Seward Motor Freight, Inc.

Plain-English summary

Seward repaired semi-trailers using a work platform welded to forklift forks. Employees commonly raised the platform themselves and climbed the forklift mast to reach it instead of having an operator remain at the controls. One employee fell about seven feet while climbing down and sustained serious injuries. OSHA cited a serious general duty violation, but after the hearing the Secretary moved to change the allegation to willful and the ALJ granted the unopposed motion. The Commission held that willfulness had not been expressly or implicitly tried and that the employer's failure to object, particularly while appearing without counsel, was not consent to the new issue. It restored the serious classification, affirmed the violation, and reduced the penalty from $1,750 to $100.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1)
• Outcome: Violation modified from willful to serious; penalty reduced from $1,750 to $100.
• Key point: A post-hearing amendment to willful requires that the parties actually recognized and tried the employer-state-of-mind issue; silence on an unopposed motion is not enough.

Full text (OSHRC public release)

Docket No. 86-1691

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;