HAROLD CHRISTIANSEN AND HAROLD W. CHRISTIANSEN, d/b/a PALMER CHRISTIANSEN COMPANY

OSHRC Docket No. 3108

Occupational Safety and Health Review Commission

March 18, 1976

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Henry Mahlman, Assoc. Regional Solicitor

Mr. Harold W. Christiansen, PALMER-CHRISTIANSEN COMPANY, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

On review, this matter presents the question of whether Complainant must establish usage of defective equipment in order to prove violations of the Act [29 U.S.C. 651, et seq.] for failure to comply with 29 C.F.R. 1926.401(a)(1). n1 It arises out of a citation whereby Complainant alleged that Respondent violated the Act because it had not equipped an electric drill and a chipping hammer with "grounding-type plugs." Judge John J. Morris affirmed the citation and assessed a penalty of $30. We affirm.

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n1 The standard provides as follows:

Grounding and bonding. (a) Portable and/or cord and plug-connected equipment. (1) The noncurrent-carrying metal parts of portable and/or plug-connected equipment shall be grounded.

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The facts are not in dispute. Respondent was engaged in sheet metal construction [*2] work at a building site in Salt Lake City, Utah. It was inspected, and Complainant's representative found the tools referred to in the citation in a "gang box" located on the fourth floor of the building. The tools were portable, and the ground post or prong was missing from each tool. The grounding elements had been broken or cut off. Complainant's representative did not observe employees using the tools. However, they were available for use and would have been used to install ductwork.

On these facts Respondent defended by saying that the evidence fails to show use of the tools. In rejecting this defense, Judge Morris relied on Judge Burroughs decision in Allied Electric Company, 1 OSAHRC 440, 1 OSHC 3040, OSHD para. 15,103 (1972). In so doing he specifically quoted with approval the following:

The objective of the Act can best be accomplished by placing emphasis on the accessibility of the employee to defective equipment. If the defective equipment is available for use by the employee, then a citation should issue. Id. at 451

We recently adopted an access rule of exposure and quoted the above language with approval. Gilles & Cotting, Inc., OSHRC Docket [*3] No. 504 (   ).

Accordingly, the order of the administrative law judge is affirmed.

DISSENTBY: MORAN

DISSENT:

MORAN, Commissioner, Dissenting:

This decision penalizes an employer because a power tool at his premises had an electrical plug with two prongs rather than three prongs. That may well have been a violation of a local building or fire prevention code - but this employer was charged under a law enacted to reduce employee injuries. A tool which is not in use cannot harm an employee. In order to show that there was a violation of the Occupational Safety and Health Act of 1970, there must be evidence of hazard to employees. There was no such evidence in this case.

This decision merely accentuates the injustice of holding employers in violation of 29 U.S.C. 654(a)(2) when the evidence fails to establish actual employee exposure to the hazard. By holding this employer liable for a violation, the Commission penalizes him without giving him the opportunity of correcting the hazard before it affects and endangers any employees. I do not believe this was intended by Congress in passing the Act.

For a complete explanation of why the complainant should be required to establish actual exposure [*4] However, a more profound reason for vacating the citation in this case is that 29 C.F.R. 1926.401(a) requires the complainant to prove actual employee exposure in order to establish a prima facie case.

The citation averred that the respondent failed to comply with the above-cited standard in that an "electric drill and . . . electric chipping hammer in use . . . were not equipped with grounding-type plugs." (Emphasis added.) The complaint amended this charge to delete the "in use" requirement. In my opinion, the averment in the citation is in consonance with section 1926.401(a)(1), whereas the amended charge is not.

Section 1926.401(a)(1) provides that:

"The noncurrent-carrying metal parts of portable and/or plug-connected equipment shall be grounded." (Emphasis added.)

The complainant's case was based on the fact that "the ground post or prong was missing from each" of the aforementioned tools. However, the standard does not require that the equipment have these posts [*5] or prongs. It only requires that they "shall be grounded." Of course, where a plug is equipped with a grounding post or prong, the equipment is not grounded until the plug is inserted in a receptacle that will accommodate the post or prong. The complainant's inspector acknowledged this in the following testimony at the hearing.

"Q. The three-prong plug must be plugged into the receptacle to be an effective ground?"

A. Yes, sir."

Since a three-prong plug is not grounded until it is plugged into a grounding-type receptacle, there can be no failure to ground under section 1926.401(a)(1) until the electrical equipment is put into use by plugging it into such a receptacle, or in other words, there is actual exposure of an employee.

Since this decision does not deal with all the matters covered in Judge Morris' decision, the same is attached hereto as Appendix A.

APPENDIX A

DECISION AND ORDER

William J. Kilberg, Solicitor of Labor, T. A. Housh, Jr., Regional Solicitor, Henry C. Mahlman, Associate Regional Solicitor and Thomas E. Korson, for the Secretary of Labor

Harold Christiansen and Harold W. Christiansen, pro se, for the Respondents

STATEMENT OF THE CASE

John J. [*6] Morris, Judge, OSAHRC

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651, et seq., hereafter called the Act) contesting a Citation issued by the Complainant against Respondents under the authority vested in Complainant by Section 9(a) of that Act.

The Citation alleges that Complainant inspected a workplace under the ownership, operation or control of Respondents located at 70 South State, Salt Lake City, Utah, and described as an "8-story commercial building."

It is further alleged that at the above workplace, Respondents violated Section 5(a)(2) of the Act by failing to comply with a certain occupational safety and health standard promulgated by Complainant, pursuant to Section 6 thereof. Abatement one day from receipt of Citation was proposed.

The contested Citation was issued on May 16, 1973, as the result of an inspection on May 8, 1973, and it is alleged that the standard violated was duly codified in the Code of Federal Regulations at 29 CFR 1926.401(a)(1).

The description of the violation alleged in Citation Number One, Item 1, states as follows:

A Skill electric drill and a B and D electric chipping hammer in use [*7] at the third floor were not equipped with grounding-type plugs.

The foregoing standard is promulgated by the Secretary as follows:

29 CFR 1926.401 Grounding and bonding. (a) Portable and/or cord and plug-connected equipment. (1) The noncurrent-carrying metal parts of portable and/or plug-connected equipment shall be grounded.

Pursuant to the enforcement procedure as set forth in Section 10(a) of the Act, the Respondents were notified by letter dated May 16, 1973, from the Area Director for the Occupational Safety and Health Administration, U.S. Department of Labor; said Area Director proposed to assess a penalty for the violation alleged herein in the amount of $30.

After Respondents contested this enforcement action, and a Complaint and an Answer having been filed by the parties, the case came on for hearing in Salt Lake City, Utah, on September 13, 1973. No parties desired to intervene in the proceedings. Notice of the hearing was duly posted (Tr. 5).

STATEMENT OF THE EVIDENCE

Respondents were inspected in Salt Lake City, Utah, at the worksite of an eight-floor commercial building located at 70th and South State Street (Tr. 8, 9). The Compliance Officer inspected [*8] certain tools in a "gang box" located on the fourth floor of the premises (Tr. 9, 39). In the gang box was a portable electric drill and an electric chipping hammer, neither of which had a grounding post on the plug (Tr. 9, 10; Compl. Ex. 2). The described tools would have been used on the project for putting up the sheet metal ducts and drilling holes (Tr. 12). Each of the tools had two prongs, but the grounding post was missing (Tr. 14-15, 21-22; Compl. Ex. 3). There was a break in the wire of the chipping hammer which contributed to the hazard (Tr. 12, 22-23, 31).

The Compliance Officer talked to the Respondents' foreman at the jobsite, and the foreman acknowledged that the particular tools belonged to the Respondents (Tr. 11, 12, 28-29, 30).

The Compliance Officer considered the gravity of the violation to be moderate and the type of injury that would be produced to be generally that a person would be burned or at least scared (Tr. 24, 25, 31, 35). The building was without windows and, accordingly, there was partial exposure to rain (Tr. 25), although shock could occur absent the wet condition (Tr. 52).

The Compliance Officer entered a 10% reduction in the penalty for [*9] good faith due to Respondents' attempt to emphasize safety; a 10% reduction for sixe (four employees on the job); a 20% credit for history; and a 50% abstement credit for a net proposed penalty of $30 (Tr. 25-27, 37, 38; Compl. Ex. 4).

A portion of the cross-examination of the Compliance Officer developed that both of the described tools were "Skil" equipment (Tr. 28); further, that the Citation incorrectly referred to the electric chipping hammer as a "B&D" (Black and Decker), and that this description in the Citation was in error (Tr. 28, 39, 41-42, 48). The Compliance Officer indicated that with ungrounded equipment, there is no volt path for the current to follow in the event of a short. The purpose of grounding is to protect the operator of the tool from electrical shock (Tr. 12). The grounding post of these tools had either been broken off or cut off with a pair of wire clippers (Tr. 29-30, 42); the equipment when new has a grounding post (Tr. 30-31). The Compliance Officer had not seen the tools used (Tr. 31, 44), but these tools would be used for mechanical work. Doing plumbing and heating work involves the use of this type of equipment (Tr. 42, 52). The described equipment [*10] is plug-connected and manufactured in Chicago (Tr. 53).

Respondents declined to present any evidence, and their rights were explained to them in connection with the case and in regard to the presentation of evidence (Tr. 4, 60-61).

ISSUES PRESENTED

The following issues are presented in this case:

(1) Whether, under the evidence, the Review Commission has jurisdiction of the parties.

(2) Whether this Judge has authority to rule on whether the Occupational Safety and Health Act of 1970 is in violation of the United States Constitution in those respects alleged by Respondents.

(3) Whether Respondents violated 29 CFR 1926.401(a)(1).

(4) What penalty, if any, is appropriate under the circumstances.

The threshold question to be determined is the basis of jurisdiction, if any, of this Commission, or, to restate the issue; whether or not Respondents are engaged in a business affecting commerce.

Section 3(3) and 3(5) of the Act provide as follows:

Section 3(3) "commerce" means trade, traffic, commerce, transportation, communication among the several States, and between a State and any place outside thereof, or within the District of Columbia, or a possession of the United States, [*11] (other than the trust territory of the Pacific Islands), or between points in the same State but through a point outside thereof.

Section 3(5) "employer" means a person engaged in a business affecting commerce who has employees but does not include the United States or any State or political subdivision of a State.

In the case of McCloud vs. Threlkeld, 319 U.S. 491, 495 (1943), the Supreme Court, in dealing with an issue of coverage under the Fair Labor Standards Act, stated as follows:

"There is no single concept of interstate commerce which can be applied to every federal statute regulating commerce."

Section (2) of the Congressional Findings and Purpose indicates that the Congress found that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses and disability compensation payments.

Section (2)(b) declares it a matter of Congressional policy (through its power to regulate commerce among the several States) "to insure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our [*12] human resources." Congressional findings indicate Congressional intent to invest the broadest jurisdictional scope constitutionally permissable under the Commerce Clause.

Section 3(5) of the Act does not rely on the common test of "engaging in interstate commerce" but seeks a broader scope and definition by defining an employer as a person engaged in a business "affecting" commerce who has employees. The dictionary definition in the Random House Dictionary of the English Language defines "affect" as follows: "to act on; produce an effect or change in." The synonyms are in part listed as "influence, sway, alter." Judicial interpretation of the term "affecting commerce" indicates the broad scope of the Congressional term which includes transactions or goods moving directly in interstate commerce and also includes indirect activities which in isolation might be deemed to be merely local but which will nonetheless adversely affect commerce. N.L.R.B. vs. Suburban Lumber Company, 121 F 2nd 829, 823 (3rd Circuit, 1941); 50 ALR 2d 1228, 1235.

The Supreme Court of the United States has for many years recognized that the commerce power is not confined to the mere regulation of commerce [*13] among the States but, "it extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce." Unites States vs. Wrightwood Dairy Company, 351 U.S. 110, 119, 1942). The Wrightwood case involved the Agricultural Marketing Agreement Act, 50 Stat. 246, 7 USC, Sec. 608c, and a portion of the statutory language provided regulations where milk and other products involved "directly burdens, obstructs, or affects, interstate or foreign commerce in such commodity or product thereof."

In this case, Respondent partners were subcontractors at a construction site (Tr. 51), which was an eight-floor commercial building located in Salt Lake City, Utah (Tr. 8, 9). On the premises was a "gangbox" (Tr. 9, 30). Among the tools in the gangbox were those used for putting up the sheet metal ducts and drilling holes, which were a portable electric drill and an electric chipping hammer (Tr. 9, 10, 12; Compl. Ex. 2, 3). The described tools were further described by their trademark as [*14] "Skil" equipment (Tr. 28). These particular tools are manufactured in Chicago (Tr. 53). Respondents' foreman at the jobsite acknowledged that the particular tools described belonged to the Respondents (Tr. 11, 12, 28-29, 30). Respondents had four employees at the jobsite (Tr. 26, 37, 38).

The inference from the facts and circumstances in the instant case demonstrates that the business activities of Respondents affected commerce; Respondents' tools were necessary for installing sheet metal ducts and drilling holes (Tr. 12), and such tools moved in transportation among several States (at a time not specified in the evidence). Hence, these facts are such as to create a reasonable inference that Respondents are engaged in a business affecting commerce within the statutory definition of Section 3(3) of the Act, particularly when that term is considered within the tenor of the Act and in view of its purposes and objectives. Respondents declined to testify and presented no evidence to rebut the inferences stated above. Accordingly, it is ruled that Respondents are an employer within the terms of the Act and subject to its regulations. To like effect and to the same general inference, [*15] see the case of Secretary of Labor vs. Ray Lien Masonry and Dale Roberts Masonry, Inc., B.N.A. 1 O.S.H.R. 3078.

The next issue presented in the case is whether the Act violates the United States Constitution. In their Notice of Contest, Respondents claim that they were being deprived of property without due process and that the action undertaken created a presumption of guilt in conflict with the constitutional guarantee of a presumption of innocence. Respondents' issues are directed to the constitutionality of the Occupational Safety and Health Act of 1970. In this respect, the law is well established that an administrative body has no authority to pass upon the constitutionality of an act which it is called upon to administer. Engineers Public Service Company vs. S.E.C., 78 U.S., App. D.C. 199, 138 F. 2nd 936, 952-953 (1943) dismissed as moot 332 U.S. 788, 68 S. Ct. 96, 92 L. Ed. 370. Also, Simpson vs. Laprade, 248 F. Supp. 399, 401. Respondents' allegation that the Act is unconstitutional is denied for lack of jurisdiction to rule on the issues presented.

The next issue presented is whether Respondents violated 29 CFR 1926.401(a)(1). An analysis of the evidence indicates [*16] that the Respondents are in violation. The electric drill and electric chipping hammer were portable (Tr. 9), and while both tools had prongs, neither tool had a grounding post (Tr. 10, 14-15). The grounding posts had been broken off or cut with a pair of wire clippers (Tr. 30).

The direction of Respondents' cross-examination of the Compliance Officer and as partially expressed in Respondents' Letter of Contest, is two-fold. First, that the Citation incorrectly stated the brand name of the equipment (Tr. 28; Citation). Secondly, that the Complainant's evidence failed to show that the tools were ever used by any of Respondents' employees (Tr. 44). As to the first point, there was some confusion as to the brand name of the equipment (Tr. 30), and the Compliance Officer acknowledged that he did not know if one of the pieces of electrical equipment was a Black & Decker, but he did reiterate that one was a chipping hammer and one was an electric drill (Tr. 48). The admitted error as to the Citation incorrectly identifying the piece of equipment as a "Black & Decker" does not invalidate the testimony of the Compliance Officer, but is an issue for the trier of fact that goes to [*17] the credibility of the Compliance Officer. This Judge finds the testimony of the Compliance Officer to be generally credible, and this issue is ruled against the Respondents. The second issue, relating to use of the equipment, was considered in the case of Secretary of Labor vs. Allied Electric Company, B.N.A. 1 O.S.H.R. 3140; C.C.H. Employ. S.&H. Guide, para. 15, 103. Judge James D. Burroughs, in discussing whether or not it was necessary for the Complainant to show actual use of defective equipment, ruled as follows:

"It would be an undo (sic) burden on the petitioner to require a showing of actual use of defective equipment. Any such requirement would cause the Compliance Officer to wait around in hopes of someone using the equipment. This would result in a cat and mouse game as contended by the petitioner. More importantly, it would expose an employee to a hazard prior to the Secretary being able to require it to be corrected.

The Act must be construed and enforced with some degree of reasonableness. The objective of the Act can best be accomplished by placing emphasis on the accessability of the employee to defective equipment. If the defective equipment is available [*18] for use by the employee, then a Citation should issue. Under such circumstances, the employee is exposed to a potential hazard even if he is not using the equipment at the time of the inspection. The equipment is accessible to him and could be used."

This Judge agrees with the foregoing analysis which was the same view as expressed in Secretary of Labor vs. Sletten Construction Company, OSAHRC Docket Number 967 (on review). To avoid the consequence of Citation under these circumstances, an employer should immobilize or render inoperative by effective means any defective equipment. The record indicates that this equipment was available for use by employees on the premises, and, accordingly, Respondents' position is denied.

The final issue for determination is what penalty, if any, is appropriate under the circumstances.

The Review Commission has in past decisions declined to assess monetary penalties for non-serious violations on the basis that the assessment of penalties in low-level gravity situations does little to effectuate the purposes of the Act (Secretary of Labor vs. General Meat Company, B.N.A. 1 O.S.H.R. 1032; C.C.H. Employ. S.&H. Guide, para. 15,083). However, in [*19] the case of Secretary of Labor vs. Hydroswift, B.N.A. 1 O.S.H.R. 1065; C.C.H. Employ. S.&H. Guide, para. 15235, there was a factual situation that involved a failure to ground power tools. In that situation, the Review Commission ruled as follows:

"We hold that the assessment of small monetary penalties for non-serious violations, having the level of gravity of the violations found in this case, effectuates the purposes of the Act. Penalties of this caliber serve to remind all employers that their primary responsibility under the Act is adherence to its protective mechanisms. Failure to impose penalties relating to violations with higher levels of gravity serves only to restrain the Act's effective operation and hinder its function to reduce the hazards of the work-place for all employees."

Under the authority of Hydroswift, supra, the proposed penalty of $30 herein should be affirmed; to like effect regarding ungrounded equipment, see Osborn Apparel Manufacturing Company, B.N.A. 1 O.S.H.R. 3121; C.C.H. Employ. S.&H. Guide, para. 16,280.

FINDINGS OF FACT

1. Respondents are partners engaged in a business with four employees at a jobsite which was an eight-floor commercial [*20] building located in Salt Lake City, Utah (Tr. 8, 9, 11, 37, 38, 39).

2. Respondents had a portable electric drill and portable electric chipping hammer in a gangbox at the jobsite (Tr. 9, 12, 39).

3. The tools described in the preceding paragraph were manufactured in the City of Chicago, Illinois (Tr. 9-10, 48).

4. Neither of the above-described tools had a grounding post on the plug (Tr. 9-10, 14-15; Compl. Ex. 2, 3).

5. The type of work being performed by Respondents at the work-site involved the use of the described equipment (Tr. 52).

6. For the violation herein, Complainant proposed a penalty of $30 (Tr. 26-27).

7. In arriving at the foregoing penalty, Complainant authorized a 10% reduction for good faith (Tr. 25); a 10% reduction for size (Tr. 26); a 20% reduction for prior history (Tr. 26); and a 50% abatement credit (Tr. 26-27).

CONCLUSIONS OF LAW

1. Respondents are, and were at all times relevant to the issues herein, engaged in a business affecting commerce under the meaning of Section 3(3) of the Occupational Safety and Health Act of 1970 (Facts, 1, 2, 3, 5).

2. Respondents are, and were at all times herein mentioned, employers within the meaning of [*21] Section 3(5) of the Act, subject to the provisions of Section 4(a) and 5(a) of the Act and the standards promulgated under Section 6 thereof (Facts, 1, 2, 3, 5).

3. Respondents violated 29 CFR 1926.401(a)(1) (Facts, 4).

4. The proposed civil penalty of $30 for Citation 1, Item 1, is proper and should be affirmed (Facts, 6, 7)

ORDER

Based on the foregoing findings of fact and conclusions of law, it is hereby ADJUDGED AND ORDERED:

1. Citation Number 1, Item 1, for the alleged violation of 29 CFR 1926.401(a)(1) is affirmed.

2. The proposed civil penalty of $30 for the violation established in the preceding paragraph, an other-than-serious violation, is affirmed.

So ORDERED in the City and County of Denver, Colorado.

John J. Morris, Judge, OSAHRC

JAN. 22, 1974