“SECRETARY OF LABOR,Complainant,v.E. L. JONES AND SON, INC.,Respondent.OSHRC Docket No. 87-0008_DECISION_Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.BY THE COMMISSION:A decision of Administrative Law Judge Stanley M. Schwartz is before theCommission for review pursuant to section 12(j), 29 U.S.C. ? 661(j), ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678(\”the Act\”). Judge Schwartz found that the Secretary of Labor (\”theSecretary\”) failed to establish that the Respondent, E. L. Jones andSon, Inc. (\”Jones\”),[[1\/]] willfully violated section 5(a)(2) of the Act29 U.S.C. ? 654(a)(2), but did establish that Jones was in seriousviolation of the Act. The judge assessed a penalty of $1,000. We affirmthe judge’s decision._I. Background_Jones was the general contractor at an office building project inIrving, Texas. The project consisted of three concrete buildingsdesignated A, B and C. Buildings A and B have two floors, and Building Chas three floors. In addition, each building has a subterranean level.The buildings were constructed with an elevator shaft opening in each ofthe floors. On the morning of Tuesday, July 22, 1986, an employee ofAISTEX, one of Jones’ subcontractors, suffered fatal injuries when hefell 35 feet through an unguarded elevator shaft floor opening on thethird floor of Building C. As a result of the fatality, a representativeof the Secretary conducted an inspection and subsequently issued acitation alleging that Jones had committed a willful violation of 29C.F.R ? 1926.500(b)(1).[[2\/]]Jones does not dispute that on the morning of the fatality, the 17 feetlong by 7 feet 1-inch wide floor opening was unguarded. It furtherconcedes that this condition violated the cited standard, that it wasresponsible for guarding the opening, and that two of its own employeeshad access to the opening. Jones contends, however, that it did not knowthat the floor opening was unguarded.The elevator shaft opening at issue had been kept covered by Jones’concrete subcontractor, Capform, until it completed its work and leftthe site a few days before the accident. This appears to have been theonly time any of the floor openings in the three buildings were leftunguarded. Jones and Capform had previously arranged the work so thatthe shafts were always guarded. Whether Jones knew that the flooropening was unguarded was hotly disputed by the witnesses.The testimony of Timothy Berry, Frank Maras, and Greg Lyons supportedJones’s position that it lacked knowledge of the unguarded opening.Berry, the general superintendent for Jones, testified that theguardrails were not in place on the third floor of Building C on July 22because Jones’ supervisory personnel had assumed that Capform had leftthe openings covered. He described his experience with Capform prior tothe fatality as follows: \”The shafts all the way through Building A andBuilding B were protected at all times, whether with Capform’sprotective covering or by rails\” and \”never did Capform ever leave ahazardous situation. This was the first time.\” Berry testified thatCapform had never advised him or any other Jones supervisor that theyhad completed work on Building C. Berry also testified that Capformcoordinated the protection of the elevator shafts with Frank Maras,Jones’ site superintendent, who shared the safety and healthresponsibilities with Berry.Maras stated that prior to the accident, he was not advised by any ofthe subcontractors or Jones’ employees that the shaftway on the thirdfloor was unguarded. He testified that at a July 15 meeting, Dale Downs,the foreman for Capform, told him that when Capform opened the elevatorshafts \”a little bit later,\” Jones would have to take care of providingprotection. Maras testified that had Downs told him when Capform wasleaving the site, he would have made sure that the guardrails were upwhen the cover was removed.Greg Lyons, a field engineer for Jones, was in charge of the worksitewhile Maras was on vacation from Thursday, July 17, through Sunday, July20. Lyons was unaware, until the accident, that the shaft opening wasnot guarded. He assumed that when Capform finished their work on thethird floor, they would leave the protective covering over the opening.The Secretary relied on the testimony of Brad Scheckelhoff, DonaldLehman, Dale Downs, Billy M. Bird and Timm Nichols to support herposition that Jones knew of the unguarded opening. Brad Scheckelhoff andDonald Lehman, two of Jones’ carpenters, testified that on the Mondaybefore the accident, they walked by the uncovered elevator shaft on thethird floor of Building C. They did not tell Jones’ management about theopen shaft because they did not feel endangered by it and did not thinkit, was a hazard.Dale Downs, the foreman for Capform, testified that Capform advisedJones in advance that it was going to take the protective material offthe elevator shaft on the third floor of Building C. He testified thathe told Jones’ field superintendent three times that Capform would beleaving and that Jones should put up guardrails around the shaftopening, but that Jones failed to put up the guardrails.[[3\/]] Downstestified that at their last meeting on the day Capform left the jobsite, he told the superintendent that Jones had already \”had enough timeto get the handrails up\” and that Capform \”was going to take the rest ofthe material off of the elevator shaft and load it on the last truck.\”Billy M. Bird, of Bird Mechanical, testified that he discovered that theelevator shaft on the third floor was unguarded on the Friday before theaccident, after one of his employees almost fell into the shaft. Birdordered his employees off of the floor, and reported the exposedshaftway to someone at Jones, possibly Frank Maras. Timm Nichols, anemployee of Ragsdale Sheet Metal, testified that on Friday, July 18, hetold a Jones employee, probably Greg Lyons, that both he and one ofBird’s employees \”almost walked into that hole,\” and that Jones needed\”to get that thing covered up before somebody does (walk into it).\”_II. Judge’s Decision_The Judge affirmed a serious violation. He found that Jones could haveknown of the exposed shaftway with the exercise of reasonable diligence.He based his finding on the testimony of Scheckelhoff and Lehman, whoobserved the exposed shaftway on the Monday before the accident but didnot report it to Jones’ management because they did not feel itendangered them. The judge held that the testimony of these twoemployees demonstrated that Jones’ hazard recognition and safety programwas inadequate, and that reasonable diligence required a more effectivesafety program for the discovery and correction of such a violation. Heassessed a $1,000 penalty.The judge vacated the willful characterization. He found that thetestimony of the Secretary’s witnesses and Jones’ witnesses was indirect conflict on the question of whether Jones consciously disregardedthe standard. The judge resolved the conflicting testimony by findingthat Jones’ witnesses \”were extremely convincing\” and \”respondedforthrightly and candidly when questioned about their knowledge of theunguarded shaft.\” He also found that the \”demeanor [they] displayed onthe witness stand added to their credibility.\” Additionally, he found\”fully credible\” their testimony that \”if they had known, they wouldhave corrected the hazard\” because \”[t]his action would have beencompletely consistent with their past practices at the jobsite.\” Thejudge did not discuss the credibility of the Secretary’s witnesses. Heconcluded that \”based upon the record evidence and [his] observation ofthe witnesses,\” Jones did not consciously disregard the applicablestandards._III. Analysis_A. Credibility FindingsThe Secretary acknowledges that the policy of the Commission ordinarilyis to accept a judge’s evaluation of the credibility of witnessesbecause it is the judge who has \”lived with the case, heard thewitnesses, and observed their demeanor.\” _C. Kaufman, Inc._, 6 BNA OSHC1295, 1297, 1977-78 CCH OSHD ? 22,481, p. 27,099 (No. 14249, 1978).Here, the Secretary argues that the Commission should not defer to thejudge’s credibility findding because the judge only discussed why hefound Jones’ witnesses to be credible, and did not discuss thecredibility of the Secretary’s witnesses.[[4\/]] The Secretary cites _P& Z Co._, 6 BNA OSHC 1189, 1977-78 CCH OSHD ?22,413 (No. 76-431, 1977),and _Asplundh Tree Expert Company_, 7 BNA OSHC 2074, 1980 CCH OSHD ?24,147 (NO. 16162, 1979) as support for her argument.In _P & Z_, the Commission found unacceptable the judge’s \”wholesalerejection of unnamed witnesses’ testimony under the color of acredibility evaluation without any explanation for its rejection.\” 6BNA OSHC at 1192, 1977-78 CCH OSHD at p. 27, 024. The Commission heldthat when a judge makes a creditibility finding, \”reasons must be givenfor crediting the testimony of one witness over that of another _or_ forfailing to credit a witness whose testimony is _neither contradicted_nor impeached.\” _Id._ emphasis added). Thus, if reasons are given forcrediting the testimony of one witness, then reasons need not to givenfor failing to credit a witness whose testimony is contradictory. TheCommission also held that \”[c]redibility findings shall be accompaniedby summaries of pertinet testimony and reasons for crediting thetestimony.\” _Id._Here, the judge did not explain in detail why he did not find thetestimony of the Secretary’s witnesses to be credible. However, thejudge’s reasons for finding Jones’ witnesses to be credible were basedon testimony that describes Jones’ and Capform’s prior practice ofjointly guarding elevator shafts. The judge rejected, at leastimplicitly, only the testimony of the Secretary’s witnesses’ that wascontradicted by Jones’ witnesses.[[5\/]]The critical question the judge had to resolve was whether Jones’supervisors knew that the opening was unguarded. The testimony of theSecretary’s witnesses and Jones’ witnesses on this point is largelyconflicting. In her brief to the Commission, the Secretary hashighlighted testimony that the judge did not specifically refer to inhis decision. Some of this testimony provides support for theSecretary’s contention that Jones knew that the opening was unguardedbefore the accident. Other testimony supports Jones’ claim that it didnot learn of the unguarded opening until the accident occurred. It isclear that the judge’s credibility findings rested on matters peculiarlyobservabIe by him — the witnesses’ demeanor on the stand and theirmanner of responding on cross-examination.[[6\/]] Although the testimonyis certainly contradictory, and the judge’s findings could have beenmore detailed, we cannot say that the judge erred in crediting thetestimony of Jones’ witnesses over that of the Secretary’s. TheSecretary has succeeded in showing the wide disparity between thetestimony of Jones’ witnesses and the testimony of the Secretary’switnesses on the key issue of knowledge. However, she has failed todemonstrate why we should overturn the judge’s determination of thecredibility of Jones’ witnesses, and our review of the record indicatesthere is no adequate basis for doing so. Accordingly, we accept thejudge’s credibility finding. See, e.g., _United States Steel Corp.,_ 9BNA OSHC 1641, 1644, 1981 CCH OSHD ? 25,282, pp. 31,251-52 (No. 76-5007,1981) (judge’s credibility finding will be upheld where opposing partydoes not demonstrate reasons why it should be reversed and Commission’sreview of record indicates there is no basis for doing so); _InlandSteel Co._, 12 BNA OSHC 1968, 1978, 1982, 1986 CCH OSHD ? 27,647, pp.36,005 & 36,009 (No. 79-3286, 1986) (Commission normally accepts judge’scredibility evaluations).B. WillfulnessWe now turn to the issue of whether Jones’ failure to guard the openingwas willful. A violation of the Act is willful if \”it was committedvoluntarily with either an intentional disregard for the requirements ofthe Act or plain indifference to employee safety.\” _Simplex TimeRecorder.Co._, 12 BNA OSHC 1591, 1595, 1984-85 CCH OSHD ? 27,456, p.35,571 (No. 82-12, 1985). Trial of the issue of willfulness focuses onthe employer’s state of mind and general attitude toward employee safetyto a greater extent than would trial of a non-willful violation. _SewardMotor Freight_, 13 BNA OSHC 2230, 2234, 1989 CCH OSHD ? 28,506, p.37,787 (No. 86-1691, 1989) In _Williams Enterprises, Inc._, 13 BNA OSHC1249, 1691, 1989). In Williams Enterprises, Inc., BNA OSHC 1249,1986-87CCH OSHD ? 27,893 (No. 85-255, 1987), the Commission held:It is not enough for the Secretary to show that an employer was aware ofconduct or conditions constituting a violation; such evidence isnecessary to establish any violation, serious or nonserious. . . . Awillful violation is differentiated by a heightened awareness—-of theillegality of the conduct or conditions and by a state ofmind—-conscious disregard or plain indifference . . . . It istherefore not enough for the Secretary simply to show carelessness orlack of diligence in discovering or eliminating a violation _Williams_,13 BNA OSHC at 1256-57, 1986-87 CCH OSHD at p. 36,589.[[7\/]]Thus, under _Williams_, the Secretary must prove that Jones’, managementeither knew of the non-compliant conditions or that Jones’ efforts todiscover the condition was so inadequate as to constitute carelessdisregard for employee safety. Since we do not disturb the judge’sfinding that Jones’s management did not know of the exposed shaftway, wefind no evidence that the failure to guard the opening demonstratedintentional disregard of the Act on the part of Jones.We also conclude that Jones could have discovered the unguarded openingwith the exercise of reasonable diligence. However, this lack ofdiligence in discovering the violation is not properly characterized aswillful. See _Marmon Group Inc.,_ 11 BNA OSHC 2090, 1984 CCH OSHD ?26,975 (No. 79-5363, 1984), and cases cited therein. The evidenceestablishes that prior to the fatality, Capform and Jones had alwayscoordinated Capform’s removal of its coverings with Jones’ erection ofguardrails around the elevator floor openings. Until the protectivecovering was removed a few days before the accident on July 22, theopenings had been guarded in all three buildings after Jones tookcontrol. In addition, the evidence establishes that Jones’ fieldsuperintendent Maras usually conducted a daily inspection of the siteduring which he looked for safety problems. Maras was on vacation theThursday and Friday before the fatality and Lyons, his replacement, didnot seem to be aware of the duty to inspect the site. On Monday, July21, the day before the accident, Maras returned to work, but he did notconduct his regular inspection because he had to meet with the policeconcerning a break-in. Clearly, Lyons and Maras could have been morediligent in inspecting the worksite for safety hazards. However, wecannot conclude that Jones’ failure to discover the unguarded flooropenings demonstrated plain indifference to employee safety. Wetherefore find that the violation was not shown to be willful.C. SeriousnessOur finding that Jones failed to exercise reasonable diligence does,however, establish that Jones had constructive knowledge of theviolation. Jones has argued that it cannot be cited for a seriousviolation because it did not have actual knowledge of the violation.However, the Secretary meets her burden of proving knowledge byestablishing that an employer knew or, with the exercise of reasonablediligence, could have known of the violative condition. _Monarch WaterSystems,_ 12 BNA OSHC 1897, 1898, 1986-87 CCH OSHD ? 27,632 at p. 35,932(No. 83-943, 1986). The seriousness of the violation under section 17(k)of the Act, 29 U.S.C. ? 666(k), is demonstrated by the death of theemployee. _See Simplex Time Recorder Co._, 12 BNA OSHC at 1597, 1984-85CCH OSHD at p. 35,572 (No. 82-12, 1985).D. PenaltyIn assessing a penalty for a violation of the Act, the Commission mustgive due consideration to the size of Jones’ business, the gravity ofthe violation, Jones’ good faith, and its history of previousviolations. Section 17(j) of the Act, 29 U.S.C. ? 666(j). Havingconsidered the statutory criteria, we agree with the judge’sdetermination that a $1,000 penalty is appropriate.IV. OrderAccordingly, we affirm a serious violation of 29 C.F.R. ?1926.500(b)(1). A penalty of $1,000 is assessed.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: March 18, 1991————————————————————————SECRETARY OF LABOR,Complainantv.E. L. JONES AND SON, INC.,RespondentOSHRC DOCKET NO. 87-0003Appearances: Bobbie J. Gannaway, Esq.Dallas, TexasFor the ComplainantSteven R. McCown, Esq.Dallas, TexasFor the Respondent_DECISION AND ORDER_SCHWARTZ, Judge:This is a proceeding brought before the Occupational Safety and HealthReview Commission (\”the Cornmission\”) pursuant to Section 10 of theOccupational Safety and Health Act of 1970, 29 U.S.C. ?651 _et_ _seq_.(\”the Act\”). Respondent contests an alleged willful violation of 29C.F.R. 1926.500(b)(1). A penalty of $6,000 was proposed for the allegedwillful violation.An inspection was conducted at Respondent’s workplace in July and August1986. E. L. Jones timely contested the subject citation. A hearing washeld on July 29-30, 1987 and September 9, 1987, in Dallas, Texas. Noadditional persons desired to intervene in this matter.The citation provides as follows:29 C.F.R. 1926.500(b)(1): Floor openings were not guarded by standardrailings and toeboards or covers as specified in paragraph(8) of thissection:a) Employees exposed to the hazard of falling 35 feet through anunguarded elevator shaft, 17 feet long and seven (7) feet, one (1) inchwide, located at the Walnut-Story Office building construction site,Irving, Texas, Building C, 3rd floor.This condition occurred on or prior to July 22, 1986.Respondent does not dispute that 29 C.F.R. 1926.500(b)(1) applies,noncompliance occurred, and employees had access. E. L. Jones doescontend that it lacked knowledge of the violative condition and that anyviolation, if found, was not of a willful nature.A violation of the Act is willful if \”it was committed voluntarily witheither an intentional disregard for the requirements of the Act or plainindifference to employee safety.\” _Simplex Time Recorder Co.,_ 85 OSHRC____ 12 BNA OSHC 1591, 1595,1985 CCH OSHD ? 27,546, p. 35, 571 (No.82-12, 1985); _Asbestos Textile Co.,_ 84 OSAHRC 48\/B12, 12 BNA OSHC1062, 1063, 1984-85 CCH OSHD ? 27,101, p. 34, 943 (No. 79-3831, 1984). Ifind that the record does not show such disregard, indifference andrecklessness. Respondent know of the applicable standard, but did notconsciously disregard the standard. My conclusion is based on ananalysis of the testimony of several witnesses and on specificcredibility determinations explained below.E. L. Jones was the general contractor at the Walnut-Story officebuilding project. It consisted of three concrete construction building.Buildings A and B were two-story office buildings. Building C had threestories. Each had a parking garage or basement underneath. On July 22,1986, an employee of a drywall contractor fell through an open elevatorshaft to his death. The shaft was not guarded by either guardrails orany covering. (Complainant and Respondent briefs).Respondent, as noted above, knew of the applicable standard. In fact E.L. Jones’ standard practice it the jobsite was to protect elevator shaftopenings by erecting guardrails or placing lumber over the shaftopening. This procedure was a cooperative effort with Capform, theforming contractor. Up until the accident on July 22, 1987, all shaftshad been protected. The basic question is whether E. L. Jonesconsciously disregarded 29 C.F.R. 1926.500(b)(1) in this case. Thetestimony is directly in conflict on this question.The Secretary relies on four workers to establish conscious disregard byE. L. Jones of the applicable standard. The workers are all associatedwith three subcontractors. They testified that E. L. Jones managementwas told prior to the accident that the elevator shaft opening was notguarded. Respondent called three management officials who acknowledgeddiscussions about the shafts coming open but who denied they were toldthe shaft in building C had, in fact been left uncovered by Capform.E. L. Jones’ witnesses were its general superintendent, fieldsuperintendent, and field engineer. These witnesses were extremelyconvincing. They responded forthrightly and candidly when questioned onthe witness stand added to their credibility. In addition, I find fullycredible their statements that if they had known, they would havecorrected the hazard. This action would have been completely consistentwith their past practices at the jobsite. The standard practice had beento erect guardrails around every open shaft to protect workers.Guardrails removed by other contractors had also been replaced. Theprocedure was done in conjunction and with the complete cooperation ofCapform, the forming contractor. All contractors agreed that prior tothe subject hazard, there had been no previous difficulty with E. L.Jones regarding guardrails or covering of the open elevator shafts. Forthese reasons I find Respondent’s witnesses fully credible when theystate a lack of knowledge that Capform pulled off the job and left thehole uncovered. If aware, as noted above, I conclude E. L. Jones wouldhave taken the few minutes to protect the opening as they had doneconsistently throughout the project. Therefore, based upon the recordevidence and the observation of the witnesses, I find that E. L. Jonesdid not consciously disregard the applicable standard. Thecharacterization of the violation as willful is vacated.Since the Secretary alleged the violation was willful in nature butfailed to establish willfulness, it must now be determined whether toaffirm the violation as serious or other than serious in nature.Respondent contends the Secretary has failed to prove that any knowledgeexisted of the violative condition.It is the Secretary’s burden to establish the employer knew or, with theexercise of reasonable diligence, could have known of the violativecondition. _See Monarch Water Systems Inc._, 86 OSAHRC _____ 12 BNA OSHC1897 1398, 1986 CCH OSHD ?27,632 p. 35,932 (No. 83-943, 1986). As toactual Knowledge, as noted above, no evidence exists that Respondent’smanagement knew of the unguarded shaft. The question remains whetherthere is sufficient evidence to conclude that Respondent could haveknown, with the exercise of reasonable diligence.There is no question that the shaft was uncovered for at least on entireworkday prior to the accident. Two of Respondent’s own employeesobserved the condition. They walked by it but fail to report thecondition. The two employees felt comfortable ignoring an open 17′ x7’1\” opening with a fall of over 35′ because no work was being performedin the area. Respondent testified about its hazard recognition andsafety program. However, based upon the testimony of these twoemployees, I find that the program was inadequate. Reasonable diligencerequired a more effective program to emphasize the danger of such ahazard regardless of whether work was actually being performed. Theseemployees lacked basic direction. The fact that they were notsupervisors cannot absolve Respondent from the lesser charge of aserious violation. Respondent failed to detect and discover a basicsafety violation. Reasonable diligence required a stronger inspectionsystem to detect violations especially when employees felt free toignore the hazard involved in this case. Lack of conscious disregard andlack of reasonable diligence are separate and distinct requirements ofthe Act. For the reasons stated above, I conclude that Respondent failedto exercise reasonable diligence to detect the unguarded elevator shaftunder the circumstances of this case.I now turn to the assessment of an appropriate penalty. The Walnut-Storyproject cost $8,000,000. At the same time Respondent was involved in alarger project constructing an eleven story control tower at DFWAirport. The overriding consideration is the high gravity of theviolation. Several employees were exposed to the hazard of fallingthrough an open elevator shaft. The duration of the exposure was longenough for one employee to fall to his death. There was a highprobability that a serious injury could occur. On balance, I concludethat a penalty of $1,000 is appropriate in light of the record and thestatutory criteria set forth in Section 17(j) of the Act.CONCLUSIONS OF LAW1. Respondent, E. L. Jones and Son Inc., is engaged in a businessaffecting commerce and has employees within the meaning of Section 3(5)of the Act. The Commission has jurisdiction of the parties and of thesubject matter of this proceeding.2. On July 21 and 22, 1986, Respondent was not in willful violation of29 C.F.R. 1926.500(b)(1).3. On July 21 and 22, 1986, Respondent was in violation of 29 C.F.R.1926.500(b)(1).ORDEROn the basis of the foregoing Findings of Fact and Conclusions of Law,it is ORDERED that:1. Item 1(a) Willful citation 1 is affirmed as a serious violation and apenalty of $1,000 is assessed.STANLEY M. SCHWARTZAdministrative Law JudgeDate: February 12, 1988FOOTNOTES:[[1\/]] E.L. Jones and Son, Incorporated, is based in Dallas, Texas, andis now known as the Doyle Company.[[2\/]] Section 1926.500(b)(1) provides:? 1926.500 Guardrails, handrails, and covers.(b) guarding of floor openings and floor holes. (1) Floor openings shallbe guarded by a standard railing and toeboards or cover, as specified inparagraph (f) of this section. In general , the railing shall beprovided on all exposed sides, except at entrances to stairways.[[3\/]]Downs testified that he had meetings with Maras on July 8th, July14th and the evening of July 15th. He believes the conversations aboutthe exposed elevator shafts took place on these three days.[[5\/]] The Secretary also argues that \”[t]he judge must specify theparticular aspects of the demeanor or testimony of the witnesses thatled him to conclude that they were not credible,\” citing Asplundh TreeExpert Company, 7 BNA OSHC 2074, 1978 CCH OSHD ? 23,033 (No. 16162,1979). In Asplundh, the judge rejected the testimony of four employerwitnesses on the basis of a minor discrepancy with the testimony of thecompliance officer, a discrepancy that the Commission felt could havebeen due to an honest misunderstanding. 7 BNA OSHC at 2079, 1978 CCHOSHD at p. 27,841. The Commission faulted the judge for failing \”tospecify any attribute of the demeanor of the witnesses or any part oftheir testimony that would warrant the rejection of the entire testimonyof respondent’s four witnesses.\” Id. Thus, like P & Z, Asplundh holdsthat a judge cannot simply reject testimony that is facially worthy ofbelief on the basis that witnesses are \”not credible.\” However, the casenow before us involves a different type of situation. Here the judge didnot reject all of the Secretary’s witnesses’ testimony, only that partwhich was contradicted by the testimony of Jones’ witnesses regardingJones’ actual knowledge of the open elevator shaft.[[6\/]] Indeed, had the judge gone on to specifically find theSecretary’s witnesses not credible, he might have run afoul of theCommission’s statement in C. Kaufman that a judge should \”avoiddiscussions that will unnecessarily impugn the character of a witness.\”6 BNA OSHC 1298, 1977-78 CCH OSHD at p. 27,102, n.8.[[7\/]] The Fifth Circuit, in whose jurisdiction this worksite islocated, held that \”[t]o prove a willful violation, the Secretary mustshow that the employer acted voluntarily, with either intentionaldisregard of or plain indifference to OSHA requirements.\” GeorgiaElectric Co. v. Marshall, 595 F.2d 309, 318 (5th Cir., 1979). The FifthCircuit added in a footnote that \”[t]his of course does not mean thatevery act consciously done is done willfully. The ‘extra ingredient’needed for willfulness is either the element of intentional disregard orplain indifference.\” Id., 595 F.2d at 818, n.22. The D.C. Circuit citedthe Fifth Circuit’s Georgia Electric decision regarding willfulness whenthe D.C. Circuit held that \”courts have unanimously held that a willfulviolation of the Act constitutes ‘an act done voluntarily with either anintentional disregard of, or plain indifference to, the Act’srequirements.’\” Ensign-Bickford Co. v. O.S.H.R.C., 717 F.2d 1419, 1422(D.C. Cir, 1983).”