SECRETARY OF LABOR, Complainant, v. MAUTZ & OREN, INC., Respondent.

OSHRC DOCKET NO. 89-1366

ORDER

On April 2, 1991, the Secretary filed a Notice of Withdrawal of Citation in the above-captioned case. The Secretary has withdrawn the only remaining item at issue in this case, item 1 of Citation 1.

The Commission acknowledges receipt of the Secretary's Notice of Withdrawal and sets aside the Judge's Decision and Order which affirmed item 1 of Citation 1. and assessed a $980 penalty. There being no matters remaining before the Commission requiring further consideration, the Commission orders the above-captioned case dismissed.

Edwin G. Foulke, Jr. Chairman
Velma Montoya Commissioner
Donald G. Wiseman Commissioner
Date: April 18, 1991


SECRETARY OF LABOR, Complainant, v. MAUTZ & OREN, INC., Respondent.

OSHRC Docket No. 89-1366

APPEARANCE:

Miguel J. Carmona, Esquire, Office of the
Solicitor, U. S. Department of Labor, Chicago,Illinois, on behalf of complainant.
Michael J. Bobroff, Esquire, Husch, Eppenberger, Donohue, Cornfeld and Jenkins, St. Louis, Missouri, on behalf of respondent.

DECISION AND ORDER

SALYERS, Judge: Respondent, Mautz and Oren, Inc., is the general contractor at a project located in Salem, Illinois, where it was engaged in the restoration and expansion of a sewer treatment plant for the city. This work was performed under a federally funded grant administered by the Environmental Protection Agency which agency utilized the Corps of Engineers to provide field surveillance and technical assistance in the construction phase of the operation.

Elvin L. Pauls is a project engineer employed by the U.S. Army Corps of Engineers (Tr. 8). His duties include safety inspection of work sites at projects under the jurisdiction of his agency (Tr. 14). Pauls visited respondent's work site on several occasions prior to March 11, 1989, and had noted that ground-fault circuit interrupters (hereinafter "GFCI") were not being used (Tr. 20). On March 1, 1989, Pauls discussed this situation and gave some literature on this subject to the project engineer at this site for his use in discussing this matter with the general contractor (Tr. 21).

Pauls returned to the work site on March 3, 1989, and determined that GFCI's were still not being used on the project. He then drafted a referral letter to the Occupational Safety and Health Administration (Ex. C-1) which contained the following paragraph:

The need for ground fault circuit interrupters was discussed on Previous visits. During this inspection it was observed that this protection was not incorporated in the control panels as previously informed. The contractor was informed on March 1 by the Engineer that these deficiencies must be corrected. The contractor agreed to provide a circuit breaker type GFCI on a temporary receptacle near the construction offices, however the electrician refused to provide portable GFCIs on permanently installed receptacles which provide power for extension chords.

In response to Pauls' letter, Compliance officer John A. Giefer conducted an inspection of respondent's work site on March 15, 1989 (Tr. 65). He met with Bud Tewell, respondent's job superintendent, and John Luthe, a representative for the electrical contractor; presented his credentials and explained the purpose of his visit (Tr. 69-71). During the course of the opening conference, Giefer asked both Tewell and Luthe if they were using either GFCIs or the assured equipment grounding conductor program (hereinafter "AEGC") at the work site and was told that neither was used (Tr. 73-74, 91).Tewell also admitted to Giefer that he (Tewell) and one other employee had used extension cords without GFCIs to operate hand-held tools in the sludge pump building on the day before the inspection (Tr. 77-78, 82, 167).

As a result of Giefer's inspection, respondent was issued on March 22, 1989, the following citation:

29 CFR 1926.404(b)(1)(i): Employer did not use either ground-fault circuit interrupters as specified in paragraph (b)(1)(ii) of this section, or an assured equipment ground conductor program as specified in paragraph (b)(1)(iii) of this section to protect employees on construction sites:

In the filter building and behind the sludge pump room, the employer did not use either ground fault circuit interrupters or an assured equipment grounding conductor program on temporary wiring systems created by using extension cords on a fixed permanent wiring system, exposing employees to the hazard of electric shock.

Respondent contends that the citation should be vacated, because OSHA did not follow the procedures set forth in its Field Operations Manual (Ex R-3) for handling referrals from other government agencies. The manual provides: "government agency referrals shall normally be handled by letter according to the instructions for nonformal complaints" (Ex. R-3, p. IX-16). Section 8(a) of the manual specifies:

Responding by Letter to Nonformal Complaints. Upon receipt and evaluation of a nonformal complaint, the Area Director, as soon as possible, shall prepare a letter to the employer advising him of the complaint, informing him of the standards allegedly violated (including copies of such standards) and outlining the means to assess the hazard and/or the corrective action required. The employer shall be asked to investigate the alleged conditions and respond to OSHA within a specified time. This letter shall be sent by certified mail with return receipt requested.

The manual further provides that an area director has discretion to conduct an on-site inspection in the event the "referral identifies a hazard of a potentially serious nature" [Ex. R-3, p. IX-16, para. (e)]. In this case, the area director chose to conduct an inspection rather than to deal with the matter by letter (Tr. 131), and this choice was entirely within his discretion.

Respondent's argument misconstrues the intent and purpose of the FOM which contains only guidelines for the execution of enforcement operations. As the Commission stated in FMC Corp., 77 OSAHRC 153/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD ¶ 22,060 (No. 13155, 1977), "the guidelines provided by the manual are plainly for internal application to promote efficiency and not to create an administrative straight jacket. They do not have the force and effect of law nor do they accord important procedural or substantive rights to individuals" (Id. at 1710).

On the merits, respondent contends:

1. The Secretary's interpretation of the cited standard is unreasonable and not in accord with the language of the standard.

2. The evidence does not support the allegations contained in the citation.

The cited standard, C.F.R. § 1926.404(b)(1) provides:

(b) Branch Circuits--(1) Ground-fault protection-(i) General. The employer shall use either ground fault circuit interrupters as specified in paragraph (b)(1)(ii) of this section or an assured equipment grounding conductor program as specified in paragraph (b)(1)(iii) of this section to protect employees on construction sites. These requirements are in addition to any other requirements for equipment grounding conductors.
(ii) Ground-fault circuit interrupters. All 120-volt, single-phase, 15- and 20-ampere receptacle outlets on construction sites, which are not a part of the permanent wiring of the building or structure and which are in use by employees, shall have approved ground-fault circuit interrupters for personnel protection . . . .
(iii) Assured equipment grounding conductor program. The employer shall establish and implement an assured equipment grounding conductor program on construction sites covering all cord sets, receptacles which are not a part of the building or structure, and equipment connected by cord and plug which are available for use or used by employees. This program shall comply with the following minimum requirements:
(A) A written description of the program, including the specific procedures adopted by the employer, shall be available at the jobsite for inspection and copying by the Assistant Secretary and any affected employee.
(B) The employer shall designate one or more competent persons (as defined in § 1926.32(f)) to implement the program.
(C) Each cord set attachment cap, plug and receptacle of cord sets, and any equipment connected by cord and plug, except cord sets and receptacles which are fixed and not exposed to damage, shall be visually inspected before each day's use for external defects, such as deformed or missing pins or insulation damage, and for indications of possible internal damage. Equipment found damaged or defective shall not be used until repaired.
(D) The following tests shall be performed on all cord sets, receptacles which are not a part of the permanent wiring of the building or structure, and cord and plug-connected equipment required to be grounded:

(1) All equipment grounding conductors shall be tested for continuity and shall be electrically continuous.
(12) Each receptacle and attachment cap or plug shall be tested for correct attachment of the equipment grounding conductor. The equipment grounding conductor shall be connected to its proper terminal.

(E) All required tests shall be performed:
(1) Before first use;
(2) Before equipment is returned to service following any repairs;
(3) Before equipment is used after any incident which can be reasonably suspected to have caused damage (for example, when a cord set is run over); and
(4) At intervals not to exceed 3 months, except that cord sets and receptacles which are fixed and not exposed to damage shall be tested at intervals not exceeding 6 months.
(F) The employer shall not make available or permit the use by employees of any equipment which has not met the requirements of this paragraph (b)(1)(iii) of this section.
(G) Tests performed as required in this paragraph shall be recorded. This test record shall identify each receptacle, cord set, and cord- and plug-connected equipment that passed the test and shall indicate the last date it was tested or the interval for which it was tested. This record shall be kept by means of logs, color coding, or other effective means and shall be maintained until replaced by a more current record. The record shall be made available on the jobsite for inspection by the Assistant Secretary and any affected employee.

The Secretary maintains the standard is obligatory and requires an employer to protect employees on construction sites by the use of GFCIs or an AEGC program whenever employees utilize cord sets and receptacles (extension cords) which are plugged into any power source. The Secretary stresses that an extension cord plugged into a permanent power source does not become a part of the permanent wiring of the building but creates an addition to the system subject to the normal abuses which can occur on a construction site, e.g., the cord may be crushed by heavy equipment, cut by abrasion of rocks, etc. The Secretary urges that extension cords to which tools are attached and plugged into the permanent wiring system create a temporary power source at the end of the extension cord which must be protected by either GFCIs or by use of an AEGC program (Tr. 185-187). This interpretation appears to be in accord with the language of 1926.404(b)(1) which mandates the use of either GFCIs or an AEGC program "to protect employees on construction sites" and specifies that "these requirements are in addition to any other requirement for equipment grounding conductors," 1926.404(b)(1)(ii) which specifies "receptacle outlets on construction sites, which are not a part of the permanent wiring of the building . . . in use by employees, shall have approved ground-fault circuit interrupters for personnel protection," and 1926.404(b)(1)(iii) which requires an AEGC program "on construction sites covering all cord sets, receptacles which are not a part of the building or structure and equipment connected by cord and plug which are available for use or used by employees."

Respondent's opposition to the Secretary's interpretation is based upon its theory that the use of an extension cord plugged into a permanent power source "does not change the permanent nature of the power source into 'temporary power" (resp. brief p. 13). Respondent bases this theory on the testimony of John Luthe, an employee of the electrical subcontractor on the project, who advised respondent that the addition of extension cords to a permanent power source did not constitute "temporary power" that required the use of GFCIs or an AEGC program (Tr. 157-159). Respondent's reliance upon Luthe's advice is misplaced. The standard does not make reference to "temporary power" but speaks in terms of "receptacle outlets on construction sites, which are not a part of the permanent wiring of the building. . . " (1926.404(b)(1)(iii) and "Each cord set, attachment cap, plug and receptacle of cord sets, and any equipment connected by cord and plug, except cord sets and receptacles which are fixed and not exposed to damage" (1926.404(b)(1)(iii.)). It is obvious that the thrust of the standard is directed at the use of all cord sets and receptacles which are exposed to damage at a construction site regardless of the power source to which they are connected (Tr. 187-188). It is concluded, therefore, that the Secretary's interpretation of the standard conforms to its intent and purpose. Respondent's interpretation is rejected.

Respondent contends that the evidence adduced by the Secretary is insufficient to sustain her burden of proof with regard to the allegations that respondent violated the cited standard. On March 3, 1989, Engineer Pauls conducted an inspection of respondent's work site and determined GFCIs were not being used on the project (Tr. 27). He took specific note of an extension cord running from the sludge pump building to the rear of the building where small power tools were ready for use (Tr. 28). This situation was photographed by Pauls. Exhibit C-24 shows the cord plugged into a receptacle inside the sludge pump building (Tr. 39), and Exhibit C-2B shows the cord lying on the ground in the rear of the building near the small tools (Tr. 40). This cord was "fifty foot plus" in length (Tr. 41).

On March 15, 1989, Compliance Officer Giefer conducted an inspection of respondent's work site which was the basis upon which the citation was issued. Upon his arrival, Giefer met with Bud Tewell, respondent's superintendent, John Luthe, the electrical subcontractor's representative, and Tommy Arnold, Jr., respondent's project engineer, and explained to these individuals the scope of his inspection (Tr. 69-71). During the course of his opening conference, Giefer asked Tewell, Luthe and Arnold if they were using either GFCIs or an AEGC program at the site and was told that neither was in use (Tr. 74). Giefer then conducted a walkaround inspection with the three representatives and determined that some corrective action had been taken with respect to items raised in Paul's, referral letter, e.g., cords in use were not frayed, tools with improper grounding had been removed from the site, etc. (Tr. 75). At the conclusion of his inspection, Giefer once again asked Tewell and Luthe about the use of GFCIs and an AEGC program at this site and obtained admissions that neither had been used (Tr. 77, 82). Since Giefer had not seen any work in progress on the day of his inspection, he asked (Tewell) if they had used extension cords out of the existing power system to operate hand held tools," and was advised that Tewell and one other employee had used an extension cord attached to a power saw behind the sludge pump building to cut grating (Tr. 77-78).

Respondent argues in its brief that the admissions obtained by Giefer from Tewell are insufficient as a matter of law to support a finding that respondent violated the cited standard (resp. brief p. 17). However, Tewell testified under oath at the hearing to the same effect. During the inspection conducted by Giefer on March 15, 1989, Tewell admitted respondent was not using GFCIs and did not obtain them until after the inspection (Tr. 143-144). He also admitted that GFCIs had not been used at any time before the inspection (Tr. 145). He further admitted that respondent had no AEGC program [[1]] in effect prior to the Secretary's Inspection (Tr. 145). Tewell confirmed the fact that respondent's employees had used tools (an electric drill and power saw) connected to an extension cord on the day prior to Giefer's inspection (Tr. 146-147). In short, Tewell reiterated at the hearing the admissions made to Giefer during the inspection. The Secretary's charges are supported by the weight of the evidence and will be affirmed.

The remaining issues in the case concern the characterization of the violation as "repeat" and the appropriateness of the Secretary's proposed penalty of $980.00.

On May 24, 1988, OSHA, as a result of an inspection of respondent's work site, issued a citation to respondent which included a violation of 29 C.F.R. § 1926.404(b)(1)(i) for failure to provide CFCls or an AEGC program (Ex. C-4; Tr. 95-98). This citation became a final order of the Review Commission since it was not contested by respondent (Ex. C-5; Tr. 110-114), In Potlatch Corp., 79 OSAHRC 6/A2, 7 BNA OSHC 1061, 1979 CCH OSHD ¶ 23,294 at 28,171 (No. 16183, 1979), the Commission held:

A violation is repeated under section 17(a) of the Act if, at the time of the alleged repeated violation, there was a Commission final order against the same employer for a substantially similar violation.

The Secretary may establish substantial similarity in several ways. In cases arising under section 5(a)(2) of the Act, which states that each employer shall comply with occupational safety and health standards, the Secretary may establish a prima facie case of similarity by showing that the prior and present violations are for failure to comply with the same standard. (Footnote omitted.)

Respondent argues that the previous citation did not involve circumstances that were "substantially similar" to the current charges since respondent was admittedly using a temporary power source at that time and did not contest the previous citation. As previously noted in this opinion, the determining factor under this standard is not the nature of the power source but rather the use of cord sets and receptacles which are not permanently fixed and, therefore, exposed to damage at construction sites. The facts of this case bring respondent squarely within the Potlatch rule and establish the "repeat" characterization as asserted by the Secretary.

The Secretary proposes a penalty of $980.00 in this case computed as described in Giefer's testimony (Tr. 100-111). Giefer's computations were made in accordance with the agency's standard operating procedures and appear to be accurate in all respects. The penalty will be affirmed as proposed.

FINDINGS OF FACT

1 Respondent, during the pertinent period, was the general contractor at a work site in Salem, Illinois, where employees were engaged in the renovation and expansion of a sewer treatment plant under a contract administered by the Environmental Protection Agency and the Army Corps of Engineers.

2. In the early stages of this construction, respondent was inspected on May 18, 1988, by the Occupational Safety and Health Administration to determine its compliance with the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq.). On May 24, 1988, respondent was issued a citation which included a charge of violation under 29 C.F.R. § 1926.404(b)(1) for its failure to use either GFCIs or an AEGC program to protect employees from electrical shock. The citation was not contested by respondent and became a final order of the Review Commission.

3. Prior to March 1989, Elvin Pauls, an engineer with the Army Corps of Engineers, had visited respondent's work site on several occasions to make inspections which included safety and had noted respondent was not using GFCIs to protect employees from electrical shock. On March 1, 1989, he discussed this situation with the project engineer at the site and left some instructive material with him for his use in discussing the matter with respondent, the general contractor.

4. Pauls returned to the site on March 3, 1989, and noted that GFCIs were still not being used by respondent in connection with extension cords plugged into permanent receptacles. Pauls then referred the matter to OSHA by letter dated March 7, 1989, in accordance with an interagency agreement.

5. Upon receipt of Pauls' letter, the area director for OSHA scheduled an inspection of the work site as opposed to notifying respondent by letter. This choice was discretionary with the area director and was appropriate in view of the fact that respondent had been previously cited under the same standard and was apparently refusing to comply based upon advice from respondent's electrical subcontractor.

6. Compliance Officer John Giefer inspected respondent's work site on March 15, 1989, during which he noted the absence of GFCIs. In discussions with Bud Tewell, respondent's job superintendent, Tommy Arnold, Jr., respondent's project engineer, and John Luthe, a representative of the electrical subcontractor, Giefer was advised that respondent did not and had not used GFCIs on extension cords connected to power tools and plugged into a power source. He was also advised that respondent did not utilize an AEGC program as an alternative to GFCIs. All of these admissions were confirmed in the sworn testimony of Bud Tewell, who further admitted that he and another employee of respondent had used an extension cord not protected by a GFCI to power a saw and drill on the day preceding the inspection.

CONCLUSIONS OF LAW

1. Respondent, during the pertinent period, was engaged in a business affecting interstate commerce and was subject to the Act. The Review Commission has jurisdiction of respondent and the subject matter of this case.

2. The inspection of respondent's work site on March 15, 1989, was duly authorized by the OSHA area director and did not contravene the agency's guidelines or respondent's due process rights.

3. The provisions of 29 C.F.R. § 1926.404(b)(1) are mandatory and require that an employer working at a construction site whose employees use extension cords to power tools must use GFCIs or an AEGC program to protect employees from electrical shock. Its application is not dependent upon the nature of the power source (permanent or temporary). The purpose of this standard is to protect employees using cords and receptacles which are not a part of the permanent wiring of the building and, therefore, subject to damage or abuse which may cause electrical shocks. The evidence in this case confirms that respondent did not follow the provisions of 29 C.F.R. § 1926.404(b)(1)(ii).

4. It is also concluded that respondent did not comply with the provisions of 29 C.F.R. § 1926.404(b)(1)(iii) since it did not establish and implement an AEGC program. This program requires a written description of the procedures an employer intends to follow, a systematic testing of "all cord sets, receptacles which are not a part of the permanent wiring of the building" and a written record of all tests which "shall identify each receptacle, cord set and cord- and plug-connected equipment that passed the test and shall indicate the last date it was tested or the interval for which it was tested." Respondent conceded it had no written description of the program nor did it keep records of test results which is an essential element of the program. As indicated above, the only evidence respondent offered on this question was Tewell's testimony that he occasionally used a continuity checker to test cords and would remove defective cords from service by snipping off the receptacle. This evidence falls short of establishing that respondent had an effective AEGC program, especially in view of Tewell's testimony that respondent had no program at the time of the inspection. Respondent did not comply with 29 C.F.R. § 1926.404(b)(1)(iii).

5. The evidence in this case discloses that respondent was previously cited for a violation of 29 C.F.R. § 1926.404(b)(1) and that this citation became a final order of the Review Commission. Accordingly, the Secretary properly characterized the current violations as repeat. The proposed penalty was computed by the method ordinarily followed by the Secretary in making such computations and is appropriate under the circumstances of this case.

ORDER

Based upon the foregoing, it is ORDERED:

1. Respondent violated the provisions of 29 C.F.R. § 1926.404(b)(1). Repeat Citation No. 1 is affirmed.

2. A penalty of $980.00 is assessed.

Dated this 25th day of April, 1990.
EDWIN G. SALYERS Judge


FOOTNOTES:
[[1]] Respondent argues in its brief that it substantially complied with the requirements for an AEGC program because Tewell used a continuity checker and took defective cords out of service by snipping the ends off the cord. However; respondent concedes it kept no records of tests performed on the cord sets, an essential element of the program. It is concluded that respondent made no serious effort to implement an AEGC program.