E. L. Jones and Son, Inc.

Plain-English summary

A subcontractor employee suffered fatal injuries after falling 35 feet through an unguarded elevator-shaft opening at a Texas office-building project where E. L. Jones and Son was the general contractor. Jones conceded that the opening violated 29 C.F.R. § 1926.500(b)(1) but disputed knowledge and willfulness. The Commission accepted the ALJ's credibility finding that Jones management did not actually know the opening had been left uncovered. It nevertheless found constructive knowledge because reasonable diligence required a stronger inspection and hazard-recognition program, especially when two Jones employees had observed the opening and did not report it. The Commission held that this lack of diligence supported a serious violation but did not establish intentional disregard or plain indifference. It affirmed the serious classification and assessed a $1,000 penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.500(b)(1)
• Outcome: Serious floor-opening violation affirmed with a $1,000 penalty; willful classification rejected.
• Key point: Constructive knowledge based on inadequate inspection can establish a serious violation without proving the heightened state of mind required for willfulness.

Full text (OSHRC public release)

Docket No. 87-0008

SECRETARY OF LABOR,

Complainant,

v.

E. L. JONES AND SON, INC.,

Respondent.

OSHRC Docket No. 87-0008

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN,
Commissioners.

BY THE COMMISSION:

A decision of Administrative Law Judge Stanley M.
Schwartz is before the Commission for review pursuant to section 12(j), 29 U.S.C. �
661(j), of the Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651-678
("the Act"). Judge Schwartz found that the Secretary of Labor ("the
Secretary") failed to establish that the Respondent, E. L. Jones and Son, Inc.
("Jones"),[[1/]] willfully violated section 5(a)(2) of the Act 29 U.S.C. �
654(a)(2), but did establish that Jones was in serious violation of the Act. The judge
assessed a penalty of $1,000. We affirm the judge's decision.

I. Background

Jones was the general contractor at an office
building project in Irving, Texas. The project consisted of three concrete buildings
designated A, B and C. Buildings A and B have two floors, and Building C has three floors.
In addition, each building has a subterranean level. The buildings were constructed with
an elevator shaft opening in each of the floors. On the morning of Tuesday, July 22, 1986,
an employee of AISTEX, one of Jones' subcontractors, suffered fatal injuries when he fell
35 feet through an unguarded elevator shaft floor opening on the third floor of Building
C. As a result of the fatality, a representative of the Secretary conducted an inspection
and subsequently issued a citation alleging that Jones had committed a willful violation
of 29 C.F.R � 1926.500(b)(1).[[2/]]

Jones does not dispute that on the morning of the
fatality, the 17 feet long by 7 feet 1-inch wide floor opening was unguarded. It further
concedes that this condition violated the cited standard, that it was responsible for
guarding the opening, and that two of its own employees had access to the opening. Jones
contends, however, that it did not know that the floor opening was unguarded.

The elevator shaft opening at issue had been kept
covered by Jones' concrete subcontractor, Capform, until it completed its work and left
the site a few days before the accident. This appears to have been the only time any of
the floor openings in the three buildings were left unguarded. Jones and Capform had
previously arranged the work so that the shafts were always guarded. Whether Jones knew
that the floor opening was unguarded was hotly disputed by the witnesses.

The testimony of Timothy Berry, Frank Maras, and Greg
Lyons supported Jones's position that it lacked knowledge of the unguarded opening. Berry,
the general superintendent for Jones, testified that the guardrails were not in place on
the third floor of Building C on July 22 because Jones' supervisory personnel had assumed
that Capform had left the openings covered. He described his experience with Capform prior
to the fatality as follows: "The shafts all the way through Building A and Building B
were protected at all times, whether with Capform's protective covering or by rails"
and "never did Capform ever leave a hazardous situation. This was the first
time." Berry testified that Capform had never advised him or any other Jones
supervisor that they had completed work on Building C. Berry also testified that Capform
coordinated the protection of the elevator shafts with Frank Maras, Jones' site
superintendent, who shared the safety and health responsibilities with Berry.

Maras stated that prior to the accident, he was not
advised by any of the subcontractors or Jones' employees that the shaftway on the third
floor was unguarded. He testified that at a July 15 meeting, Dale Downs, the foreman for
Capform, told him that when Capform opened the elevator shafts "a little bit
later," Jones would have to take care of providing protection. Maras testified that
had Downs told him when Capform was leaving the site, he would have made sure that the
guardrails were up when the cover was removed.

Greg Lyons, a field engineer for Jones, was in charge
of the worksite while Maras was on vacation from Thursday, July 17, through Sunday, July

20. Lyons was unaware, until the accident, that the shaft opening was not guarded. He
    assumed that when Capform finished their work on the third floor, they would leave the
    protective covering over the opening.

The Secretary relied on the testimony of Brad
Scheckelhoff, Donald Lehman, Dale Downs, Billy M. Bird and Timm Nichols to support her
position that Jones knew of the unguarded opening. Brad Scheckelhoff and Donald Lehman,
two of Jones' carpenters, testified that on the Monday before the accident, they walked by
the uncovered elevator shaft on the third floor of Building C. They did not tell Jones'
management about the open shaft because they did not feel endangered by it and did not
think it, was a hazard.

Dale Downs, the foreman for Capform, testified that
Capform advised Jones in advance that it was going to take the protective material off the
elevator shaft on the third floor of Building C. He testified that he told Jones' field
superintendent three times that Capform would be leaving and that Jones should put up
guardrails around the shaft opening, but that Jones failed to put up the guardrails.[[3/]]
Downs testified that at their last meeting on the day Capform left the job site, he told
the superintendent that Jones had already "had enough time to get the handrails
up" and that Capform "was going to take the rest of the material off of the
elevator shaft and load it on the last truck."

Billy M. Bird, of Bird Mechanical, testified that he
discovered that the elevator shaft on the third floor was unguarded on the Friday before
the accident, after one of his employees almost fell into the shaft. Bird ordered his
employees off of the floor, and reported the exposed shaftway to someone at Jones,
possibly Frank Maras. Timm Nichols, an employee of Ragsdale Sheet Metal, testified that on
Friday, July 18, he told a Jones employee, probably Greg Lyons, that both he and one of
Bird's employees "almost walked into that hole," and that Jones needed "to
get that thing covered up before somebody does (walk into it)."

II. Judge's Decision

The Judge affirmed a serious violation. He found that
Jones could have known of the exposed shaftway with the exercise of reasonable diligence.
He based his finding on the testimony of Scheckelhoff and Lehman, who observed the exposed
shaftway on the Monday before the accident but did not report it to Jones' management
because they did not feel it endangered them. The judge held that the testimony of these
two employees demonstrated that Jones' hazard recognition and safety program was
inadequate, and that reasonable diligence required a more effective safety program for the
discovery and correction of such a violation. He assessed a $1,000 penalty.

The judge vacated the willful characterization. He
found that the testimony of the Secretary's witnesses and Jones' witnesses was in direct
conflict on the question of whether Jones consciously disregarded the standard. The judge
resolved the conflicting testimony by finding that Jones' witnesses "were extremely
convincing" and "responded forthrightly and candidly when questioned about their
knowledge of the unguarded shaft." He also found that the "demeanor [they]
displayed on the witness stand added to their credibility." Additionally, he found
"fully credible" their testimony that "if they had known, they would have
corrected the hazard" because "[t]his action would have been completely
consistent with their past practices at the jobsite." The judge did not discuss the
credibility of the Secretary's witnesses. He concluded that "based upon the record
evidence and [his] observation of the witnesses," Jones did not consciously disregard
the applicable standards.

III. Analysis

A. Credibility Findings

The Secretary acknowledges that the policy of the
Commission ordinarily is to accept a judge's evaluation of the credibility of witnesses
because it is the judge who has "lived with the case, heard the witnesses, and
observed their demeanor." C. Kaufman, Inc. , 6 BNA OSHC 1295, 1297, 1977-78 CCH
OSHD � 22,481, p. 27,099 (No. 14249, 1978). Here, the Secretary argues that the
Commission should not defer to the judge's credibility findding because the judge only
discussed why he found Jones' witnesses to be credible, and did not discuss the
credibility of the Secretary's witnesses.[[4/]]  The Secretary cites P & Z Co. ,
6 BNA OSHC 1189, 1977-78 CCH OSHD �22,413 (No. 76-431, 1977), and Asplundh Tree Expert
Company , 7 BNA OSHC 2074, 1980 CCH OSHD � 24,147 (NO. 16162, 1979) as support for her
argument.

In P & Z , the Commission found
unacceptable the judge's "wholesale rejection of unnamed witnesses' testimony under
the color of a credibility evaluation without any explanation for its rejection."
  6 BNA OSHC at 1192, 1977-78 CCH OSHD at p. 27, 024.  The Commission held that
when a judge makes a creditibility finding, "reasons must be given for crediting the
testimony of one witness over that of another or for failing to credit a witness
whose testimony is neither contradicted nor impeached."  Id.
emphasis added).  Thus, if reasons are given for crediting the testimony of one
witness, then reasons need not to given for failing to credit a witness whose testimony is
contradictory.  The Commission also held that "[c]redibility findings shall be
accompanied by summaries of pertinet testimony and reasons for crediting the
testimony." Id.

Here, the judge did not explain in detail why he did
not find the testimony of the Secretary's witnesses to be credible. However, the judge's
reasons for finding Jones' witnesses to be credible were based on testimony that describes
Jones' and Capform's prior practice of jointly guarding elevator shafts. The judge
rejected, at least implicitly, only the testimony of the Secretary's witnesses' that was
contradicted by Jones' witnesses.[[5/]]

The critical question the judge had to resolve was
whether Jones' supervisors knew that the opening was unguarded. The testimony of the
Secretary's witnesses and Jones' witnesses on this point is largely conflicting. In her
brief to the Commission, the Secretary has highlighted testimony that the judge did not
specifically refer to in his decision. Some of this testimony provides support for the
Secretary's contention that Jones knew that the opening was unguarded before the accident.
Other testimony supports Jones' claim that it did not learn of the unguarded opening until
the accident occurred. It is clear that the judge's credibility findings rested on matters
peculiarly observabIe by him --- the witnesses' demeanor on the stand and their manner of
responding on cross-examination.[[6/]] Although the testimony is certainly contradictory,
and the judge's findings could have been more detailed, we cannot say that the judge erred
in crediting the testimony of Jones' witnesses over that of the Secretary's. The Secretary
has succeeded in showing the wide disparity between the testimony of Jones' witnesses and
the testimony of the Secretary's witnesses on the key issue of knowledge. However, she has
failed to demonstrate why we should overturn the judge's determination of the credibility
of Jones' witnesses, and our review of the record indicates there is no adequate basis for
doing so. Accordingly, we accept the judge's credibility finding. See, e.g., United
States Steel Corp., 9 BNA OSHC 1641, 1644, 1981 CCH OSHD � 25,282, pp. 31,251-52 (No.
76-5007, 1981) (judge's credibility finding will be upheld where opposing party does not
demonstrate reasons why it should be reversed and Commission's review of record indicates
there is no basis for doing so); Inland Steel Co. , 12 BNA OSHC 1968, 1978, 1982,
1986 CCH OSHD � 27,647, pp. 36,005 & 36,009 (No. 79-3286, 1986) (Commission normally
accepts judge's credibility evaluations).

B. Willfulness

We now turn to the issue of whether Jones' failure to
guard the opening was willful. A violation of the Act is willful if "it was committed
voluntarily with either an intentional disregard for the requirements of the Act or plain
indifference to employee safety." Simplex Time Recorder.Co. , 12 BNA OSHC 1591,
1595, 1984-85 CCH OSHD � 27,456, p. 35,571 (No. 82-12, 1985). Trial of the issue of
willfulness focuses on the employer's state of mind and general attitude toward employee
safety to a greater extent than would trial of a non-willful violation. Seward Motor
Freight , 13 BNA OSHC 2230, 2234, 1989 CCH OSHD � 28,506, p. 37,787 (No. 86-1691,
1989) In Williams Enterprises, Inc. , 13 BNA OSHC 1249, 1691, 1989). In Williams
Enterprises, Inc., BNA OSHC 1249,1986-87 CCH OSHD � 27,893 (No. 85-255, 1987), the
Commission held:

It is not enough for the Secretary to show that an
employer was aware of conduct or conditions constituting a violation; such evidence is
necessary to establish any violation, serious or nonserious. . . . A willful violation is
differentiated by a heightened awareness----of the illegality of the conduct or conditions
and by a state of mind----conscious disregard or plain indifference . . . . It is
therefore not enough for the Secretary simply to show carelessness or lack of diligence in
discovering or eliminating a violation Williams , 13 BNA OSHC at 1256-57, 1986-87
CCH OSHD at p. 36,589.[[7/]]

Thus, under Williams , the Secretary must prove
that Jones', management either knew of the non-compliant conditions or that Jones' efforts
to discover the condition was so inadequate as to constitute careless disregard for
employee safety. Since we do not disturb the judge's finding that Jones's management did
not know of the exposed shaftway, we find no evidence that the failure to guard the
opening demonstrated intentional disregard of the Act on the part of Jones.

We also conclude that Jones could have discovered the
unguarded opening with the exercise of reasonable diligence. However, this lack of
diligence in discovering the violation is not properly characterized as willful. See Marmon
Group Inc., 11 BNA OSHC 2090, 1984 CCH OSHD � 26,975 (No. 79-5363, 1984), and cases
cited therein. The evidence establishes that prior to the fatality, Capform and Jones had
always coordinated Capform's removal of its coverings with Jones' erection of guardrails
around the elevator floor openings. Until the protective covering was removed a few days
before the accident on July 22, the openings had been guarded in all three buildings after
Jones took control. In addition, the evidence establishes that Jones' field superintendent
Maras usually conducted a daily inspection of the site during which he looked for safety
problems. Maras was on vacation the Thursday and Friday before the fatality and Lyons, his
replacement, did not seem to be aware of the duty to inspect the site. On Monday, July 21,
the day before the accident, Maras returned to work, but he did not conduct his regular
inspection because he had to meet with the police concerning a break-in. Clearly, Lyons
and Maras could have been more diligent in inspecting the worksite for safety hazards.
However, we cannot conclude that Jones' failure to discover the unguarded floor openings
demonstrated plain indifference to employee safety. We therefore find that the violation
was not shown to be willful.

C. Seriousness

Our finding that Jones failed to exercise reasonable
diligence does, however, establish that Jones had constructive knowledge of the violation.
Jones has argued that it cannot be cited for a serious violation because it did not have
actual knowledge of the violation. However, the Secretary meets her burden of proving
knowledge by establishing that an employer knew or, with the exercise of reasonable
diligence, could have known of the violative condition. Monarch Water Systems, 12
BNA OSHC 1897, 1898, 1986-87 CCH OSHD � 27,632 at p. 35,932 (No. 83-943, 1986). The
seriousness of the violation under section 17(k) of the Act, 29 U.S.C. � 666(k), is
demonstrated by the death of the employee. See Simplex Time Recorder Co. , 12 BNA
OSHC at 1597, 1984-85 CCH OSHD at p. 35,572 (No. 82-12, 1985).

D. Penalty

In assessing a penalty for a violation of the Act,
the Commission must give due consideration to the size of Jones' business, the gravity of
the violation, Jones' good faith, and its history of previous violations. Section 17(j) of
the Act, 29 U.S.C. � 666(j). Having considered the statutory criteria, we agree with the
judge's determination that a $1,000 penalty is appropriate.

IV. Order

Accordingly, we affirm a serious violation of 29
C.F.R. � 1926.500(b)(1). A penalty of $1,000 is assessed.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: March 18, 1991

SECRETARY OF LABOR,

Complainant

v.

E. L. JONES AND SON, INC.,

Respondent

OSHRC DOCKET NO. 87-0003

Appearances: Bobbie J. Gannaway, Esq.

Dallas, Texas

For the Complainant

Steven R. McCown, Esq.

Dallas, Texas

For the Respondent

DECISION AND ORDER

SCHWARTZ, Judge:

This is a proceeding brought before the Occupational
Safety and Health Review Commission ("the Cornmission") pursuant to Section 10
of the Occupational Safety and Health Act of 1970, 29 U.S.C. �651 et seq .
("the Act"). Respondent contests an alleged willful violation of 29 C.F.R.
1926.500(b)(1). A penalty of $6,000 was proposed for the alleged willful violation.

An inspection was conducted at Respondent's workplace
in July and August 1986. E. L. Jones timely contested the subject citation. A hearing was
held on July 29-30, 1987 and September 9, 1987, in Dallas, Texas. No additional persons
desired to intervene in this matter.

The citation provides as follows:

29 C.F.R. 1926.500(b)(1): Floor openings were not
guarded by standard railings and toeboards or covers as specified in paragraph(8) of this
section:

a) Employees exposed to the hazard of falling 35 feet
through an unguarded elevator shaft, 17 feet long and seven (7) feet, one (1) inch wide,
located at the Walnut-Story Office building construction site, Irving, Texas, Building C,
3rd floor.

This condition occurred on or prior to July 22, 1986.

Respondent does not dispute that 29 C.F.R.
1926.500(b)(1) applies, noncompliance occurred, and employees had access. E. L. Jones does
contend that it lacked knowledge of the violative condition and that any violation, if
found, was not of a willful nature.

A violation of the Act is willful if "it was
committed voluntarily with either an intentional disregard for the requirements of the Act
or plain indifference to employee safety." Simplex Time Recorder Co., 85 OSHRC
____ 12 BNA OSHC 1591, 1595,1985 CCH OSHD � 27,546, p. 35, 571 (No. 82-12, 1985); Asbestos
Textile Co., 84 OSAHRC 48/B12, 12 BNA OSHC 1062, 1063, 1984-85 CCH OSHD � 27,101, p.
34, 943 (No. 79-3831, 1984). I find that the record does not show such disregard,
indifference and recklessness. Respondent know of the applicable standard, but did not
consciously disregard the standard. My conclusion is based on an analysis of the testimony
of several witnesses and on specific credibility determinations explained below.

E. L. Jones was the general contractor at the
Walnut-Story office building project. It consisted of three concrete construction
building. Buildings A and B were two-story office buildings. Building C had three stories.
Each had a parking garage or basement underneath. On July 22, 1986, an employee of a
drywall contractor fell through an open elevator shaft to his death. The shaft was not
guarded by either guardrails or any covering. (Complainant and Respondent briefs).

Respondent, as noted above, knew of the applicable
standard. In fact E. L. Jones' standard practice it the jobsite was to protect elevator
shaft openings by erecting guardrails or placing lumber over the shaft opening. This
procedure was a cooperative effort with Capform, the forming contractor. Up until the
accident on July 22, 1987, all shafts had been protected. The basic question is whether E.
L. Jones consciously disregarded 29 C.F.R. 1926.500(b)(1) in this case. The testimony is
directly in conflict on this question.

The Secretary relies on four workers to establish
conscious disregard by E. L. Jones of the applicable standard. The workers are all
associated with three subcontractors. They testified that E. L. Jones management was told
prior to the accident that the elevator shaft opening was not guarded. Respondent called
three management officials who acknowledged discussions about the shafts coming open but
who denied they were told the shaft in building C had, in fact been left uncovered by
Capform.

E. L. Jones' witnesses were its general
superintendent, field superintendent, and field engineer. These witnesses were extremely
convincing. They responded forthrightly and candidly when questioned on the witness stand
added to their credibility. In addition, I find fully credible their statements that if
they had known, they would have corrected the hazard. This action would have been
completely consistent with their past practices at the jobsite. The standard practice had
been to erect guardrails around every open shaft to protect workers. Guardrails removed by
other contractors had also been replaced. The procedure was done in conjunction and with
the complete cooperation of Capform, the forming contractor. All contractors agreed that
prior to the subject hazard, there had been no previous difficulty with E. L. Jones
regarding guardrails or covering of the open elevator shafts. For these reasons I find
Respondent's witnesses fully credible when they state a lack of knowledge that Capform
pulled off the job and left the hole uncovered. If aware, as noted above, I conclude E. L.
Jones would have taken the few minutes to protect the opening as they had done
consistently throughout the project. Therefore, based upon the record evidence and the
observation of the witnesses, I find that E. L. Jones did not consciously disregard the
applicable standard. The characterization of the violation as willful is vacated.

Since the Secretary alleged the violation was willful
in nature but failed to establish willfulness, it must now be determined whether to affirm
the violation as serious or other than serious in nature. Respondent contends the
Secretary has failed to prove that any knowledge existed of the violative condition.

It is the Secretary's burden to establish the
employer knew or, with the exercise of reasonable diligence, could have known of the
violative condition. See Monarch Water Systems Inc. , 86 OSAHRC _____ 12 BNA OSHC
1897 1398, 1986 CCH OSHD �27,632 p. 35,932 (No. 83-943, 1986). As to actual Knowledge, as
noted above, no evidence exists that Respondent's management knew of the unguarded shaft.
The question remains whether there is sufficient evidence to conclude that Respondent
could have known, with the exercise of reasonable diligence.

There is no question that the shaft was uncovered for
at least on entire workday prior to the accident. Two of Respondent's own employees
observed the condition. They walked by it but fail to report the condition. The two
employees felt comfortable ignoring an open 17' x 7'1" opening with a fall of over
35' because no work was being performed in the area. Respondent testified about its hazard
recognition and safety program. However, based upon the testimony of these two employees,
I find that the program was inadequate. Reasonable diligence required a more effective
program to emphasize the danger of such a hazard regardless of whether work was actually
being performed. These employees lacked basic direction. The fact that they were not
supervisors cannot absolve Respondent from the lesser charge of a serious violation.
Respondent failed to detect and discover a basic safety violation. Reasonable diligence
required a stronger inspection system to detect violations especially when employees felt
free to ignore the hazard involved in this case. Lack of conscious disregard and lack of
reasonable diligence are separate and distinct requirements of the Act. For the reasons
stated above, I conclude that Respondent failed to exercise reasonable diligence to detect
the unguarded elevator shaft under the circumstances of this case.

I now turn to the assessment of an appropriate
penalty. The Walnut-Story project cost $8,000,000. At the same time Respondent was
involved in a larger project constructing an eleven story control tower at DFW Airport.
The overriding consideration is the high gravity of the violation. Several employees were
exposed to the hazard of falling through an open elevator shaft. The duration of the
exposure was long enough for one employee to fall to his death. There was a high
probability that a serious injury could occur. On balance, I conclude that a penalty of
$1,000 is appropriate in light of the record and the statutory criteria set forth in
Section 17(j) of the Act.

CONCLUSIONS OF LAW

1. Respondent, E. L. Jones and Son Inc., is engaged
   in a business affecting commerce and has employees within the meaning of Section 3(5) of
   the Act. The Commission has jurisdiction of the parties and of the subject matter of this
   proceeding.

2. On July 21 and 22, 1986, Respondent was not in
   willful violation of 29 C.F.R. 1926.500(b)(1).

3. On July 21 and 22, 1986, Respondent was in
   violation of 29 C.F.R. 1926.500(b)(1).

ORDER

On the basis of the foregoing Findings of Fact and
Conclusions of Law, it is ORDERED that:

1. Item 1(a) Willful citation 1 is affirmed as a
   serious violation and a penalty of $1,000 is assessed.

STANLEY M. SCHWARTZ

Administrative Law Judge

Date: February 12, 1988

FOOTNOTES:

[[1/]] E.L. Jones and Son, Incorporated, is based in Dallas, Texas, and is now known as
the Doyle Company.

[[2/]] Section 1926.500(b)(1) provides:

� 1926.500 Guardrails, handrails, and covers.

(b) guarding of floor openings and floor holes. (1) Floor openings shall be guarded by a
standard railing and toeboards or cover, as specified in paragraph (f) of this section. In
general , the railing shall be provided on all exposed sides, except at entrances to
stairways.

[[3/]]Downs testified that he had meetings with Maras
on July 8th, July 14th and the evening of July 15th. He believes the conversations about
the exposed elevator shafts took place on these three days.

[[5/]] The Secretary also argues that "[t]he
judge must specify the particular aspects of the demeanor or testimony of the witnesses
that led him to conclude that they were not credible," citing Asplundh Tree Expert
Company, 7 BNA OSHC 2074, 1978 CCH OSHD � 23,033 (No. 16162, 1979). In Asplundh, the
judge rejected the testimony of four employer witnesses on the basis of a minor
discrepancy with the testimony of the compliance officer, a discrepancy that the
Commission felt could have been due to an honest misunderstanding. 7 BNA OSHC at 2079,
1978 CCH OSHD at p. 27,841. The Commission faulted the judge for failing "to specify
any attribute of the demeanor of the witnesses or any part of their testimony that would
warrant the rejection of the entire testimony of respondent's four witnesses." Id.
Thus, like P & Z, Asplundh holds that a judge cannot simply reject testimony that is
facially worthy of belief on the basis that witnesses are "not credible."
However, the case now before us involves a different type of situation. Here the judge did
not reject all of the Secretary's witnesses' testimony, only that part which was
contradicted by the testimony of Jones' witnesses regarding Jones' actual knowledge of the
open elevator shaft.

[[6/]] Indeed, had the judge gone on to specifically
find the Secretary's witnesses not credible, he might have run afoul of the Commission's
statement in C. Kaufman that a judge should "avoid discussions that will
unnecessarily impugn the character of a witness." 6 BNA OSHC 1298, 1977-78 CCH OSHD
at p. 27,102, n.8.

[[7/]] The Fifth Circuit, in whose jurisdiction this
worksite is located, held that "[t]o prove a willful violation, the Secretary must
show that the employer acted voluntarily, with either intentional disregard of or plain
indifference to OSHA requirements." Georgia Electric Co. v. Marshall, 595 F.2d 309,
318 (5th Cir., 1979). The Fifth Circuit added in a footnote that "[t]his of course
does not mean that every act consciously done is done willfully. The 'extra ingredient'
needed for willfulness is either the element of intentional disregard or plain
indifference." Id., 595 F.2d at 818, n.22. The D.C. Circuit cited the Fifth Circuit's
Georgia Electric decision regarding willfulness when the D.C. Circuit held that
"courts have unanimously held that a willful violation of the Act constitutes 'an act
done voluntarily with either an intentional disregard of, or plain indifference to, the
Act's requirements.'" Ensign-Bickford Co. v. O.S.H.R.C., 717 F.2d 1419, 1422 (D.C.
Cir, 1983).