UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 76-154
BAILEY CONSTRUCTION COMPANY,
September 29, 1978
Before: CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.
Administrative Law Judge Foster Furcolo vacated that item of a citation alleging Bailey Construction Company’s failure to comply with the standard at 29 C.F.R. 1926.401(a)(1) on the ground that the Secretary did not prove that a defective saw had actually been used or would be used by Bailey’s employee. We conclude the judge erred.
The citation was issued to Bailey after an OSHA compliance officer inspected its worksite, a correctional facility in New York State, where two of Bailey’s employees, a foreman and a laborer, were engaged in alteration and repair at the laundry building. Specifically, they were preparing a hole in the concrete floor for the installation of a scale frame.
A Rockwell hand saw belonging to Bailey was lying on the floor with the grounding prong snapped off. When the compliance officer informed the foreman that an electrical hazard existed if the saw were used, the foreman went to Bailey’s truck and obtained a replacement saw with a proper grounding plug.
The defective saw was not used during the inspection. The compliance officer testified the laborer, who was 15 feet from the saw, would have no occasion to use it. However, Bailey’s President testified that the foreman was a carpenter who possibly might use the saw to cut wood formwork for the hole after the concrete had been broken out.
In vacating the citation Judge Furcolo stated that the Secretary failed to show that Bailey’s employee used or would be likely to use the defective saw. Although he specifically found that the foreman intended to use a saw at the jobsite and that the hazard of electric shock existed if an ungrounded saw were used, he reasoned that an employee who needed such a saw would be ‘as likely’ to replace it with the other saw as to use one with a defective plug.
We conclude that the Judge erred in vacating the citation. In Palmer Christiansen Co., 76 OSAHRC 39/D10, 4 BNA OSHC 1020, 1975–76 CCH OSHD para. 20,517 (No. 3108, 1976), we held that, in order to prove a violation of 29 C.F.R. 1926.401(a)(1), the Secretary need only show that a defective tool was available for use. That burden has been satisfied here. See also Gilles and Cotting, Inc. 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975–76 CCH OSHD para. 20,448 (No. 504, 1976).
The Judge’s reasoning as to why the foreman would not be likely to use the defective saw is unconvincing. We think it is more likely than not that an employee having need of a saw would use one immediately available at the worksite than go to some other location to obtain one. Since Bailey has not shown that it took any specific steps to prevent its employee from using the ungrounded tool, we conclude it violated the cited standard. Gilles & Cotting, Inc., supra, 3 BNA OSHC at 2004, 1975–76 CCH OSHD at p. 24,425. We also conclude that the penalty of $50 proposed by the Secretary is appropriate.
The citation for nonserious violation of 29 C.F.R. 1926.401(a)(1) is affirmed, and a penalty of $50 is assessed.
FOR THE COMMISSION:
RAY H. DARLING, JR.
DATED: September 29, 1978
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR,
OSHRC DOCKET NO. 76-154
BAILEY CONSTRUCTION COMPANY,
January 24, 1977
Rudolph E. DeMeo, Esq. For Complainant
John Perez, Jr., Esq. For Respondent
DECISION AND ORDER
This is a proceeding pursuant to the Occupational Safety and Health Act of 1970, as amended (29 U.S.C. § 651 et seq.), hereinafter called the Act. The Complainant alleges that the Respondent has violated § 5(a)(2) of the Act (§ 654) by not complying with occupational safety and health standards.
The Respondent is a corporation engaged in the business of general construction, and its business affects the commerce of the United States.
The Respondent’s worksite at the New York State Correctional Facility, Coxsackie, New York, was inspected by the Occupational Safety and Health Administration (hereinafter called OSHA) on December 24, 1975.
On December 30, 1975, the following citations, together with notice of proposed penalty, were issued against the Respondent:
Item #1, the nonserious violation of standard 29 C.F.R. § 1903.2(a)..... $0
Item #2, the nonserious violation of standard 29 C.F.R. § 1926.50(d)(2)..... $0
Item #3, the nonserious violation of standard § 1926.401(a)(1)..... $50
Item #1, the serious violation of standard 29 C.F.R. § 1926.102(a)(1)..... $500
On January 13, 1976, the Respondent filed notice of contest to the citations and the penalties proposed therefor.
On January 29, 1976, the Respondent filed with the OSHA Regional Director a request for an informal conference.
The pertinent words of the standards involved are:
§ 1903.2(a): Employer shall post an OSHA poster ‘to be furnished by the Occupational Safety and Health Administration . ...’
§ 1926.50(d)(2): ‘The first-aid kit shall consist of materials approved by the consulting physician . . . checked by the employer . . . to ensure that the expended items are replaced.’
§ 1926.401(a)(1): ‘. . . portable and/or plug-connected equipment shall be grounded.’
§ 1926.102(a)(1): ‘Employees shall be provided with eye and face protection equipment . . ..’
§ 1903.19: ‘At the request of an affected employer . . . the Assistant Regional Director may hold an informal conference for the purpose of discussing any issues raised by an inspection, citation . . ..’
I. Respondent’s Motion to Dismiss
At the beginning of the hearing, the Respondent moved to dismiss the citation on three grounds:
1. Its business did not affect interstate commerce,
2. The Complainant had violated his own internal procedure by not affording the Respondent an informal conference,
3. The inspection was improper and illegal because it was conducted without having first obtained a search warrant.
The motion was taken under advisement pending the presentation of evidence . . . Tr. 3–9.
Concerning the interstate commerce, the Respondent stipulated that it had done Federally-funded work within the last three years; and it deals generally in its business in interstate commerce but not at this particular jobsite . . . Tr. 19, 22, 60.
I find that, although practically and factually the Respondent’s business affects interstate commerce only infinitesimally at most, it does affect interstate commerce in the technical legal sense.
As concerns the Secretary’s failure to grant the Respondent an informal conference: The Respondent’s letter requesting an informal conference was sent on January 29 whereas its notice of contest had already been filed on January 13. However, even if the Secretary had failed to grant any timely request, I find that such failure did not invalidate the citation or prejudice the Respondent in its defense.
As concerns the inspection: Compliance Officer Sullivan testified that he was admitted to the correctional facility by a guard who conducted him to the jobsite in its laundry building where the Respondent was doing a repair and alteration job. He presented his credentials to Feeley, who told him he was in charge and represented the Respondent, and Feeley accompanied him on the walk-around . . . Tr. 26, 27, 48. He did not have a search warrant and had not applied for one. He did not tell Feeley he had a right to counsel or to object to the inspection. He told Feeley that he had a right to accompany him on the inspection . . . Tr. 35, 36. The Respondent’s President, Bailey, testified that Feeley was in charge of the jobsite in question . . . Tr. 12.
I find that the compliance officer did not have a search warrant, had not applied for one, and did not tell the Respondent’s representative that he had a right to counsel or to object to the inspection. I find that the jobsite was not on the Respondent’s premises but was an alteration and repair project being conducted by Respondent at the New York State Correctional Facility, the property of a third person (New York State); the compliance officer had been given permission to enter by the property owner’s agent, a guard, and had as much right to the where he was as the Respondent; there was no search and seizure of any kind; and the Respondent’s superintendent permitted the compliance officer to make the inspection. I find the inspection was proper and legal.
II. Complainant’s Motion to Amend
In the early stages of the hearing, just after the compliance officer had testified to his qualifications, the Complainant’s attorney stated that, when the Complainant’s case was completed, he was going to move to amend the citation and complaint to conform to the evidence . . . Tr. 21. At the conclusion of the Complainant’s presentation of evidence, the Complainant moved to amend Item #1 of Citation #2, and paragraph V(a) of the complaint to change the words ‘pavement clipper’ to ‘pavement chipper or hammer’ . . . Tr. 51.
The motion was allowed because the Respondent’s superintendent was present during the inspection, there had never been any question about the implement that was the subject of the citation, the misnomer was apparently an inadvertent typographical error, and the Respondent was not prejudiced in any way by the allowance of the motion to amend.
III. The Respondent’s Motion to Dismiss
After the Complainant had rested, the Respondent moved to dismiss the citations on the ground that interstate commerce was not affected. The Respondent also moved to dismiss paragraph V, section a-d, of the complaint on the ground that there was no evidence to substantiate those allegations.
Those motions will be treated as denied for the reasons stated herein.
The Respondent is a very small corporation that, for all practical purposes, is owned and operated by Mr. and Mrs. George E. Bailey, who are respectively its President and Secretary-Treasurer. It has a general superintendent and, directly below him in the organizational chart, various trade foremen who are temporary employees during particular jobs. Feeley was in charge of the jobsite in question. There was no evidence of any prior violations by the Respondent . . . Tr. 11, 12, 49.
The Complainant’s case was presented primarily by Arthur J. Sullivan, who testified that he has been an OSHA compliance officer for 15 months and before that was for over 20 years a construction safety inspector and supervisor for the State of New York. He has conducted about 4,000 inspections in construction. (The Respondent agreed that he was fully qualified as an expert in construction matters . . . Tr. 24, 25.)
Concerning Item #1 of Citation #1, Compliance Officer Sullivan testified that there was no OSHA poster at the jobsite. Feeley said he did not have a poster so he gave him one and he put it up . . . Tr. 27, 28. The Respondent’s President, Bailey, testified he had not received a poster from OSHA for the job . . . Tr. 56.
In the absence of evidence that the Respondent had been furnished with an OSHA poster, I find that the Complainant has not sustained the burden of proving noncompliance with standard § 1903(2)(a).
Concerning Item #2 of Citation #1, Compliance Officer Sullivan testified that several articles were missing from the first-aid kit; and Feeley said he would take care of it . . . Tr. 28, 33, 36. The Respondent’s President, Bailey, testified that the practice was to have a first-aid kit in every vehicle. He inspects from time to time but does not know about the one in question here . . . Tr. 62.
I find that the first-aid kit was substandard and that required articles were missing from it.
Concerning Item #3 of Citation #1, Compliance Officer Sullivan testified that the grounding plug of the electric saw was snapped off; the saw could not be grounded. There was water on the concrete floor at the jobsite. He did not see the saw being used and it was not connected, but it was in the immediate work area laying on the floor . . . Tr. 28, 38. The employee, Willingham, who was chipping, was 15 feet away from the saw, but he would not have any use for that implement because he was a laborer. The saw might have been there for Feeley’s use . . . Tr. 31, 40. Feeley said he would replace the saw with another; and he did with another one with a grounding plug . . . Tr. 28, 40. It is common practice to tag something that is to be removed for repair, but the saw was not tagged . . . Tr. 47. The hazard was the possibility of an electric shock to an employee using the saw . . . Tr. 28, 31. The Respondent’s President, Bailey, testified that the only two employees at the jobsite were Feeley and Willingham. It was possible that Feeley might need to use the saw . . . Tr. 49, 50.
I find that the Respondent’s employee, Feeley, intended to use an electric saw at the jobsite. If it had not been intended to use such a saw, why would it have been brought there? And (when the defect was pointed out) replaced by another? I also find that the combination of concrete floor, water, and defective plug created the hazard of electrical shock to one of Respondent’s employees if an ungrounded saw were used. However, I find that the saw had not been used, and there was no proof that it would be used. An employee who needed such a saw would be as likely to replace it with the other saw as to use one with a defective plug. A saw in good working order was readily available and was brought in by Feeley as soon as the defective plug was called to his attention. In that state of the evidence, I find that the Complainant has not sustained the burden of proving noncompliance with standard § 1926.401(a)(1).
Concerning Citation #2, Compliance Officer Sullivan testified that Joseph Willingham was chipping the concrete floor in an area 4–1/2 x 4–1/2 and 5 “‘ deep. He was chipping with a Bosch electric chipper, the concrete chips were flying, and he was not wearing glasses or any protective eye equipment. Both Willingham and Feeley told him that Willingham was the Respondent’s employee, and Feeley said that were protective glasses in the truck outside... Tr. 29, 30. That was not in the area of the jobsite . . . Tr. 41. It was a pavement chipper or hammer, and he was chipping down directly into the floor to make a hole for a steel frame to be installed . . . Tr. 37, 38. The hazard was that the flying chips could injure an employee or cause the loss of sight. The Respondent’s President, Bailey, testified that the Respondent supplies employees at the worksite with protective masks. The vehicles carry goggles . . . Tr. 31, 57.
Is the Respondent required to do more than merely ‘provide’ the protective equipment? There is authority both ways on the various standards that have such words as ‘supply’ or ‘provide’. My own opinion is that the standard here requires the Respondent not only to ‘provide’ the equipment but also to take adequate positive steps to see that the equipment is used. I find that the Respondent did not take such steps. In addition, I find that the protective equipment was not provided at the jobsite but was in a truck some slight distance outside the building in which the jobsite was located.
I find that the Respondent’s employee, Willingham, was chipping concrete with an electric pavement chipper or hammer; concrete particles were flying, and he was not wearing any protective eye equipment; and there was a substantial probability that the employee could sustain serious injury or loss of sight from a particle striking him.
Bailey also testified that he and his wife constitute the Respondent. He does his best to supervise and see that the Respondent complies with all OSHA regulations. The Respondent supplies first-aid kits and protective eye equipment and inspects from time to time to see if replacements are needed . . . Tr. 11, 54–57.
I was very favorably impressed with both Mr. Bailey and Compliance Officer Sullivan; both were candid and direct in their testimony and, in my opinion, were honest and did not embellish the facts. Although the Respondent had constructive knowledge of the violations, I believe that the Respondent’s President had tried to have proper equipment available and comply with OSHA regulations. Having in mind the size of the Respondent, its good faith, and the other circumstances developed by the evidence, it does not seem to me that a large civil penalty is necessary.
FINDINGS OF FACT
Having heard the testimony, observed the witnesses, and examined the exhibits, the following Findings of Fact are made, in addition to those made under various paragraphs above:
1. At all times concerned, the Respondent regularly received, handled or worked with goods which had moved across state lines;
2. As concerns Item 1 of Citation #1, there was no OSHA poster at the jobsite, but the Respondent had not been furnished with one;
3. As concerns Item 2 of Citation #1, the first-aid kit did not contain all the essential items;
4. As concerns Item 3 of Citation #1, the electric saw was a plug-connected piece of equipment that was not grounded, but it had not been used and there was no proof that it was going to be used;
5. As concerns Item 1 of Citation #2, the Respondent’s employee was chipping concrete with an electric pavement chipper or hammer, and the Respondent had not provided him with eye protection equipment at the jobsite for that task. The Respondent had provided eye protection equipment but had not taken adequate steps to require said employee to use such equipment;
6. The conditions described in Item 3 of Citation #1 exposed the Respondent’s employees to sustaining harm because of the hazard of an injury that required first-aid materials that were missing;
7. The conditions described in Item 1 of Citation #2 exposed the Respondent’s employees to sustaining serious harm because of the hazard of concrete chips striking the face or eye;
8. One or more officers or supervisory personnel of the Respondent knew of the hazardous conditions described herein and knew the employees were exposed to such hazards;
9. The ‘informal conference’ requested by the Respondent under Standard § 1903.19 was never granted, but the failure was not prejudicial to the Respondent’s defense.
CONCLUSIONS OF LAW
1. At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act, and the Occupational Safety and Health Review Commission has jurisdiction over the subject matter and the parties;
2. At all times concerned, the Respondent knew, or with the exercise of due diligence should have known, of the alleged violations;
3. On the date in question, the Respondent was not in compliance with standards 29 C.F.R. § 1926.50(d)(2) and § 1926.102(a)(1), and the Complainant has sustained the burden of proving the Respondent violated § 5(a)(2) of the Act (§ 654);
4. The Complainant has not sustained the burden of proving the Respondent violated 29 C.F.R. § 1903.2(a) and § 1926.401(a)(1);
5. The inspection conducted by the compliance officer was proper and legal;
6. The failure to grant the Respondent an ‘informal conference’ under standard § 1903.19 did not invalidate the citation or give cause to dismiss the complaint.
The whole record having been considered and due consideration having been given to 29 U.S.C. § 666(j), it is ORDERED:
1. Item 2 of Citation #1 is affirmed;
2. Item 1 of Citation #2 is affirmed and a penalty of $100 is assessed therefor;
3. Items 1 and 3 of Citation #1, and the penalties proposed therefor, are vacated
Dated: January 24, 1977
 29 C.F.R. 1926.401(a)(1) provides:
(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.
 The Judge also vacated a citation item alleging a violation of 29 C.F.R. 1903.2(a) and affirmed items alleging violations of 1926.50(d)(2) and 1926.102(a)(1). He assessed a $100 penalty for the latter violation.
The Secretary petitioned for review with respect to the Judge’s vacation of the citation for violation of 29 C.F.R. 1926.401(a)(1), and review was directed on that item by Chairman Cleary. Although former Commissioner Moran also issued a ‘for error’ Direction for Review, the parties have only addressed the Judge’s disposition of the 29 C.F.R. 1926.401(a)(1) item. Inasmuch as neither party has taken exception to the Judge’s disposition of the other items, they are not before us for review. Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339 1976–77 CCH OSHD para. 20,780 (No. 4136, 1976).