“Docket No. 88-0282 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 HealthAdministration (\”OSHA\”), of the United States Department of Labor, inspected aconstruction site in Boca Raton, Florida, where R & R Builders, Inc. (\”R & RBuilders\” or \”the Company\”), a drywall subcontractor, was installinginterior walls or partitions.\u00a0 Thereafter, the Company received a four-item citationalleging fall protection and safety program violations.\u00a0 Because the Company had ahistory of OSHA fall protection violations and safety program deficiencies, OSHAclassified the citation as willful.\u00a0 On the same basis, the administrative law judgelater affirmed all four items as willful violations.\u00a0 For the following reasons, weaffirm only one item as a willful violation, affirm the remaining three items asviolations of lesser degree, and assess appropriate penalties.I. Background and FactsTwo items, the first of which presents twoallegations, concern the Company’s safety program.\u00a0 Item 1a alleges failure toimplement the kind of program required by 29 C.F.R. ? 1926.20(b)(1). [[1]]\u00a0 Item 1balleges failure to conduct the safety inspections required by ? 29 C.F.R. ?1926.20(b)(2).[[2]]\u00a0 Item 2 alleges failure to give employees the safety instructionsrequired by 29 C.F.R. ? 1926.21(b)(2) [[3]].The remaining two items address fall hazards.\u00a0 Item 3 alleges failure to use safety belts, as required by 29 C.F.R. ?1926.105(a). [[4]]\u00a0 Item 4 alleges failure to install guardrails on a floor perimeterand failure to 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 willfulviolation.\u00a0 In our opinion, as we will explain, the other three items are lesserviolations, capable of being classified as either serious or nonserious, butundifferentiated by the Secretary in this case.A. Prior Citations and Settlement AgreementsWhen issued, the citation in this caserepresented the fourth time in two years that OSHA had cited R & R Builders forviolations of fall protection standards.\u00a0 The citation also represented the fourthtime in two years that OSHA had directed the Company’s attention to deficiencies in itssafety program; the three earlier citations for fall protection violations had resulted insettlement agreements to correct certain safety program deficiencies.The first citation, issued in April 1986, alleged that R & R Builders failed to usesafety belts as required by 29 C.F.R. ? 1926.28(a). [[6]]\u00a0 The parties settled thecitation by entering into an agreement that stated:\u00a0 \”The employer agrees tocontinue improving the safety knowledge of his safety director.\”\u00a0 Jose Sanchez,the OSHA area director who negotiated the agreement, testified that Greg Rogers, one ofthe owners of R & R Builders, also verbally agreed to improve the safety knowledge ofhis foremen and to implement \”a rigid safety program.\”The second citation, issued in July 1986,alleged that R & R Builders failed to install guardrails on a platform as required by29 C.F.R. ? 1926.500(d)(1), see supra note 5.\u00a0 Again, the parties reached anagreement on safety program improvement:The [e]mployer agrees to conduct regular safetyinspections of his worksites. The [e]mployer agrees to train his employees in the recognition and avoidance ofon the job hazards.The third citation, a repeat citation issued inApril 1987, alleged two instances of failure to use safety belts, as required by ?1926.28(a), see supra note 6.\u00a0 The parties made a third agreement for safety programimprovement:The employer agrees to conduct regular safetymeetings.The employer agrees to train the employees forhazard recognition and avoidance on the job.The employer agrees to conduct weeklyinspections and to correct deficiencies found.Norman Greenspan, the OSHA safety supervisor whonegotiated this agreement (acting for area director Sanchez), testified that he discussedtraining and discipline with Rogers.\u00a0 Greenspan told Rogers that, his Company havingreceived a repeat citation, he would have to implement a system of appropriatedisciplinary measures for failure to use fall protection, so as to emphasize to theCompany’s employees that they must make proper use of fall protection. [[7]]B. The Recent InspectionWhen the OSHA compliance officer, JohnMacDonald, arrived at the Boca Raton building project, R & R Builders’ crew of drywallinstallers was on the fourth floor.\u00a0 The perimeter of the floor was open andunguarded.\u00a0 As compliance officer MacDonald approached the building at the groundlevel, he looked up and noticed several members of the crew standing a few feet from theunguarded floor perimeter.\u00a0 The employees were waiting for a crane-load of drywall tobe landed at the perimeter.MacDonald then ascended to the fourth floor,where he observed these employees unloading the drywall from the crane platform. Its oneopen side just overlapped the floor edge by approximately 1 foot, and on one of the threeguarded sides of the platform, the guardrail was deficient; a midrail was missing and anemployee was standing near the gap.\u00a0 That employee and one other were straddling theplatform and floor edges, and were sliding the pieces of drywall to two other employees,who were standing a few feet inside the floor perimeter.\u00a0 MacDonald was concernedthat the crane platform could shift and dump the two employees who were standing on it,and he wanted adequate fall protection for the whole crew.\u00a0 His concerns were thatthe floor perimeter lacked guardrails, a midrail was missing from the platform, and theemployees did not have safety belts.Based on extensive experience as an inspector ofconstruction projects, [[8]] and on the experience of having seen this particular project,compliance officer MacDonald believed that safety belts could have been tied off topermanent structures within the building, such as formwork or pipes.\u00a0 He testifiedthat, if the lanyards of the belts were longer than 6 feet, to permit employees to reachthe building interior, safety belts might not have been a complete solution.\u00a0 Hebelieved, 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 theattention of the crew’s foreman, general superintendent Peter George, who immediately andof his own accord stopped the work.\u00a0 George informed the compliance officer thatthere were no safety belts available at the worksite.\u00a0 Also, according to thecompliance officer, the superintendent indicated that there were no instructions in theuse of safety equipment or in the avoidance of hazards, no safety meetings or job-siteinspections, and \”no format of safety at all.\”\u00a0 The compliance officerconcluded that the safety program was \”inadequate for the [C]ompany\” based onhis discussion with George, his own observations, and discussions with other employees,including Stephen Key, the labor foreman for the crew.\u00a0 According to MacDonald, Keydid not show any awareness of a rule requiring fall protection.Later, MacDonald spoke to the Company’s owner,Rogers.\u00a0 According to MacDonald, Rogers also stated that there were no safety beltsavailable.\u00a0 Furthermore, according to MacDonald, Rogers asked him what wouldconstitute a safety program.\u00a0 At the hearing, MacDonald testified that, in hisopinion, the fact that Rogers asked this question indicated that the Company did not havea safety program.C.\u00a0 R & R Builders’ Overall SafetyProgramPrior to the inspection in this case, R & RBuilders had taken some steps toward training its employees.\u00a0 When hired, eachemployee received a copy of the Company’s safety rules and enforcement practices.\u00a0 Each employee was instructed to read the rules and practices.\u00a0 Thereafter, thehiring supervisor discussed them with him.\u00a0 Several categories of safety rulestouched generally on fall hazards: \”Scaffolding,\” \”Safety Belts,\” and\”Ladders.\”\u00a0 The rules in the \”Safety Belts\” category were:(1) Belts and proper lines will be used whennecessary.\u00a0 If any questions arise get in touch with office immediately.(2) Make sure lines are secured to a solidpermanent part of the building. Included in the enforcement practices were warnings ofdismissal for failure to wear personal protective equipment, failure to report accidentsand injuries, and failure to perform work in a safe manner.These rules and the employee signature sheets acknowledging their receipt constituted mostof R & R Builders documentation of its safety program.[[9]]\u00a0 In addition, therewas documentation of a safety training seminar that the Company asked OSHA to conduct inMay 1987, after the third citation and informal settlement.\u00a0 According to thedocumentation, which is in evidence, nine supervisors and two regular employees attended.\u00a0 Fall protection was addressed.The Company had an officer in charge of safety,Vice President of Operations John Kaye.\u00a0 After assuming responsibility as the safetyofficer in early 1986, vice president Kaye had sought OSHA’s help to set up an adequatesafety program, had attended two OSHA seminars on hazard recognition and avoidance, andhad attempted to implement a program of instruction reflecting whatever OSHA told him andany other information he could find. [[10]]\u00a0 In addition, Kaye revised the Company’ssafety rules and enforcement practices, producing the above-mentioned rules on fallprotection that were in effect during the inspection in this case. His understanding wasthat fall hazards exist whenever employees work within 10 feet of an unguarded floor edgeand that some form of fall protection must be used.\u00a0 Therefore, on jobsites otherthan the one involved here, Kaye had discussed with foremen and employees the use ofguardrails, scaffolding, safety nets, and safety belts.As one of his continuing duties, vice presidentKaye conducted meetings of foremen (and, occasionally, a few other employees), at which hediscussed safety topics including fall protection requirements.\u00a0 The discussions tookanywhere from 10 minutes to 1 1\/2 hours.\u00a0 The record indicates that the meetings wereirregularly held; sometimes, several months passed without one.\u00a0 The vice presidentexpected the foremen to teach the other employees, watch for hazardous conditions andpractices, and report them to Company officials.\u00a0 Vice president Kaye also conductedon-site safety inspections on a weekly or twice-weekly basis, when delivering a payrolland when attending the project meeting of contractors and subcontractors at the jobsite.\u00a0 While the project involved in this case was underway, however, vice president Kayewas out of the country.\u00a0 During this time, the Company’s owner, Rogers, wasperforming the duties of safety officer.D. The Company’s Safety Program on the BocaRaton ProjectThe record indicates that Rogers had attended asafety seminar at an unidentified convention in 1985 and had subsequently participated inon-site safety inspections.\u00a0 He had never observed any employee working at a buildingperimeter, unloading drywall, or needing fall protection, and the Company had not broughtsafety belts to the Boca Raton jobsite. [[11]]\u00a0 Rogers’ on-site inspections at BocaRaton took approximately 45 minutes to 1 1\/2 hours, during which time he observed jobprogress as well as the safety of the jobsite and the equipment on the jobsite.\u00a0 Hedid not, however, observe the safety of the materials on the jobsite since that dutybelonged to the general superintendent, George.Rogers’ testimony indicates that, while actingas safety officer, he did not continue having monthly meetings of the foremen.[[12]]During his on-site inspections, however, he did discuss issues of safety.\u00a0 Wheneverhe saw any employee deviating from safe practices, Rogers immediately admonished theemployee, required that any hazard be corrected, and brought the matter to a foreman’sattention. [[13]]Apparently, based on the record, there were only two safety meetings for the regularemployees: one, to discuss licensing for \”pin guns,\” and another, in response to\”horseplay.\”\u00a0 Whether the crew involved in this case was involved in eitherof those meetings is unclear; the general superintendent could not recall.\u00a0 There wasno evidence presented that the Company had a program of regular, comprehensive safetymeetings for all of its employees.\u00a0 The one non-supervisory employee who testified,John Curry, had worked as a metal framer during the month since the project had startedand indicated in his testimony that there had been no weekly safety meetings since hebegan work on the project, a month before the inspection.\u00a0 Curry also testified thathe did not know whether there were rules on fall protection.\u00a0 The testimony stronglysuggests that the crew of employees involved in this case as well as the Company’semployees in general were supposed to have learned safety by experience on other jobs, byreading the Company’s safety rules upon being hired, and by absorbing whatever a foremanmight thereafter tell them about the safe way to do a particular job on the project.\u00a0 Owner Rogers 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 crewinvolved in this case was to drag 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.\”\u00a0 Rogers had inspected the platform for guardrails, which had been intactand complete at the time.\u00a0 Other fall protection was not needed, he believed, if thecrew stayed within the platform, behind the guardrails. [[14]] The testimony of Rogers andGeorge indicates that they had not instructed the crew to use safety belts, or to installany other form of fall protection, while unloading the drywall.\u00a0 Rogers and Georgebelieved that, if the crew followed the procedure that they had planned, the crew would beprotected by the platform guardrails.\u00a0 In George’s opinion, this procedure forunloading crane platforms was customary at other worksites.\u00a0 Nevertheless, Georgeadmitted in his testimony that the crew in this case had not dragged the platform into thebuilding interior.George testified that, prior to the inspection,he had told the crew that safety belts are usually needed for work at building perimeters.\u00a0 He also testified that, prior to giving instructions regarding the procedure forunloading the crane platform, he had seen employees standing at unguarded perimeters andhad told them to get back.\u00a0 For this operation, however, he judged safety beltsunnecessary if the crew stayed behind the platform guardrails.\u00a0 George was aware,prior to the inspection, that the crew had been having problems with deficient guardrailson the platform, which belonged to another employer.\u00a0 Nevertheless, either he or hisemployees had been fixing the guardrails without notifying the other employer.\u00a0 Finally, George testified that he did not know why the midrail was not fixed onthis occasion.II. The Merits of the Safety Program Items A. Item 1a, Alleging Noncompliance with 29C.F.R. ? 1926.20(b)(1)Administrative Law Judge Paul L. Brady found aviolation of the cited standard, which attempts to prescribe \”[a]ccident preventionresponsibilities,\” but which articulates a generalized requirement, that employers\”initiate and maintain such programs as may be necessary to comply with [Part1926].\”\u00a0 There have been no Commission or court cases interpreting thisstandard, but court precedent interpreting similarly generalized standards has held thatthey are not vague and unenforceable if \”a reasonable person,\” examining thegeneralized standard in light of a particular set of circumstances, can determine what isrequired, or if the particular employer was actually aware of the existence of a hazardand of a means by which to abate it.\u00a0 An employer can reasonably be expected toconform a safety program to any known duties. [[15]]R & R Builders twice agreed \”to train the employees for hazard recognition andavoidance on the job.\”\u00a0 That is, the Company agreed to teach all employees,laborers and supervisors, what situations are hazardous and what to do about them.\u00a0 Vice president Kaye, who understood that working within 10 feet of a floor edgepresents a fall hazard for which some form of fall protection is needed, could thereforehave phrased the Company’s written safety rule more specifically than \”[b]elts andproper lines will be used when necessary\” (emphasis added).\u00a0 A distance-specificrule could have helped work crews, such as the one involved in this case, to recognize thedangers presented by the task of unloading drywall from a crane platform at an open flooredge.\u00a0 A specific rule would also have provided a basis for systematic disciplinaryaction against any laborers or supervisors who infringed the rule. Inasmuch as the OSHAsupervisor, Greenspan, had advised the Company’s owner, Rogers, to use verbal reprimands,written warnings, and layoffs \”if folks just wouldn’t listen,\” the Company knewthat disciplinary action could become necessary.R & R Builders twice agreed \”to conductregular safety meetings.\”\u00a0 Despite these agreements, the Company’s safetymeetings for its foremen were irregularly held, and on this jobsite there was no plan toconduct safety meetings for the ordinary employees.\u00a0 In its review brief, R & RBuilders asserts that safety was discussed when Rogers made his on-site safetyinspections.\u00a0 Rogers, however, testified only that he corrected any foreman orlaborer who might be creating a hazard; he did not mention having held meetings of all theemployees, and he did not describe any systematic way in which he conveyed safetyinformation to all employees.\u00a0 Moreover, George explained that, actually, it was theproject manager who was holding meetings when Rogers came to the worksite.\u00a0 Suchmeetings, not attended by all of the Company’s foremen and employees, would not satisfythe Company’s agreement \”to conduct regular safety meetings.\”\u00a0 As theSecretary argues on review, \”[t]he lack of a comprehensive written plan [of safetyrules] put[s] a special premium on [having] regular and meaningful safety meetings atwhich problems could be identified and analyzed and safety policy formulated andcommunicated.\”\u00a0 That is, such meetings would \”train the employees forhazard recognition and avoidance on the job.\”Moreover, Rogers and George, upon realizing thatthe crew needed to unload drywall in the vicinity of an open floor edge, decided that fallprotection would be unnecessary if the crew worked within the platform’s guardrails, butthe managers disregarded that the crew would have to approach the open floor edge andstand outside the platform’s guardrails while pulling the platform into the building.\u00a0 As noted above, on at least one occasion, George had seen employees working at openfloor edges and had told them to get back.\u00a0 This warning demonstrates a level ofawareness sufficient to realize that the drywall-unloading crew also needed safety belts.\u00a0 The Company should have provided safety belts at the worksite and should have givenspecific instructions on fall protection during the operation of unloading the drywall.From the foregoing discussion, it is clear thatthe Company failed to have an adequate safety program, incorporating all duties of whichthe Company was aware and covering all of the Company’s employees, as required by thecited applicable standard.\u00a0 See, e.g., Walker Towing Corp., 14 BNA OSHC 2072, 2074,1991 CCH OSHD ? 29,239, p. 39,157 (No. 87-1359, 1991), citing Astra PharmaceuticalProducts, Inc., 9 BNA OSHC 2126, 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).\u00a0 We therefore affirm the judge’s decisionfinding a violation of 29 C.F.R. ? 1926.20(b)(1).B. Item 1b, Alleging Noncompliance with 29C.F.R. ? 1926.20(b)(2)Judge Brady also found a violation of thisstandard, on which there is no Commission or court precedent.\u00a0 The standard, however,states relatively straightforward specifications.\u00a0 It requires \”frequent andregular\” inspections of \”job sites, materials, and equipment\” by\”competent persons.\”\u00a0 The Secretary does not dispute that weekly or twiceweekly inspections would meet the \”frequent and regular\” specification.\u00a0 The issue is whether the Company’s \”job sites, materials, and equipment\”were inspected by \”competent persons.\”From the evidence, the Secretary infers andJudge Brady found that Rogers’ weekly or twice weekly jobsite inspections could not navebeen adequate, considering that they took only 45 minutes to 1 1\/2 hours, during whichtime Rogers was delivering the payroll and examining job progress as well as checking onsafety:\u00a0 \”His presence,\” the judge stated, \”can hardly be deemed thatof a designated competent person scrutinizing safety procedures.\”\u00a0 Furthermore,the Secretary infers and Judge Brady found that Rogers’ inspections must have beenineffective if OSHA could discover a crew of employees working unprotected at an openfloor perimeter.\u00a0 The judge also referred to testimony of Rogers that it was not hisresponsibility but the superintendent’s to check the safety of materials.\u00a0 Because itappeared that George did not perform any such inspections, the judge found that no one wasinspecting materials.[[16]]R & R Builders does not dispute the judge’s finding that materials were notinspected for safety, and on the basis of the evidence we uphold the finding.\u00a0 TheCompany does, however, make an argument that is meritorious as to the remaining findings,which are based on inferences.\u00a0 Specifically, the Company argues that the recordcontains no evidence reasonably giving rise to inferences that Rogers’ inspections of thejobsite and equipment were insufficient within the meaning of the standard.Although the standard requires employers todelegate inspection responsibilities to an employee, the standard does not proscribe thatemployee from having other responsibilities within the business or doing several things atonce during a jobsite inspection. Nor does the burden of having a number ofresponsibilities automatically or presumptively make an inspector insufficiently\”competent\” or attentive to the safety of \”job sites, materials, andequipment.\” Under the standard, therefore, the Secretary must affirmatively provethat there is a deficiency. In this case, however, other than Rogers’ admission that hehad not been inspecting materials and the indications that George was not doing so, thereis no evidence upon which to find a deficiency.Although a crew was found working at an openfloor edge, there is no evidence that the drywall stocking operations were performedfrequently enough that Rogers’ on-site inspections would have or ought to have coincidedwith them, and there is no evidence that Rogers’ inspections had coincided with them.\u00a0 Thus there is no evidence that he walked by this or any other crew doing such work,and saw or could have seen employees in the vicinity of a floor edge, but failed toimplement changes in the way the crew was performing its operation.\u00a0 This record asit stands does not establish anything more than a need for better safety training in therecognition of fall hazards and better planning of job tasks to avoid hazards.\u00a0 Inthis case, we cannot presume incompetence on the part of the Company’s safety inspectorwhen his inspections have never coincided with a particular operation.\u00a0 Thestandard’s language requiring \”frequent and regular\” inspections of the\”job site\” does not reasonably inform an employer that his inspections must beperformed at a jobsite.\u00a0 The standard imposes the concept of a regular schedule, nota special schedule, and points to physical things–the \”job site, materials, andequipment\”–not the operations themselves.As the foregoing discussion indicates,therefore, the Secretary proved only on deficiency in the Company’s program of safetyinspections.\u00a0 Specifically, as the testimony of Rogers and George shows, the Companywas not performing frequent and regular inspections of materials, for the protection ofthe Company’s employees on the worksite, as required by the cited applicable standard.\u00a0 We therefore find that the Secretary has established the elements of her case.\u00a0 See, e.g., Walker Towing Corp., 14 BNA OSHC at 2074, 1991 CCH OSHD at p. 39,157;Astra Pharmaceutical Products, Inc., 9 BNA OSHC at 2129, 1981 CCH OSHD at pp.31,899-31,900.\u00a0 R & R Builders did not present any defense as to its failure toinspect the safety of materials.\u00a0 Accordingly, on this one basis, we affirm thejudge’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 standardwhich, 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 particular requirements for asafety program\” and which requires only \”that an employer inform employees ofsafety hazards which would be known to a reasonably prudent employer or which areaddressed by specific OSHA regulations.\”\u00a0 Thus, the standard is notunenforceably vague if it is applied with reference to either a reasonable person test orOSHA standards.\u00a0 \”[S]upervisery personnel [must] advise employees, especiallynew employees, of the hazards associated with [the] actual dangerous conduct in which theyare presently engaging.\”\u00a0 National Industrial Constructors, Inc. v. OSHRC, 583F.2d 1048, 1056 (8th Cir. 1978).\u00a0 Evidence that the employees were unaware ofparticular safety requirements, 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 onthe evidence that R & R Builders generally failed to hold safety meetings for itsemployees on this jobsite and failed to provide other instruction regarding use of safetybelts.\u00a0 The work crew in this case did not know that safety belts were needed for thework they were doing.\u00a0 In response, the Company points out that George had generallytold employees that they needed a safety belt when standing near a floor edge.\u00a0 Ourreading of this testimony indicates, however, that it refers to occasional correction ofemployees, not to any systematic training.\u00a0 In fact, the record indicates that therewas no consistent training of the ordinary employees.The Company’s safety belt rule did notincorporate the relevant OSHA requirement for fall protection:\u00a0 \”when workplacesare more than 25 feet above the ground.\”\u00a0 See 29 C.F.R. ? 1926.105(a), supranote 4.\u00a0 Also, as we have noted, the Company’s rule did not reflect vice presidentKaye’s understanding that safety belts are required when employees work within 10 feet ofa floor edge. Furthermore, the Company’s rule was not specific in any respect and metalframer Curry was unable, in his testimony, even to remember whether there was a rule onfall protection.Moreover, the Company’s very general rule evidently did not provide an adequate guidelineas to when protection is needed, for Rogers and George both believed safety beltsunnecessary for the job task involved in this case and did not tell the work crew to usesafety belts when approaching the unguarded floor edge to pull the crane platform into theinterior.\u00a0 As a consequence, George’s prior occasional instructions that safety beltsmust be used at a floor edge, which were not specifically reinforced by the Company’srule, were overridden by specific instructions for a particular task.\u00a0 Also, as theSecretary points out, \”Curry’s being told to stay away from the edge and behindguardrails [was] meaningless when there were no guardrails at the perimeter and [the]employees were actually assigned to work near the floor edge.\”\u00a0 This is a caseof failure by the \”supervisory personnel to advise employees. . .of the hazardsassociated with [the] actual dangerous conduct in which they are presently engaging.\”\u00a0 National Industrial Constructors, 583 F.2d at 1056.\u00a0 For the reasons set forthabove, we conclude that the Secretary has met her burden of proof and we affirm thejudge’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 itcommitted fall protection violations, as found by Judge Brady, but contends that theallegation under ? 1926.500(d)(1) for lack of guardrails is duplicative of the allegationunder ? 1926.105(a) for lack of safety belts, because safety belts alone would haveeliminated all risk of falling to the ground.\u00a0 The Secretary counters that \”anemployer’s simultaneous noncompliance with two standards which result in the same generalhazard is not necessarily duplicative,\” because there were distinct deficiencies anddistinct forms of abatement.\u00a0 There was a need for guardrails along the unguardedfloor edge and a need for a secure midrail on the platform, as well as a need for safetybelts to protect the employees who were straddling the floor and platform edges.\u00a0 Therefore, the Secretary specifically maintains, her allegations of separateviolations are appropriate and well within her prosecutorial discretion.There can be no dispute that the Secretary hasauthority to adopt and enforce a specification for a particular abatement measure in aparticular circumstance, such as guardrails for open floor and platform edges. [[17]]\u00a0 If a specifications standard does not provide for any alternative form ofcompliance, the fact that the employer has implemented an alternative measure instead ofthe specified measure cannot, in itself, justify vacating a citation.\u00a0 See OrmetCorp., 14 BNA OSHC 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 protective measure becomes a legal substitutefor strict compliance only if authorized by a variance, an established defense, or asettlement agreement); 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 on another ground, 910F.2d 1333 (6th Cir. 1990) (an employer’s compliance with a general standard requiringemployee training does not excuse noncompliance with a specifications standard mandating aphysical form of protection).\u00a0 Section 1926.500(d)(1), the cited standard which R& R Builders would have us dismiss in this case, does not make compliance with ?1926.105(a), or any other personal protective equipment standard, an exception to itsrequirements and does not designate safety belts the \”equivalent\” of guardrails.\u00a0 See Spancrete Northeast, Inc., v. OSHRC, 905 F.2d 589, 593 & 594 (2d Cir.1990).\u00a0 Therefore, where the undisputed evidence shows that the fourth floor wasunguarded and that the crane platform was missing a midrail, there is no basis forvacating the ? 1926.500(d)(1) item, even if safety belts would have been equallyprotective and would have satisfied ? 1926.105(a).\u00a0 Compare Warnel Corp., 4 BNA OSHC1034,1037,1975-76 CCH OSHD ? 20,576, pp. 24,598-99 (No. 4537, 1976) (even though, in aparticular case, guardrails might not be as effective as another protective measure, thisfact \”cannot excuse the absence of guardrails where the standard requires them andtheir use is possible\”).\u00a0 Based on the case law cited above, it is clear thatthe guardrails charge cannot be vacated merely because the safety belts charge, ifaffirmed, would address all fall hazards.If the employees had actually been wearingtied-off safety belts, the guardrails charge might be classified as de minimis.\u00a0 SeePhoenix Roofing, Inc., v. Secretary, 874 F.2d 1027, 1032 (5th Cir. 1989) (a de minimisclassification may be appropriate \”where there is no significant difference betweenthe protection provided by the employer and that which would be afforded by technicalcompliance with the standard\”).\u00a0 Here, however, where the Company was notcomplying with either of the two cited standards and the employees were unprotected, wenot only decline to vacate the guardrail charge but we decline to classify it as deminimis.Commission precedent on duplication of chargesreflects these principles.\u00a0 The leading case, H.H. Hall Construction Corp., 10 BNAOSHC 1042,1981 CCH OSHD ? 25,711 (No. 76-4765, 1981), involved allegations that theCompany failed to reinforce a trench to protect against \”superimposed loads\” andfailed to protect against \”moving ground.\”\u00a0 The employer in that casecontended that, because remedying the former would abate the latter, the latter chargeshould be vacated.\u00a0 The Commission rejected the argument, stating:[S]ection 5(a)(2) of the Act requires anemployer to comply with all standards applicable to a hazardous condition even though theabatement requirements of two applicable standards may be satisfied by compliance with themore comprehensive standard.\u00a0 Thus, there is no unfair burden imposed on an employeewhen the same or closely related conditions are the subject of more than one citation itemand a single action may bring an employer into compliance with the cited standards.10 BNA OSHC at 1046 (emphasis in the original).\u00a0 The Commission held that it would only \”assess a single penalty foroverlapping violations.\” Then, finding that \”proper use of the trench boxeswhich arrived at the worksite late would abate both . . . violations\” in the mannerprescribed by both standards, the Commission assessed a single $1,000 penalty.\u00a0 10BNA OSHC at 1049. [[18]]The case now before us is distinguishable, however.\u00a0 The cited standards requiredifferent forms of abatement and use of one form does not necessarily provide completeabatement in the circumstances.\u00a0 As we have discussed, a safety belt as required by? 1926.105(a) is not the abatement that ? 1926.500(d)(1) requires and, if the latterstandard were satisfied with guardrails along the floor edge, the employees who werestraddling the platform would still be unprotected against the danger of falling if theplatform shifted.\u00a0 Accordingly, the Secretary has demonstrated that the two citationitems are not duplicative.\u00a0 Inasmuch as the merits of the two items are not indispute on review and the judge determined that the Secretary had met her burden of proofas to both items, we affirm them separately and assess separate penalties for them.IV. WillfulnessAs noted above, Judge Brady classified all fourcitation items as willful.\u00a0 The judge referred to R & R Builders’\”history,\” consisting of four citations \”in 21 months, all for violationsrelating to fall hazards,\” and the judge found that R & R Builders\”repeatedly agreed to abate its violations and emphasize safety[,] then blithelyignored the Act until the next OSHA inspection occurred.\”\u00a0 On review, R & RBuilders argues that the four citation items involved in this case should not beclassified as willful because the Company had been making genuine and substantial effortsto comply with the OSHA requirements of which the Company was aware.It is now well-settled that \”a willfulviolation [i]s one involving voluntary action, done either with an intentional disregardof, or plain indifference to, the requirements of the statute.\”\u00a0 GeorgiaElectric 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, 1991 CCH OSHD ? 29,264, p. 39,232 (No.87-8, 1991) (\”intentional disregard for the requirements of the Act or plainindifference to employee safety\”).\u00a0 By itself, an employer’s familiarity withapplicable standards or safety requirements does not establish the willfulness of aviolation.\u00a0 See Wright and Lopez, Inc., 8 BNA OSHC 1261, 1265, 1980 CCH OSHD ?24,419, p. 29,777 (No. 76-3743, 1980).\u00a0 Furthermore, a finding of willfulness is notjustified where evidence reveals that \”the employer had a good faith opinion that theviolative condition[] conformed to the requirements of the cited standard\” or wherethe evidence reveals that \”[the] employer ha[d] made a good faith effort to complywith a standard, even though the employer’s efforts [had not been] entirely effective orcomplete.\”\u00a0 Calang Corp., 14 BNA OSHC 1789, 1791, 1987-90 CCH OSHD ? 29,080, p.38,870 (No. 85-319, 1990).\u00a0 The test of good faith in such cases is an objective one,i.e., whether the employer’s belief concerning the factual matters in question had beenreasonable under all of the circumstances.The evidence in this case reveals that the threeprior citations and the ensuing process of improving the safety program made the Company’smanagers aware of the cited fall protection standards, the cited safety program standards,and the particular requirements for a safety program that were set forth in the threeinformal settlement agreements.\u00a0 The managers then implemented certain procedures,including jobsite safety inspections and safety meetings among the managers.\u00a0 As forthe ordinary employees, although the Company’s, safety meetings did not include them,their supervisors gave them occasional on-the-job correction; Kaye and Rogers bothtestified that they personally instructed any employee seen performing his work in anunsafe manner.\u00a0 The managers also formally instituted certain rules and instructions,including the written safety rules that were provided to each newly hired employee.\u00a0 The safety rules explicitly addressed fall protection.As we have discussed, the rules and theCompany’s other measures were not sufficient to meet the requirements of the citedstandards and were not as effective and complete as necessary in the circumstances.\u00a0 Nevertheless, the unrebutted evidence reveals that, in response to the citationsissued prior to this one, the Company’s managers had taken the measures in good faith,after having attempted to learn all that was required, and in the belief that they werecomplying with all applicable requirements, some of which are very generalized, see supranotes 1 and 3.\u00a0 Moreover, the improvements in the safety program prior to theinspection in this case were substantial, and the managers had become more aware of theneed for fall protection.\u00a0 During the inspection, as has been mentioned, GeneralSuperintendent George immediately stopped the drywall unloading operation when thecompliance officer spoke to him about it.\u00a0 Then, after the inspection, the Companymade further significant strides toward compliance; there was considerable testimony that,subsequently, the Company entirely corrected the safety program deficiencies that werefound during the inspection in this case.\u00a0 Such evidence, revealing the employer’ssafety program prior to the inspection and showing continuing improvement after theinspection, precludes a finding of willfulness because it demonstrates an overall patternof responsive behavior, i.e., that the Company was not culpably indifferent to whether itsconduct deviated from safety requirements and endangered employees.\u00a0 Compare Brock v.Morello Bros., 809 F.2d 161, (1st Cir. 1987) (violation not willful in light of foreman’s\”good faith effort to comply with what he thought was basically required\”).\u00a0 The evidence of R & R Builders’ meaningful and prompt progress towardrectifying the deficiencies in its safety program mitigates against finding willfulviolations of the safety program standards cited in this case.We also decline to find a willful violation ofthe guardrail standard in light of the unrebutted testimony that, as a regular practice,the Company had been repairing the deficient guardrails on the crane platform and thatsuperintendent George had instructed the drywall crew to stay, as much as possible, behindthe guardrails of the platform, since the perimeter of fourth floor was unguarded.Additionally, the Company had made a policy decision, as evidenced by the safety rules andsuperintendent George’s testimony about his instructions in general to employees, to relyon safety belts for protection at open floor edges.\u00a0 Although safety belts do notmeet the requirements of the standards specifying use of guardrails, in most circumstancessafety belts can be expected to provide effective and complete protection against the fallhazards presented by open-sided floors.The one violation that we do find to be willfulis the violation involving safety belts (citation item 3).\u00a0 After receiving the threeprior citations, two of which pertained to safety belts, the Company’s owner, Rogers, haddiscussions with OSHA officials about the difficulty of assuring that employees woresafety belts.\u00a0 In these discussions and from the consequent informal settlements helearned that the Company should train the employees in the recognition and avoidance ofsafety hazards that require fall protection such as safety belts.\u00a0 Thereafter, as wehave mentioned, the Company made a policy decision to rely on safety belts for primaryfall protection of employees. When, however, the Company’s vice president wrote out asafety rule on fall protection, he did not pattern it on the specifics that he himselfunderstood and that could have been gleaned from the OSHA standards of which he was aware.In addition, even though information on fall protection requirements was given to Georgeand he knew how and why safety belts are used, he and Rogers proceeded to plan the drywallunloading operation without regard to the obvious fall hazard existing immediately beforeand after the crane platform landed at the unguarded floor edge.\u00a0 In materialrespects, this case can be considered similar to O’Horo, 14 BNA OSHC at 2012-13, 1991 CCHOSHD at p. 39,134 (\”O’Horo permitted its foreman Bowman and, through Bowman’sdelegation, its backhoe operator Black, to substitute their judgment as to whether thetrench was safe for the clear requirements of the standards, of which O’Horo was wellaware\”).\u00a0 Taking into account all of the circumstances leading to theinspection, we conclude that the Company could not reasonably have believed its efforts toenforce the use of safety belts were adequate.V. PenaltiesWe turn now to the penalties to be assessed forthe one willful citation item and the three remaining citation items.\u00a0 When this casearose, the Act permitted \”a civil penalty of not more than $10,000\” for anywillful violation and, for a lesser violation, i.e., a serious or a nonserious violation,the Act provided one maximum \”civil penalty of up to $1,000.\” [[19]]\u00a0 Inthis case, the Secretary has neither alleged nor argued that any of R & R Builders’violations must be classified as serious if not found to be willful.\u00a0 The seriousnessof the violation for the lack of guardrails on the fourth floor perimeter and the lack ofa midrail on the crane platform is suggested by the evidence in this case, as is theseriousness of the safety program violations.\u00a0 We decline, however, to enter findingsof seriousness for the three citation items that we do not classify as willful, in view ofthe absence of any argument by the parties on the issue and in view of our clear authorityunder the Act to assess a penalty appropriate to the gravity of the violations, regardlessof their classification as serious or nonserious.\u00a0 See Bland Constr. Co., 15 BNA OSHC1031, 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 the violations:\u00a0 $8,000for the willful violation (citation item 3), and $1,000 for each of the three remainingviolations (citation items 1, 2, and 4).\u00a0 The Company, which is relatively small, hasa history of OSHA violations and, although the Company has made continuing efforts toprotect its employees and implement a safety program, good faith has come into questionwith the finding of a willful violation.\u00a0 The gravity of the exposure discovered inthis case was high, both in terms of the number of employees exposed and the severity ofthe hazard to which they were exposed.VI. OrderAccordingly, we affirm citation item 3 as awillful violation and assess a penalty of $8000. For citation items 1 and 2, which weaffirm, and for citation 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, 1991SECRETARY OF LABOR, Complainant, v. R & R BUILDERS, INC., Respondent.OSHRC Docket No. 88-0282APPEARANCES: Laurie E. Rucoba, Esquire, Office of the Solicitor, U. S. Department of Labor, Fort Lauderdale, Florida, on behalf of complainant.Charles T. Kessler, Esquire, Pyszka, Kessler, Massey, Weldon, Catri, Holton and Douberley, Fort Lauderdale, Florida, on behalf of respondent.DECISION AND ORDERBRADY, JUDGE:\u00a0 Respondent, R & RBuilders, Inc., (\”R & R\”), contests two citations issued to it on December21, 1987, under the Occupational Safety and Health Act of 1970 (\”Act\”).\u00a0 The citations emanate from an inspection conducted by Compliance Officer JohnMacDonald at a construction site located in Boca Raton, Florida, from October 14 toNovember 5, 1987.Citation one alleges willful violations of 29C.F.R. ? 1926.20(b)(1) for failure to initiate and maintain a safety program, of 29C.F.R. ? 1926.20(b) (2) for failure to make frequent and regular inspections of thejobsite, of 29 C.F.R. ? 1926.21(b)(2) for failure to instruct employees in therecognition and avoidance of safety hazards, of 29 C.F.R. ? 1926.105(a) for failure toprovide safety nets in areas where the 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-seriousviolation of 29 C.F.R. ? 1926.404(b)(1)(ii) for failure to provide ground-fault circuitinterrupters.R & R was the drywall subcontractor for a17-story luxury condominium, known as the Sea Ranch or Spanish River project, located at4201 North Ocean Boulevard in Boca Raton, Florida.\u00a0 The Weitz Company was the projectmanagement group, which had hired 17 subcontractors for the project (Tr. 31-32).On October 14, 1987, MacDonald was traveling toanother work site for an inspection when he observed employees working without fallprotection at the perimeter edge of the seventh floor of Building C at the work site.[[1]]\u00a0 MacDonald stopped and called his office to report this observation, at whichtime he was instructed to proceed to the Sea Ranch work site and conduct an inspection(Tr. 34).MacDonald went to the general contractor’strailer and spoke with project manager Chad Lewis.\u00a0 MacDonald, Lewis, and Weitzemployee Bob Dimmers proceeded to enter the building on the west side.\u00a0 As theyentered the building, they observed four employees without fall protection standing at theedge of the fourth floor.\u00a0 The employees were waiting for a platform to be swung overby a crane (Ex. C-2; Tr. 35-37).When MacDonald and the others arrived at thefourth floor, they observed six R & R employees in the area.\u00a0 Four of theseemployees were standing at the edge of the perimeter, off-loading drywall material fromthe lift platform to the fourth floor balcony area.\u00a0 The employees did this bystraddling the balcony floor and the lift platform.\u00a0 The left side of the platformwas missing a midrail, leaving a gap of 42 inches.\u00a0 The side of the platform closestto the balcony had a foot long metal extension used to catch on to the side of thebuilding, creating a bridge between the platform and the balcony (Ex. C- 3; Tr. 44-47,83-84).During his inspection, MacDonald also observedthat a duplex receptacle near a trailer was energized at 120 volts and was not protectedwith a ground-fault circuit interrupter.\u00a0 He observed another receptacle on a panelinside the R & R trailer that did not have a ground-fault circuit interrupter (Ex.C-4, C-5; Tr. 54-56).R & R has a history of previous violations.\u00a0 On April 7, 1986, R & R was issued a serious citation alleging that itsemployees were not protected from fall hazards of up to 16 feet (Ex. C-8). On April 16,1986, R & R entered into an informal settlement agreement, which states in paragraphseven (Ex. C-9):\u00a0 \”The employer agrees to continue improving the safetyknowledge of his safety director.\”On July 3, 1986, R & R was issued a seriouscitation for an alleged violation 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).\u00a0 On July 16,1986, R & R entered into an informal settlement agreement, which contained thefollowing paragraphs (Ex. C-11):7.\u00a0 The Employer agrees he has correctedthe alleged violations as cited.8.\u00a0 The Employer agrees to conduct regularsafety inspections of his worksites.9.\u00a0 The Employer agrees to train hisemployees in the recognition and avoidance of on the job hazards.On April 8, 1987, R & R received a thirdserious citation for allowing employees to work without fall protection while exposed toan 11- to 18- foot fall (Ex. C-12).\u00a0 On April 30, 1989, R & R entered into aninformal settlement agreement which contained the following paragraphs (Ex. C-13):8.\u00a0 The employer agrees to conduct regularsafety meetings.9.\u00a0 The employer agrees to train employeesfor hazard recognition and avoidance on the job.10.\u00a0 The employer agrees to conduct weeklyinspections of workplaces and to correct deficiencies found.ALLEGED WILLFUL VIOLATION OF 29 C.F.R. ?1926.20(b)(1)The regulation, which pertains to accidentprevention responsibility, provides:It shall be the responsibility of the employerto initiate and maintain such programs as may be necessary to comply with this part.The Commission has held that:Elements of an effective safety program includework rules designed to prevent violations, adequate communication of the rules toemployees, methods of discovering whether violations occur, and enforcement of the rulesif violations are discovered.Howard P. Foley Co., 77 OSAHRC 90\/A2, 5BNA OSHC 1501, 1977-1978 CCH OSHD ? 21,862, p. 26,341 (No. 13244, 1977).MacDonald testified that, based on hisinspection, he concluded that R & R had no safety program.\u00a0 He was told by PeterGeorge, foreman in charge of the project for R & R, that R & R held no safetymeetings and that employees were given no safety instructions or safety training (Tr.51-52).\u00a0 At the hearing, Stephen Key, a foreman, and John Curry, a metal framer, bothtestified that no regular safety meetings were held and that no safety training was givenin off-loading material (Tr. 11-12, 24-24).John Kaye, R & R’s vice-president ofoperations, testified that he held regular meetings with R & R’s foremen to discusssafety.\u00a0 He also testified that he made regular inspections of R & R work sites(Tr. 109, 115).\u00a0 Upon cross-examination, however, Kaye stated that he had been out ofthe country from June to December of 1987, and had never inspected the Sea Ranch project,or held safety meetings with foremen between the start of the project and the inspectionby MacDonald (Tr. 122-123).Based on the record, the only effort made by R& R to establish a safety program was the distribution of an information packet to newemployees.\u00a0 The packet contained a copy of the company’s written safety rules (Ex.R-2).\u00a0 There are a total of 19 rules, which are for the most part drafted in generalterms, providing little specific instructions on hazards peculiar to the industry.\u00a0 The only rules relating to fall protection come under the heading of \”safetybelts.\” They state:1. Belts and proper lines will be used whennecessary. If any questions arise get in touch with office immediately.2. Make sure lines are secured to a solidpermanent part of the building.(Id.). Despite the admonitions concerning safety belts, no belts were provided by R & R toits employees at the Sea Ranch work site (Tr. 11).\u00a0 At the hearing, R & Rsuggested, rather disingenuously, that if had deemed safety belts necessary, R & Rcould have borrowed them from C. L. Weitzside, whose trailer was next to R & R’s (Tr.161).\u00a0 Upon cross-examination, George (who had testified to the borrowingarrangement) admitted that at the time of the inspection, he was unaware of anyarrangement whereby R & R could borrow equipment from Weitzside (Tr. 170-171).The record establishes that R & R did not have a safety program adequate to complywith the requirements of the Act.\u00a0 Although new employees were given a short list ofgeneral rules, any safety instructions they received after that time was fortuitous andnot part of an established safety program.\u00a0 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 the job sites,materials, and equipment to be made by competent persons designated by the employers.During his inspection, MacDonald was informed byGeorge that no inspections of the work site were conducted (Tr. 52).\u00a0 As noted, supra,Kaye’s initial claim that he conducted regular inspections of R & R’s work sites wasbelied by his admission that he was out of the country from the time the Sea Ranch projectbegan until after MacDonald’s inspection.\u00a0 Greg Rogers, one of the owners of R &R, testified that he conducted informal inspections of the work site once or twice a week(Tr. 189-190).\u00a0 Rogers testified that it took him anywhere from 45 minutes to an hourand a half to walk the job, and he usually did this on Fridays after he had handed overthe employees’ paychecks.\u00a0 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 shortduration of Roger’s walkarounds, and the fact that he was also checking on the progress ofthe job, lead to the conclusion that Rogers was not conducting the type of safetyinspection contemplated by the standard.\u00a0 The Secretary’s argument is convincing.\u00a0 Rogers, as an owner of the company, was on the work site at the end of every weekto deliver the payroll.\u00a0 His presence can hardly be deemed that of a designatedcompetent person scrutinizing safety procedures.\u00a0 The fact that the number ofemployees were working in concert next to an unguarded perimeter four stories up withoutfall protection argues against Roger’s effectiveness as a safety inspector.Furthermore, when asked about inspection of jobmaterials, Rogers responded, \”Job materials were taken care of by my superintendent.\u00a0 The only thing [I inspected] was, basically, the progress of the work andsafety\” (Tr. 199).\u00a0 The standard at issue specifically provides for theinspection of \”jobsites, materials,and equipment.\”\u00a0 It has been establishedthat George, who was in charge of the project, did not conduct such inspections.\u00a0 R& R failed to comply with the provisions of the standard, and is in violation of 29C.F.R. ? 1926.20(b)(2).ALLEGED WILLFUL VIOLATION OF 29 C.F.R. ?1926.21(b)(2)The regulation, which pertains to employerresponsibility for safety training provides that:The employer shall instruct each employee in therecognition and avoidance of unsafe conditions and the regulations applicable to his workenvironment to control or eliminate any hazards or other exposure to illness or injury.As noted, supra, the record establishes,through the testimony of foremen Peter George and Stephen Key, that the employees of R& R did not receive adequate safety training, either through regular safety meetingsor on-the-job training.\u00a0 It is particularly telling that neither Key nor Georgebelieved that it was necessary for their workers to wear safety belts while working at theimmediate edge of an unguarded floor, 40 feet above the ground (Tr. 19, 161).\u00a0 R& R was in violation of 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 workplacesare more than 25 feet above the ground or water surface, or other surfaces where the useof ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts isimpractical.It is undisputed that R & R’s employees wereworking more than 25 feet above the ground and that they were not using any of the safetydevices listed in the standard.\u00a0 MacDonald testified that the use of safety nets,safety belts, scaffolding, and catch platforms would have been feasible, and that the useof any one of them would have brought R & R into compliance (Tr. 42-43).\u00a0 R &R offered no evidence to rebut this testimony and, therefore, was in violation of 29C.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 ormore above adjacent floor or ground level shall be guarded by a standard railing, or theequivalent, as specified in paragraph (f)(1) of this section, on all open sides, exceptwhere there is entrance to a ramp, stairway, or fixed ladder.\u00a0 The railing shall beprovided with a standard toeboard wherever, beneath the open sides, persons can pass, orthere is moving machinery, or there is equipment with which falling materials could createa hazard.It is undisputed that the perimeter edge next towhich the employees were working was not guarded.\u00a0 It is also undisputed that thelift platform was missing a midrail, leaving a gap of 42 inches, through which an employeecould fall.\u00a0 In its posthearing brief, R & R argues only that the classificationof the violation should be serious, and not willful.\u00a0 The evidence establishes that R& R was in violation of 29 C.F.R. ? 1926.500(d)(1).R & R argues that ? 1926.105(a) (use ofsafety nets) and ? 1926.500(d)(1) (use of guardrails) address identical conditions; and,therefore, R & R cannot be cited for both.\u00a0 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 all standards applicable to a hazardouscondition even though the abatement requirements of two applicable standards may besatisfied by compliance with the more comprehensive standard.\”\u00a0 H. H. HallConstruction Co., 81 OSAHRC 91\/D12, 10 BNA OSHC 1042, 1046, 1981 CCH OSHD ? 25,712(No. 76-4765, 1981).\u00a0 R & R was, therefore, correctly cited for violations ofboth ? 1926.105(1) and ? 1926.500(d)(1).WILLFULNESS CLASSIFICATION\”A violation is willful if it was committedvoluntarily with either an intentional disregard for the requirements of the Act or withplain indifference to employee safety.\”\u00a0 A. C. Dellovade, Inc.,__OSAHRC__, 13 BNA OSHC 1017, 1987 CCH OSHD ? 27,786, p. 36,341 (No. 83-1189, 1987).\u00a0 Including the present citations, R & R was cited four times in 21 months, allfor violations relating to fall hazards.\u00a0 Such a history manifests an intentionaldisregard for the requirements of the Act or plain indifference to employee safety.\u00a0 R & R has repeatedly agreed to abate its violations and emphasize safety thenblithely ignored the Act until the next OSHA inspection occurred.\u00a0 R & R was inwillful violation of 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-amperereceptacle outlets on construction sites, which are not a part of the permanent wiring ofthe building or structure and which are in use by employees, shall have approvedground-fault circuit interrupters for personnel protection.\u00a0 Receptacles on atwo-wire, single-phase portable or vehicle-mounted generator rated not more than 5kw,where the circuit conductors of the generator are insulated from the generator frame andall other grounded surfaces, need not be protected with ground-fault circuit interrupters.The inspecting officer testified that heobserved an energized receptacle and panel which were not protected by ground-faultcircuit interrupters (Ex. C-4, C-5; Tr. 54-56).\u00a0 R & R did not rebut the evidenceand, therefore, was in other than-serious violation of 29 C.F.R. ? 1926.404(b)(1)(ii).PENALTY DETERMINATIONThe Commission is the final arbiter of penaltiesin all contested cases.\u00a0 Secretary v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8th Cir. 1973).\u00a0 Under 17(j)(4) of the Act, the Commission is required tofind and give \”due consideration\” to the size of the employer’s business, thegravity of the violation, the good faith of the employer, and the history of the previousviolations in determining the assessment of an appropriate penalty.\u00a0 The gravity ofthe offense is the principal factor to be considered.\u00a0 Nacirema OperatingCo., 72 OSAHRC 1\/B10,1 BNA OSHC 1001, 1971-1973 CCH OSHD ? 15,032 (No.4, 1972).At the time of the inspection, R & R hadapproximately 15 employees.\u00a0 MacDonald testified that the hazardous conditionspresented risks of broken bones an death (Tr. 37, 40, 48).Upon consideration of the factors for determining penalties and the facts of this case thefollowing penalties are deemed appropriate: Citation 1 Items 1a and 1b $8,000.00 Citation 1 Item 2 $4,000.00 Citation 1 Citation 1 Item 3 $8,000.00 Citation 1 Item 4 $8,000.00 FINDINGS OF FACT1.\u00a0 R & R was a subcontractor on aproject known as the Sea Ranch project or Spanish River job, a luxury condominiumhigh-rise building located at 4201 North Ocean Boulevard in Boca Raton, Florida.\u00a0 Theproject consisted of a marina and 17-story high-rise buildings.2.\u00a0 R & R was installing drywall at theproject and, at the time of the OSHA inspection in October 1987, approximately 15employees of respondent were working in Building C at the project site.3.\u00a0 Compliance Officer John MacDonaldconducted an inspection of the entire project site from October 14, 1987, through October16, 1987.4.\u00a0 In the course of his inspection,MacDonald observed employees of R & R at the fourth-floor level standing at the edgeof the building waiting for a lift platform from which they off loaded drywall material.\u00a0 The employees were exposed to a fall hazard of approximately 40 feet and wereworking without fall protection.5.\u00a0 The lift platform had no guardrail or midrail on the right hand side of the liftplatform.\u00a0 The employees straddled the balcony floor and the lift platform to offload drywall materials into the fourth-floor level.\u00a0 There was a limited metalextension on the platform which, if the crane were to be jostled, would cause movement inthe platform and create a gap between the building floor and platform from which employeescould fall through.6.\u00a0 Peter George and Stephen Key, theforemen on the project, were unaware of the hazards of working near the edge of buildingsand were unaware of OSHA rules requiring fall protection for employees exposed to thosehazards.7.\u00a0 Employees had not received anyinstruction or training in the off-loading of materials at this jobsite and there were nosafety belts available for use by employees of R & R at this site.8.\u00a0 An R & R foreman admitted to theinspecting officer that the company did not have safety meetings with its employees, thatno instructions or training were given to employees in the avoidance of unsafe conditionsor in the use of safety equipment, and that no inspections were done to his knowledge todiscover hazardous conditions.9.\u00a0 There were, in fact, no regular orfrequent safety meetings at the site, and the company did not provide any safety trainingor give any instructions in how to perform jobs safely.10.\u00a0 There were no frequent and regular inspections of the jobsite, materials, andequipment by a designated competent person at this jobsite.11.\u00a0 Receptacles energized at 120 voltswere not protected with ground-fault circuit interrupters at the jobsite.12.\u00a0 R & R had been issued threeprevious citations involving allegations of fall hazards at other jobsites.\u00a0 Thecitations were affirmed with R & R agreeing to correct said violations.CONCLUSIONS OF LAW1.\u00a0 This proceeding arises under theOccupational Safety and Health Act of 1970.\u00a0 Jurisdiction is conferred upon theCommission by ? 10(c) of the Act, 29 U.S.C. ? 659(c).2.\u00a0 At all times material hereto,respondent, R & R Builders, Inc., was an employer engaged in a business affectingcommerce within the meaning of ? 3(5) of the Act, 29 U.S.C. ? 652(5).3.\u00a0 R & R was in willful violation of29 C.F.R. ? 1926.20(b)(1) by failing to initiate or maintain a safety program to providecompliance with OSHA safety and health standards applicable to the construction industry.4.\u00a0 R & R was in willful violation of29 C.F.R. ? 1926.20(b)(2) by failing to insure and\/or require frequent and regularinspections of the jobsite, materials and equipment by a designated competent person toinsure compliance with OSHA safety and health standards applicable to constructionindustry 5.\u00a0 R & R was in willful violation of29 C.F.R. ? 1926.21(b)(2) by failing to instruct employees in the recognition andavoidance of unsafe conditions and the regulations applicable to their work environment.6.\u00a0 R & R was in willful violation of29 C.F.R. ? 1926.105(a) by permitting its employees to work more than 25 feet aboveground without providing safety nets or enforcing the use of other safety devices listedin the standard.7.\u00a0 R & R was in willful violation of29 C.F.R. ? 1926.500(d)(1) by failing to guard, by a standard railing or the equivalentas specified in 29 C.F.R ? 1926.500(f)(1)(ii), open-sided floors or platforms six feet ormore above adjacent floor or ground level.8.\u00a0 R & R was in other-than-seriousviolation of 29 C.F.R. ? 1926.404(b)(1)(ii) by failing to have approved ground-faultcircuit interrupters for personnel protection for all 120-volt, single-phase, 15- and20-ampere receptacle outlets.ORDERBased upon the foregoing findings of fact andconclusions of law, it is ORDERED:1.\u00a0 Item la of citation one is affirmed.2.\u00a0 Item 1b of citation one is affirmed anda penalty of $8,000.00 is assessed for both items.3.\u00a0 Item 2 of citation one is affirmed and a penalty of $4,000.00 is assessed.4.\u00a0 Item 3 of citation one is is affirmedand a penalty of $8,000.00 is assessed.5.\u00a0 Item 4 of citation one is affirmed anda penalty of $8,000.00 is assessed.6.\u00a0 Citation two is affirmed and no penaltyis assessed.Dated this 15th day of August, 1989.PAUL L. BRADYJudgeFOOTNOTES: [[1]] This standard states: \”It shall bethe responsibility of the employer to initiate and maintain such programs as may benecessary to comply with this part.\”[[2]] This standard states: \”Such programs shall provide for frequent and regularinspections of the job sites, materials, and equipment to be made by competent personsdesignated by the employers.\”[[3]] This standard states: \”The employershall instruct each employee in the recognition and avoidance of unsafe conditions and theregulations applicable to his work environment to control or eliminate any hazards orother exposure to illness or injury.\”[[4]] This standard states: \”Safety netsshall he provided when workplaces are more than 25 feet above the ground or water surface,or other 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 floor or platform 6 feet or more above adjacent floor or groundlevel shall be guarded by a standard railing, or the equivalent. . . .\”[[6]] This standard states: \”The employeris responsible for requiring the wearing of appropriate personal protective equipment inall operations where there is an exposure to hazardous conditions or where this partindicates the need for using such equipment to reduce the hazards to the employees.\”[[7]] In particular, Greenspan testified:\”[Rogers] did mention [that] it is difficult to keep [the employees] in lines andbelts, but we pushed on the need for possibly disciplining them if they aren’t going to doit.\”\u00a0 Greenspan suggested using verbal reprimands, written warnings, andlay-offs if the employees \”just wouldn’t listen.\” [[8]] The compliance officer had conducted 580inspections, approximately 70 percent of which involved construction.[[9]] At the hearing, when asked why he had toldthe compliance officer that there was no safety program, George replied that he hadassumed the compliance officer meant documentation of a safety program, such as signaturesshowing attendance at regular safety meetings and photographs of hazards.\u00a0 Both heand Rogers thought that they had told MacDonald about the copies of the safety rules thatwere given to each employee; also, Rogers thought he had mentioned certain safetyinspections that he conducted at the jobsite.[[10]] According to his testimony, his problemwas the scant detail to be found in the OSHA standards on safety programs:[I didn’t keep a record of attendance at safetymeetings] because of the fact that OSHA regulations do not define a safety program. Wehave asked OSHA over and over again, \”Tell us what is a safety program?\”\u00a0 They refer[red] us to the book.\u00a0 The book is all of a paragraph that says,\”Safety program[s] will be established.\”\u00a0 No one gives you an outline, noone explains to you how it is implemented, there is nothing there.\u00a0 There is nothingin that literature that says what a safety program is.\u00a0 It is a general guide on whatcan be done.[[11]] None of R & R Builders’ employees hadever fallen off a building perimeter.\u00a0 Generally, the Company’s work was in theinterior of buildings, where there was no need for safety belts, although occasionallyemployees had used safety belts.\u00a0 On other projects as well as the one in Boca Raton,employees had unloaded drywall at building perimeters.[[12]] Rogers did not specifically testify that,on the Boca Raton project, he continued vice president Kaye’s practice of having suchmonthly meetings; moreover, Rogers’ mention of such meetings seems to refer to the onesheld by the vice president before this project began.[[13]] The foremen were George, Key, and aconstruction superintendent, Charles Boykin.\u00a0 They had the responsibility fordeciding whether safety belts were needed.\u00a0 The two superintendents (but not Key) hadattended the OSHA training seminar and on-site project meetings convened by anotheremployer (the project manager), OSHA training seminar and on-site project meetingsconvened by another employer (the project manager), and George had been personallyinstructed regarding safety belts, by Kaye, after the Company received one of the earliercitations.\u00a0 Also, according to George, there were lower-level safety meetings whichhe and Boykin or Rogers conducted, but did not document.\u00a0 These meetings wereinfrequent, however, and Key testified that they covered only \”the basic thing\”:\”long pants, hard hats, boots.\”\u00a0 According to George, these meetings didnot include the regular employees.\u00a0 Evidently, only sub-foreman such as the laborforeman, Key, attended. [[14]] Rogers further testified that he hadinstructed all foremen on this project to be on the alert for safety problems.\u00a0 Foreman Key testified that he generally gave instructions regarding the safeperformance of jobs and he generally watched the employees to see that they were followinghis instructions.\u00a0 On this job he had instructed the crew 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., NewBedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 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, 542 F.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 Evers Welding 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 andSons 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 reliedon the compliance officer’s testimony that he was told that no safety inspections wereconducted.\u00a0 The Secretary believes that Judge Brady gave dispositive credence to thetestimony.\u00a0 R & R Builders asserts that the testimony was not worthy of credence.\u00a0 The judge’s decision, however, only recites the testimony; the testimony is not thebasis of any reasoning or factual findings.\u00a0 We conclude, therefore, that the judgedid not materially rely on the testimony, or credit it over that of George explaining thecomments he made to the compliance officer during the inspection.\u00a0 At most, the judgefound that George was unaware of the program of safety inspections and had not beeninspecting materials.[[17]] See 29 U.S.C. ? 655(a) (statutoryauthority to adopt as an OSHA safety standard any established Federal standard that mayresult in improved safety for employees).\u00a0 See also Usery v. Marquette Cement Mfg.Co., 568 F.2d 902, 905 n.5 (2d Cir. 1977).[[18]] Subsequent to Hall, the principle ofassessing a single penalty where one form of abatement meets the requirements of bothstandards has been followed in Wright & Lopez, Inc., 10 BNA OSHC 1108, 1112, 1981 CCHOSHD ? 25,728, p. 32,077 (No. 76-256, 1981).\u00a0 Compare Cleveland Consolidated, Inc.,13 BNA OSHC 1114, 1118, 1986-87 CCH OSHD ? 27,829, p. 36,430 (No. 84-696, 1987) (itemscombined into \”a single violation\” and one penalty assessed because \”[t]hetwo citation items involve substantially the same violative conduct\” and abating oneitem would effectively abate the other).\u00a0 But see, Capform, Inc., 13 BNA OSHC 2219,2224, 1987-90 CCH OSHD ? 28,503, p. 37,778 (No. 84-556, 1989) (vacation of one itemrequiring protection against \”moving ground\” in an excavation because the otheritem’s requirement for reinforcement against \”superimposed loads\” would abateboth items); United States Steel Corp., 10 BNA OSHC 2123, 2134, 1982 CCH OSHD ? 26,297,pp. 33,237-38 (No. 77- 3378, 1982) (items vacated because the same abatement was requiredby other items).[[19]] The Act has since been amended, toincrease the maximum penalties sevenfold and to establish a $5,000 minimum penalty forwillful or repeat violations.\u00a0 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 theseventh floor were not employees of R & R (Tr. 50).”