The lack of fall protection was in plain view and clearly observable. As for the expected injury, the issue is whether the resulting injury would likely be death or serious injury if an accident should occur. The failure to utilize fall protection from a height of 42 feet can reasonably be expected to cause serious injury or death. Therefore, a serious violation is established. Penalty The Commission is the final arbiter of penalties in all contested cases.
Gravity is the principal factor to be considered here.
In considering the penalty, OSHA gave RPC 40 percent credit for size as a medium employer with less than 100 employees. There was no credit given for history and good faith because RPC received a previous citation within the last three years regarding the lack of fall protection. The court accepts OSHA's findings as to size, history, and good faith. With regard to the gravity, the probability and severity is considered high in that two employees were exposed to a fall of 42 feet without fall protection. One employee was the union steward.