that roughly ninety-eight percent of the time a singleemployee would take the forklift to a work site, operate the controls to raise theplatform, and then climb up to the platform.On June 9, 1996, Loren Toovey, an employee of Seward, fell fromthe top of the roll cage of the forklift. He had just performed work on top of the roof ofa trailer and was climbing down the forklift mast onto the roll cage of the forklift whenhe fell. The roll cage consisted of ribs spaced roughly four inches apart, and the cagewas approximately seven feet above the floor. Toovey fell from that height, seriouslyinjuring his wrists during the fall, and on hitting the ground was rendered unconscious.After the accident, employees were not told to change theirmethod of gaining access to the forklift platform. Instead, employees continued to climbup onto the elevated platform after the accident, and they did not cease this practiceuntil the worksite was inspected by an OSHA compliance officer on October 27, 1986. Thecompliance officer inspected the platform and told Seward that the platform violated therequirements of Section 513, American National Standards Institute (ANSI) B56.1-1975,Safety Standard for Low Lift and High Lift Powered Industrial Trucks. This ANSI standardgoverns the safe operation of powered industrial trucks (including forklifts) whileemployees are being elevated on a safety platform. The day after the inspection Sewardremoved the platform from the forklift.BOn November 6, 1986, OSHA issued to Seward a citation alleginga serious violation of section 5(a)(1). The citation asserted that employees were exposedto the hazard of falling from the forklift because the platform should have either beenequipped with vertical hoisting controls elevatable with the lifting carriage, or thereshould have been an operator 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 byMr. Tanderup, who is not a lawyer. After the parties had finished presenting theirevidence, the judge commented that the violation could have been categorized as willfulbecause 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\/]] Sewarddid not object to or make any comments on the judge’s observations.On July 28, 1987, the Secretary filed a post-hearing motionunder Rule 15(b) of the Federal Rules of Civil Procedure [[4\/]] to amend the pleadingsfrom a serious violation to a willful violation. On September 2, 1987, the Secretary fileda post hearing brief in which he argued that Seward’s violation of section 5(a)(1) waswillful, and that the penalty should be increased to $4,500. Seward, still proceedingwithout legal counsel, did not object to the Secretary’s motion and did not file apost-hearing brief.On September 23, 1987, the judge issued his decision, in whichhe granted the Secretary’s motion to amend, found Seward to have willfully violatedsection 5(a)(1), and assessed a penalty of $1,750. The judge found that \”[o]n a dailybasis and for a considerable period of time [Seward’s] employees were exposed to thehazard of falling from various heights of up to 12 feet\” while climbing to the workplatform and that the hazard was recognized by the president of Seward. The judge agreedwith the Secretary’s argument that the platform was a hazard recognized by users ofpowered industrial trucks, as established by section 513, ANSI B56.1-1975, Safety Standardfor Low Lift and High Lift Powered Industrial Trucks.[[5\/]] The judge found the violationto be willful because:To continue to permit the use of the offending equipment after the accident in the samemanner as it was used before the accident and to do so until investigated and cited byOSHA 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 fromrecognized hazards . . . likely to cause death or serious physical harm . . . .\”Seward, now represented by counsel, filed a petition fordiscretionary review. Seward did not take exception either to the judge’s finding of asection 5(a)(1) violation or to his ruling granting the amendment, but argued only thatthe violation was not willful. Nevertheless, when he directed this case for review,Chairman Buckley specifically included the correctness of the judge’s ruling on theSecretary’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 Beforethe Administrative Law Judge.The Secretary argues that \”[b]ecause [Seward] did notraise the issue of the propriety of the amendment before the judge that issue should notbe considered by the Commission on review\” and that doing so \”would be an abuseof discretion.\” The Secretary asserts that our review of this issue \”would be aninjustice\” because \”[i]t is not the province of the Commission to act as counselfor a party and search the record for issues neither raised before the judge nor evenraised by a party’s counsel in its petition for discretionary review.\”Normally, we will not review issues \”that the judge didnot 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 amendmentchanging the classification of the violation from serious to willful was proper. The judgedid have the \”opportunity to pass upon\” that issue since the Secretary himselfraised that issue before the judge when he moved to amend. The fact that the judge failedto consider whether the motion was proper under Rule 15(b) and relevant case law does notmean that the issue was not before him.Thus, the Secretary is wrong in equating Seward’s failure toobject 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 isreally saying that Seward’s failure to object when the motion was made waived anyobjection to the motion and justified the judge’s summary granting of the motion. Thisargument is inconsistent with Commission precedent and practice. Under Commissionprecedent, it is 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). A party’s failureto object does not relieve the judge from the obligation of considering the merits of themotion. [[6\/]] Id., 3 BNA OSHC at 1090, 1974-75 CCH OSHD at p. 23,334. And since itis not mandatory for a party to respond to a motion, the lack of a response cannot waivethe party’s right to later object to the granting of the motion. The circumstances of thiscase make it particularly inappropriate to hold against Seward its failure toobject to the amendment when the motion was made. The judge had already announced at thehearing that he considered the violation willful, and this may well have led Seward toconclude that an objection would have been futile. Moreover, a Rule 15(b) motion to allegea willful violation of section 5(a)(1) raises complex legal issues that even anexperienced OSHA litigator would have difficulty analyzing. We would hardly expect a prose employer to comprehend 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 thePetition for Discretionary Review.The Secretary also argues that we should not address thepropriety of the amendment because Seward did not raise that as an issue in its Petitionfor Discretionary Review. The Secretary asserts that we would be acting as counsel forSeward if we decide the issue when Seward’s counsel did not first raise it. We reject theargument.The Commission seeks to provide the parties with \”anexpeditious, just, and inexpensive determination of every case.\” Rule 2(c), 29C.F.R. ? 2200.2(c) (emphasis added). Like any adjudicatory body, that may require us togo 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 caseon 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. Inreviewing the record on, the issue of willfulness, it became apparent, as will bediscussed later, that the issue of willfulness had not been expressly or implicitly tried.Thus, the willfulness argument raised by Seward directly brought into question thepropriety of the amendment that injected willfulness into the case. We do not believe thatwe are acting as Seward’s counsel by considering this issue.We also note that each Commissioner has the authority to directa case for review on any or all issues in the case, even in the absence of a petition forreview 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 issuesnot raised in a petition for discretionary review. The Commission’s policy in determiningthe issues to address on appeal is codified in Rule 92(a), 29 CFR ? 2200.92(a), whichprovides:(a) Jurisdiction of the Commission: Issues on Review.Unless the Commission orders otherwise, a direction for review establishes jurisdiction inthe Commission to review the entire case. The issues to be decided on review are withinthe discretion of the Commission but ordinarily will be those stated in the direction forreview, those raised in the petitions for discretionary review, or those stated in anylater order.The Commission has recognized that there are prudential limitsto its power to decide issues not raised by the parties. As noted earlier, the Commissionwill rarely address issues that were not raised before the judge. Such a rule isappropriate because the parties will not have had the opportunity to present evidence thatmight be relevant to the issue, and there will be no judge’s decision on the point thatcan provide a focus for Commission review. But when as here an issue has been raisedbefore the judge, similar considerations do not apply, and there is no unfairness in theCommission raising an issue on which the parties have not focused in a petition forreview, so long as the Commission gives the parties a fair opportunity to argue the issuebefore 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 themotion.) The Commission’s usual procedure, when it directs review of an issue that has notbeen raised in a PDR, has been to decide that issue when the aggrieved party responds tothe 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) withLone 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 suasponte when aggrieved party did not respond and there was no compelling public interest inCommission review).In this case, Seward has argued the propriety of the amendmentin response to the direction for review. Thus, it would be consistent with our pastpractice for us to address the issue. The Secretary has offered no reason why this case isso unique that we should depart from the practice we have consistently followed ofresolving issues stated in a direction for review when the aggrieved party briefs thoseissues.3. Merits of the Motion to Amend.In McWilliams Forge Co., 84 OSAHRC 36\/C12, 11 BNA OSHC2128, 1984-85 CCH OSHD ? 26,979 (No. 80-5868, 1984), the Commission held that the text ofRule 15(b) \”makes plain that an amendment under the first half of Rule 15(b) isproper only if two findings can be made — that the parties tried an unpleadedissue and that they consented to do so.\” 11 BNA OSHC at 2129, 1984-85 CCH OSHDat p. 34,669 (emphasis original). The Commission further held that \”consent may befound only when the parties knew, that is, squarely recognized, that they were trying anunpleaded issue\” and that \”consent is not implied by a party’s failure to objectto evidence that is relevant to both pleaded and unpleaded issues, at least in the absenceof 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 wastried. [[8\/]] At the hearing, the Secretary attempted to prove that Seward violatedsection 5(a)(1). This required the Secretary to prove, among other things, that Seward\”recognized\” a hazard. \”A hazard is deemed ‘recognized’ when the potentialdanger of a condition or activity is either actually known to the particular employer orgenerally known in the industry.\” St. Joe Minerals Corp. v. OSHRC, 647 F.2d840, 845 (8th Cir. 1981). In order to show that a violation was willful, the Secretarymust also show that the employer exhibited an intentional disregard of, or plainindifference to, the Act’s requirements. Id. at 847. Thus, trial of the issue ofwillfulness would focus on the employer’s state of mind, e.g., its general attitude towardemployee safety or toward compliance with the law, to a much greater extent than wouldtrial of a non-willful violation. The Commission has previously observed that the natureof proof differs when a willful violation is alleged:It is not enough for the Secretary to show that an employer wasaware of conduct or conditions constituting a violation; such evidence is necessary toestablish any violation, serious or nonserious. … there must be evidence of suchreckless disregard for employee safety or the requirements of the law generally that onecan infer that if the employer had known of the standard or provision, the employer wouldnot 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). Seealso Brock v. Morello-Brothers Construction, Inc., 809 F.2d 161, 163-165 (1st Cir.1987) (distinguishing serious from willful violations); McLaughlin v. Union Oil ofCalifornia, _ F.2d ___, 1989 WL 21505 (7th Cir. 1989) (same).We conclude that the parties did not try the issue of whetherSeward demonstrated the indifference to legal responsibilities or disregard of employeesafety that are characteristic of a willful violation. We first note that the Secretary’sown guidelines recognize that willful violations involve complex legal and factualinquiries. Citations alleging willful violations of the Act therefore require the approvalof higher level officials than is required when other citations are issued. [[9\/]] In thiscase, not only was such approval lacking, but no OSHA representative even testified to abelief that the violation was willful. The only OSHA representative who testified was thecompliance officer who inspected Seward’s worksite, and nothing in his testimony suggeststhat he believed the violation was willful. The main thrust of the compliance officer’stestimony was that Seward violated section 5(a)(1) because its forklift platform did notconform 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 orindifference to employee safety. The compliance officer was aware that an accident hadoccurred, but he did not suggest that Seward was reckless or indifferent because it hadnot changed its procedures 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 demonstratetrial of an implied willfulness allegation. None of the employees who testified about thehazardous 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 closeof 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 thatthey began to use the forklift platform because it was safer than the ladders they hadused previously, that they were not aware of any requirement for the type of controls OSHAadvocated, and that \”[w]e felt it was a safe way of doing things.\” TheSecretary’s cross-examination of Mr. Tanderup takes up less than 2 1\/2 pages oftranscript, and explored only whether Seward had a written safety program. Notably missingfrom the cross-examination is any inquiry into the factual issue that the Secretary nowargues is the basis for a willful violation: why Seward did not change its proceduresuntil after the OSHA inspection. Surely, if the issue of willfulness had been tried, thecross-examination of Mr. Tanderup would have been more probing. [[10\/]]The Secretary argues that Seward’s failure to object to themotion to amend shows that the company \”consented\” to try willfulness. We failto perceive how a company could have consented to trial of an issue when the issue in factwas not tried. Even if it could be found that both parties tried the unpleaded issue ofwillfulness, 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 Sewardcommitted a serious violation of section 5(a)(1). Even if some of this evidence was alsorelevant to the unpleaded issue of willfulness, we would still follow the rule stated in McWilliamschat consent is not to be implied based on a party’s failure to object to evidence that isrelevant 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 thehearing, \”squarely recognized\” that Seward was consenting to trial of theunpleaded issue of willfulness by failing to object when the judge, after all the evidencehad 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 allegedas willful. The lack of response of both parties to the judge’s observation thatthe violation might have been willful but had not been alleged as such is inconsistentwith the suggestion that the parties \”squarely recognized\” they were tryingwillfulness.There is also merit to Seward’s argument that it would beprejudiced by the amendment. The Eighth Circuit has held that, to \”[e]ven given factssuggesting implied consent, amendment of the pleadings should not be permitted where itwould operate to deny a party fair opportunity to present evidence material to newly addedissues.\” St. Joe Minerals, 647 R.2d at 844. Willfulness means an employerdemonstrated a reckless disregard for safety. While the company’s failure to changeprocedures after an accident might tend to show a reckless disregard, this evidence is notconclusive, and a company accused of willfulness on this basis might be able to providemitigating evidence to prove that it did not act with reckless disregard. Also, Seward’sprejudice argument supports the conclusion that the issue of willfulness was not tried byconsent, since the failure of a party to present evidence on an issue is a strongindication that the party did not \”squarely recognize\” that it was trying theissue.D Since Seward has not taken exception to the finding of aviolation, we affirm the citation as serious, as originally alleged. The record fullysupports the allegation that the violation was \”serious\” under the test setforth at 29 U.S.C. ? 666(k). Penalties are to be assessed in light of the gravity of theviolation, 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 thepotentially more severe fall hazard that existed when employees repaired the trailerswhile working on ladders. This demonstrates good faith. Although an employee was seriouslyinjured, the more probable result of a fall (given the relatively short distancesinvolved) would have been only minor injury. Moreover, Seward has no history of previousviolations. In light of all of these factors, we consider appropriate a penalty of $100.Finally, we note that this case illustrates the perils that canarise when an employer chooses to proceed to a hearing without representation by legalcounsel or a representative familiar with Commission procedures. Although we recognizethat an employer faced with a $350 proposed penalty might believe it uneconomical toobtain legal counsel, a representative familiar with judicial procedures will oftenpresent an employer’s case more effectively than a businessman whose expertise lieselsewhere. A lawyer might also enable the employer to avoid procedural pitfalls.Accordingly, the judge’s ruling granting the Secretary’s motionto amend is set aside. The citation alleging a serious violation of section 5(a)(1) isaffirmed. A penalty of $100 is assessed.FOR THE COMMISSION Ray H. Darling, Jr.Executive Secretary Dated: April 20, 1989SECRETARY OF LABOR,Complainant,v. SEWARD MOTOR FREIGHT, INC., Respondent.OSHRC DOCKET NO. 86-1691DECISION AND ORDER Child, JudgeAPPEARANCES:For the Complainant:Tobias B. Fritz, Esq., Kansas City, Missouri For the Respondent:Wayne O. Tanderup, Seward, Nebraska Statement of the CaseThis matter is before the Occupational Safety and Health ReviewCommission (the Commission) pursuant to section 10(c) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ? 651 et seq., (the Act). Complainant seeksaffirmance of Citation No. 01, issued to respondent November 6, 1986, charging one item ofviolation 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-seriousviolation of section 5(a)(2) of the Act was not contested by the respondent and become afinal 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 byaffected employees or on their behalf. (Tr. 6) The parties were invited to submitpost-hearing briefs in support of their respective positions; only the complainant hasdone so.On July 28, 1987, complainant filed Motion to Amend thecomplaint herein to Conform to the Evidence to allege the 5(a)(1) violation, subject ofthis action to be Willful. Time permitted by Commission rule to respond to said motion hasexpired and no response thereto has been filed by the respondent. The motion is GRANTED.Jurisdiction of the subject matter herein has been admitted andis not an issue; nor is jurisdiction of the parties.The Issues:Issues raised by the citation and the pleadings to be heredetermined 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, wasthat violation willful?C. What, if any, penalty would be appropriate? Statement of FactsOn October 27, 1986, a compliance officer of the United StatesOccupational Safety and Health Administration (OSHA) was sent to conduct an inspection atrespondent’s worksite at Seward, Nebraska. The inspection resulted from an employeecomplaint which had been filed with OSHA. (Tr. 16) The facility inspected was involved inrepairing over-the-highway semi-trailers. Such repairs would include correcting tears orgouges in the exterior of the trailers which could extend horizontally several feet and beon occasion at or near the top of said trailer which would be thirteen and one-half feetabove the floor or ground. (Tr. 65)Whereas, the trailer mechanics originally undertook to dorepairs to the upper reaches or tops of these trailers by means of an aluminum ladder, therespondent during or prior to 1985 developed what it considered to be a more safe methodby 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 orin 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 andtestified \”. . . it has always been my instruction that an operator hoist the personup to the top to work on it.\” (Tr. 70) However, he was aware that the trailermechanics would position the fork lift and then either ascend to the platform via a ladderor climb up the fork lift to gain access to the platform. (Tr. 71)The platform equipped fork lift was utilized by variousemployees to work at heights and on a daily basis, but mainly it was utilized by threetrailer mechanics. Ninety-eight percent of the time one person would operate and work fromthe 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 thefork lift platform, generally did so as a one man function and were never told not to doso (Tr., 38, 39, 41)On June 9, 1986, one of these trailer mechanics had performedwork on the roof of a trailer. He climbed off the roof into the platform and thence downthe back of the fork lift mast onto the roof of the cage part of the fork lift. This roofof the cage consists of ribs about 4 inches apart and is approximately seven feet abovethe floor. He fell from that point to the floor and was rendered unconscious. He has norecollection of what happened between arriving at the roof of the cage and regainingconsciousness 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, thisemployee further suffered injury to both wrists when he caught his fall to the floor withboth hands. (Tr. 42)Notwithstanding the incident of June 9, 1986, resulting in serious injury and extensivetime loss to an employee (Tr. 42-45) respondent made no alteration in the work practicesinvolving the platform equipped fork lift. No restricting instructions were issued bymanagement to the trailer 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 onOctober 27, 1986, was the practice discontinued and the offending equipment taken out ofservice. (Tr. 18, 19, 28, 71)DiscussionIssue A:Was the respondent in violation of section 5(a)(1) of the Actas 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 apreponderance of the evidence (1) that a condition or activity in the employer’s workplacepresented a hazard to employees, (2) the hazard was recognized either by the employer orgenerally within the employer’s industry, (3) the hazard was likely to cause death orserious physical harm, and (4) that feasible means existed to eliminate or materiallyreduce the hazard. See Inland Steel, Co., 12 BNA OSHC 1968, 1986 CCH OSHD ?27,647 (OSHRC No. 79-3286, 1986); Phillips Petroleum Co., 11 BNA OSHC 1776, 1984 CCHOSHD ? 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 exposedto the hazard of falling from various heights of up to 12 feet while ascending to ordescending from a work platform elevated on the extended tongues of a fork lift access towhich platform was gained by first climbing on top of the roll cage covering the operatorcompartment of the fork lift and from there climbing up the extended mast of the fork liftto 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 systemclaims to have given \”. . . instructions that an operator hoist, the person to thetop to work on it.\” (Tr. 70) There is no evidence to whom said instruction was givenor 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 recordis clear that from the inception of the use of this platform-rigged fork lift an employeeworking alone would place the fork lift at the work position, raise the platform to thedesired height and then 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 lift was recognized byusers of powered industrial trucks, which include such equipment, is established by theAmerican National Standards Institute (ANSI), Safety Standard for Powered IndustrialTrucks. (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, thereshall be an operator in the control position of the truck for the protection of the personbeing elevated. Likewise the standard provides that if the platform is equipped withvertical hoisting controls that for the protection of the personnel being elevated thepersonnel on the platform be provided means of shutting off power to the truck. Here therespondent omitted the industry required precautions of having an operator present at alltimes 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 muchas 5 feet above the roll cage of the fork lift is likely to cause death or seriousphysical harm is amply demonstrated by the serious physical injuries sustained byrespondent’s employee on June 9, 1986, when he fell from the top of the roll cage, 7 feetto the floor below. (Tr. 36, 42, 43) (4)The investigating compliance officer testified that the offending platform-rigged forklift would have been rendered free of the hazards attendant upon accessing or leaving itselevated position if (a) a lift operator had been in attendance at times when a worker waselevated to raise and lower the platform, or (b) if the platform had been equipped withremote controls for raising and lowering the platform and cutting off power to the forklift. (Tr. 28; Exhibit C-2 (The ANSI Standard)) Complainant has met its burden of provinga violation of section 5(a)(1) of the Act.Issue B:Was respondent’s violation of section 5(a)(1) of the Act, asabove found, willful?As heretofore held by the Commission, a violation is willful ifcommitted \”. . . with intentional, knowing or voluntary disregard for therequirements of the Act or with plain indifference to employee safety.\” AsbestosTextile 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 continuingfailure to provide a safe workplace for its employees in respect to the offendingplatform-rigged fork lift was serious. For the respondent to blind itself to the welfareof its employees by wishfully attributing its employee’s fall from the top of the forklift 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 demonstrateda plain indifference to employee safety.To continue to permit the use of the offending equipment afterthe accident in the same manner as it was used before the accident and to do so untilinvestigated and cited by OSHA amounts to willful violation of the duty imposed on allemployers by the Act to \” . . . furnish to each employee employment and a place ofemployment . . . free from recognized hazards . . . likely to cause death or seriousphysical harm . . . .\”Issue C:What, if any, penalty would be appropriate?A willful violation by respondent of the general duty clause ofthe Act having here been established, it is appropriate that a penalty be fixed andassessed.The $350.00 penalty proposed in the Notification of Penaltyattached to the Citation assumed a serious violation of the Act. The testimony of thecompliance officer in support of and justification of that proposed penalty gave evidencethat the Secretary gave due consideration to the statutory requirements in arriving atthat proposed penalty which assumed the violation to be serious only. (Tr. 29-33) If theviolation 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 timesgreater for willful violations than those imposed for serious violations, but not toexceed $10,000 for each violation.A penalty of $1,750 is here found to be appropriate forrespondent’s willful violation of section 5(a)(1) of the Act.Now having observed the demeanor of the witnesses and havingweighed the credibility thereof, there are here entered the following:Findings of Fact1. Respondent, Seward Motor Freight, Inc., is a corporationwith 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 truckmaintenance. 2. Respondent employs approximately 225 employees in its various business activities,including, at all times pertinent hereto, approximately 3 employees at the aforesaidworkplace at I-80 and Highway 15, Seward, Nebraska. Respondent utilizes goods, equipmentand rnaterials shipped from outside the State of Nebraska and is engaged in a businessaffecting commerce.3. Facts set forth under Statement of Facts herein above are here incorporated byreference as though specifically again set forth at this point.4. The practice pursued by respondent’s employees in accessingand leaving the elevated platform of the platform-rigged fork lift at respondent’sworkplace presented the hazard of falling to employees.5. The hazard of falling thus presented to respondent’semployees was recognized by respondent.6. The hazard of falling thus presented to respondent’semployees was recognized within the industries utilizing powered industrial trucksincluding fork lifts.7. A fall from a height up to 12 feet while ascending to ordescending from the elevated platform in question was likely to cause death or seriousphysical harm to an employee involved.8. The hazard of falling could have been eliminated ormaterially reduced by (a) having a lift operator present at all times employees workedfrom the elevated platform, or (b) equipping the platform with remote vehicle controls andlift 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 knownto 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 theoffending equipment permitted by the respondent after June 9, 1986, and until inspected byOSHA on October 27, 1986, was done with intentional, knowing and voluntary disregard forthe requirement of the Act that employees be furnished a place of employment free fromrecognized hazards likely to cause death or serious physical harm.11. The continuation of the unaltered practice and use of theoffending equipment permitted by the respondent after June 9, 1986, and until inspected byOSHA 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 foundis the sum of $1, 750.00.Conclusions of Law1. Respondent is an employer within the meaning of the Act.2. Jurisdiction of the subject matter of this proceeding isconferred upon 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 ofsection 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 violationhere found.OrderItem 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. ChildJudge, OSHRC Dated: 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 of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees.[[2\/]] \”I think it could well have been a willfulviolation, 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 accident took place, ifnot before.\”[[3\/]] \”…I see no justification for reducing the penaltyif the violation is found. If anything, it should be elevated because of the observationsI have made.\”[[4\/]] Rule 15. Amended and Supplemental Pleadings(b)Amendments to Conform to the Evidence. When issuesnot raised by the pleadings are tried by express or implied consent of the parties, theyshall be treated in all respects as if they had been raised in the pleadings. Suchamendment of the pleadings as may be necessary to cause then to conform to the evidenceand to raise these issues may be made upon motion of any party at any time, even afterjudgement; . . . .[[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 exceptionto the judge’s conclusion that it violated section 5(a)(1), we assume without decidingthat Seward’s manner of using the fork-lift platform failed to conform to the ANSIstandard.[[6\/]] It has been the Commission’s consistent practice toconsider the merits of motions made before it, even when the motions are unopposed.[[7\/]] Among the circumstances we have considered in this caseare the facts that Seward appeared pro se at the hearing, that the willfulness issue wasraised by the judge sua sponte at the very end of the hearing, that Sewardprobably retained counsel only after receiving the judge’s decision, and that counselprobably had very little time to familiarize himself with the record before Seward’s PDRwas due.[[8\/]] The Secretary does not address this issue in her briefon review.[[9\/]] The Secretary states in Chapter IV.B.3.d of her FieldOperations Manual:The determination of whether to issue a citation for a willful or repeated violation willfrequently raise difficult issues of law and policy and will require the evaluation ofcomplex factual situations. Accordingly, a citation for a willful violation shall not beissued 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 thatMr. Tanderup \”addressed his subjective knowledge of violation (or lack of it) intestimony and argument, thereby raising, on his own behalf, the willfulness of theviolation.\” We find it remarkable that the Secretary would argue that an employerplaces in issue the willfulness of a violation simply by seeking to defend itself againstthe Secretary’s charges. We find such an argument even more remarkable in thecircumstances of this case, where the Secretary’s cross-examination of the witness whopurportedly raised the issue of willfulness did not touch on the witness’s state of mind.We further note that the Secretary sought to justify seekingthe amendment after the hearing by asserting that she did not know all the factssurrounding the employer’s knowledge of the hazard \”[a]t the time of the filing ofthe complaint.\” This explanation is at best disingenuous. Whatever the Secretary knewwhen she filed her complaint, she was certainly not surprised by any testimony presentedat the hearing. The Secretary’s First Request for Admissions, filed well in advance of thehearing, demonstrates that the Secretary was fully aware of the facts elicited at thehearing. If the Secretary believed those facts supported a finding of willfulness, shecould have moved to amend before the hearing.[[1\/]] The citation and Section 5(a)(1) read:Citation1Section 5(a)(1) of the Occupational Safety and Health Act of1970: The employer did not furnish employment and a place of employment which were freefrom recognized hazards that were causing or likely to cause death or serious physicalharm to employees in that employees were exposed to the hazard of falling: The practice of using a forklift (Powered Industrial Truck), with a safety platformsecured to the lifting carriage and\/or forks to elevate employees. The safety platform wasnot equipped with vertical hoisting controls elevatable with the lifting carriage orforks, nor was an operator in the control position on the truck when employees wereelevated.Among other methods, one feasible and acceptable abatementmethod to correct this hazard is to equip the Clark, model C300-40 forklift withelevatable controls and\/or provide an operator in the control position on the truck asmentioned in Section 513 A and B, American National Standard Institute (ANSI) B56.1-1975,Low Lift and High Lift Trucks.The ActSec. 5(a) Each employer–(1) shall furnish to each of his employees employment and a place of employment which arefree from recognized hazards that are causing or are likely to cause death or seriousphysical harm to his employees;”