OSHRC Docket No. 80-6925


Before: ROWLAND, Chairman; CLEARY, Commissioner.

The issue in this case is whether Atlanta Forming Company is engaged in a business affecting commerce within the meaning of 29 U.S.C. 652(5), section 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678. [[1/]] This case had been remanded to an administrative law judge for further consideration in light of Avalotis Painting Co., 81 OSAHRC 7/B1, 9 BNA OSHC 1226, 1981 CCH OSHD (P) 25,157 (No. 76-4774, 1981), which held that an employer's use of goods produced out of state affects interstate commerce. The judge, however, misinterpreted our remand order as a finding that commerce coverage had been shown. We granted the employer's petition for discretionary review to decide the commerce issue.

After review was granted, we issued Clarence M. Jones, 83 OSAHRC 23/A2, 11 BNA OSHC 1529, 1983 CCH OSHD (P) 26,516 (No. 77-3676, 1983), in which we held that construction work affects interstate commerce because it is in a class of activity that as a whole affects commerce. We also observed that there is an interstate market in construction materials and services. It is undisputed that Atlanta Forming was engaged in the construction of a multiple-story commercial building. Under Clarence Jones, therefore, Atlanta Forming's activities affected interstate commerce. See also Usery v.- Franklin R. Lacy, 628 F.2d 1226 (9th Cir. 1980).

There is another reason why we find commerce coverage. Atlanta forming owns and uses "Skil" brand power tools. At the Secretary's request, we take official notice that the Skil Corporation--a division of Emerson Electric Company--does not have any manufacturing plants in Georgia. See 2 Moody's Industrial Manual 4173-74 (1978). Under Avalotis Painting, an employer's use of goods produced out of state affects interstate commerce. Accordingly, the judge's disposition
is affirmed.[[2/]]


Ray D Darling, Jr.
Executive Secretary

Dated: AUG 22 1983


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[[1/]] Section 3(5) provides: "The term 'employer' means a person engaged in a business affecting commerce. . . . " Section 3(3) defines commerce" in part as "trade, traffic, commerce, transportation, or communication among the several states, or between a state and any place outside thereof . . . ." 29 U.S.C. 652(3). Congress, in passing the Act, intended to exercise its full powers under the Commerce Clause of the Constitution, Art. 1, sec. 8. See, E.g., Godwin v. OSAHRC, 540 F.2d 1013 (9th Cir. 1976).

[[2/]] The Judge's decision affirmed two citation items alleging violations of 29 C.F.R. 1926.500(b)(1) and (d)(1) and vacated two citation items alleging separate violations of the same standards. Because Atlanta Forming took exception only to the judge's finding that commerce coverage had been established, and the direction for review was limited to the commerce issue, we do not otherwise pass on the correctness of the judge's decision. See Commission Rule 92(c).