“Docket No. 87-0008 SECRETARY OF LABOR,Complainant,v.E. L. JONES AND SON, INC.,Respondent.OSHRC Docket No. 87-0008DECISIONBefore: FOULKE, Chairman; MONTOYA and WISEMAN,Commissioners. BY THE COMMISSION:A decision of Administrative Law Judge Stanley M.Schwartz is before the Commission for review pursuant to section 12(j), 29 U.S.C. ?661(j), of the 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 and Son, Inc.(\”Jones\”),[[1\/]] willfully violated section 5(a)(2) of the Act 29 U.S.C. ?654(a)(2), but did establish that Jones was in serious violation of the Act. The judgeassessed a penalty of $1,000. We affirm the judge’s decision.I. BackgroundJones was the general contractor at an officebuilding project in Irving, Texas. The project consisted of three concrete buildingsdesignated A, B and C. Buildings A and B have two floors, and Building C has three floors.In addition, each building has a subterranean level. The buildings were constructed withan elevator shaft opening in each of the floors. On the morning of Tuesday, July 22, 1986,an employee of AISTEX, one of Jones’ subcontractors, suffered fatal injuries when he fell35 feet through an unguarded elevator shaft floor opening on the third floor of BuildingC. As a result of the fatality, a representative of the Secretary conducted an inspectionand subsequently issued a citation alleging that Jones had committed a willful violationof 29 C.F.R ? 1926.500(b)(1).[[2\/]]Jones does not dispute that on the morning of thefatality, the 17 feet long by 7 feet 1-inch wide floor opening was unguarded. It furtherconcedes that this condition violated the cited standard, that it was responsible forguarding the opening, and that two of its own employees had access to the opening. Jonescontends, however, that it did not know that the floor opening was unguarded.The elevator shaft opening at issue had been keptcovered by Jones’ concrete subcontractor, Capform, until it completed its work and leftthe site a few days before the accident. This appears to have been the only time any ofthe floor openings in the three buildings were left unguarded. Jones and Capform hadpreviously arranged the work so that the shafts were always guarded. Whether Jones knewthat the floor opening was unguarded was hotly disputed by the witnesses.The testimony of Timothy Berry, Frank Maras, and GregLyons supported Jones’s position that it lacked knowledge of the unguarded opening. Berry,the general superintendent for Jones, testified that the guardrails were not in place onthe third floor of Building C on July 22 because Jones’ supervisory personnel had assumedthat Capform had left the openings covered. He described his experience with Capform priorto the fatality as follows: \”The shafts all the way through Building A and Building Bwere protected at all times, whether with Capform’s protective covering or by rails\”and \”never did Capform ever leave a hazardous situation. This was the firsttime.\” Berry testified that Capform had never advised him or any other Jonessupervisor that they had completed work on Building C. Berry also testified that Capformcoordinated the protection of the elevator shafts with Frank Maras, Jones’ sitesuperintendent, who shared the safety and health responsibilities with Berry.Maras stated that prior to the accident, he was notadvised by any of the subcontractors or Jones’ employees that the shaftway on the thirdfloor was unguarded. He testified that at a July 15 meeting, Dale Downs, the foreman forCapform, told him that when Capform opened the elevator shafts \”a little bitlater,\” Jones would have to take care of providing protection. Maras testified thathad Downs told him when Capform was leaving the site, he would have made sure that theguardrails were up when the cover was removed.Greg Lyons, a field engineer for Jones, was in chargeof the worksite while Maras was on vacation from Thursday, July 17, through Sunday, July20. Lyons was unaware, until the accident, that the shaft opening was not guarded. Heassumed that when Capform finished their work on the third floor, they would leave theprotective covering over the opening.The Secretary relied on the testimony of BradScheckelhoff, Donald Lehman, Dale Downs, Billy M. Bird and Timm Nichols to support herposition that Jones knew of the unguarded opening. Brad Scheckelhoff and Donald Lehman,two of Jones’ carpenters, testified that on the Monday before the accident, they walked bythe uncovered elevator shaft on the third floor of Building C. They did not tell Jones’management about the open shaft because they did not feel endangered by it and did notthink it, was a hazard.Dale Downs, the foreman for Capform, testified thatCapform advised Jones in advance that it was going to take the protective material off theelevator shaft on the third floor of Building C. He testified that he told Jones’ fieldsuperintendent three times that Capform would be leaving and that Jones should put upguardrails around the shaft opening, but that Jones failed to put up the guardrails.[[3\/]]Downs testified that at their last meeting on the day Capform left the job site, he toldthe superintendent that Jones had already \”had enough time to get the handrailsup\” and that Capform \”was going to take the rest of the material off of theelevator shaft and load it on the last truck.\”Billy M. Bird, of Bird Mechanical, testified that hediscovered that the elevator shaft on the third floor was unguarded on the Friday beforethe accident, after one of his employees almost fell into the shaft. Bird ordered hisemployees off of the floor, and reported the exposed shaftway to someone at Jones,possibly Frank Maras. Timm Nichols, an employee of Ragsdale Sheet Metal, testified that onFriday, July 18, he told a Jones employee, probably Greg Lyons, that both he and one ofBird’s employees \”almost walked into that hole,\” and that Jones needed \”toget that thing covered up before somebody does (walk into it).\”II. Judge’s DecisionThe Judge affirmed a serious violation. He found thatJones could have known of the exposed shaftway with the exercise of reasonable diligence.He based his finding on the testimony of Scheckelhoff and Lehman, who observed the exposedshaftway on the Monday before the accident but did not report it to Jones’ managementbecause they did not feel it endangered them. The judge held that the testimony of thesetwo employees demonstrated that Jones’ hazard recognition and safety program wasinadequate, and that reasonable diligence required a more effective safety program for thediscovery and correction of such a violation. He assessed a $1,000 penalty.The judge vacated the willful characterization. Hefound that the testimony of the Secretary’s witnesses and Jones’ witnesses was in directconflict on the question of whether Jones consciously disregarded the standard. The judgeresolved the conflicting testimony by finding that Jones’ witnesses \”were extremelyconvincing\” and \”responded forthrightly and candidly when questioned about theirknowledge of the unguarded shaft.\” He also found that the \”demeanor [they]displayed on the witness stand added to their credibility.\” Additionally, he found\”fully credible\” their testimony that \”if they had known, they would havecorrected the hazard\” because \”[t]his action would have been completelyconsistent with their past practices at the jobsite.\” The judge did not discuss thecredibility of the Secretary’s witnesses. He concluded that \”based upon the recordevidence and [his] observation of the witnesses,\” Jones did not consciously disregardthe applicable standards.III. AnalysisA. Credibility FindingsThe Secretary acknowledges that the policy of theCommission ordinarily is to accept a judge’s evaluation of the credibility of witnessesbecause it is the judge who has \”lived with the case, heard the witnesses, andobserved their demeanor.\” C. Kaufman, Inc., 6 BNA OSHC 1295, 1297, 1977-78 CCHOSHD ? 22,481, p. 27,099 (No. 14249, 1978). Here, the Secretary argues that theCommission should not defer to the judge’s credibility findding because the judge onlydiscussed why he found Jones’ witnesses to be credible, and did not discuss thecredibility of the Secretary’s witnesses.[[4\/]]\u00a0 The Secretary cites P & Z Co.,6 BNA OSHC 1189, 1977-78 CCH OSHD ?22,413 (No. 76-431, 1977), and Asplundh Tree ExpertCompany, 7 BNA OSHC 2074, 1980 CCH OSHD ? 24,147 (NO. 16162, 1979) as support for herargument. In P & Z, the Commission foundunacceptable the judge’s \”wholesale rejection of unnamed witnesses’ testimony underthe color of a credibility evaluation without any explanation for its rejection.\”\u00a0 6 BNA OSHC at 1192, 1977-78 CCH OSHD at p. 27, 024.\u00a0 The Commission held thatwhen a judge makes a creditibility finding, \”reasons must be given for crediting thetestimony of one witness over that of another or for failing to credit a witnesswhose testimony is neither contradicted nor impeached.\”\u00a0 Id.emphasis added).\u00a0 Thus, if reasons are given for crediting the testimony of onewitness, then reasons need not to given for failing to credit a witness whose testimony iscontradictory.\u00a0 The Commission also held that \”[c]redibility findings shall beaccompanied by summaries of pertinet testimony and reasons for crediting thetestimony.\” Id.Here, the judge did not explain in detail why he didnot find the testimony of the Secretary’s witnesses to be credible. However, the judge’sreasons for finding Jones’ witnesses to be credible were based on testimony that describesJones’ and Capform’s prior practice of jointly guarding elevator shafts. The judgerejected, at least implicitly, only the testimony of the Secretary’s witnesses’ that wascontradicted by Jones’ witnesses.[[5\/]]The critical question the judge had to resolve waswhether Jones’ supervisors knew that the opening was unguarded. The testimony of theSecretary’s witnesses and Jones’ witnesses on this point is largely conflicting. In herbrief to the Commission, the Secretary has highlighted testimony that the judge did notspecifically refer to in his decision. Some of this testimony provides support for theSecretary’s contention that Jones knew that the opening was unguarded before the accident.Other testimony supports Jones’ claim that it did not learn of the unguarded opening untilthe accident occurred. It is clear that the judge’s credibility findings rested on matterspeculiarly observabIe by him — the witnesses’ demeanor on the stand and their manner ofresponding on cross-examination.[[6\/]] Although the testimony is certainly contradictory,and the judge’s findings could have been more detailed, we cannot say that the judge erredin crediting the testimony of Jones’ witnesses over that of the Secretary’s. The Secretaryhas succeeded in showing the wide disparity between the testimony of Jones’ witnesses andthe testimony of the Secretary’s witnesses on the key issue of knowledge. However, she hasfailed to demonstrate why we should overturn the judge’s determination of the credibilityof Jones’ witnesses, and our review of the record indicates there is no adequate basis fordoing so. Accordingly, we accept the judge’s credibility finding. See, e.g., UnitedStates Steel Corp., 9 BNA 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 party does notdemonstrate reasons why it should be reversed and Commission’s review of record indicatesthere is no basis for doing so); Inland Steel Co., 12 BNA OSHC 1968, 1978, 1982,1986 CCH OSHD ? 27,647, pp. 36,005 & 36,009 (No. 79-3286, 1986) (Commission normallyaccepts judge’s credibility evaluations).B. WillfulnessWe now turn to the issue of whether Jones’ failure toguard the opening was willful. A violation of the Act is willful if \”it was committedvoluntarily with either an intentional disregard for the requirements of the Act or plainindifference to employee safety.\” Simplex Time Recorder.Co., 12 BNA OSHC 1591,1595, 1984-85 CCH OSHD ? 27,456, p. 35,571 (No. 82-12, 1985). Trial of the issue ofwillfulness focuses on the employer’s state of mind and general attitude toward employeesafety to a greater extent than would trial of a non-willful violation. Seward MotorFreight, 13 BNA OSHC 2230, 2234, 1989 CCH OSHD ? 28,506, p. 37,787 (No. 86-1691,1989) In Williams Enterprises, Inc., 13 BNA OSHC 1249, 1691, 1989). In WilliamsEnterprises, Inc., BNA OSHC 1249,1986-87 CCH OSHD ? 27,893 (No. 85-255, 1987), theCommission held:It is not enough for the Secretary to show that anemployer was aware of conduct or conditions constituting a violation; such evidence isnecessary to establish any violation, serious or nonserious. . . . A willful violation isdifferentiated by a heightened awareness—-of the illegality of the conduct or conditionsand by a state of mind—-conscious disregard or plain indifference . . . . It istherefore not enough for the Secretary simply to show carelessness or lack of diligence indiscovering or eliminating a violation Williams, 13 BNA OSHC at 1256-57, 1986-87CCH OSHD at p. 36,589.[[7\/]]Thus, under Williams, the Secretary must provethat Jones’, management either knew of the non-compliant conditions or that Jones’ effortsto discover the condition was so inadequate as to constitute careless disregard foremployee safety. Since we do not disturb the judge’s finding that Jones’s management didnot know of the exposed shaftway, we find no evidence that the failure to guard theopening demonstrated intentional disregard of the Act on the part of Jones.We also conclude that Jones could have discovered theunguarded opening with the exercise of reasonable diligence. However, this lack ofdiligence in discovering the violation is not properly characterized as willful. See MarmonGroup Inc., 11 BNA OSHC 2090, 1984 CCH OSHD ? 26,975 (No. 79-5363, 1984), and casescited therein. The evidence establishes that prior to the fatality, Capform and Jones hadalways coordinated Capform’s removal of its coverings with Jones’ erection of guardrailsaround the elevator floor openings. Until the protective covering was removed a few daysbefore the accident on July 22, the openings had been guarded in all three buildings afterJones took control. In addition, the evidence establishes that Jones’ field superintendentMaras usually conducted a daily inspection of the site during which he looked for safetyproblems. Maras was on vacation the Thursday and Friday before the fatality and Lyons, hisreplacement, did not seem to be aware of the duty to inspect the site. On Monday, July 21,the day before the accident, Maras returned to work, but he did not conduct his regularinspection because he had to meet with the police concerning a break-in. Clearly, Lyonsand Maras could have been more diligent in inspecting the worksite for safety hazards.However, we cannot conclude that Jones’ failure to discover the unguarded floor openingsdemonstrated plain indifference to employee safety. We therefore find that the violationwas not shown to be willful.C. SeriousnessOur finding that Jones failed to exercise reasonablediligence does, however, establish that Jones had constructive knowledge of the violation.Jones has argued that it cannot be cited for a serious violation because it did not haveactual knowledge of the violation. However, the Secretary meets her burden of provingknowledge by establishing that an employer knew or, with the exercise of reasonablediligence, could have known of the violative condition. Monarch Water Systems, 12BNA OSHC 1897, 1898, 1986-87 CCH OSHD ? 27,632 at p. 35,932 (No. 83-943, 1986). Theseriousness of the violation under section 17(k) of the Act, 29 U.S.C. ? 666(k), isdemonstrated by the death of the employee. See Simplex Time Recorder Co., 12 BNAOSHC at 1597, 1984-85 CCH OSHD at p. 35,572 (No. 82-12, 1985).D. PenaltyIn assessing a penalty for a violation of the Act,the Commission must give due consideration to the size of Jones’ business, the gravity ofthe violation, Jones’ good faith, and its history of previous violations. Section 17(j) ofthe Act, 29 U.S.C. ? 666(j). Having considered the statutory criteria, we agree with thejudge’s determination that a $1,000 penalty is appropriate.IV. OrderAccordingly, we affirm a serious violation of 29C.F.R. ? 1926.500(b)(1). A penalty of $1,000 is assessed.Edwin G. Foulke, Jr. ChairmanVelma Montoya CommissionerDonald G. WisemanCommissionerDated: March 18, 1991SECRETARY OF LABOR,Complainant v.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 RespondentDECISION AND ORDERSCHWARTZ, Judge:This is a proceeding brought before the OccupationalSafety and Health Review Commission (\”the Cornmission\”) pursuant to Section 10of the Occupational Safety and Health Act of 1970, 29 U.S.C. ?651 et seq.(\”the Act\”). Respondent contests an alleged willful violation of 29 C.F.R.1926.500(b)(1). A penalty of $6,000 was proposed for the alleged willful violation.An inspection was conducted at Respondent’s workplacein July and August 1986. E. L. Jones timely contested the subject citation. A hearing washeld on July 29-30, 1987 and September 9, 1987, in Dallas, Texas. No additional personsdesired to intervene in this matter.The citation provides as follows:29 C.F.R. 1926.500(b)(1): Floor openings were notguarded by standard railings and toeboards or covers as specified in paragraph(8) of thissection:a) Employees exposed to the hazard of falling 35 feetthrough an unguarded elevator shaft, 17 feet long and seven (7) feet, one (1) inch wide,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 any violation, iffound, was not of a willful nature.A violation of the Act is willful if \”it wascommitted voluntarily with either an intentional disregard for the requirements of the Actor plain indifference 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); AsbestosTextile Co., 84 OSAHRC 48\/B12, 12 BNA OSHC 1062, 1063, 1984-85 CCH OSHD ? 27,101, p.34, 943 (No. 79-3831, 1984). I find that the record does not show such disregard,indifference and recklessness. Respondent know of the applicable standard, but did notconsciously disregard the standard. My conclusion is based on an analysis of the testimonyof several witnesses and on specific credibility determinations explained below. E. L. Jones was the general contractor at theWalnut-Story office building project. It consisted of three concrete constructionbuilding. Buildings A and B were two-story office buildings. Building C had three stories.Each had a parking garage or basement underneath. On July 22, 1986, an employee of adrywall contractor fell through an open elevator shaft to his death. The shaft was notguarded by either guardrails or any covering. (Complainant and Respondent briefs).Respondent, as noted above, knew of the applicablestandard. In fact E. L. Jones’ standard practice it the jobsite was to protect elevatorshaft openings by erecting guardrails or placing lumber over the shaft opening. Thisprocedure was a cooperative effort with Capform, the forming contractor. Up until theaccident on July 22, 1987, all shafts had been protected. The basic question is whether E.L. Jones consciously disregarded 29 C.F.R. 1926.500(b)(1) in this case. The testimony isdirectly in conflict on this question.The Secretary relies on four workers to establishconscious disregard by E. L. Jones of the applicable standard. The workers are allassociated with three subcontractors. They testified that E. L. Jones management was toldprior to the accident that the elevator shaft opening was not guarded. Respondent calledthree management officials who acknowledged discussions about the shafts coming open butwho denied they were told the shaft in building C had, in fact been left uncovered byCapform.E. L. Jones’ witnesses were its generalsuperintendent, field superintendent, and field engineer. These witnesses were extremelyconvincing. They responded forthrightly and candidly when questioned on the witness standadded to their credibility. In addition, I find fully credible their statements that ifthey had known, they would have corrected the hazard. This action would have beencompletely consistent with their past practices at the jobsite. The standard practice hadbeen to erect guardrails around every open shaft to protect workers. Guardrails removed byother contractors had also been replaced. The procedure was done in conjunction and withthe complete cooperation of Capform, the forming contractor. All contractors agreed thatprior to the subject hazard, there had been no previous difficulty with E. L. Jonesregarding guardrails or covering of the open elevator shafts. For these reasons I findRespondent’s witnesses fully credible when they state a lack of knowledge that Capformpulled off the job and left the hole uncovered. If aware, as noted above, I conclude E. L.Jones would have taken the few minutes to protect the opening as they had doneconsistently throughout the project. Therefore, based upon the record evidence and theobservation of the witnesses, I find that E. L. Jones did not consciously disregard theapplicable standard. The characterization of the violation as willful is vacated.Since the Secretary alleged the violation was willfulin nature but failed to establish willfulness, it must now be determined whether to affirmthe violation as serious or other than serious in nature. Respondent contends theSecretary has failed to prove that any knowledge existed of the violative condition.It is the Secretary’s burden to establish theemployer knew or, with the exercise of reasonable diligence, could have known of theviolative condition. See Monarch Water Systems Inc., 86 OSAHRC _____ 12 BNA OSHC1897 1398, 1986 CCH OSHD ?27,632 p. 35,932 (No. 83-943, 1986). As to actual Knowledge, asnoted above, no evidence exists that Respondent’s management knew of the unguarded shaft.The question remains whether there is sufficient evidence to conclude that Respondentcould have known, with the exercise of reasonable diligence.There is no question that the shaft was uncovered forat least on entire workday prior to the accident. Two of Respondent’s own employeesobserved the condition. They walked by it but fail to report the condition. The twoemployees felt comfortable ignoring an open 17′ x 7’1\” opening with a fall of over35′ because no work was being performed in the area. Respondent testified about its hazardrecognition and safety program. However, based upon the testimony of these two employees,I find that the program was inadequate. Reasonable diligence required a more effectiveprogram to emphasize the danger of such a hazard regardless of whether work was actuallybeing performed. These employees lacked basic direction. The fact that they were notsupervisors cannot absolve Respondent from the lesser charge of a serious violation.Respondent failed to detect and discover a basic safety violation. Reasonable diligencerequired a stronger inspection system to detect violations especially when employees feltfree to ignore the hazard involved in this case. Lack of conscious disregard and lack ofreasonable diligence are separate and distinct requirements of the Act. For the reasonsstated above, I conclude that Respondent failed to exercise reasonable diligence to detectthe unguarded elevator shaft under the circumstances of this case.I now turn to the assessment of an appropriatepenalty. The Walnut-Story project cost $8,000,000. At the same time Respondent wasinvolved in a larger project constructing an eleven story control tower at DFW Airport.The overriding consideration is the high gravity of the violation. Several employees wereexposed to the hazard of falling through an open elevator shaft. The duration of theexposure was long enough for one employee to fall to his death. There was a highprobability that a serious injury could occur. On balance, I conclude that a penalty of$1,000 is appropriate in light of the record and the statutory criteria set forth inSection 17(j) of the Act.CONCLUSIONS OF LAW1. Respondent, E. L. Jones and Son Inc., is engagedin a business affecting commerce and has employees within the meaning of Section 3(5) ofthe Act. The Commission has jurisdiction of the parties and of the subject matter of thisproceeding.2. On July 21 and 22, 1986, Respondent was not inwillful violation of 29 C.F.R. 1926.500(b)(1).3. On July 21 and 22, 1986, Respondent was inviolation of 29 C.F.R. 1926.500(b)(1).ORDER On the basis of the foregoing Findings of Fact andConclusions of Law, it is ORDERED that:1. Item 1(a) Willful citation 1 is affirmed as aserious violation and a penalty 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, and is now known asthe 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 shall be guarded by astandard railing and toeboards or cover, as specified in paragraph (f) of this section. Ingeneral , the railing shall be provided on all exposed sides, except at entrances tostairways.[[3\/]]Downs testified that he had meetings with Marason July 8th, July 14th 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]hejudge must specify the particular aspects of the demeanor or testimony of the witnessesthat led him to conclude that they were not credible,\” citing Asplundh Tree ExpertCompany, 7 BNA OSHC 2074, 1978 CCH OSHD ? 23,033 (No. 16162, 1979). In Asplundh, thejudge rejected the testimony of four employer witnesses on the basis of a minordiscrepancy with the testimony of the compliance officer, a discrepancy that theCommission felt could have been due to an honest misunderstanding. 7 BNA OSHC at 2079,1978 CCH OSHD at p. 27,841. The Commission faulted the judge for failing \”to specifyany attribute of the demeanor of the witnesses or any part of their testimony that wouldwarrant the rejection of the entire testimony of respondent’s four witnesses.\” Id.Thus, like P & Z, Asplundh holds that a judge cannot simply reject testimony that isfacially worthy of belief on the basis that witnesses are \”not credible.\”However, the case now before us involves a different type of situation. Here the judge didnot reject all of the Secretary’s witnesses’ testimony, only that part which wascontradicted by the testimony of Jones’ witnesses regarding Jones’ actual knowledge of theopen elevator shaft.[[6\/]] Indeed, had the judge gone on to specificallyfind the Secretary’s witnesses not credible, he might have run afoul of the Commission’sstatement in C. Kaufman that a judge should \”avoid discussions that willunnecessarily impugn the character of a witness.\” 6 BNA OSHC 1298, 1977-78 CCH OSHDat p. 27,102, n.8.[[7\/]] The Fifth Circuit, in whose jurisdiction thisworksite is located, held that \”[t]o prove a willful violation, the Secretary mustshow that the employer acted voluntarily, with either intentional disregard of or plainindifference to OSHA requirements.\” Georgia Electric Co. v. Marshall, 595 F.2d 309,318 (5th Cir., 1979). The Fifth Circuit added in a footnote that \”[t]his of coursedoes not mean that every act consciously done is done willfully. The ‘extra ingredient’needed for willfulness is either the element of intentional disregard or plainindifference.\” Id., 595 F.2d at 818, n.22. The D.C. Circuit cited the Fifth Circuit’sGeorgia Electric decision regarding willfulness when the D.C. Circuit held that\”courts have unanimously held that a willful violation of the Act constitutes ‘an actdone voluntarily with either an intentional disregard of, or plain indifference to, theAct’s requirements.’\” Ensign-Bickford Co. v. O.S.H.R.C., 717 F.2d 1419, 1422 (D.C.Cir, 1983).”