DANIEL INTERNATIONAL CORPORATION, BROWN AND WILLIAMSON PROJECT

OSHRC Docket No. 15690

Occupational Safety and Health Review Commission

May 28, 1981

[*1]

Before: CLEARY and COTTINE, Commissioners.

COUNSEL:

Bobbye D. Spears, Regional Solicitor, U.S. Department of Labor

Robert T. Thompson, for the employer

OPINION:

DECISION

BY THE COMMISSION:

A decision of Administrative Law Judge James D. Burroughs is before the Commission for review pursuant to section 12(j) n1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act"). The primary issue is whether the failure of four employees to tie off their safety belts while working on structural steel beams over 30 feet above a concrete floor constituted unpreventable employee misconduct. Judge Burroughs essentially found that the conduct of the employees was unpreventable n2 and vacated an amended citation alleging Respondent's ("Daniel") willful serious noncompliance with the standard at 29 C.F.R. 1926.28(a). n3 We reverse Judge Burroughs's decision and affirm the citation as a serious instance of noncompliance with the cited standard. We assess an $800 penalty. n4

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n1 29 U.S.C. 661(i). The Secretary of Labor's petition for discretionary review was granted by Commissioner Cleary.

n2 The judge stated that the employee conduct was an isolated incident. We have said previously, however, that we will treat situations alleged to be isolated incidents as assertions of the affirmative defense of unpreventable employee misconduct. See Kansas Power & Light Co., 77 OSAHRC 39/A2, 5 BNA OSHC 1202, 1977-78 CCH OSHD P21,696 (No. 11015, 1977).

n3 The standard at 1926.28(a) provides:

1926.28 Personal protective equipment.

(a) The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using such equipment to reduce the hazards to the employees.

n4 We do not consider the willful aspect of the allegation because the Secretary abandoned that allegation in his petition for discretionary review as well as in his brief on review.

[*2]

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I

Daniel was engaged in the construction of a tobacco plant in Macon, Georgia. On October 16, 1975, at about 4:15 p.m., Daniel ironworker foreman George Woolsey assigned four of the seventeen employees that he supervised to move a 3-foot wide by 20-foot long section of aluminum catwalk, which was located on structural steel members some distance above the plant's floor. Daniel's usual procedure for moving a temporary catwalk involved sliding the catwalk through the roof's structural steel beams onto a scissor lift, tying the catwalk to the scissor lift, and then moving the catwalk via the lift to a position under the beam area where the catwalk was to be repositioned. The catwalk would then be fed through the beams to its new position. Woolsey told the crew to move the catwalk in the usual manner, and to tie off their safety belts while on the structural steel and the scissor lift. Bruce Rule, the leadman of the crew, was not present when Woolsey gave the crew these instructions, but he soon rejoined the other crew members and they proceeded to move the catwalk.

Under Woolsey's observation, the [*3] crew moved the scissor lift to the place on the ground directly beneath the catwalk. Woolsey then returned to his desk about 90 feet away. After he left, the crew went up to the roof where the catwalk rested and began moving the catwalk by sliding it across the roof's structural steel. This method was faster than using the scissor lift and the crew was in a hurry to complete the task because it was a payday, when work is normally completed early, and this was their last assignment of the day. Although Woolsey had previously instructed the employees to stay off the building's air conditioning ducts, the crew members stood on the ductwork while sliding the catwalk. All the crew members wore safety belts with attached six foot lanyards and could have tied off to the structural steel but did not do so. While the catwalk was being moved, it struck one of the crew members, who lost his balance and fell 37 feet to his death.

Daniel maintained a safety program which included work rules requiring that safety belts be tied off. New employees were issued safety booklets stating that employees were to be tied off while doing elevated work without protection against falls. Daniel provided [*4] its employees with safety belts, and employees were instructed at weekly safety meetings to tie off their safety belts whenever they were 10 feet or more above a floor area. Prior to the accident, Daniel had discharged seven ironworkers for not tying off. Neither Rule nor Cannon, another member of the crew, knew about these discharges, although Cannon knew he was subject to discipline for not tying off. The incident leading to the accident marked the first time Cannon had violated the tie-off rule. Two days before the accident, an Occupational Safety and Health Administration compliance officer had inspected the same worksite and had observed all of Daniel's ironworkers tied off at that time.

Every morning, the first thing Woolsey's crews would do was check out their equipment and put on safety belts. Woolsey observed each of the 17 employees working under his supervision 7 to 10 times per day. When he observed a man not tied off, he would reprimand the employee. On two separate occasions, about three weeks apart, Woolsey had observed members of Rule's crews working in hazardous situations while not properly tied off and reprimanded the employees. He testified that he also [*5] reprimanded Rule and reminded him that it was his responsibility to keep the workers tied off. Rule, however, denied that he was told it was his responsibility to see that safety equipment was used.

II

Judge Burroughs vacated the amended citation, ruling that the conduct of the four employees was an isolated incident which could not have been foreseen by Daniel. n5 Citing Standard Glass Co., 72 OSAHRC 7/D7, 1 BNA OSHC 1045, 1971-73 CCH OSHD P15,146 (No. 259, 1972), and Engineers Construction, Inc., 75 OSAHRC 84/E11, 3 BNA OSHC 1537, 1975-76 CCH OSHD P20,012 (No. 3551, 1975), the judge found that the record was devoid of evidence indicating what Daniel could have done to prevent the failure of the four employees to tie off their safety belts. The record instead, Judge Burroughs stated, was replete with evidence of affirmative acts taken by Daniel to prevent such occurrences, including:

(1) A strongly stressed and enforced safety program which included regular safety meetings at which the tie-off rule was emphasized;

(2) The warning and termination of employees for failing to comply with safety rules;

(3) The furnishing of proper safety equipment to all employees, and [*6]

(4) The observation by foreman Woolsey of all the employees under his supervision from 7 to 10 times each workday and the regular cautioning given by Woolsey to wear safety belts.

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n5 Before addressing the merits of the defense, the judge noted that Daniel had not pled the isolated incident defense in its answer or specifically raised it at the hearing. He nevertheless held that the defense was tried by consent of the parties under Rule 15(b), Fed.R.Civ.P.

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Judge Burroughs found that foreman Woolsey's actions had been diligently directed at preventing the disregard of safety rules. He noted that Woolsey told the four crew members to tie off while on the scissor lift and structural steel and that Woolsey had remained in the area until the scissor lift had been properly positioned for use in moving the catwalk.

Finally, the judge declined to determine whether or not Rule had been a supervisor, finding that even if Rule is considered a supervisor, Rule's conduct had been totally unforeseeable and contrary to his training [*7] and instructions.

III

The Secretary of Labor ("the Secretary") argues that the record clearly establishes the failure to tie off as a serious instance of noncompliance with section 1926.28(a). While maintaining that Daniel may not even raise what we describe as the unpreventable employee misconduct defense because that defense had not been affirmatively pleaded or raised prior to the hearing, the Secretary argues that Daniel has not established the defense. Not even the leadman of the four-man crew, Rule, had tied off prior to the accident, emphasizes the Secretary. Further, it is not unforeseeable that an inexperienced leadman, like Rule, twice having been observed supervising employees who had not tied off, would again tolerate employees who did not tie off. Woolsey, therefore, should have known of the conditions leading to the citation if he had exercised reasonable diligence.

The Secretary also argues that Daniel's policy of discharging employees who did not tie off was not enforced either adequately or uniformly and was not communicated to its employees. The Secretary further argues that Daniel's knowledge of the violation should be imputed from the knowledge of Rule [*8] because Rule was acting as a supervisor. Rule's authority to use his judgment, secure materials, and oversee work were indicative of his supervisory authority.

In its review brief, Daniel argues that the evidence supports the judge's decision. It emphasizes that employers are not insurers of employee safety, citing B.D. Click Co., 76 OSAHRC 137/A2, 4 BNA OSHC 1849, 1976-77 CCH OSHD P21,240 (No. 9806, 1976); Engineers Construction, Inc., supra; and Horne Plumbing and Heating Co. v. OSHRC, 528 F.2d 564 (5th Cir. 1976), but are only required to take reasonable steps for the protection of their employees from reasonably foreseeable dangers, citing Butler Lime and Cement Co. v. OSHRC, 520 F.2d 1011 (7th Cir. 1975). Daniel argues that the knowledge or conduct of a foreman regarding a safety condition cannot automatically be imputed to an employer, citing Horne Plumbing and Ocean Electric Corp., 75 OSAHRC 6/C14, 3 BNA OSHC 1705, 1975-76 CCH OSHD P20,167 (No. 5811, 1975), rev'd, 594 F.2d 396 (4th Cir. 1979).

Daniel then argues that it had at extensive and effective safety program which, contrary to the Secretary's arguments, had been adequately enforced. [*9] It points out that the compliance officer had conducted an inspection of this same worksite just two days before the investigation and had not observed any unprotected employees. Daniel enumerates the following items reflecting on the quality of its safety program: (1) safety booklets had been distributed regularly to its new hires; (2) weekly thirty-minute safety sessions stressed the necessity for tied-off safety belts; (3) both Cannon and Rule knew that they should have been wearing tied-off belts in the air and neither had ever failed to tie off when required, thus indicating that Daniel's tie-off rule had been communicated effectively; (4) the employees under Woolsey's supervision put their safety belts on first thing each morning; (5) Woolsey observed all the members of his crew from seven to ten times each day. He cautioned or reprimanded employees he observed who had not tied off. He even reprimanded Rule on the two occasions when members of Rule's crews had not tied off; (6) seven employees had been discharged for failing to tie off prior to the fatality; (7) Daniel employed a full-time safety engineer at the site to enforce safety rules; and (8) none of Daniel's 175 [*10] ironworkers at the site had ever before been insolved in a fall there.

Daniel argues that the Secretary did not prove what it could have done to prevent the accident. It contends that the actions of the four crew members were unpreventable because the employees completely disregarded both Woolsey's instructions to use the scissor lift in moving the catwalk and to avoid walking on the ductwork. The employees even testified that they knew they should have tied off, and indeed could have tied off, but had nevertheless failed to do so.

Daniel also asserts these other specific arguments: (1) the Act is unconstitutional; (2) the 17 days between the inspection and the issuance of the citation constitute a lack of reasonable promptness; (3) the citation was improperly amended by the complaint to allege a section 1926.28(a) violation after originally alleging a section 5(a)(1) violation; (4) the complaint fails to state a claim upon which relief can be granted when it alleges that Daniel failed to comply with section 1926.28(a) by failing to "assure," instead of "require," the wearing of appropriate personal protective equipment; n6 (5) section 1926.28(a) is void for vagueness; and (6) [*11] section 1926.28(a) was invalidly promulgated.

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n6 The pertinent portion of the complaint reads:

[R]espondent failed to assure the wearing of appropriate personal protective equipment, i.e., safety belts, life-lines, and lanyards or equivalent fall protection, in an operation where there was exposure to a hazardous condition or where such equipment was needed to reduce the hazard to its employees.

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IV

In order for Daniel to prevail on its unpreventable employee misconduct defense, n7 Daniel must demonstrate it took all steps necessary to prevent the noncomplying conduct of its employees. n8 Daniel must show that the action of its employees was a departure from a work rule that Daniel had effectively communicated to its employees and had uniformly enforced. See Frank Swidzinski Co., 81 OSAHRC    , 9 BNA OSHC 1230, 1981 CCH OSHD P25,129 (No. 76-4627, 1981). Daniel has not made this showing. Although Daniel had work rules requiring the use of safety belts, its employees did not always follow these rules. As [*12] indicated above, this was not the first time Daniel's empoloyees had failed to tie off. Woolsey testified initially that he had "occasionally" observed employees who were not tied off when they should have been. He later testified more specifically that, on at least two and possibly more occasions, he had witnessed members of Rule's crews who were not tied off and had reprimanded them. It is clear from the record, therefore, that tie-off violations were not infrequent. Although it is true that Daniel discharged seven of its employees for not tying off, it is also pertinent that Daniel had not communicated word of those discharges to either Cannon or Rule. Not having knowledge of those discharges, these employees might have felt more inclined to breach the tie-off policy because they were not seriously concerned about any disciplinary action beyond a reprimand. In view of the frequency with which Daniel's employees violated the safety belt rule, Daniel should have assured that its discipline was effective to prevent recurrence and that word of such discipline was communicated to its employees. Because Daniel failed to effectively enforce its work rules, we conclude Daniel has [*13] not established unpreventable employee misconduct.

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n7 We conclude that this defense is properly before the Commission for the reason assigned by the judge, and therefore reject the Secretary's argument to the contrary.

n8 We have consistently held that the employer bears the burden of proving that it took all feasible measures to prevent noncomplying employee misconduct in order to establish the defense of unpreventable employee misconduct. Accordingly, to the extent that Daniel argues that the Secretary failed to prove what it could have done to prevent the violation of the Act, we reject the argument. See F.H. Sparks of Md., Inc., 78 OSAHRC 13/C13, 6 BNA OSHC 1356, 1978 CCH OSHD P22,543 (No. 15472, 1978); Utilities Line Constr. Co., 76 OSAHRC 121/A2, 4 BNA OSHC 1681, 1976-77 CCH OSHD P21,098 (No. 4105, 1976).

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It should, correspondingly, be added that Daniel's efforts at enforcement of its tie-off rule are revealed by the record to be quite erratic. Although Daniel had fired some employees for not [*14] tying off, it had only reprimanded other employees participating in different instances of tie-off violations, including those occurring on the date of the accident when all four members of the Rule crew failed to tie off n9 and the occasions when employees were twice seen by Woolsey working on Rule's crews without tied-off safety belts. Enforcement efforts like these are too spotty to constitute the uniform enforcement required of an employer. B-G Maintenance Management, Inc., 76 OSAHRC 60/A2, 4 BNA OSHC 1282, 1976-77 CCH OSHD P20,744 (No. 4713, 1976). Daniel has not, therefore, established its unpreventable employee misconduct defense, and we find, consequently, that it failed to comply with the standard at section 1926.28(a).

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n9 We have indicated previously that where all the employees participating in a particular activity violate an employer's work rule, the unanimity of such noncomplying conduct shows weak enforcement of the work rule. Maryland Shipbuilding and Drydock Co., 75 OSAHRC 85/E9, 3 BNA OSHC 1585, 1975-76 CCH OSHD P20,063 (No. 4503, 1975).

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It is not necessary to determine whether leadman Rule was technically a supervisor in this case. However, we observe that Rule had been assigned the duty of seeing to it that his crew members tied off. Daniel, therefore, relied on Rule to help implement its tie-off policy in spite of the knowledge it had that Rule did not always require his men to tie off. Because it knew Rule had been derelict in implementing the policy before, Daniel should have taken further steps to assure that the policy was followed, such as delegating the responsibility for compliance with the tie-off policy to someone other than Rule or supervising Rule even more closely. n10 See Laclede Gas Co., 79 OSAHRC 94/E13, 7 BNA OSHC 1875, 1979 CCH OSHD P24,007 (No. 76-3241, 1979); Mountain States Telephone & Telegraph Co., 78 OSAHRC 30/A2, 6 BNA OSHC 1504, 1978 CCH OSHD P22,668 (No. 13266, 1978), rev'd on other grounds, 623 F.2d 155 (10th Cir. 1980).

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n10 Although Woolsey's and Rule's testimony conflicted on whether Rule was responsible for seeing that the crew was tied off, the critical point is that Woolsey thought Rule had this responsibility. Thus, Daniel was relying on Rule to enforce the tie-off policy. If Daniel in fact failed to effectively communicate to Rule that he had this responsibility, that is only further evidence that Daniel's enforcement of the policy was ineffective.

[*16]

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V

Daniel has also raised a number of other arguments against affirmance of this citation. We conclude that none have merit. Daniel argues that the citation was not issued with reasonable promptness within the meaning of section 9(a) of the Act, 29 U.S.C. 658(a), because of the 17 day delay between the investigation and the issuance of the citation. We reject this argument because Daniel has not proven it was prejudiced by the delay in its ability to prepare and present its case. See Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871 (3d Cir. 1979); Stearns-Roger, Inc., 80 OSAHRC    , 8 BNA OSHC 2180, 1980 CCH OSHD P24,870 (No. 78-819, 1980).

Daniel also argues that the citation was improperly amended by the complaint to allege the section 1926.28(a) violation in place of the section 5(a)(1) violation originally cited. This argument too is rejected. The amended charge arose out of the same occurrence as the original charge and is therefore permissible absent prejudice to the non-moving party. P.A.F. Equipment Co., 79 OSAHRC 18/A2, 7 BNA OSHC 1209, 1979 CCH OSHD P23,421 (No. 14315, [*17] 1979), aff'd, 637 F.2d 741 (10th Cir. 1980). Daniel has not demonstrated prejudice here. The complaint was served nearly three months before the hearing, and Daniel had ample time to prepare its defense against the section 1926.28(a) allegation. See Builders Steel Co. v. Marshall, 575 F.2d 663 (8th Cir. 1978).

Daniel also contends that the complaint fails to state a claim upon which relief can be granted because the complaint alleges that the employer failed to comply with section 1926.28(a) by failing to "assure" the wearing of personal protective equipment when the complaint should have alleged that Daniel has failed to "require" the wearing of such equipment to state a valid claim. The cited standard imposes upon an employer the duty to "require" the use of appropriate personal protective equipment. It is this duty against which Daniel's liability has been measured regardless of whether the pleadings impliedly impose a higher obligation. Therefore, despite the wording of the complaint, our affirmance of this violation is restricted by the terms of the standard to a finding that Daniel failed to require the use of safety belts for the reasons expressed above. [*18]

Daniel further argues that section 1926.28(a) is void for vagueness and was invalidly promulgated. The Commission has previously held that section 1926.28(a) is not unenforceably vague. S & H Riggers and Erectors, Inc., 79 OSAHRC 23/A2, 7 BNA OSHC 1260, 1979 CCH OSHD P23,480 (No. 15855, 1979), pet. for review filed, No. 79-2358 (5th Cir. June 7, 1979); Jensen Construction Co., 79 OSAHRC 49/D3, 7 BNA OSHC 1477, 1979 CCH OSHD P23,664 (No. 76-1538, 1979). Furthermore, the fact that Daniel had its own work rule prohibiting the noncomplying conduct supports the conclusion that the standard is not vague as applied here.

Daniel's argument that the standard was invalidly promulgated has two parts. In the first part, Daniel asks us to declare that the original version [*19] of section 1926.28(a), as it appeared under the Construction Safety Act, 40 U.S.C. 333, was invalid because the Secretary failed to follow certain statutorily-required procedures in promulgating the standard under that statute. See Daniel Construction Co., 77 OSAHRC 21/A2, 5 BNA OSHC 1005, 1007, 1976-77 CCH OSHD P21,521 at p. 25,882 (No. 7734, 1977). n11 In the second part of its argument, Daniel contends that the Secretary failed to comply with proper rulemaking procedures when he amended the version of the cited standard as it originally appeared under the Occupational Safety and Health Act, after it had been adopted from the Construction Safety Act, by replacing the word "and" with the word "or." The word "and" had formerly joined the clauses stating the conditions under which personal protective equipment must be used. See S & H Riggers and Erectors, Inc., supra, 7 BNA OSHC at 1262-63, 1979 CCH OSHD at p. 28,435.

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n11 29 C.F.R. 1926.28(a) was adopted under 6(a) of the Act, 29 U.S.C. 655(a), as an established federal standard, which is defined at 3(10) of the Act, 29 U.S.C. 652(10), as "any operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any Act of Congress in force on the date of enactment of this Act."

[*20]

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We deny Daniel's request to declare that the standard was invalidly promulgated under the Construction Safety Act. The Commission has recently held it will not entertain challenges that question the procedures followed in the adoption of the Construction Safety Act standards.

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[*21]

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We will, however, generally consider challenges to the validity of a standard based on alleged procedural deficiencies in the manner in which a standard was adopted under the Occupational Safety and Health Act. Rockwell International Corp., 80 OSAHRC    , 9 BNA OSHC 1092, 1980 CCH OSHD P24,979 (No. 12470, 1980). In Rockwell International, the Commission held it had authority to rule on procedural validity questions which concern the Secretary's authority to promulgate standards under section 6(a) of the Act, 29 U.S.C. 655(a), where the wording of a standard is dissimilar from the prior standard purportedly being reissued by the Secretary without resort to the rulemaking provisions of either section 6(b) of the Act, 29 U.S.C. 655(b), or the Administrative Procedure Act, 5 U.S.C. 551-559 (1977). Daniel's challenge concerning the amendment substituting "or" for "and" involves an analogous issue since Daniel is questioning the Secretary's authority to repromulgate and change a standard without adhering to the rulemaking procedures of 29 U.S.C. 655(b). We reject Daniel's challenge, however, [*22] because we have held that the amendment substituting "or" for "and" in section 1926.28(a) was proper in that the amendment did not change the substantive meaning of the standard. S & H Riggers and Erectors, Inc., supra, 7 BNA OSHC at 1262, 1979 CCH OSHD at p. 28,435, and the cases cited therein.

Daniel argues that the Act is unconstitutional in a number of respects. The Commission has no authority to consider such issues involving the constitutionality of its enabling legislation. Buckeye Industries, Inc. v. Secretary of Labor, 587 F.2d 231 (5th Cir. 1979); Chromalloy American Corp., 79 OSAHRC 55/D11, 7 BNA OSHC 1547, 1979 CCH OSHD P23,707 (No. 77-2788, 1979). Two of Daniel's arguments, however, involving an alleged violation of the seventh amendment right to trial by jury and an alleged violation of the fourth amendment right to be free of unreasonable searches and seizures, have been addressed by the Supreme Court. The Court has rejected the argument that the Act violates the seventh amendment's jury trial provision. Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977).

As to Daniel's argument that the inspection conducted by the Secretary's compliance officer [*23] violated its fourth amendment rights, the Supreme Court, in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), has held that the Act is unconstitutional insofar as it purpots to authorize inspections without a warrant or its equivalent. The inspection here, however, occurred before Barlow's was decided. No remedy will be retroactively afforded by the Commission for a warrantless inspection in violation of Barlow's if the inspection predated the decision in Barlows'. Meadows Industries, Inc., 79 OSAHRC 74/F2, 7 BNA OSHC 1709, 1979 CCH OSHD P23,846 (No. 76-1463, 1979). Accordingly, even if the inspection failed to conform to the fourth amendment tests set forth in Barlow's, Daniel would not be entitled to exclusion of the evidence. n13

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n13 Additionally, if Daniel consented to the search, then its fourth amendment rights ere not violated. An affidavit submitted by Daniel's safety engineer suggests that he gave the appearance of consenting to the search, but asserts that any such consent was involuntary because he did not know he had the right to object to the inspection and was not given any reason to believe he had such a right.

The question of whether a person voluntarily consented to a search requires consideration of several factors, among which is the person's knowledge of the right to object. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Other factors are any coercion or misrepresentation on the part of the inspector. Id; Bumper v. North Carolina, 391 U.S. 543 (1968). Here, the compliance officer presented his credentials and informed Daniel's representative of the nature of the inspection. There is no evidence of coercion or misrepresentation. We conclude that Daniel voluntarily consented to the inspection. See Stephenson Enterprises, Inc. v. OSHRC, 578 F.2d 1021 (5th Cir. 1978).

[*24]

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VI

The Secretary proposed a penalty of $4000 for the alleged willful serious violation. We must reevaluate his proposal in light of the deletion of the willful aspect of the allegation. After a consideration of the penalty factors in section 17(j) of the Act, n14 we assess an $800 penalty. The gravity of the violation is high since four employees worked without fall protection over 30 feet above a concrete floor. Also, Daniel is a large company; it employed 719 people at the investigated worksite.

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n14 Section 17(j) of the Act, 29 U.S.C. 666(i), provides:

The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations.

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Accordingly, we affirm the amended citation alleging [*25] serious noncompliance with section 1926.28(a) and assess an $800 penalty. SO ORDERED.