“SECRETARY OF LABOR,Complainant,v.A.C. DELLOVADE, INC.,Respondent.OSHRC Docket No. 83-1189_DECISION_Before: BUCKLEY, Chairman, and WALL, Commissioner.By the Commission:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).The Secretary of Labor alleges that A.C. Dellovade willfully violatedtwo construction safety standards. Dellovade claims that it did notviolate one standard and that neither violation was willful. Administrative Law Judge Ramon M. Child upheld the Secretary’sallegations and assessed a penalty of $6,500 rather than the $8,000proposed by the Secretary. Dellovade obtained discretionary review ofthe judge’s decision. We affirm.Dellovade was a subcontractor installing metal paneling in an A-framebuilding at a coal degasification project near Beulah, North Dakota. The A-frame building was very large, about 700 feet long, and 100 feetin height. There was a broad walkway that ran the length of thebuilding, forming a second floor about 50 feet above the ground. About40 feet above this second level, Dellovade employees were installingmetal paneling in the interior of the building. Two of them wereattaching ceiling soffit panels at the very peak of the building.To install the panels, employee Rod Giltrop sat on a wooden plank. Giltrop’s lanyard was tied to a lifeline that was wrapped around thatplank. He gained access to the plank by means of a ladder from a26-inch-wide metal grate \”pick scaffold\” resting on beams. Giltrop wasassisted by another employee, John Chase, who handed the panels up toGiltrop and assisted him in drilling holes to install the panels. During the operation, Giltrop moved to another plank and attempted torelocate the plank to which his lifeline was attached. The plank fell,it pulled him off the other plank, and he was killed.I.Item 1a of citation 2 alleges that Dellovade violated 29 C.F.R. ?1926.104(b). That standard states:? 1926.104 _Safety belts, lifelines, and lanyards_.* * *(b) Lifelines shall be secured above the point of operation to ananchorage or structural member capable of supporting a minimum deadweight of 5,400 pounds.Item 1a(a) alleges that employee Giltrop was tied off below his point ofoperation: Giltrop’s lanyard was tied to a lifeline that was wrappedaround the plank on which he sat. Judge Child found that Giltrop’slifeline was not secured above the point of operation, and thatDellovade knew, or with the exercise of reasonable diligence could haveknown, of the violation. Dellovade does not dispute these findings.Dellovade claims, however, that it would have been impractical to securea lifeline above the point of operation because the interior of thebuilding had been completely paneled except for the ceiling, whichlacked open steel to which to attach a lifeline. An employer may showthat compliance with a standard is infeasible. _Dun-Par Engineered FormCo._, 86 OSAHRC ____, 12 BNA OSHC 1949, 1952-1956, 1986 CCH OSHD ?27,650, pp. 36,020-36,024 (No. 79-2553, 1986), _pet. for rev. filed_,No. 86-2365 (8th Cir. Oct. 30, 1986). Like Judge Child, however, wefind that Dellovade failed to prove this claim.Employee Chase did testify that there was no open steel in the ceilingarea above the soffit panels. He testified that to attach a lifeline,braces would have had to have been welded to the A-frame members. Acompliance officer testified, however, that that step could have beentaken, that eyes could have been welded to the main frames andcontinuous safety lines strung from them. Myron Rathjen, the safetysupervisor for the general contractor, the Henry J. Kaiser Company,testified that with forethought a way could have been found to enablethe employees to tie off above. He saw no reason why eyes could nothave been welded to the vertical members of the A-frame to hold alifeline before the panels were installed. In view of this evidence,we reject Dellovade’s infeasibility defense.Items 1a(a) and 1a(b) of citation 2 allege that neither Giltrop norChase were tied off to a structural member or anchorage capable ofsupporting 5,400 pounds. Judge Child found these allegations proven. Again, the record supports the judge’s finding. Giltrop and Chase weresometimes both tied off to a single plank. A compliance officer who hadonce been employed in the construction industry as a safety technician,instructor and engineer calculated the load-bearing capacity of thewooden plank to be only 337 pounds. Dellovade did not attempt toimpeach or directly contradict this testimony. Instead, it offered thetestimony of general foreman Charles Schear and superintendent RonDeMers that the scaffold plank would have held one man and that scaffoldplanks can with stand a 200-pound man jumping on it. Neither testified,however, that the plank could have held 5,400 pounds. We thereforeadopt Judge Child’s finding that the use of the plank violated thestandard’s requirement that an anchorage be capable of supporting 5,400pounds.We also find that the plank was not always an \”anchorage.\” The plankwas not attached to anything but rested on two 3 1\/4-inch wide steellips of parallel angle irons about 53 inches apart. Two Dellovadewitnesses testified that while the plank was between the angle irons, itcould not have been pulled out if an employee had fallen.[[1]] However,once Giltrop had finished installing soffit panels in one section of theceiling, he sat on another plank and slid the plank used to anchor hislanyard along the lips of the angle irons to a new work position. Hewas to do this from one end of the building to the other. There were,however, reinforcing gussets every five feet that prevented Giltrop fromsliding the plank to the next position. Giltrop then had to lift theplank over the gussets and replace it on the lips of the angle irons. Chase testified that, during the four days he and Giltrop did this work,there were occasions when Giltrop lifted the plank while both Giltropand Chase were still tied to it. On another occasion, Giltrop liftedthe plank while he alone was still tied to it. At those times, therequirement of the standard that lifelines be secured to an \”anchorage\”was violated.Dellovade essentially argues that the Secretary did not prove that itknew or with the exercise of reasonable diligence could have known thatGiltrop and Chase remained tied-off to the plank while Giltrop moved itover the gussets. General foreman Schear, who knew that Giltrop wastied off to the plank on which he sat, testified that he saw no reasonto tell Giltrop not to remain tied-off while he moved the plank because\”that comes with common sense.\”Dellovade in effect argues that the lack of such a warning is notevidence of a lack of reasonable diligence because a reasonably diligentemployer may rely on the common sense of its employee not to dosomething as dangerous as moving a plank to which one is tied off.We disagree. Dellovade supervisors neither instructed its employees howto tie off nor paid any attention to how they did so. Instead, Dellovadepermitted its employees to devise their own arrangements for fallprotection. Company officials who act as if safety is a matter oflittle importance can hardly claim to be surprised when employees adoptthe same attitude. _See_, _e.g_., National Safety Council, _AccidentPrevention Manual for Industrial Operations_ 23-25 (6th ed.1973)(\”safety starts with top management\”; \”the worker’s attitude isusually the same as his supervisor’s\”); _cf_. _Farthing & Weidman,Inc_., 82 OSAHRC 75\/A2, 11 BNA OSHC 1069, 1072, 1983-84 CCH OSHD ?26,389, p. 33,492 (No. 78-5366, 1982)(\”[w]hen a supervisor violates asafety rule, . . . he also suggests to his subordinates . . . thatsafety rules are not to be taken seriously.\”).We therefore adopt Judge Child’s findings that Dellovade violated allthe requirements of section 1926.104(b): Giltrop was not tied off abovehis point of operation, though he feasibly could have been; thelifelines of both Giltrop and Chase were tied off to a plank that couldnot support 5,400 pounds and were at times not secured to an anchorage. We agree with the judge’s findings that Dellovade either knew or couldwith the exercise of reasonable diligence have known of the violativeconditions.We also affirm the judge’s finding that Dellovade’s violations ofsection 1926.104(b) were willful. A violation is willful if it wascommitted voluntarily with either an intentional disregard for therequirements of the Act or with plain indifference to employee safety. _Simplex Time Recorder Co_., 85 OSAHRC ____, 12 BNA OSHC 1591, 1595,1985 CCH OSHD ? 27,546, p. 35,571 (No. 82-12, 1985); _Asbestos TextileCo_., 84 OSAHRC 48\/B12, 12 BNA OSHC 1062, 1063, 1984-85 CCH OSHD ?27,101, p. 34,948 (No. 79-3831, 1984); _cf_. _Brock v. Richland ShoeCo_., 799 F.2d 80 (3d Cir. 1986)(Fair Labor Standards Act violationwillful if employer knew or recklessly disregarded whether conductprohibited). The record shows such disregard, indifference andrecklessness.Four months before the present violations occurred, an OSHA complianceofficer spoke to job superintendent DeMers about fall protection at thisconstruction site. He asked DeMers \”what his thoughts were . . . for[having] continuing fall protection for his employees\” both inside andoutside the building. Because DeMers \”really had no definite thoughtsin mind as far as the protection for the interior,\” the complianceofficer told DeMers of his experience with a similar A-frame buildingand they \”started to talk about static lines . . . .\” The complianceofficer recommended that because there was limited cross-bracing toanchor a cable, Dellovade should weld eyes to the main frames andinstall a continuous static line. While both the compliance officer andDeMers were looking up at the peak of the A-frame–where Giltrop andChase were later to work–the compliance officer suggested that afterwelding eyes to the A-frame, taut cables be run at all working levelsbetween the A-frames.Rathjen, the safety supervisor for the general contractor, who overheardthis conversation and confirmed the compliance officer’s account, alsotestified that a safety booklet supplied to Dellovade had spoken of theuse of safety belts. The purpose of this booklet, which reproducedpages from OSHA regulations, was to ensure that subcontractors such asDellovade follow federal, state and Kaiser safety rules. Rathjen alsotestified that he had had numerous conversations with DeMers about fallhazards, lifelines, static lines and lanyards; his opinion was thatDeMers was aware of the \”rules and regulations\” for the use of safetybelts. Despite this, Dellovade never had safety lines installed.Dellovade also neither instructed its employees in the use of safetybelts, nor paid any attention to how they tied off. A Dellovadeforeman, Mike \”McGoo\” Danna, had come up with the idea of Giltrop’ssitting on planks and had brought the planks for Giltrop and Chase touse. Although foreman Danna had showed them how to \”work off the plankto hang the [soffit] sheets,\” he did not tell them how to tie off. Chase testified that no one in Dellovade had ever instructed them how totie off a safety belt. He was not told that lifelines were to besecured above the point of operation and to an anchorage able towithstand 5,400 pounds. Chase also testified that \”besides our foreman. . . watching what we were doing . . .,\” there were no safetyinspections of their work. Dellovade had agreed in a contract with thegeneral contractor to make daily inspections of all areas in whichDellovade employees worked. It designated job superintendent DeMers tomake these inspections. But DeMers testified that although he didobserve the work in the highest level of the A-frame, the area whereGiltrop and Chase were working, he paid no attention to how they hadtied off and left that point to others.Dellovade argues that at the time of the violation there was no exposedstructural steel to which to anchor a lifeline. This argument ignoresthe fact that Dellovade could have easily foreseen the lack of opensteel, given the problem some forethought, and installed a static linein advance. _See Todd Shipyards Corp_., 84 OSAHRC 39\/A2, 11 BNA OSHC2177, 2182, 1984-85 CCH OSHD ? 27,001, p. 34,744 (No. 77-1598,1984)(concurring opinion). Although OSHA had forewarned Dellovade ofthe need for fall protection and described how it could have beeninstalled, Dellovade neither installed fall protection devices norinstructed its employees to perform their work in a way that compliedwith OSHA requirements. Rather, Dellovade left employees to improvisea means of protection by discussion among themselves when the panelswere to be installed. This was in accordance with the view of jobsuperintendent DeMers–the highest Dellovade official on the site andits designated safety representative–that on matters of occupationalsafety and health, he is \”not a dictator.\” The result was predictable: Employees and lower-level supervisors, lacking the authority to make themajor changes necessary to afford the required fall protection,improvised half-measures that protected poorly and fell short of themeasures required by OSHA standards. Such an abdication by an employerof its final responsibility under the Act for compliance withoccupational safety and health standards is a willful violation of the Act.II.Section 1926.451(a)(4) requires that guardrails and toeboards beinstalled on all open sides and ends of scaffold platforms more than 10feet above the ground or floor. Items 1b(a) and 1b(b) of citation 2alleged that Dellovade employees had used a tubular scaffold and a pickscaffold, both of which lacked guardrails and toeboards.Dellovade does not dispute that it violated the standard. It arguesonly that the violations were not willful. Judge Child found that theevidence established the willfulness of the violations. ThoughDellovade had claimed as to the tubular scaffold cited in sub-item 1b(a)that the guardrails might have to be dismantled when the floatingplatform on which the scaffold rested moved under some beams, the judgeheld that this inconvenience did not excuse Dellovade’s failure to everuse guardrails. As to sub-item 1b(b), Dellovade offered no reason whythe pick scaffold lacked guardrails. At the hearing, DeMers concededthat Dellovade was wrong in not having guardrails on the pick scaffold. Moreover, Kaiser’s safety supervisor Rathjen had discussed theinstallation of guardrails on scaffolds with DeMers and testified thatDellovade was aware of OSHA requirements.On review, Dellovade simply asserts that the scaffold violations werenot willful. It supplies no argument and cites no evidence suggestingerror in the judge’s finding. We affirm Judge Child’s finding.Finally, we agree with the judge’s assessment of a combined penalty of$6,500.Accordingly, the judge’s decision is affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: JAN 12 1987————————————————————————SECRETARY OF LABOR,Complainant,v.A. C. DELLOVADE, INC.,Respondent.OSHRC DOCKETNO. 83-1189_DECISION AND ORDER_Appearances:For the Complainant:Jaylynn K. Fortney, EsquireKansas City, MissouriFor the Respondent: Post-Hearing Submittals:Robert Monticelli Sanford S. Finder, EsquireMcMurray, Pennsylvania Washington, Pennsylvania_Statement of the Case_This matter is before the Occupational Safety and Health ReviewCommission (the Commission) pursuant to section 10(c) of theOccupational Safety and Health Act of 1970, 29 U.S.C. ? 651 _et_ _seq_.(the Act).Complainant seeks affirmance of Citation No. 2, issued to respondentOctober 19, 1983, charging two items of willful violation of section5(a)(2) of the Act and of the total combined proposed penalty in the sumof $8,000.00.[[1]]The citation resulted from an inspection conducted following a fatalfall by an employee of respondent at a worksite near Beulah, NorthDakota. The matter was heard at Bismarck, North Dakota, on the 27th dayof March, 1984. Notice of hearing was duly given affected employees. Except as employees may have been called as witnesses there was noappearance by or on their behalf. (Tr. 17).ANG Coal Gasification Company and Henry J. Kaiser Company, owner andgeneral contractor respectively of the project where this worksite waslocated, moved to intervene at the hearing, which motion was denied. However, permission was granted their counsel, Randall J. Bakke, to makeappearance in the course of questioning said companies’ employees forthe limited purpose of objecting to any questions considered to beharmful to the interests of said companies. (Tr. 10-16)Complainant has submitted Post-Trial Brief and respondent has submittedProposed Findings of Fact and Conclusions of Law together with Brief insupport thereof. To the extent proposed findings or conclusions areconsistent with those entered herein they are accepted; to the extentthey are inconsistent with those set forth herein, they are denied. Respondent denies that it was in violation of the standard referred toin item 1a of the citation, or that if it was in violation thereof thatsuch violation was willful. Respondent has conceded that it was inviolation of the standard referred to in item 1b of the citation, butdenies that said violation was willful._Issues_: __The issues to be determined are:A. Was the respondent in violation of the standard at 29 C.F.R.1926.104(b)? (item 1a)B. Were violations committed by respondent as set forth in thecitation, or found herein, willful, or, failing that, serious?C. What, if any, penalty would be appropriate?_Findings of Fact_1. Respondent A. C. Dellovade, Inc., is a corporation with a principaloffice and place of business at 4150 Washington Road, McMurray,Pennsylvania and at all times hereinafter mentioned, a workplace inBeulah, North Dakota, and was engaged in sheet metal installation.2. Respondent employs approximately 250 employees in its variousbusiness activities, including, at all times hereinafter mentioned,approximately 56 employees at the aforesaid workplace in Beulah, NorthDakota. Respondent utilized goods, equipment and materials shippedfrom outside the state of North Dakota.3. As a result of an inspection by an authorized representative ofcomplainant, respondent was issued a citation for serious violations, acitation for willful violations, and a citation for other-than-seriousviolations together with proposed penalties, pursuant to section 9(a) ofthe Act. The citations and proposed penalties were received byrespondent on October 24, 1983. On November 22, 1983, the Area Directorreceived from respondent a notice of intent to contest item 1a ofcitation No. 2 for willful violations, the \”willful\” designation of item1a and 1b of said citation, and the proposed penalty, which notice ofcontest was postmarked November 15, 1983. This notice was dulytransmitted to the Occupational Safety and Health Review Commission.4. On or about October 7, 1983, respondent was engaged in theinstallation of metal paneling inside an A-frame building beingconstructed for use at a coal gasification plant located at Beulah,North Dakota.5. The A-frame in question is about 700 feet long and the interiorrises to approximately 100 feet above ground level. A broad walkwayruns the length of the building forming a second floor about 50 feetabove ground level. About 40 feet above the second level the interiorceiling is fashioned by attaching metal panels to the underside ofangle-iron strips attached to the individual structural A-frames andrunning horizontally on either side of the building approximately 53inches apart. (Tr. 46-50; Ex. C-7, C-11)6. Above the second floor was a floating platform which moved from oneend of the building to the other suspended from rails, access to whichwas by a ladder welded to said platform. Mounted on the floatingplatform was a welded tubular scaffold, the upper unguarded platformsurface of which was approximately 10 feet above the floor of thefloating platform. Approximately 2 feet above this floating platformand its tubular scaffold were horizontal structural beams beneath whichthe floating platform would move. These beams crossed the building atabout 30-foot intervals. Metal grate planking approximately 30 feetlong rested on said horizontal beams forming \”pick\” scaffold about 26inches wide which had no guardrails, notwithstanding slots along thesides of said planks were intended to accommodate guardrailing. (Tr.50, 62, 63, 68, 69, 77, 109; Ex. C-3, C-7)7. The ceiling being installed was about 7 feet above the \”pick\”scaffold, about 21 feet above the deck of the floating platform, andabout 40 feet above the second floor level. (Ex. C-7)8. In June of 1983, Charles Edwards, a compliance officer from theOccupational Safety and Health Administration (OSHA) visited theworksite. At that time employees of the respondent were working on theexterior of the A-frame building in question. Respondent was not at thattime being inspected, but Mr. Edwards asked to and did talk withrespondent’s job superintendent, Ron DeMers. Although Mr. DeMers didnot at that time appear to have yet given the matter much thought, Mr.Edwards suggested that in accomplishing work on this building, eyescould be welded to the vertical structural members at all levels,through which lifelines could be suspended and to which lifelinesworkers could tie off with lanyards. Also he suggested the use ofsafety nets to prevent employee falls and injuries. (Tr. 130, 137, 140,155, 204) They also discussed the need for guardrails and fallprotection on the various platforms on which respondent’s employeeswould be working. (Tr. 163)9. There was nothing to prevent eyes from being welded to the verticalstructural members to support a static or lifeline, and there was a5-foot space between the ceiling and building’s peak, where such eyescould have been placed. (Tr. 167, 173)10. Mr. DeMers eventually contemplated that in order to place theceiling panels they would build the scaffold on the floating platform upto the work area and he so instructed the foremen. (Tr. 205, 206)11. Chuck Schear was general foreman of the A-frame. They elected toutilize the plank system described hereafter rather than the built upscaffold system in order to avoid fatigue from constantly drillingoverhead. (Tr. 209, 211)12. Mike Danna was the foreman of the 5-man crew installing interiormetal panels and flashing, and he brought the two pre-cut planks to RodGiltrop and John Chase to use in placing the ceiling panels. (Tr. 103,104, 123, 184) Mr. Giltrop was twenty-six and a journeyman ironworker;Mr. Chase was nineteen and an apprentice ironworker. (Tr. 98, 122)13. The said two 2\” x 12\” x 52 1\/4\” planks were placed with their endson the parallel angle-irons for purpose of forming a scaffold platformfrom which Mr. Giltrop worked in fastening the ceiling panels. Thiswork commenced on Tuesday October 4, 1983. Access to the plank platformwas by means of an 8-foot wooden ladder placed on the \”pick\” scaffold. (Tr. 50, 102, 112; Ex. C-7, C-11)14. Mr. Chase would haul pre-cut metal panels from the floor up to the\”pick\” scaffold by use of a hand line. (Tr. 105) He would then hand apanel to Mr. Giltrop, sitting on one of the planks, who would C-clampeither end to the underside of the angle-irons. On the side above the\”pick\” scaffold Mr. Chase, working from the \”pick\” scaffold, would drillholes and screw fasten that end of the panel to the angle-iron. Mr.Giltrop, sitting on one of the planks, would drill holes and screwfasten the opposite end of the panel. (Tr. 63, 64)15. Upon completing installation of a panel Mr. Giltrop would move oneplank away from the work, then change his weight to that plank and movethe other plank also from the work. In fastening a panel he would siton the plank closest to the work. Wedges or gussets were welded intothe angle-irons at intervals to provide strength and rigidity, and itwas necessary to raise the ends of the planks over these gussets andreseat the plank into the angle-iron on the other side of the gusset. (Tr. 108, 115; Ex. C-11)16. Mr. DeMers instructed \”them\” if they were going to complete thework in this fashion \”. . . to keep the rolling platform underneath themand not get ahead of it or behind it.\” (Tr. 188) He observed Giltropand Chase working on October 6, 1983, but didn’t pay attention to theway they were tied off. (Tr. 194, 195)17. The workmen on the project were cautioned by their foremen to \”tieoff,\” but they were not told to tie off to a secure point above theirwork which would support 5400 pounds. Mr. Giltrop and Mr. Chase tiedoff by looping a lanyard around the 2\” x 12\” wooden plank closest to theceiling panel being installed and upon which plank Mr. Giltrop sat whiledoing his part of the work. Each of them wore a safety belt and fastenedtheir lanyards to the lanyard looped around said plank. (Tr. 75, 76,118, 119, 124; Ex. C- 7) This plank was not an anchorage or astructural member (Tr. 166, 198) nor could it have supported the weightof either Giltrop or Chase, had they fallen. (Tr. 78, 79, 80)18. Chase could tie off to the lanyard looped around the plank onlywhen he was working beneath it attaching a panel. He had to untie toobtain materials which took about one-fourth of his time, and duringwhich time he had no fall protection. (Tr. 80, 105, 107)19. While Giltrop and Chase installed ceiling panels, the balance ofthe crew working from the floating platform installed flashing, whichmoved more slowly. (Tr. 123)20. Although Mr. Chase did not consider Mr. Giltrop to be a foreman, onOctober 7, 1983, by reason of the absence of Mike Danna, Rod Giltrop wasforeman of the 5-man crew working at installing metal paneling andflashing inside the A-frame. (Tr. 126, 184, 221, 222)21. On October 7, 1983, while in the act of moving the plank scaffold,the plank around which the lanyard was looped became dislodged from theangle-iron while passing one of the gussets and fell with Mr. Giltrop 40feet to the second floor level. Mr. Chase was obtaining additionalpaneling at the time and was not tied off to the lanyard looped aroundthe falling plank. The fall resulted in Mr. Giltrop’s death. (Tr. 80,81, 159, 165)22. The respondent knew and approved of the tie-off procedure followedby Mr. Giltrop and Mr. Chase. (Tr. 198, 213, 225)23. The respondent knew of the absence of guardrails on the \”pick\”scaffold and on the upper platform level of the welded tubular scaffolderected on the floating platform. (Tr. 180, 202, 206)24. A fall from the plank scaffold at the ceiling of the A-frame wouldexpose the person to a fall of 40 feet to the second floor level, or ifthe floating platform were beneath the plank scaffold, to a fall of 11feet to the upper unguarded platform of the welded tubular scaffoldand\/or 10 additional feet to the floor of the floating platform, andwould probably result in death or serious injuries. (Tr. 87, 88, 91, 92;Ex. C-7)25. A fall from the \”pick\” scaffold would expose a person to a fall ofapproximately 32 feet to the second floor level, or if the floatingplatform had been beneath the person, either about 4 feet to the upperunguarded platform of the welded tubular scaffold and\/or 10 additionalfeet to the floor of the floating platform and would probably result indeath or serious injuries. (Tr. 59, 62; Ex. C-7)26. The violations of the standards for which respondent was cited wereserious and were willful in that respondent displayed a plainindifference to the requirements of the Act.27. $6,500.00 is an appropriate sum to be imposed as a penalty for theviolations found and those admitted herein. (Tr. 92, 93)_Discussion__Issue A_: (item 1a)To prove a violation of Section 5(a)(2) of the Act the complainant mustprove by a preponderance of the evidence an employer’s noncompliancewith an applicable standard and employee exposure to the hazard createdby the violative condition. _Otis Elevator_ _Co_., 78 OSAHRC 88\/E5, 6BNA OSHC 2048, 1978 CCH OSHD ? 23,135 (No. 16057, 1978)The standard at 29 C.F.R. ? 1926.104(b) provides:? 1926.104 Safety belts, lifelines, and lanyards.* * *(b) Lifelines shall be secured above the point of operation to ananchorage or structural member capable of supporting a minimum deadweight of 5,400 pounds.As gratuitously pointed out at page 6 of respondent’s post-hearing Brief:Every employer must take reasonable precautionary steps to protect itsemployees from reasonably foreseeable recognized dangers that arecausing or likely to cause death or serious physical injury, and theprecautionary steps include the employer providing an adequate safetyand training program. _Brennan v. Butler Lime & Cement Co_., 520 F.2d1011 (1975).Here the evidence is that although the employees were reminded to \”tieoff\” they were not told in what manner or to what or where in relationto their work. Mr. DeMers, the project superintendent and rankingperson on the job, considered Mr. Giltrop and Mr. Chase to be properlytied off. (Tr. 198) The general foreman of the A-frame, Mr. Schear,saw no reason for anyone to instruct Mr. Giltrop or Mr. Chase whichplank to tie off to or not to move the plank to which they were tiedoff. (Tr. 213)Having voluntarily elected not to utilize built-up scaffolding to reachand accomplish the installation of the ceiling panels, the only fallprotection left to rely upon was either safety nets or lifelines. Safety nets were apparently not available since no anchor points wereprovided from which to suspend the nets. Although there were exposedstructural members above the ceiling being installed, no eyes had beenwelded to them from which to support a lifeline. (Tr. 121) The\”lifeline\” to which Mr. Giltrop and Mr. Chase tied off was nothing morethan a lanyard looped once around a 2\” x 12\” x 52 1\/4\” wooden planklodged at either end on an angle-iron attached to the building’svertical members and upon which plank Mr. Giltrop sat for scaffold fromwhich to accomplish his work at a level even with said plank.The plank in question was not \”above the point of operation\” nor was itan \”anchorage or structural member capable of supporting a minimum deadweight of 5,400 pounds.\” The looped lanyard was not \”secured\” at anypoint along said plank and at any given moment could have been subjectedto maximum stress at any point along its length including either endwhere it rested on the angle-iron. Indeed, at the times the loopedlanyard might be moved from plank to plank or at times when, as here,the plank around which the lanyard was looped was itself being movedpast the gussets, the \”lifeline\” was not in any way \”secured.\”In utilizing lanyards ostensibly tied off to a \”lifeline\” respondentfailed to meet the requirements of the standard at 29 C.F.R. ?1926.104(b) and was in violation of item 1a of the citation._Issue B_:Complainant produced evidence to the effect that 4 months before theaccident one of its compliance officers advised respondent’s projectsuperintendent that lifelines run through eyes to be welded to verticalA-frame members could be utilized at various levels within the A-frameto provide fall protection. They also discussed safety nets and theneed for guardrails.Complainant further produced evidence to the effect that the generalcontractor on the job had supplied the respondent at the outset of itswork with a safety booklet developed by the general contractor andsatisfied itself that respondent’s job superintendent was aware of therequirements of the rules and regulations pertaining to the use oflifelines and safety belts. (Tr. 160, 161, 162, 165)Forethought or planning could have provided eyes welded to structuralmembers from which to support lifelines or safety nets. Absent these therespondent could have built up the tubular scaffold on the floatingplatform to a height necessary to accomplish the work at the ceilinglevel. Inconvenience would have resulted in the dismantling andreassemble of that scaffold as the work proceeded past the variouscrossbeams along the length of the building, but respondent didn’t use\”inconvenience\” as a reason for abandoning the built-up scaffold. Rather, respondent claimed to go to the movable wooden plank scaffoldmethod in order to avoid the \”fatigue\” which would result from drillingand fastening overhead in working from a built-up scaffold. Littlecredence is given that testimony in view of the fact that Mr. Chasestill accomplished his part of the drilling and fastening while standingon a plank beneath the ceiling and working above his head.The respondent’s job superintendent testified that although he plannedthat built-up scaffold would be utilized, he instructed \”them\” to keepthe floating platform beneath them if they were going to accomplish thework in the manner they in fact did. This testimony is afforded littleweight since that witness also testified that although he observed themethod being followed in installing the ceiling panels he paid littleattention to how the men were tied off. Further the ceiling panelinstallation proceeded at a faster pace than did the work accomplishedfrom the floating platform and that disparity would have beenaccentuated on the day of the fatal accident by reason of the absence ofthe crew foreman, Mike Danna, who otherwise worked with the crew on thefloating platform. If Mr. Chase were required to haul pre-cut ceilingpanels from the floor to the \”pick\” scaffold he could not do so with thefloating platform between him and the floor. Furthermore, the claim ofthe job superintendent that he instructed \”them\” to keep the floatingplatform beneath the men installing the ceiling panels is anacknowledgement that respondent was aware of the fall hazard to whichsaid workers were precariously exposed.No guardrails were attached to the \”pick\” scaffold notwithstanding thatMr. Chase worked from that planking without any fall protectionapproximately one-fourth of the time he was performing the ceiling workand despite the need for him to haul ceiling panels from the floor belowby means of a line. That \”floor\” was either 14 feet or 32 feet belowthe metal grated plank on which he was standing without fall protection.With respect to the absence of standard guardrails at the edges of theplatform at the top of the tubular scaffold erected on the floatingplatform, respondent’s evidence was to the effect that it was left offin order not to interfere with clearance of the floating platform inpassing beneath the structural cross beams upon which the \”pick\”scaffold rested. The evidence was that Mr. Giltrop and Mr. Chase wouldgain access to their work stations from this unguarded platform. Respondent’s evidence was that it cleared with the general contractorthe non-use of guardrails on this platform since there were 6-inch pipesrunning lengthwise of the building to which workers on the platformcould tie off. (Tr. 202) Thus respondent made a deliberate choice todisregard the requirements of the Act with respect to said guardrails onthe platform.Having earlier discussed the need for fall protection in the form oflifelines, safety nets and guardrails, respondent chose to treat suchrequirements lightly and demonstrated a plain indifference to therequirements of the Act and the safety of its employees. The course ofconduct followed by respondent was conscious, intentional, deliberateand voluntary and falls well within the definition of \”willful\” followedby the Commission, to-wit: A willful violation is one involvingvoluntary actions done either with an intentional disregard of, or plainindifference to the requirements of the Act. _F. X. MessinaConstruction Corp. v. Occupational Safety and_ _Health ReviewCommission_, 505 F.2d 701 (First Cir. 1974); _Georgia Electric Companyv. Secretary of Labor_, 595 F.2d 309, (Fifth Cir., 1979). See also_Kent Nowlin Const. v. Occupational Safety and Health ReviewCommission_, 593 F.2d 368, 372 (10th Cir. 1979)._Issue C_:In arriving at a base penalty of $800.00 for the combined violations setforth in Citation No. 2, the complainant gave due and properconsideration to the gravity and serious nature of the offenses and theprobability of serious injury to employees. The respondent thenmultiplied the proposed base penalty by a factor of 10 by reason of the\”willful\” characterization fitting the various offenses. (Tr. 92)Complainant gave no consideration to the factors of size, good faith, orhistory which section 17(j) of the Act requires (Tr. 93), and upongiving such factors due consideration it is here found that a combinedpenalty in the sum of $6,500.00 is appropriate for these willful violations.Now, having considered the pleadings, the representations andstipulations of counsel, the testimony of the witnesses and the exhibitsreceived in evidence; and having observed the demeanor of the witnessesand having weighed the credibility thereof, and having considered thepost-hearing briefs and filings of the parties and having herein aboveentered Findings of Fact — there are here entered the following:_Conclusions of Law_1. Respondent is an employer within the meaning of the Act.2. Respondent is engaged in a business affecting commerce.3. The Commission has jurisdiction of the parties and of the subjectmatter of this proceeding as provided by section 10(c) of the Act.4. Respondent was in violation of the standard at 29 C.F.R. ?1926.104(b) and item 1a of Citation No. 2, issued to respondent October19, 1983, should be affirmed.5. Respondent was in violation of the standard at 29 C.F.R. ?1926.451(a)(4) and item 1b of said Citation No. 2 should be affirmed.6. The violation referred to in paragraph 4 of these conclusions of lawwas serious and willful.7. The violation referred to in paragraph 5 of these conclusions of lawwas serious and willful.8. The sum of $6,500.00 is an appropriate total combined penalty forthe violations found herein and should be assessed._ORDER_1. Item 1a of Citation No. 2, issued to respondent October 19, 1983, isAFFIRMED as a serious and willful violation of Section 5(a)(2) of the Act.2. Item 1b of said Citation No. 2 is AFFIRMED as a serious and willfulviolation of Section 5(a)(2) of the Act.3. A total combined penalty of $6,500.00 is ASSESSED.R. M. ChildJudge, OSHRCDated: August 14, 1984FOOTNOTES:[[1]] The testimony of employee Chase suggests, however, that the plankcould have come loose if, when Giltrop moved to another plank hislanyard were to tug on the plank. We need not resolve this point.[[1]] The items of the Citation read:1a. 29 CFR 1926.104(b): Lifelines were not secured above the point ofoperation to an anchorage or structural member:(a) On or about October 7, 1983, in the A-Frame of the coal handlingfacility, where an employee was tied off by means of a lanyard to anunsecured wooden plank located below the point of operation.(b) On or about October 7, 1983, in the A-Frame of the coal handlingfacility, where an employee working on a \”pick\” scaffold was tied off toan unsecured wooden plank.1b. 29 CFR 1926.451(a)(4): Standard guardrails and toeboards notinstalled on all open sides and ends of platforms more than 10 feetabove the ground or floor:(a) On or about October 7, 1983, at the upper level of therail-suspended scaffold in the A-Frame of the coal handling facility.(b) On or about October 7, 1983, on the \”pick\” scaffold being used nearthe top of the A-Frame in the coal handling facility.”