The ALJ's finding of willfulness is conclusive if supported by substantial evidence on the record as a whole. See 29 U.S.C. § 660(a) (1994); Valdak Corp. v. OSHRC, 73 F.3d 1466, 1468 (8th Cir. 1996). While willfulness is not defined by statute, we affirm a finding of willfulness if there is substantial evidence that Dakota intentionally disregarded or was plainly indifferent to the requirements of the OSHA.
Accidents resulting from a "reckless act" of an employee can violate the Act, absent evidence that the employer established the affirmative defense of unpreventable employee misconduct. Valdak Corp. v. OSHRC, 73 F.3d 1466, 1469 (8th Cir. 1996) ; see Danco Const. Co. v. OSHRC, 586 F.2d 1243, 1247 (8th Cir. 1978). "A supervisor's knowledge of a violative condition can be imputed to the employer."
Even a single violation of the OSH Act may be found willful, regardless of whether the workplace is otherwise safe. See Kaspar Wire Works, 268 F.3d at 1128 (holding that an employer cannot "contend that it was entitled to rely on its lack of prior violations to undermine a finding of willfulness," because then "an employer with no prior citations could choose to violate a regulatory obligation without risking a finding of willfulness"); Valdak Corp. v. OSHRC, 73 F.3d 1466, 1469 (8th Cir. 1996). Staley also argues that Page's report did not heighten its awareness of safety problems at Decatur because his handwritten notes were never given to plant staff.
An OSHA violation is willful if it is committed with intentional disregard of, or plain indifference to, the requirements of the statute. See Valdak Corp. v. O.S.H.R.C., 73 F.3d 1466, 1468 (8th Cir. 1996); Ensign-Bickford Co. v. O.S.H.R.C., 717 F.2d 1419, 1422 (D.C. Cir. 1983), certiorari denied, 466 U.S. 937 (collecting cases). A willful violation "is differentiated from other types of violations by a heightened awareness — of the illegality of the conduct or conditions — and by a state of mind — conscious disregard or plain indifference."
A "willful" violation of 29 U.S.C. § 666 is one "committed with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety." Sec'y of Labor v. Valdak Corp. , 17 O.S.H. 1135, 1995 WL 139505, at *2 (Rev. Comm'n 1995) ; seeValdak Corp. v. OSHRC , 73 F.3d 1466, 1469 (8th Cir. 1996) (affirming reviewing commission's decision finding a willful violation). A willful violation is "an act done voluntarily with either an intentional disregard of, or plain indifference to, the Act's requirements."
The parties agree that this element requires that DNRB "intentionally disregarded or was plainly indifferent to the requirements of the Act." See Valdak Corp. v. OSHA , 73 F.3d 1466, 1468 (8th Cir. 1996). Noting that DNRB had a previous citation for violating § 1926.760, the district court concluded that DNRB was aware of its requirements.
Such violations are distinguished by an employer's "heightened awareness of the violative nature of its conduct or the conditions at its workplace." MJP Constr. Co., 19 BNA OSHC 1638, 1647 (No. 98-0502, 2001); see AJP Constr., Inc. v. Sec'y of Labor, 357 F.3d at 74 (holding that Secretary may show "plain indifference" through evidence that employer possessed state of mind "such that if it were informed of the standard, it would not care" (internal quotation marks omitted)); Valdak Corp. v. Occupational Safety & Health Review Comm'n, 73 F.3d 1466, 1469 (8th Cir. 1996) (holding that employer who "fails to correct a known hazard" commits willful violation). The Commission's willfulness findings here are supported by substantial evidence.
And this formula also appears in Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 57 n. 9, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007) But proof of willfulness in 29 U.S.C. § 666(a) —the subsection that is at issue in this case and provides just for civil penalties—requires proof only that the defendant was aware of the risk, knew that it was serious, and knew that he could take effective measures to avoid it, but did not—in short, that he was reckless in the most commonly understood sense of the word. See AJP Construction, Inc. v. Secretary of Labor, 357 F.3d 70, 74 (D.C.Cir.2004) ; Valdak Corp. v. OSHRC, 73 F.3d 1466, 1468–69 (8th Cir.1996). There is no doubt that MacKenzie acted recklessly and therefore willfully within the meaning of section 666(a) and that his reckless behavior must be imputed to Dukane (Dukane doesn't contest the second proposition).
The district court allowed the case to go to the jury. But after Eagle rested its case the court granted the defendants' motion for judgment as a matter of law, as no evidence had been presented that either the Occupational Safety and Health Act or the regulations under it require companies that the Occupational Safety and Health Administration regulates to have a safety manual — safety standards, yes, 29 C.F.R. § 1910.2(f), and instructions in safety, § 1926.21; see Danis-Shook Joint Venture XXV v. Secretary of Labor, 319 F.3d 805, 812-13 (6th Cir. 2003); Valdak Corp. v. OSHRC, 73 F.3d 1466, 1469 (8th Cir. 1996), but not a manual, though that is a useful element of a safety program. See P. Gioioso Sons, Inc. v. OSHRC, 115 F.3d 100, 110 (1st Cir. 1997).
"An OSHA violation is willful if it is committed with intentional disregard of, or plain indifference to, the requirements of the statute." Caterpillar, Inc. v. OSHRC, 122 F.3d 437, 440 (7th Cir. 1997) (citing Valdak Corp. v. OSHRC, 73 F.3d 1466, 1468 (8th Cir. 1996)). We review the ALJ's fact-finding on the issue of willfulness under the substantial evidence rule; the ALJ's decision on willfulness will be sustained if it is not arbitrary and capricious and is in accordance with the law.