“SECRETARY OF LABOR,Complainant,v.R & R BUILDERS, INC.,Respondent.OSHRC Docket No. 88-0282DECISIONBefore: FOULKE, Chairman: WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:In late 1987, the Occupational Safety and Health Administration(\”OSHA\”), of the United States Department of Labor, inspected aconstruction site in Boca Raton, Florida, where R & R Builders, Inc. (\”R& R Builders\” or \”the Company\”), a drywall subcontractor, was installinginterior walls or partitions. Thereafter, the Company received afour-item citation alleging fall protection and safety programviolations. Because the Company had a history of OSHA fall protectionviolations and safety program deficiencies, OSHA classified the citationas willful. On the same basis, the administrative law judge lateraffirmed all four items as willful violations. For the followingreasons, we affirm only one item as a willful violation, affirm theremaining three items as violations of lesser degree, and assessappropriate penalties.I. Background and FactsTwo items, the first of which presents two allegations, concern theCompany’s safety program. Item 1a alleges failure to implement the kindof program required by 29 C.F.R. ? 1926.20(b)(1). [[1]] Item 1b allegesfailure to conduct the safety inspections required by ? 29 C.F.R. ?1926.20(b)(2).[[2]] Item 2 alleges failure to give employees the safetyinstructions required by 29 C.F.R. ? 1926.21(b)(2) [[3]].The remaining two items address fall hazards. Item 3 alleges failureto use safety belts, as required by 29 C.F.R. ? 1926.105(a). [[4]] Item4 alleges failure to install guardrails on a floor perimeter and failureto maintain a midrail on a platform, as required by 29 C.F.R. ?1926.500(d)(1).[[5]]It is item 3 that we affirm as a willful violation. In our opinion, aswe will explain, the other three items are lesser violations, capable ofbeing classified as either serious or nonserious, but undifferentiatedby the Secretary in this case.A. Prior Citations and Settlement AgreementsWhen issued, the citation in this case represented the fourth time intwo years that OSHA had cited R & R Builders for violations of fallprotection standards. The citation also represented the fourth time intwo years that OSHA had directed the Company’s attention to deficienciesin its safety program; the three earlier citations for fall protectionviolations had resulted in settlement agreements to correct certainsafety program deficiencies.The first citation, issued in April 1986, alleged that R & R Buildersfailed to use safety belts as required by 29 C.F.R. ? 1926.28(a). [[6]] The parties settled the citation by entering into an agreement thatstated: \”The employer agrees to continue improving the safety knowledgeof his safety director.\” Jose Sanchez, the OSHA area director whonegotiated the agreement, testified that Greg Rogers, one of the ownersof R & R Builders, also verbally agreed to improve the safety knowledgeof his foremen and to implement \”a rigid safety program.\”The second citation, issued in July 1986, alleged that R & R Buildersfailed to install guardrails on a platform as required by 29 C.F.R. ?1926.500(d)(1), see supra note 5. Again, the parties reached anagreement on safety program improvement:The [e]mployer agrees to conduct regular safety inspections of hisworksites.The [e]mployer agrees to train his employees in the recognition andavoidance of on the job hazards.The third citation, a repeat citation issued in April 1987, alleged twoinstances of failure to use safety belts, as required by ? 1926.28(a),see supra note 6. The parties made a third agreement for safety programimprovement:The employer agrees to conduct regular safety meetings.The employer agrees to train the employees for hazard recognition andavoidance on the job.The employer agrees to conduct weekly inspections and to correctdeficiencies found.Norman Greenspan, the OSHA safety supervisor who negotiated thisagreement (acting for area director Sanchez), testified that hediscussed training and discipline with Rogers. Greenspan told Rogersthat, his Company having received a repeat citation, he would have toimplement a system of appropriate disciplinary measures for failure touse fall protection, so as to emphasize to the Company’s employees thatthey must make proper use of fall protection. [[7]]B. The Recent InspectionWhen the OSHA compliance officer, John MacDonald, arrived at the BocaRaton building project, R & R Builders’ crew of drywall installers wason the fourth floor. The perimeter of the floor was open andunguarded. As compliance officer MacDonald approached the building atthe ground level, he looked up and noticed several members of the crewstanding a few feet from the unguarded floor perimeter. The employeeswere waiting for a crane-load of drywall to be landed at the perimeter.MacDonald then ascended to the fourth floor, where he observed theseemployees unloading the drywall from the crane platform. Its one openside just overlapped the floor edge by approximately 1 foot, and on oneof the three guarded sides of the platform, the guardrail was deficient;a midrail was missing and an employee was standing near the gap. Thatemployee and one other were straddling the platform and floor edges, andwere sliding the pieces of drywall to two other employees, who werestanding a few feet inside the floor perimeter. MacDonald was concernedthat the crane platform could shift and dump the two employees who werestanding on it, and he wanted adequate fall protection for the wholecrew. His concerns were that the floor perimeter lacked guardrails, amidrail was missing from the platform, and the employees did not havesafety belts.Based on extensive experience as an inspector of construction projects,[[8]] and on the experience of having seen this particular project,compliance officer MacDonald believed that safety belts could have beentied off to permanent structures within the building, such as formworkor pipes. He testified that, if the lanyards of the belts were longerthan 6 feet, to permit employees to reach the building interior, safetybelts might not have been a complete solution. He believed, however,that 6-foot lanyards could have been used at the perimeter; otherwise,safety nets or catch platforms could have been used.MacDonald brought his observations to the attention of the crew’sforeman, general superintendent Peter George, who immediately and of hisown accord stopped the work. George informed the compliance officerthat there were no safety belts available at the worksite. Also,according to the compliance officer, the superintendent indicated thatthere were no instructions in the use of safety equipment or in theavoidance of hazards, no safety meetings or job-site inspections, and\”no format of safety at all.\” The compliance officer concluded that thesafety program was \”inadequate for the [C]ompany\” based on hisdiscussion with George, his own observations, and discussions with otheremployees, including Stephen Key, the labor foreman for the crew. According to MacDonald, Key did not show any awareness of a rulerequiring fall protection.Later, MacDonald spoke to the Company’s owner, Rogers. According toMacDonald, Rogers also stated that there were no safety beltsavailable. Furthermore, according to MacDonald, Rogers asked him whatwould constitute a safety program. At the hearing, MacDonald testifiedthat, in his opinion, the fact that Rogers asked this question indicatedthat the Company did not have a safety program.C. R & R Builders’ Overall Safety ProgramPrior to the inspection in this case, R & R Builders had taken somesteps toward training its employees. When hired, each employee receiveda copy of the Company’s safety rules and enforcement practices. Eachemployee was instructed to read the rules and practices. Thereafter,the hiring supervisor discussed them with him. Several categories ofsafety rules touched generally on fall hazards: \”Scaffolding,\” \”SafetyBelts,\” and \”Ladders.\” The rules in the \”Safety Belts\” category were:(1) Belts and proper lines will be used when necessary. If anyquestions arise get in touch with office immediately.(2) Make sure lines are secured to a solid permanent part of thebuilding. Included in the enforcement practices were warnings ofdismissal for failure to wear personal protective equipment, failure toreport accidents and injuries, and failure to perform work in a safe manner.These rules and the employee signature sheets acknowledging theirreceipt constituted most of R & R Builders documentation of its safetyprogram.[[9]] In addition, there was documentation of a safety trainingseminar that the Company asked OSHA to conduct in May 1987, after thethird citation and informal settlement. According to the documentation,which is in evidence, nine supervisors and two regular employeesattended. Fall protection was addressed.The Company had an officer in charge of safety, Vice President ofOperations John Kaye. After assuming responsibility as the safetyofficer in early 1986, vice president Kaye had sought OSHA’s help to setup an adequate safety program, had attended two OSHA seminars on hazardrecognition and avoidance, and had attempted to implement a program ofinstruction reflecting whatever OSHA told him and any other informationhe could find. [[10]] In addition, Kaye revised the Company’s safetyrules and enforcement practices, producing the above-mentioned rules onfall protection that were in effect during the inspection in this case.His understanding was that fall hazards exist whenever employees workwithin 10 feet of an unguarded floor edge and that some form of fallprotection must be used. Therefore, on jobsites other than the oneinvolved here, Kaye had discussed with foremen and employees the use ofguardrails, scaffolding, safety nets, and safety belts.As one of his continuing duties, vice president Kaye conducted meetingsof foremen (and, occasionally, a few other employees), at which hediscussed safety topics including fall protection requirements. Thediscussions took anywhere from 10 minutes to 1 1\/2 hours. The recordindicates that the meetings were irregularly held; sometimes, severalmonths passed without one. The vice president expected the foremen toteach the other employees, watch for hazardous conditions and practices,and report them to Company officials. Vice president Kaye alsoconducted on-site safety inspections on a weekly or twice-weekly basis,when delivering a payroll and when attending the project meeting ofcontractors and subcontractors at the jobsite. While the projectinvolved in this case was underway, however, vice president Kaye was outof the country. During this time, the Company’s owner, Rogers, wasperforming the duties of safety officer.D. The Company’s Safety Program on the Boca Raton ProjectThe record indicates that Rogers had attended a safety seminar at anunidentified convention in 1985 and had subsequently participated inon-site safety inspections. He had never observed any employee workingat a building perimeter, unloading drywall, or needing fall protection,and the Company had not brought safety belts to the Boca Raton jobsite.[[11]] Rogers’ on-site inspections at Boca Raton took approximately 45minutes to 1 1\/2 hours, during which time he observed job progress aswell as the safety of the jobsite and the equipment on the jobsite. Hedid not, however, observe the safety of the materials on the jobsitesince that duty belonged to the general superintendent, George.Rogers’ testimony indicates that, while acting as safety officer, he didnot continue having monthly meetings of the foremen.[[12]] During hison-site inspections, however, he did discuss issues of safety. Wheneverhe saw any employee deviating from safe practices, Rogers immediatelyadmonished the employee, required that any hazard be corrected, andbrought the matter to a foreman’s attention. [[13]]Apparently, based on the record, there were only two safety meetings forthe regular employees: one, to discuss licensing for \”pin guns,\” andanother, in response to \”horseplay.\” Whether the crew involved in thiscase was involved in either of those meetings is unclear; the generalsuperintendent could not recall. There was no evidence presented thatthe Company had a program of regular, comprehensive safety meetings forall of its employees. The one non-supervisory employee who testified,John Curry, had worked as a metal framer during the month since theproject had started and indicated in his testimony that there had beenno weekly safety meetings since he began work on the project, a monthbefore the inspection. Curry also testified that he did not knowwhether there were rules on fall protection. The testimony stronglysuggests that the crew of employees involved in this case as well as theCompany’s employees in general were supposed to have learned safety byexperience on other jobs, by reading the Company’s safety rules uponbeing hired, and by absorbing whatever a foreman might thereafter tellthem about the safe way to do a particular job on the project. OwnerRogers and superintendent George both testified that they would not havepermitted employees to work under conditions known to be unsafe.According to Rogers and George, the crew involved in this case was todrag the crane platform in from the floor perimeter, then \”walk on[to]the platform and bring the drywall straight out, and not stay near theedge.\” Rogers had inspected the platform for guardrails, which had beenintact and complete at the time. Other fall protection was not needed,he believed, if the crew stayed within the platform, behind theguardrails. [[14]] The testimony of Rogers and George indicates thatthey had not instructed the crew to use safety belts, or to install anyother form of fall protection, while unloading the drywall. Rogers andGeorge believed that, if the crew followed the procedure that they hadplanned, the crew would be protected by the platform guardrails. InGeorge’s opinion, this procedure for unloading crane platforms wascustomary at other worksites. Nevertheless, George admitted in histestimony that the crew in this case had not dragged the platform intothe building interior.George testified that, prior to the inspection, he had told the crewthat safety belts are usually needed for work at building perimeters. He also testified that, prior to giving instructions regarding theprocedure for unloading the crane platform, he had seen employeesstanding at unguarded perimeters and had told them to get back. Forthis operation, however, he judged safety belts unnecessary if the crewstayed behind the platform guardrails. George was aware, prior to theinspection, that the crew had been having problems with deficientguardrails on the platform, which belonged to another employer. Nevertheless, either he or his employees had been fixing the guardrailswithout notifying the other employer. Finally, George testified thathe did not know why the midrail was not fixed on this occasion.II. The Merits of the Safety Program ItemsA. Item 1a, Alleging Noncompliance with 29 C.F.R. ? 1926.20(b)(1)Administrative Law Judge Paul L. Brady found a violation of the citedstandard, which attempts to prescribe \”[a]ccident preventionresponsibilities,\” but which articulates a generalized requirement, thatemployers \”initiate and maintain such programs as may be necessary tocomply with [Part 1926].\” There have been no Commission or court casesinterpreting this standard, but court precedent interpreting similarlygeneralized standards has held that they are not vague and unenforceableif \”a reasonable person,\” examining the generalized standard in light ofa particular set of circumstances, can determine what is required, or ifthe particular employer was actually aware of the existence of a hazardand of a means by which to abate it. An employer can reasonably beexpected to conform a safety program to any known duties. [[15]]R & R Builders twice agreed \”to train the employees for hazardrecognition and avoidance on the job.\” That is, the Company agreed toteach all employees, laborers and supervisors, what situations arehazardous and what to do about them. Vice president Kaye, whounderstood that working within 10 feet of a floor edge presents a fallhazard for which some form of fall protection is needed, could thereforehave phrased the Company’s written safety rule more specifically than\”[b]elts and proper lines will be used when necessary\” (emphasisadded). A distance-specific rule could have helped work crews, such asthe one involved in this case, to recognize the dangers presented by thetask of unloading drywall from a crane platform at an open floor edge. A specific rule would also have provided a basis for systematicdisciplinary action against any laborers or supervisors who infringedthe rule. Inasmuch as the OSHA supervisor, Greenspan, had advised theCompany’s owner, Rogers, to use verbal reprimands, written warnings, andlayoffs \”if folks just wouldn’t listen,\” the Company knew thatdisciplinary action could become necessary.R & R Builders twice agreed \”to conduct regular safety meetings.\” Despite these agreements, the Company’s safety meetings for its foremenwere irregularly held, and on this jobsite there was no plan to conductsafety meetings for the ordinary employees. In its review brief, R & RBuilders asserts that safety was discussed when Rogers made his on-sitesafety inspections. Rogers, however, testified only that he correctedany foreman or laborer who might be creating a hazard; he did notmention having held meetings of all the employees, and he did notdescribe any systematic way in which he conveyed safety information toall employees. Moreover, George explained that, actually, it was theproject manager who was holding meetings when Rogers came to theworksite. Such meetings, not attended by all of the Company’s foremenand employees, would not satisfy the Company’s agreement \”to conductregular safety meetings.\” As the Secretary argues on review, \”[t]helack of a comprehensive written plan [of safety rules] put[s] a specialpremium on [having] regular and meaningful safety meetings at whichproblems could be identified and analyzed and safety policy formulatedand communicated.\” That is, such meetings would \”train the employeesfor hazard recognition and avoidance on the job.\”Moreover, Rogers and George, upon realizing that the crew needed tounload drywall in the vicinity of an open floor edge, decided that fallprotection would be unnecessary if the crew worked within the platform’sguardrails, but the managers disregarded that the crew would have toapproach the open floor edge and stand outside the platform’s guardrailswhile pulling the platform into the building. As noted above, on atleast one occasion, George had seen employees working at open flooredges and had told them to get back. This warning demonstrates a levelof awareness sufficient to realize that the drywall-unloading crew alsoneeded safety belts. The Company should have provided safety belts atthe worksite and should have given specific instructions on fallprotection during the operation of unloading the drywall.From the foregoing discussion, it is clear that the Company failed tohave an adequate safety program, incorporating all duties of which theCompany was aware and covering all of the Company’s employees, asrequired by the cited applicable standard. See, e.g., Walker TowingCorp., 14 BNA OSHC 2072, 2074, 1991 CCH OSHD ? 29,239, p. 39,157 (No.87-1359, 1991), citing Astra Pharmaceutical Products, Inc., 9 BNA OSHC2126, 2129, 1981 CCH OSHD ? 25,578, pp. 31,899-31,900 (No. 78-6247,1981) (elements of the Secretary’s case are applicability,noncompliance, employee access, and employer knowledge). We thereforeaffirm the judge’s decision finding a violation of 29 C.F.R. ?1926.20(b)(1).B. Item 1b, Alleging Noncompliance with 29 C.F.R. ? 1926.20(b)(2)Judge Brady also found a violation of this standard, on which there isno Commission or court precedent. The standard, however, statesrelatively straightforward specifications. It requires \”frequent andregular\” inspections of \”job sites, materials, and equipment\” by\”competent persons.\” The Secretary does not dispute that weekly ortwice weekly inspections would meet the \”frequent and regular\”specification. The issue is whether the Company’s \”job sites,materials, and equipment\” were inspected by \”competent persons.\”From the evidence, the Secretary infers and Judge Brady found thatRogers’ weekly or twice weekly jobsite inspections could not nave beenadequate, considering that they took only 45 minutes to 1 1\/2 hours,during which time Rogers was delivering the payroll and examining jobprogress as well as checking on safety: \”His presence,\” the judgestated, \”can hardly be deemed that of a designated competent personscrutinizing safety procedures.\” Furthermore, the Secretary infers andJudge Brady found that Rogers’ inspections must have been ineffective ifOSHA could discover a crew of employees working unprotected at an openfloor perimeter. The judge also referred to testimony of Rogers that itwas not his responsibility but the superintendent’s to check the safetyof materials. Because it appeared that George did not perform any suchinspections, the judge found that no one was inspecting materials.[[16]]R & R Builders does not dispute the judge’s finding that materials werenot inspected for safety, and on the basis of the evidence we uphold thefinding. The Company does, however, make an argument that ismeritorious as to the remaining findings, which are based oninferences. Specifically, the Company argues that the record containsno evidence reasonably giving rise to inferences that Rogers’inspections of the jobsite and equipment were insufficient within themeaning of the standard.Although the standard requires employers to delegate inspectionresponsibilities to an employee, the standard does not proscribe thatemployee from having other responsibilities within the business or doingseveral things at once during a jobsite inspection. Nor does the burdenof having a number of responsibilities automatically or presumptivelymake an inspector insufficiently \”competent\” or attentive to the safetyof \”job sites, materials, and equipment.\” Under the standard, therefore,the Secretary must affirmatively prove that there is a deficiency. Inthis case, however, other than Rogers’ admission that he had not beeninspecting materials and the indications that George was not doing so,there is no evidence upon which to find a deficiency.Although a crew was found working at an open floor edge, there is noevidence that the drywall stocking operations were performed frequentlyenough that Rogers’ on-site inspections would have or ought to havecoincided with them, and there is no evidence that Rogers’ inspectionshad coincided with them. Thus there is no evidence that he walked bythis or any other crew doing such work, and saw or could have seenemployees in the vicinity of a floor edge, but failed to implementchanges in the way the crew was performing its operation. This recordas it stands does not establish anything more than a need for bettersafety training in the recognition of fall hazards and better planningof job tasks to avoid hazards. In this case, we cannot presumeincompetence on the part of the Company’s safety inspector when hisinspections have never coincided with a particular operation. Thestandard’s language requiring \”frequent and regular\” inspections of the\”job site\” does not reasonably inform an employer that his inspectionsmust be performed at a jobsite. The standard imposes the concept of aregular schedule, not a special schedule, and points to physicalthings–the \”job site, materials, and equipment\”–not the operationsthemselves.As the foregoing discussion indicates, therefore, the Secretary provedonly on deficiency in the Company’s program of safety inspections. Specifically, as the testimony of Rogers and George shows, the Companywas not performing frequent and regular inspections of materials, forthe protection of the Company’s employees on the worksite, as requiredby the cited applicable standard. We therefore find that the Secretaryhas established the elements of her case. See, e.g., Walker TowingCorp., 14 BNA OSHC at 2074, 1991 CCH OSHD at p. 39,157; AstraPharmaceutical Products, Inc., 9 BNA OSHC at 2129, 1981 CCH OSHD at pp.31,899-31,900. R & R Builders did not present any defense as to itsfailure to inspect the safety of materials. Accordingly, on this onebasis, we affirm the judge’s decision finding a violation of 29 C.F.R. ?1926.20(b)(2).C. Item 2, Alleging Noncompliance with 29 C.F.R. ? 1926.21(b)(2)Judge Brady found a violation of the standard which, according to H.C.Nutting Co. v. OSHRC, 615, F.2d 1360 (6th Cir. 1980) (unpublished),quoted in A.P. O’Horo Co., 14 BNA OSHC 2004, 2009, 1991 CCH OSHD ?29,223, p. 39,130 (No. 85-369, 1991), \”does not outline any particularrequirements for a safety program\” and which requires only \”that anemployer inform employees of safety hazards which would be known to areasonably prudent employer or which are addressed by specific OSHAregulations.\” Thus, the standard is not unenforceably vague if it isapplied with reference to either a reasonable person test or OSHAstandards. \”[S]upervisery personnel [must] advise employees, especiallynew employees, of the hazards associated with [the] actual dangerousconduct in which they are presently engaging.\” National IndustrialConstructors, Inc. v. OSHRC, 583 F.2d 1048, 1056 (8th Cir. 1978). Evidence that the employees were unaware of particular safetyrequirements, because of a lack of specific instructions, establishes aviolation. John R. Jurgensen Co. v. OSHRC, 872 F.2d 1026 (6th Cir. 1989)(unpublished).Judge Brady based his finding of a violation on the evidence that R & RBuilders generally failed to hold safety meetings for its employees onthis jobsite and failed to provide other instruction regarding use ofsafety belts. The work crew in this case did not know that safety beltswere needed for the work they were doing. In response, the Companypoints out that George had generally told employees that they needed asafety belt when standing near a floor edge. Our reading of thistestimony indicates, however, that it refers to occasional correction ofemployees, not to any systematic training. In fact, the recordindicates that there was no consistent training of the ordinary employees.The Company’s safety belt rule did not incorporate the relevant OSHArequirement for fall protection: \”when workplaces are more than 25 feetabove the ground.\” See 29 C.F.R. ? 1926.105(a), supra note 4. Also, aswe have noted, the Company’s rule did not reflect vice president Kaye’sunderstanding that safety belts are required when employees work within10 feet of a floor edge. Furthermore, the Company’s rule was notspecific in any respect and metal framer Curry was unable, in histestimony, even to remember whether there was a rule on fall protection.Moreover, the Company’s very general rule evidently did not provide anadequate guideline as to when protection is needed, for Rogers andGeorge both believed safety belts unnecessary for the job task involvedin this case and did not tell the work crew to use safety belts whenapproaching the unguarded floor edge to pull the crane platform into theinterior. As a consequence, George’s prior occasional instructions thatsafety belts must be used at a floor edge, which were not specificallyreinforced by the Company’s rule, were overridden by specificinstructions for a particular task. Also, as the Secretary points out,\”Curry’s being told to stay away from the edge and behind guardrails[was] meaningless when there were no guardrails at the perimeter and[the] employees were actually assigned to work near the floor edge.\” This is a case of failure by the \”supervisory personnel to adviseemployees. . .of the hazards associated with [the] actual dangerousconduct in which they are presently engaging.\” National IndustrialConstructors, 583 F.2d at 1056. For the reasons set forth above, weconclude that the Secretary has met her burden of proof and we affirmthe judge’s decision finding a violation of 29 C.F.R. ? 1926.21(b)(2).III. The Two Fall Protection ItemsR & R Builders does not dispute that it committed fall protectionviolations, as found by Judge Brady, but contends that the allegationunder ? 1926.500(d)(1) for lack of guardrails is duplicative of theallegation under ? 1926.105(a) for lack of safety belts, because safetybelts alone would have eliminated all risk of falling to the ground. The Secretary counters that \”an employer’s simultaneous noncompliancewith two standards which result in the same general hazard is notnecessarily duplicative,\” because there were distinct deficiencies anddistinct forms of abatement. There was a need for guardrails along theunguarded floor edge and a need for a secure midrail on the platform, aswell as a need for safety belts to protect the employees who werestraddling the floor and platform edges. Therefore, the Secretaryspecifically maintains, her allegations of separate violations areappropriate and well within her prosecutorial discretion.There can be no dispute that the Secretary has authority to adopt andenforce a specification for a particular abatement measure in aparticular circumstance, such as guardrails for open floor and platformedges. [[17]] If a specifications standard does not provide for anyalternative form of compliance, the fact that the employer hasimplemented an alternative measure instead of the specified measurecannot, in itself, justify vacating a citation. See Ormet Corp., 14 BNAOSHC 2134, 2139, 1991 CCH OSHD ? 29,294, p. 39,204 (No. 85- 531, 1991),compare Stone Container Corp., 14 BNA OSHC 1757, 1760, 1987-90 CCH OSHD? 29,064, p. 38,817 (No. 88-310, 1990) (an alternative protectivemeasure becomes a legal substitute for strict compliance only ifauthorized by a variance, an established defense, or a settlementagreement); and Cleveland Electric Illuminating Co., 13 BNA OSHC 2209,2213, 1987-90 CCH OSHD ? 28,494, p. 37,762 (No. 84-593, 1989), rev’d onanother ground, 910 F.2d 1333 (6th Cir. 1990) (an employer’s compliancewith a general standard requiring employee training does not excusenoncompliance with a specifications standard mandating a physical formof protection). Section 1926.500(d)(1), the cited standard which R & RBuilders would have us dismiss in this case, does not make compliancewith ? 1926.105(a), or any other personal protective equipment standard,an exception to its requirements and does not designate safety belts the\”equivalent\” of guardrails. See Spancrete Northeast, Inc., v. OSHRC,905 F.2d 589, 593 & 594 (2d Cir. 1990). Therefore, where the undisputedevidence shows that the fourth floor was unguarded and that the craneplatform was missing a midrail, there is no basis for vacating the ?1926.500(d)(1) item, even if safety belts would have been equallyprotective and would have satisfied ? 1926.105(a). Compare WarnelCorp., 4 BNA OSHC 1034,1037,1975-76 CCH OSHD ? 20,576, pp. 24,598-99(No. 4537, 1976) (even though, in a particular case, guardrails mightnot be as effective as another protective measure, this fact \”cannotexcuse the absence of guardrails where the standard requires them andtheir use is possible\”). Based on the case law cited above, it is clearthat the guardrails charge cannot be vacated merely because the safetybelts charge, if affirmed, would address all fall hazards.If the employees had actually been wearing tied-off safety belts, theguardrails charge might be classified as de minimis. See PhoenixRoofing, Inc., v. Secretary, 874 F.2d 1027, 1032 (5th Cir. 1989) (a deminimis classification may be appropriate \”where there is no significantdifference between the protection provided by the employer and thatwhich would be afforded by technical compliance with the standard\”). Here, however, where the Company was not complying with either of thetwo cited standards and the employees were unprotected, we not onlydecline to vacate the guardrail charge but we decline to classify it asde minimis.Commission precedent on duplication of charges reflects theseprinciples. The leading case, H.H. Hall Construction Corp., 10 BNA OSHC1042,1981 CCH OSHD ? 25,711 (No. 76-4765, 1981), involved allegationsthat the Company failed to reinforce a trench to protect against\”superimposed loads\” and failed to protect against \”moving ground.\” Theemployer in that case contended that, because remedying the former wouldabate the latter, the latter charge should be vacated. The Commissionrejected the argument, stating:[S]ection 5(a)(2) of the Act requires an employer to comply with allstandards applicable to a hazardous condition even though the abatementrequirements of two applicable standards may be satisfied by compliancewith the more comprehensive standard. Thus, there is no unfair burdenimposed on an employee when the same or closely related conditions arethe subject of more than one citation item and a single action may bringan employer into compliance with the cited standards.10 BNA OSHC at 1046 (emphasis in the original). The Commission heldthat it would only \”assess a single penalty for overlapping violations.\”Then, finding that \”proper use of the trench boxes which arrived at theworksite late would abate both . . . violations\” in the mannerprescribed by both standards, the Commission assessed a single $1,000penalty. 10 BNA OSHC at 1049. [[18]]The case now before us is distinguishable, however. The cited standardsrequire different forms of abatement and use of one form does notnecessarily provide complete abatement in the circumstances. As we havediscussed, a safety belt as required by ? 1926.105(a) is not theabatement that ? 1926.500(d)(1) requires and, if the latter standardwere satisfied with guardrails along the floor edge, the employees whowere straddling the platform would still be unprotected against thedanger of falling if the platform shifted. Accordingly, the Secretaryhas demonstrated that the two citation items are not duplicative. Inasmuch as the merits of the two items are not in dispute on review andthe judge determined that the Secretary had met her burden of proof asto both items, we affirm them separately and assess separate penaltiesfor them.IV. WillfulnessAs noted above, Judge Brady classified all four citation items aswillful. The judge referred to R & R Builders’ \”history,\” consisting offour citations \”in 21 months, all for violations relating to fallhazards,\” and the judge found that R & R Builders \”repeatedly agreed toabate its violations and emphasize safety[,] then blithely ignored theAct until the next OSHA inspection occurred.\” On review, R & R Buildersargues that the four citation items involved in this case should not beclassified as willful because the Company had been making genuine andsubstantial efforts to comply with the OSHA requirements of which theCompany was aware.It is now well-settled that \”a willful violation [i]s one involvingvoluntary action, done either with an intentional disregard of, or plainindifference to, the requirements of the statute.\” Georgia Electric Co.v. Marshall, 595 F.2d 309, 319 (5th Cir. 1979), quoted in Mineral Indus.& Heavy Constr. Group v. OSHRC, 639 F.2d 1289, 1295 (5th Cir. Unit A,1981); accord, E.L. Jones and Son, Inc., 14 BNA OSHC 2129, 2133, 1991CCH OSHD ? 29,264, p. 39,232 (No. 87-8, 1991) (\”intentional disregardfor the requirements of the Act or plain indifference to employeesafety\”). By itself, an employer’s familiarity with applicablestandards or safety requirements does not establish the willfulness of aviolation. See Wright and Lopez, Inc., 8 BNA OSHC 1261, 1265, 1980 CCHOSHD ? 24,419, p. 29,777 (No. 76-3743, 1980). Furthermore, a finding ofwillfulness is not justified where evidence reveals that \”the employerhad a good faith opinion that the violative condition[] conformed to therequirements of the cited standard\” or where the evidence reveals that\”[the] employer ha[d] made a good faith effort to comply with astandard, even though the employer’s efforts [had not been] entirelyeffective or complete.\” Calang Corp., 14 BNA OSHC 1789, 1791, 1987-90CCH OSHD ? 29,080, p. 38,870 (No. 85-319, 1990). The test of good faithin such cases is an objective one, i.e., whether the employer’s beliefconcerning the factual matters in question had been reasonable under allof the circumstances.The evidence in this case reveals that the three prior citations and theensuing process of improving the safety program made the Company’smanagers aware of the cited fall protection standards, the cited safetyprogram standards, and the particular requirements for a safety programthat were set forth in the three informal settlement agreements. Themanagers then implemented certain procedures, including jobsite safetyinspections and safety meetings among the managers. As for the ordinaryemployees, although the Company’s, safety meetings did not include them,their supervisors gave them occasional on-the-job correction; Kaye andRogers both testified that they personally instructed any employee seenperforming his work in an unsafe manner. The managers also formallyinstituted certain rules and instructions, including the written safetyrules that were provided to each newly hired employee. The safetyrules explicitly addressed fall protection.As we have discussed, the rules and the Company’s other measures werenot sufficient to meet the requirements of the cited standards and werenot as effective and complete as necessary in the circumstances. Nevertheless, the unrebutted evidence reveals that, in response to thecitations issued prior to this one, the Company’s managers had taken themeasures in good faith, after having attempted to learn all that wasrequired, and in the belief that they were complying with all applicablerequirements, some of which are very generalized, see supra notes 1 and3. Moreover, the improvements in the safety program prior to theinspection in this case were substantial, and the managers had becomemore aware of the need for fall protection. During the inspection, ashas been mentioned, General Superintendent George immediately stoppedthe drywall unloading operation when the compliance officer spoke to himabout it. Then, after the inspection, the Company made furthersignificant strides toward compliance; there was considerable testimonythat, subsequently, the Company entirely corrected the safety programdeficiencies that were found during the inspection in this case. Suchevidence, revealing the employer’s safety program prior to theinspection and showing continuing improvement after the inspection,precludes a finding of willfulness because it demonstrates an overallpattern of responsive behavior, i.e., that the Company was not culpablyindifferent to whether its conduct deviated from safety requirements andendangered employees. Compare Brock v. Morello Bros., 809 F.2d 161,(1st Cir. 1987) (violation not willful in light of foreman’s \”good faitheffort to comply with what he thought was basically required\”). Theevidence of R & R Builders’ meaningful and prompt progress towardrectifying the deficiencies in its safety program mitigates againstfinding willful violations of the safety program standards cited in thiscase.We also decline to find a willful violation of the guardrail standard inlight of the unrebutted testimony that, as a regular practice, theCompany had been repairing the deficient guardrails on the craneplatform and that superintendent George had instructed the drywall crewto stay, as much as possible, behind the guardrails of the platform,since the perimeter of fourth floor was unguarded. Additionally, theCompany had made a policy decision, as evidenced by the safety rules andsuperintendent George’s testimony about his instructions in general toemployees, to rely on safety belts for protection at open floor edges. Although safety belts do not meet the requirements of the standardsspecifying use of guardrails, in most circumstances safety belts can beexpected to provide effective and complete protection against the fallhazards presented by open-sided floors.The one violation that we do find to be willful is the violationinvolving safety belts (citation item 3). After receiving the threeprior citations, two of which pertained to safety belts, the Company’sowner, Rogers, had discussions with OSHA officials about the difficultyof assuring that employees wore safety belts. In these discussions andfrom the consequent informal settlements he learned that the Companyshould train the employees in the recognition and avoidance of safetyhazards that require fall protection such as safety belts. Thereafter,as we have mentioned, the Company made a policy decision to rely onsafety belts for primary fall protection of employees. When, however,the Company’s vice president wrote out a safety rule on fall protection,he did not pattern it on the specifics that he himself understood andthat could have been gleaned from the OSHA standards of which he wasaware. In addition, even though information on fall protectionrequirements was given to George and he knew how and why safety beltsare used, he and Rogers proceeded to plan the drywall unloadingoperation without regard to the obvious fall hazard existing immediatelybefore and after the crane platform landed at the unguarded floor edge. In material respects, this case can be considered similar to O’Horo, 14BNA OSHC at 2012-13, 1991 CCH OSHD at p. 39,134 (\”O’Horo permitted itsforeman Bowman and, through Bowman’s delegation, its backhoe operatorBlack, to substitute their judgment as to whether the trench was safefor the clear requirements of the standards, of which O’Horo was wellaware\”). Taking into account all of the circumstances leading to theinspection, we conclude that the Company could not reasonably havebelieved its efforts to enforce the use of safety belts were adequate.V. PenaltiesWe turn now to the penalties to be assessed for the one willful citationitem and the three remaining citation items. When this case arose, theAct permitted \”a civil penalty of not more than $10,000\” for any willfulviolation and, for a lesser violation, i.e., a serious or a nonseriousviolation, the Act provided one maximum \”civil penalty of up to $1,000.\”[[19]] In this case, the Secretary has neither alleged nor argued thatany of R & R Builders’ violations must be classified as serious if notfound to be willful. The seriousness of the violation for the lack ofguardrails on the fourth floor perimeter and the lack of a midrail onthe crane platform is suggested by the evidence in this case, as is theseriousness of the safety program violations. We decline, however, toenter findings of seriousness for the three citation items that we donot classify as willful, in view of the absence of any argument by theparties on the issue and in view of our clear authority under the Act toassess a penalty appropriate to the gravity of the violations,regardless of their classification as serious or nonserious. See BlandConstr. Co., 15 BNA OSHC 1031, 1040, 1044, 1991 CCH OSHD ? 29,325, pp.39,400 & 39,404 (No. 87-992, 1991)We deem it appropriate to assess the following penalties for theviolations: $8,000 for the willful violation (citation item 3), and$1,000 for each of the three remaining violations (citation items 1, 2,and 4). The Company, which is relatively small, has a history of OSHAviolations and, although the Company has made continuing efforts toprotect its employees and implement a safety program, good faith hascome into question with the finding of a willful violation. The gravityof the exposure discovered in this case was high, both in terms of thenumber of employees exposed and the severity of the hazard to which theywere exposed.VI. OrderAccordingly, we affirm citation item 3 as a willful violation and assessa penalty of $8000. For citation items 1 and 2, which we affirm, and forcitation item 4, which we uphold on the basis of the judge’s decisionaffirming the item, we assess three penalties of $1,000 each.Edwin G. Foulke, Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: November 25, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.R & R BUILDERS, INC.,Respondent.OSHRC Docket No. 88-0282APPEARANCES:Laurie E. Rucoba, Esquire, Office of theSolicitor, U. S. Department of Labor, FortLauderdale, Florida, on behalf of complainant.Charles T. Kessler, Esquire, Pyszka,Kessler, Massey, Weldon, Catri, Holton andDouberley, Fort Lauderdale, Florida, onbehalf of respondent._DECISION AND ORDER_BRADY, JUDGE: Respondent, R & R Builders, Inc., (\”R & R\”), contests twocitations issued to it on December 21, 1987, under the OccupationalSafety and Health Act of 1970 (\”Act\”). The citations emanate from aninspection conducted by Compliance Officer John MacDonald at aconstruction site located in Boca Raton, Florida, from October 14 toNovember 5, 1987.Citation one alleges willful violations of 29 C.F.R. ? 1926.20(b)(1) forfailure to initiate and maintain a safety program, of 29 C.F.R. ?1926.20(b) (2) for failure to make frequent and regular inspections ofthe jobsite, of 29 C.F.R. ? 1926.21(b)(2) for failure to instructemployees in the recognition and avoidance of safety hazards, of 29C.F.R. ? 1926.105(a) for failure to provide safety nets in areas wherethe workplace was more than 25 feet above the ground, and of 29 C.F.R. ?1926.500(d)(1) for failure to guard an open-sided floor that was sixfeet above ground level.Citation two charges an other-than-serious violation of 29 C.F.R. ?1926.404(b)(1)(ii) for failure to provide ground-fault circuit interrupters.R & R was the drywall subcontractor for a 17-story luxury condominium,known as the Sea Ranch or Spanish River project, located at 4201 NorthOcean Boulevard in Boca Raton, Florida. The Weitz Company was theproject management group, which had hired 17 subcontractors for theproject (Tr. 31-32).On October 14, 1987, MacDonald was traveling to another work site for aninspection when he observed employees working without fall protection atthe perimeter edge of the seventh floor of Building C at the work site.[[1]] MacDonald stopped and called his office to report thisobservation, at which time he was instructed to proceed to the Sea Ranchwork site and conduct an inspection (Tr. 34).MacDonald went to the general contractor’s trailer and spoke withproject manager Chad Lewis. MacDonald, Lewis, and Weitz employee BobDimmers proceeded to enter the building on the west side. As theyentered the building, they observed four employees without fallprotection standing at the edge of the fourth floor. The employees werewaiting for a platform to be swung over by a crane (Ex. C-2; Tr. 35-37).When MacDonald and the others arrived at the fourth floor, they observedsix R & R employees in the area. Four of these employees were standingat the edge of the perimeter, off-loading drywall material from the liftplatform to the fourth floor balcony area. The employees did this bystraddling the balcony floor and the lift platform. The left side ofthe platform was missing a midrail, leaving a gap of 42 inches. Theside of the platform closest to the balcony had a foot long metalextension used to catch on to the side of the building, creating abridge between the platform and the balcony (Ex. C- 3; Tr. 44-47, 83-84).During his inspection, MacDonald also observed that a duplex receptaclenear a trailer was energized at 120 volts and was not protected with aground-fault circuit interrupter. He observed another receptacle on apanel inside the R & R trailer that did not have a ground-fault circuitinterrupter (Ex. C-4, C-5; Tr. 54-56).R & R has a history of previous violations. On April 7, 1986, R & Rwas issued a serious citation alleging that its employees were notprotected from fall hazards of up to 16 feet (Ex. C-8). On April 16,1986, R & R entered into an informal settlement agreement, which statesin paragraph seven (Ex. C-9): \”The employer agrees to continueimproving the safety knowledge of his safety director.\”On July 3, 1986, R & R was issued a serious citation for an allegedviolation of 29 C.F.R. ? 1926.500(d)(1) for failure to guard anopen-sided floor which exposed an employee to a 50-foot fall (Ex.C-10). On July 16, 1986, R & R entered into an informal settlementagreement, which contained the following paragraphs (Ex. C-11):7. The Employer agrees he has corrected the alleged violations as cited.8. The Employer agrees to conduct regular safety inspections of hisworksites.9. The Employer agrees to train his employees in the recognition andavoidance of on the job hazards.On April 8, 1987, R & R received a third serious citation for allowingemployees to work without fall protection while exposed to an 11- to 18-foot fall (Ex. C-12). On April 30, 1989, R & R entered into an informalsettlement agreement which contained the following paragraphs (Ex. C-13):8. The employer agrees to conduct regular safety meetings.9. The employer agrees to train employees for hazard recognition andavoidance on the job.10. The employer agrees to conduct weekly inspections of workplaces andto correct deficiencies found._ALLEGED WILLFUL VIOLATION OF 29 C.F.R. ? 1926.20(b)(1)_The regulation, which pertains to accident prevention responsibility,provides:It shall be the responsibility of the employer to initiate and maintainsuch programs as may be necessary to comply with this part.The Commission has held that:Elements of an effective safety program include work rules designed toprevent violations, adequate communication of the rules to employees,methods of discovering whether violations occur, and enforcement of therules if violations are discovered._Howard P. Foley Co._, 77 OSAHRC 90\/A2, 5 BNA OSHC 1501, 1977-1978 CCHOSHD ? 21,862, p. 26,341 (No. 13244, 1977).MacDonald testified that, based on his inspection, he concluded that R &R had no safety program. He was told by Peter George, foreman in chargeof the project for R & R, that R & R held no safety meetings and thatemployees were given no safety instructions or safety training (Tr.51-52). At the hearing, Stephen Key, a foreman, and John Curry, a metalframer, both testified that no regular safety meetings were held andthat no safety training was given in off-loading material (Tr. 11-12,24-24).John Kaye, R & R’s vice-president of operations, testified that he heldregular meetings with R & R’s foremen to discuss safety. He alsotestified that he made regular inspections of R & R work sites (Tr. 109,115). Upon cross-examination, however, Kaye stated that he had been outof the country from June to December of 1987, and had never inspectedthe Sea Ranch project, or held safety meetings with foremen between thestart of the project and the inspection by MacDonald (Tr. 122-123).Based on the record, the only effort made by R & R to establish a safetyprogram was the distribution of an information packet to new employees. The packet contained a copy of the company’s written safety rules (Ex.R-2). There are a total of 19 rules, which are for the most partdrafted in general terms, providing little specific instructions onhazards peculiar to the industry. The only rules relating to fallprotection come under the heading of \”safety belts.\”They state:1. Belts and proper lines will be used when necessary. If any questionsarise get in touch with office immediately.2. Make sure lines are secured to a solid permanent part of the building.(Id.).Despite the admonitions concerning safety belts, no belts were providedby R & R to its employees at the Sea Ranch work site (Tr. 11). At thehearing, R & R suggested, rather disingenuously, that if had deemedsafety belts necessary, R & R could have borrowed them from C. L.Weitzside, whose trailer was next to R & R’s (Tr. 161). Uponcross-examination, George (who had testified to the borrowingarrangement) admitted that at the time of the inspection, he was unawareof any arrangement whereby R & R could borrow equipment from Weitzside(Tr. 170-171).The record establishes that R & R did not have a safety program adequateto comply with the requirements of the Act. Although new employees weregiven a short list of general rules, any safety instructions theyreceived after that time was fortuitous and not part of an establishedsafety program. R & R was in violation of 29 C.F.R. ? 1926.20(b)(1)._ALLEGED WILLFUL VIOLATION OF 29 C.F.R. ? 1926.20(b)(2)_This regulation requires that:Such programs shall provide for frequent and regular inspections of thejob sites, materials, and equipment to be made by competent personsdesignated by the employers.During his inspection, MacDonald was informed by George that noinspections of the work site were conducted (Tr. 52). As noted,_supra_, Kaye’s initial claim that he conducted regular inspections of R& R’s work sites was belied by his admission that he was out of thecountry from the time the Sea Ranch project began until afterMacDonald’s inspection. Greg Rogers, one of the owners of R & R,testified that he conducted informal inspections of the work site onceor twice a week (Tr. 189-190). Rogers testified that it took himanywhere from 45 minutes to an hour and a half to walk the job, and heusually did this on Fridays after he had handed over the employees’paychecks. Rogers stated that during these walks, he would check theprogress of the job and job safety (Tr. 198-199).The Secretary argues that the relatively short duration of Roger’swalkarounds, and the fact that he was also checking on the progress ofthe job, lead to the conclusion that Rogers was not conducting the typeof safety inspection contemplated by the standard. The Secretary’sargument is convincing. Rogers, as an owner of the company, was on thework site at the end of every week to deliver the payroll. His presencecan hardly be deemed that of a designated competent person scrutinizingsafety procedures. The fact that the number of employees were workingin concert next to an unguarded perimeter four stories up without fallprotection argues against Roger’s effectiveness as a safety inspector.Furthermore, when asked about inspection of job materials, Rogersresponded, \”Job materials were taken care of by my superintendent. Theonly thing [I inspected] was, basically, the progress of the work andsafety\” (Tr. 199). The standard at issue specifically provides for theinspection of \”jobsites, materials,and equipment.\” It has beenestablished that George, who was in charge of the project, did notconduct such inspections. R & R failed to comply with the provisions ofthe standard, and is in violation of 29 C.F.R. ? 1926.20(b)(2)._ALLEGED WILLFUL VIOLATION OF 29 C.F.R. ? 1926.21(b)(2)_The regulation, which pertains to employer responsibility for safetytraining provides that:The employer shall instruct each employee in the recognition andavoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazards or other exposureto illness or injury.As noted, _supra_, the record establishes, through the testimony offoremen Peter George and Stephen Key, that the employees of R & R didnot receive adequate safety training, either through regular safetymeetings or on-the-job training. It is particularly telling thatneither Key nor George believed that it was necessary for their workersto wear safety belts while working at the immediate edge of an unguardedfloor, 40 feet above the ground (Tr. 19, 161). R & R was in violationof 29 C.F.R. ? 1926.21(b)(2)._ALLEGED WILLFUL VIOLATION OF 29 C.F.R. ? 1926.105(a)_The regulation requires that:Safety nets shall be provided when workplaces are more than 25 feetabove the ground or water surface, or other surfaces where the use ofladders, scaffolds, catch platforms, temporary floors, safety lines, orsafety belts is impractical.It is undisputed that R & R’s employees were working more than 25 feetabove the ground and that they were not using any of the safety deviceslisted in the standard. MacDonald testified that the use of safetynets, safety belts, scaffolding, and catch platforms would have beenfeasible, and that the use of any one of them would have brought R & Rinto compliance (Tr. 42-43). R & R offered no evidence to rebut thistestimony and, therefore, was in violation of 29 C.F.R. ? 1926.105(a)_ALLEGED WILLFUL VIOLATION OF 29 C.F.R. ? 1926.500 (d) (1)_The regulation requires that:Every open-sided floor or platform 6 feet or more above adjacent flooror ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(1) of this section, on allopen sides, except where there is entrance to a ramp, stairway, or fixedladder. The railing shall be provided with a standard toeboardwherever, beneath the open sides, persons can pass, or there is movingmachinery, or there is equipment with which falling materials couldcreate a hazard.It is undisputed that the perimeter edge next to which the employeeswere working was not guarded. It is also undisputed that the liftplatform was missing a midrail, leaving a gap of 42 inches, throughwhich an employee could fall. In its posthearing brief, R & R arguesonly that the classification of the violation should be serious, and notwillful. The evidence establishes that R & R was in violation of 29C.F.R. ? 1926.500(d)(1).R & R argues that ? 1926.105(a) (use of safety nets) and ?1926.500(d)(1) (use of guardrails) address identical conditions; and,therefore, R & R cannot be cited for both. The Commission has that\”[a]lthough a work site condition may violate more than one standard,section 5(a)(2) of the Act requires an employer to comply with allstandards applicable to a hazardous condition even though the abatementrequirements of two applicable standards _may_ be satisfied bycompliance with the more comprehensive standard.\” _H. H. HallConstruction Co._, 81 OSAHRC 91\/D12, 10 BNA OSHC 1042, 1046, 1981 CCHOSHD ? 25,712 (No. 76-4765, 1981). R & R was, therefore, correctlycited for violations of both ? 1926.105(1) and ? 1926.500(d)(1)._WILLFULNESS CLASSIFICATION_\”A violation is willful if it was committed voluntarily with either anintentional disregard for the requirements of the Act or with plainindifference to employee safety.\” _A. C. Dellovade, Inc._, __OSAHRC__,13 BNA OSHC 1017, 1987 CCH OSHD ? 27,786, p. 36,341 (No. 83-1189, 1987). Including the present citations, R & R was cited four times in 21months, all for violations relating to fall hazards. Such a historymanifests an intentional disregard for the requirements of the Act orplain indifference to employee safety. R & R has repeatedly agreed toabate its violations and emphasize safety then blithely ignored the Actuntil the next OSHA inspection occurred. R & R was in willful violationof 29 C.F.R. ? 1926.20(b)(1), ? 1926.20(b)(2), ? 1926.21(b)(2), ?1926.105(a), and ? 1926.500(d)(1) as alleged._ALLEGED VIOLATION OF 29 C.F.R. ? 1926.404(b)(1)(ii)_The regulation provides:All 120 volt, single-phase, 15- and 20-ampere receptacle outlets onconstruction sites, which are not a part of the permanent wiring of thebuilding or structure and which are in use by employees, shall haveapproved ground-fault circuit interrupters for personnel protection. Receptacles on a two-wire, single-phase portable or vehicle-mountedgenerator rated not more than 5kw, where the circuit conductors of thegenerator are insulated from the generator frame and all other groundedsurfaces, need not be protected with ground-fault circuit interrupters.The inspecting officer testified that he observed an energizedreceptacle and panel which were not protected by ground-fault circuitinterrupters (Ex. C-4, C-5; Tr. 54-56). R & R did not rebut theevidence and, therefore, was in other than-serious violation of 29C.F.R. ? 1926.404(b)(1)(ii)._PENALTY DETERMINATION_The Commission is the final arbiter of penalties in all contestedcases. _Secretary v. OSAHRC and Interstate Glass Co._, 487 F. 2d 438(8th Cir. 1973). Under 17(j)(4) of the Act, the Commission is requiredto find and give \”due consideration\” to the size of the employer’sbusiness, the gravity of the violation, the good faith of the employer,and the history of the previous violations in determining the assessmentof an appropriate penalty. The gravity of the offense is the principalfactor to be considered. _Nacirema_ _Operating Co._, 72 OSAHRC 1\/B10,1BNA OSHC 1001, 1971-1973 CCH OSHD ? 15,032 (No.4, 1972).At the time of the inspection, R & R had approximately 15 employees. MacDonald testified that the hazardous conditions presented risks ofbroken bones an death (Tr. 37, 40, 48).Upon consideration of the factors for determining penalties and thefacts of this case the following penalties are deemed appropriate:Citation 1 \tItems 1a and 1b \t$8,000.00Citation 1 \tItem 2 \t$4,000.00Citation 1Citation 1 \tItem 3 \t$8,000.00Citation 1 \tItem 4 \t$8,000.00_FINDINGS OF FACT_1. R & R was a subcontractor on a project known as the Sea Ranchproject or Spanish River job, a luxury condominium high-rise buildinglocated at 4201 North Ocean Boulevard in Boca Raton, Florida. Theproject consisted of a marina and 17-story high-rise buildings.2. R & R was installing drywall at the project and, at the time of theOSHA inspection in October 1987, approximately 15 employees ofrespondent were working in Building C at the project site.3. Compliance Officer John MacDonald conducted an inspection of theentire project site from October 14, 1987, through October 16, 1987.4. In the course of his inspection, MacDonald observed employees of R &R at the fourth-floor level standing at the edge of the building waitingfor a lift platform from which they off loaded drywall material. Theemployees were exposed to a fall hazard of approximately 40 feet andwere working without fall protection.5. The lift platform had no guardrail or midrail on the right hand sideof the lift platform. The employees straddled the balcony floor and thelift platform to off load drywall materials into the fourth-floorlevel. There was a limited metal extension on the platform which, ifthe crane were to be jostled, would cause movement in the platform andcreate a gap between the building floor and platform from whichemployees could fall through.6. Peter George and Stephen Key, the foremen on the project, wereunaware of the hazards of working near the edge of buildings and wereunaware of OSHA rules requiring fall protection for employees exposed tothose hazards.7. Employees had not received any instruction or training in theoff-loading of materials at this jobsite and there were no safety beltsavailable for use by employees of R & R at this site.8. An R & R foreman admitted to the inspecting officer that the companydid not have safety meetings with its employees, that no instructions ortraining were given to employees in the avoidance of unsafe conditionsor in the use of safety equipment, and that no inspections were done tohis knowledge to discover hazardous conditions.9. There were, in fact, no regular or frequent safety meetings at thesite, and the company did not provide any safety training or give anyinstructions in how to perform jobs safely.10. There were no frequent and regular inspections of the jobsite,materials, and equipment by a designated competent person at this jobsite.11. Receptacles energized at 120 volts were not protected withground-fault circuit interrupters at the jobsite.12. R & R had been issued three previous citations involvingallegations of fall hazards at other jobsites. The citations wereaffirmed with R & R agreeing to correct said violations._CONCLUSIONS OF LAW_1. This proceeding arises under the Occupational Safety and Health Actof 1970. Jurisdiction is conferred upon the Commission by ? 10(c) ofthe Act, 29 U.S.C. ? 659(c).2. At all times material hereto, respondent, R & R Builders, Inc., wasan employer engaged in a business affecting commerce within the meaningof ? 3(5) of the Act, 29 U.S.C. ? 652(5).3. R & R was in willful violation of 29 C.F.R. ? 1926.20(b)(1) byfailing to initiate or maintain a safety program to provide compliancewith OSHA safety and health standards applicable to the constructionindustry.4. R & R was in willful violation of 29 C.F.R. ? 1926.20(b)(2) byfailing to insure and\/or require frequent and regular inspections of thejobsite, materials and equipment by a designated competent person toinsure compliance with OSHA safety and health standards applicable toconstruction industry5. R & R was in willful violation of 29 C.F.R. ? 1926.21(b)(2) byfailing to instruct employees in the recognition and avoidance of unsafeconditions and the regulations applicable to their work environment.6. R & R was in willful violation of 29 C.F.R. ? 1926.105(a) bypermitting its employees to work more than 25 feet above ground withoutproviding safety nets or enforcing the use of other safety deviceslisted in the standard.7. R & R was in willful violation of 29 C.F.R. ? 1926.500(d)(1) byfailing to guard, by a standard railing or the equivalent as specifiedin 29 C.F.R ? 1926.500(f)(1)(ii), open-sided floors or platforms sixfeet or more above adjacent floor or ground level.8. R & R was in other-than-serious violation of 29 C.F.R. ?1926.404(b)(1)(ii) by failing to have approved ground-fault circuitinterrupters for personnel protection for all 120-volt, single-phase,15- and 20-ampere receptacle outlets._ORDER_Based upon the foregoing findings of fact and conclusions of law, it isORDERED:1. Item la of citation one is affirmed.2. Item 1b of citation one is affirmed and a penalty of $8,000.00 isassessed for both items.3. Item 2 of citation one is affirmed and a penalty of $4,000.00 isassessed.4. Item 3 of citation one is is affirmed and a penalty of $8,000.00 isassessed.5. Item 4 of citation one is affirmed and a penalty of $8,000.00 isassessed.6. Citation two is affirmed and no penalty is assessed.Dated this 15th day of August, 1989.PAUL L. BRADYJudgeFOOTNOTES:[[1]] This standard states: \”It shall be the responsibility of theemployer to initiate and maintain such programs as may be necessary tocomply with this part.\”[[2]] This standard states: \”Such programs shall provide for frequentand regular inspections of the job sites, materials, and equipment to bemade by competent persons designated by the employers.\”[[3]] This standard states: \”The employer shall instruct each employeein the recognition and avoidance of unsafe conditions and theregulations applicable to his work environment to control or eliminateany hazards or other exposure to illness or injury.\”[[4]] This standard states: \”Safety nets shall he provided whenworkplaces are more than 25 feet above the ground or water surface, orother surfaces where the use of ladders, scaffolds, catch platforms,temporary floors, safety lines, or safety belts is impractical.\”[[5]] This standard states, in pertinent part: \”Every open-sided flooror platform 6 feet or more above adjacent floor or ground level shall beguarded by a standard railing, or the equivalent. . . .\”[[6]] This standard states: \”The employer is responsible for requiringthe wearing of appropriate personal protective equipment in alloperations where there is an exposure to hazardous conditions or wherethis part indicates the need for using such equipment to reduce thehazards to the employees.\”[[7]] In particular, Greenspan testified: \”[Rogers] did mention [that]it is difficult to keep [the employees] in lines and belts, but wepushed on the need for possibly disciplining them if they aren’t goingto do it.\” Greenspan suggested using verbal reprimands, writtenwarnings, and lay-offs if the employees \”just wouldn’t listen.\”[[8]] The compliance officer had conducted 580 inspections,approximately 70 percent of which involved construction.[[9]] At the hearing, when asked why he had told the compliance officerthat there was no safety program, George replied that he had assumed thecompliance officer meant documentation of a safety program, such assignatures showing attendance at regular safety meetings and photographsof hazards. Both he and Rogers thought that they had told MacDonaldabout the copies of the safety rules that were given to each employee;also, Rogers thought he had mentioned certain safety inspections that heconducted at the jobsite.[[10]] According to his testimony, his problem was the scant detail tobe found in the OSHA standards on safety programs:[I didn’t keep a record of attendance at safety meetings] because of thefact that OSHA regulations do not define a safety program. We have askedOSHA over and over again, \”Tell us what is a safety program?\” Theyrefer[red] us to the book. The book is all of a paragraph that says,\”Safety program[s] will be established.\” No one gives you an outline,no one explains to you how it is implemented, there is nothing there. There is nothing in that literature that says what a safety program is. It is a general guide on what can be done.[[11]] None of R & R Builders’ employees had ever fallen off a buildingperimeter. Generally, the Company’s work was in the interior ofbuildings, where there was no need for safety belts, althoughoccasionally employees had used safety belts. On other projects as wellas the one in Boca Raton, employees had unloaded drywall at buildingperimeters.[[12]] Rogers did not specifically testify that, on the Boca Ratonproject, he continued vice president Kaye’s practice of having suchmonthly meetings; moreover, Rogers’ mention of such meetings seems torefer to the ones held by the vice president before this project began.[[13]] The foremen were George, Key, and a construction superintendent,Charles Boykin. They had the responsibility for deciding whether safetybelts were needed. The two superintendents (but not Key) had attendedthe OSHA training seminar and on-site project meetings convened byanother employer (the project manager), OSHA training seminar andon-site project meetings convened by another employer (the projectmanager), and George had been personally instructed regarding safetybelts, by Kaye, after the Company received one of the earliercitations. Also, according to George, there were lower-level safetymeetings which he and Boykin or Rogers conducted, but did not document. These meetings were infrequent, however, and Key testified that theycovered only \”the basic thing\”: \”long pants, hard hats, boots.\” According to George, these meetings did not include the regularemployees. Evidently, only sub-foreman such as the labor foreman, Key,attended.[[14]] Rogers further testified that he had instructed all foremen onthis project to be on the alert for safety problems. Foreman Keytestified that he generally gave instructions regarding the safeperformance of jobs and he generally watched the employees to see thatthey were following his instructions. On this job he had instructed thecrew to \”be careful\” near the floor edge.[[15]] See e.g., Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230,233-34 (5th Cir. 1974) (? 1910.132(a)); McLean Trucking Co. v. OSHRC,503 F.2d 8, 10-11 (4th Cir. 1974) (? 1910.132(a)); Cape & Vineyard Div.,New Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1stCir. 1975) (? 1910.132(a)); Brennan v. Smoke Craft, Inc., 530 F.2d 843,845 (9th Cir. 1976) (? 1910.132(a)); Allis-Chalmers Corp. v. OSHRC, 542F.2d 27, 30 (7th Cir. 1976) (? 1910.28(a)(1)); American Airlines, Inc.v. Secretary, 578 F.2d 38, 41 (2d Cir. 1978) (? 1910.132(a)); Ray EversWelding Co. v. OSHRC, 625 F.2d 726, 731-32 (6th Cir. 1980) (?1926.28(a)); Voegele Co. v. OSHRC, 625 F.2d 1075, 1077-79 (3d Cir. 1980)(? 1926.28(a)); Florida Machine & Foundry, Inc., v. OSHRC, 693 F.2d 119,120 (11th Cir. 1982) (? 1910.133(a)(1), citing court cases on ??1910.132(a) & 1926.28(a)); L.R. Willson and Sons v. OSHRC, 698 F.2d 507,513 (D.C. Cir. 1983) (? 1926.28(a)); Department of Labor v. OSHRC(Goltra Castings), 938 F.2d 1116, 1119 (10th Cir. 1991) ( ? 1910.133(a)).[[16]] Both parties assume that the judge relied on the complianceofficer’s testimony that he was told that no safety inspections wereconducted. The Secretary believes that Judge Brady gave dispositivecredence to the testimony. R & R Builders asserts that the testimonywas not worthy of credence. The judge’s decision, however, onlyrecites the testimony; the testimony is not the basis of any reasoningor factual findings. We conclude, therefore, that the judge did notmaterially rely on the testimony, or credit it over that of Georgeexplaining the comments he made to the compliance officer during theinspection. At most, the judge found that George was unaware of theprogram of safety inspections and had not been inspecting materials.[[17]] See 29 U.S.C. ? 655(a) (statutory authority to adopt as an OSHAsafety standard any established Federal standard that may result inimproved safety for employees). See also Usery v. Marquette Cement Mfg.Co., 568 F.2d 902, 905 n.5 (2d Cir. 1977).[[18]] Subsequent to Hall, the principle of assessing a single penaltywhere one form of abatement meets the requirements of both standards hasbeen followed in Wright & Lopez, Inc., 10 BNA OSHC 1108, 1112, 1981 CCHOSHD ? 25,728, p. 32,077 (No. 76-256, 1981). Compare ClevelandConsolidated, Inc., 13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD ? 27,829,p. 36,430 (No. 84-696, 1987) (items combined into \”a single violation\”and one penalty assessed because \”[t]he two citation items involvesubstantially the same violative conduct\” and abating one item wouldeffectively abate the other). But see, Capform, Inc., 13 BNA OSHC 2219,2224, 1987-90 CCH OSHD ? 28,503, p. 37,778 (No. 84-556, 1989) (vacationof one item requiring protection against \”moving ground\” in anexcavation because the other item’s requirement for reinforcementagainst \”superimposed loads\” would abate both items); United StatesSteel Corp., 10 BNA OSHC 2123, 2134, 1982 CCH OSHD ? 26,297, pp.33,237-38 (No. 77- 3378, 1982) (items vacated because the same abatementwas required by other items).[[19]] The Act has since been amended, to increase the maximum penaltiessevenfold and to establish a $5,000 minimum penalty for willful orrepeat violations. 29 U.S.C. ?? 666(a), (b) and (c), as amended Pub. L.101-508, Title III, ? 3101, 104 Stat, 1388-29 (1990).[[1]] The employees observed working on the seventh floor were notemployees of R & R (Tr. 50).”