9 O.s.h. Cas.(bna) 1646, 1981 O.s.h.d. (cch) P 25,376st. Joe Minerals Corporation, D/b/a St. Joe Lead Co.smelting Division, Petitioner, v. Occupational Safety and Health Review Commission and Raymarshall, Secretary of Labor, United Statesdepartment of Labor, Respondents, 647 F.2d 840 (8th Cir. 1981)

Petitioner, St. Joe Minerals Corporation (St. Joe) seeks review, pursuant to 29 U.S.C. § 660(a), of a decision of the Occupational Safety and Health Review Commission holding that St. Joe willfully violated § 5(a) (1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 654(a) (1). We grant the petition in part and remand for further proceedings consistent with this opinion.

The present controversy stems from an August 9, 1978 accident involving a freight elevator at St. Joe's lead smelting plant at Herculaneum, Missouri. The freight elevator was located in the blast furnace area of the plant. It was used, in part, to carry dross, a by-product of the smelting process, from the first floor to the furnace on the third floor of the plant.

The elevator was equipped with standard safety devices. It had two sets of doors; an inside door to prevent egress from the elevator car during operation, and an outside door to protect against entrance into the elevator shaft when the elevator was not present on the landing. The elevator also had an interlock or electrical safety system. This system rendered the elevator inoperative unless all doors and gates were closed. In this way, the interlock system prevented the elevator from ascending or descending while any person or equipment was not completely inside the elevator and protected persons from falling into the elevator shaft.

The interlock device, however, could easily be "bypassed," i. e., the electrical circuitry could be altered to permit the elevator to operate without having all doors closed. The record shows that St. Joe used this procedure when the elevator malfunctioned. While the interlock system was inoperative, an alternative safety measure was implemented. An employee was assigned to open and close the elevator doors and to operate manually a stop button which would immobilize the elevator.

On the evening of August 8, 1978 the elevator door fell off its track, triggering the interlock system and causing the elevator to become inoperative. Larry Pettus, the head foreman in the blast furnace area, called Billy Boedecker, a St. Joe electrician, to repair the elevator. Instead of making the repairs, Boedecker, apparently on his own initiative, chose to bypass the interlock system so that the elevator could operate despite the problem with the elevator door. Boedecker informed a foreman in the blast furnace area that he had placed a "bypass jumper" on the elevator door.

Sometime after learning of the bypass, Larry Pettus telephoned Boedecker and told him to remove the bypass jumper from the interlock device before the end of the evening shift. Boedecker, however, never returned to the blast furnace area to remove the bypass nor informed Pettus or the other foremen that the bypass remained in place.

Nevertheless, during the evening shift on August 9, 1978, Larry Pierce, a laborer, was assigned to ensure that the doors were closed during movement of the elevator and to operate the stop button while Mark Ashe and Bob Coplin hauled loads of dross up to the third floor. The accident occurred as Coplin was driving off the elevator and Ashe was driving onto the elevator with another load of dross. Pierce was assisting Ashe with the elevator doors. As Ashe drove the front two wheels of his vehicle called a "bobcat" onto the elevator, the elevator began ascending; the movement caused the bobcat to overturn with the load of dross. Ashe fell into the elevator shaft and died from his injuries.

Following the accident, the Secretary of Labor issued a citation to St. Joe alleging that the company had violated section 5(a) (1) of the Act, commonly known as the "general duty clause."¹  The citation charged that: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: (a) Electrical protective devices (door switches and gate interlocks) of the Blast Furnace freight elevator were electrically bypassed (jumped) and rendered inoperative thereby permitting the freight elevator to operate or be operated with the doors and gates open.

The Secretary alleged that the violation was willful and proposed assessment of the maximum statutory penalty of $10,000.00.² 

St. Joe filed a notice of contest, pursuant to 29 U.S.C. § 659(a), and the matter was heard before an administrative law judge. On July 22, 1979 the ALJ entered his decision affirming the citation and penalty. The Commission denied St. Joe's petition for discretionary review of the ALJ's decision. On August 23, 1979 that decision became a final order pursuant to 29 U.S.C. § 661(i).

On petition to this court seeking review of the Commission's decision, St. Joe contends that the Commission erred in (1) permitting the Secretary to amend his complaint after the hearing had begun; (2) holding that the evidence supported a finding that St. Joe violated the general duty clause; and (3) holding that the violation was willful.

Secretary's Amendment of the Complaint.

In the course of the first day of the hearing, the Secretary moved orally to amend the complaint to charge that the company had violated the Act "on or about August 9, 1978 and times prior thereto."³  The complaint originally had charged a violation "on or about August 9, 1978." St. Joe objected to the Secretary's motion and requested a continuance. The ALJ granted leave to amend the complaint but also granted a continuance to permit St. Joe to prepare a defense to the amended complaint. The petitioner subsequently waived the continuance.

St. Joe now contends that the ALJ erred in permitting the Secretary to amend his complaint. St. Joe argues that the amendment was beyond the scope of Federal Rule of Civil Procedure 15(b)⁴  as well as contrary to section 9(c) of the Act, 29 U.S.C. § 658(c).⁵ 

These arguments are without merit. First, we note that Rule 15(b) permits any party to amend his pleadings to conform to the evidence, and to raise issues which were tried by the express or implied consent of the parties. Consent may be implied when evidence relevant to an unpleaded issue has been introduced at trial without objection. Mineral Industries & Heavy Constr. Group v. OSHRC, 639 F.2d 1289, 1292-93 (5th Cir. 1981); Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 906 (2d Cir. 1977). We believe it is plain that St. Joe impliedly consented to the amendment here. For example, testimony by Donald Gebhard and Earl Brown that bypasses had been used on the elevator at times prior to August 9, 1978 was admitted without objection.

Even 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. Mineral Industries, 639 F.2d at 1293. St. Joe, however, alleges no prejudice resulting from the amendment which could not have been cured by a continuance. See, id.; Duane Smelser Roofing Co. v. Marshall, 617 F.2d 448, 449 (6th Cir. 1980). In such circumstances, we believe that the ALJ was not prohibited by Fed. R. Civ. P. 15(b) from granting leave to amend.

We also note that the Secretary's amendment was not barred by the six month limitations period in section 9(c) of the Act, 29 U.S.C. § 658(c). Although the written amendment alleged violations over a four year period, the ALJ limited his findings to conduct which occurred within the six month period. The ALJ considered acts prior to the six month period only in determining whether the violation was willful. See Georgia Electric Co. v. Marshall, 595 F.2d 309, 320 (5th Cir. 1979).

In sum, we conclude that the ALJ properly limited the scope of the violation charged in the amended complaint and that petitioner suffered no prejudice from the amendment.

Violation of Section 5(a) (1).

Petitioner also urges that the Commission erred in holding that St. Joe violated section 5(a) (1) of the Act, the general duty clause. We find substantial evidence to support the Commission's determination and affirm.

To establish a violation of the general duty clause, "the Secretary must prove (1) that the employer failed to render its workplace 'free' of a hazard which was (2) 'recognized' and (3) 'causing or likely to cause death or serious physical harm.' " National Realty & Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1265 (D.C. Cir. 1973). See also Empire-Detroit Steel v. OSHRC, 579 F.2d 378, 383 (6th Cir. 1978); Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 909 (2d Cir. 1977).

To prove that the employer failed to render its workplace "free" of hazard, the Secretary may be required to "specify the particular steps a cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely utility of those measures." National Realty, 489 F.2d at 1268. See also Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1164 (3d Cir. 1980); Empire-Detroit Steel, 579 F.2d at 384. Petitioner here contends that the Secretary failed to suggest a feasible means to abate the hazard. Moreover, St. Joe urges that its practice of providing an employee to operate the elevator manually was a reasonably safe and feasible alternative.

Although St. Joe may have acted in good faith in adopting this alternative procedure, it did not eliminate the danger to employees. Testimony indicated that the risks of accident increased when the interlock system was inoperative, in part due to the enhanced possibility of human error. The employer's better alternative, as suggested in the record, was to fully repair or replace malfunctioning equipment. On balance, we cannot say the Commission erred in finding that petitioner's efforts failed to free its workplace from hazard.

Petitioner also contends that the Secretary did not prove the existence of a "recognized" 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. Marquette Cement, 568 F.2d at 910; Brennan v. OSHRC (Vy Lactos Laboratories), 494 F.2d 460, 463-64 (8th Cir. 1974). We believe the record supports the finding that St. Joe had both actual and constructive knowledge⁶  of the danger of operating its freight elevator with the interlock system bypassed. St. Joe supervisory personnel had been warned by an independent elevator engineering firm and at least one St. Joe electrician that bypassing increased the risk of an elevator accident.⁷  In addition, there was evidence that operation of a freight elevator without interlocks was considered a hazard in the elevator industry.⁸ 

In brief, we find substantial evidence in the record to support the Commission's finding that St. Joe failed to render its workplace free of a recognized hazard causing or likely to cause death or serious physical harm.⁹ 

Willful Violation of the General Duty Clause.

Although we have found a violation of the general duty clause, we conclude that there is not substantial evidence to support the charge that the violation was willful. We vacate that portion of the order and remand.

Willful violation is nowhere defined in the Act, and the legislative history is sketchy.¹⁰  Thus, the Commission and the courts are charged with determining the meaning of willfulness in light of the policy and framework of the Act.¹¹ 

The Commission and the Secretary of Labor have interpreted a willful violation to be "an act done with either an intentional disregard of, or plain indifference to, the Act's requirements." We adopted this definition in Western Waterproofing Co., Inc. v. Marshall, 576 F.2d 139 (8th Cir.), cert. denied, 439 U.S. 965, 99 S. Ct. 452, 58 L. Ed. 2d 423 (1978).¹²  In that case we affirmed the Commission's conclusion that the employer had willfully violated the Act by disregarding specific scaffolding standards known to management personnel. We noted that

(employer's) officials substituted their own judgment for the provisions of the standards and therefore cannot escape the conclusion that they acted voluntarily with either intentional disregard of or plain indifference to, the requirements of the Act. The regulations allow no such unbridled discretion.

Id. at 143.

In the present case, however, the employer is charged not with a willful violation of a specific OSHA safety standard,¹³  but with a willful violation of his duty to provide a safe workplace.¹⁴  A reasoned application of the Act's gradations of penalties and violations is notably more difficult in this context. In particular, we confront the task of maintaining the statutory distinction between a "willful" violation and a "serious" violation.¹⁵ 

The Act's definition of a "serious" violation contains two elements: (1) hazard and (2) knowledge.¹⁶  First, a hazard exists when there is substantial probability that death or serious harm could result from the condition in question. The Secretary need not prove that an accident is probable; it is sufficient if an accident is possible and its probable result would be serious injury or death. Usery v. Hermitage Concrete Pipe Co., 584 F.2d 127, 131-32 (6th Cir. 1978); Shaw Constr., Inc. v. OSHRC, 534 F.2d 1183, 1185 (5th Cir. 1976); California Stevedore & Ballast Co. v. OSHRC, 517 F.2d 986, 987-88 (9th Cir. 1975). Second, an employer is liable only if he knew or reasonably should have known of the hazardous condition. See generally Danco Constr. Co. v. OSHRC, 586 F.2d 1243 (8th Cir. 1978).

In this case there is sufficient evidence to sustain a finding of a serious violation. The elevator bypass system involved the possibility of an accident; in the circumstances, such an accident was likely to result in serious injury or death. The record also supports the conclusion that St. Joe officials knew or in the exercise of reasonable diligence should have known of the hazard.

In addition to evidence showing the existence of a hazard and employer's actual or constructive knowledge of the hazard, establishing a willful violation requires proof that the employer intentionally disregarded or was indifferent to the requirements of the Act.¹⁷  This is true whether the basis of the charge is a violation of a specific regulation, Western Waterproofing, 576 F.2d at 142-43, or a violation of the general duty clause, Empire-Detroit Steel v. OSHRC, 579 F.2d 378, 384-85 (6th Cir. 1978). As a practical matter, however, a more concrete evidentiary showing is required to prove willfulness in the latter context. "Since the general duty clause is so broad, the evidence to support a charge of violation should be specific and detailed." Brennan v. OSHRC (Hanovia Lamp), 502 F.2d 946, at 952-53 (3d Cir. 1974). Accord, National Realty & Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1265-68 & n.41 (D.C. Cir. 1973). The Secretary must carry the burden of proving the employer's intentional disregard of, or plain indifference to the very broad duty to "furnish a place of employment free from recognized hazards " 29 U.S.C. § 654(a) (1).

Two courts of appeals have considered the evidence necessary to prove a willful violation of the general duty clause. In Empire-Detroit Steel v. OSHRC, 579 F.2d 378 (6th Cir. 1978), water entrapped by molten slag caused an explosion in petitioner's steel mill, killing an employee. The accident precipitated an inspection by the Department of Labor, resulting in an uncontested citation for violation of the general duty clause. The petitioner, however, continued the offending practice and the explosions occurred regularly. More than a year later, two explosions injured ten employees, and the petitioner was cited for a willful violation of the general duty clause. The court of appeals affirmed the finding of a willful violation, noting that despite the earlier fatal accident and the OSHA citation the petitioner had taken no action to remedy the hazardous condition.

Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160 (3d Cir. 1980), involved a similar hazard. A Labor Department inspector noted a pool of water on the floor near a furnace used to melt scrap steel. He observed the routine pouring of molten steel from the furnace into a ladle and then into molds. He cited the petitioner for a willful violation of the general duty clause, due to the danger of explosion should molten steel come in contact with the water on the floor. The court of appeals affirmed a finding of a serious violation but reversed the ALJ's conclusion that the violation was willful. The court pointed out that employees were in the process of removing the spilled water and that there was some risk of molten metal escaping from the furnace even if the pour had been delayed. The court found insufficient support in the record for the conclusion that the employer acted with either intentional disregard of, or plain indifference to the general duty clause.¹⁸ 

The Secretary, citing Empire-Detroit Steel, argues primarily that St. Joe's failure over time to abandon the bypass procedure evidences indifference to the requirements of the Act. In this case, we do not find the passage of time alone sufficient to prove willfulness.¹⁹  The elevator was used to haul heavy freight, equipment and vehicles. On occasion, the elevator doors were damaged in loading or unloading. If the door-locking mechanism malfunctioned, the bypass was used until repairs could be made. An employee was also assigned to assist in opening and closing the doors and to prevent the elevator from moving while being loaded or unloaded. As noted, a reasoned application of the Act's penalty scheme requires that to prove a willful violation there must be evidence, apart from that establishing knowledge of the hazard, from which we may reasonably conclude that the employer intentionally disregarded or was indifferent to the safety of the workplace. Such evidence is lacking on this record. Although it is clear in hindsight that some risk remained, the petitioner's conduct falls short of plain indifference to the general duty clause.

In sum, we hold that (1) the Commission did not err in granting the Secretary leave to amend his complaint; (2) the evidence supports the charge that St. Joe violated the general duty clause; and (3) there is not substantial evidence to support the determination that the violation was willful.

The petition for review is granted as to the finding of a willful violation. Having found the record evidence sufficient, however, to establish a serious violation, we remand to the Commission for determination and imposition of an appropriate penalty.²⁰