UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77–3909
TRINITY INDUSTRIES, INC.,
Respondent.

March 31, 1981

DECISION

Before: BARNAKO, Acting Chairman; CLEARY and COTTINE, Commissioners.

BY THE COMMISSION:

This case is before us for review under section 12(j)[1] of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–78 (‘the Act’). Respondent, Trinity Industries, Inc. (‘Trinity’), manufactures liquid petroleum gas (‘LPG’) vessels at its plant in West Memphis, Arkansas. As a result of an inspection of that plant by an authorized representative of the Secretary of Labor (‘Secretary’), two citations were issued.[2] Respondent timely contested these citations and a hearing was held before Administrative Law Judge John S. Patton. The judge affirmed some items of the citations and vacated others.

The Secretary petitioned for review of the judge’s decision with respect to six items that had been vacated.[3] All six of these items were alleged to have occurred in either the diesel fuel pump shed or the truck shop at Trinity’s plant. Commissioner Cleary granted review of the Secretary’s petition on the following issue:[4]

Whether the Administrative Law Judge erred by dismissing Items 2a(d) and 2c(a) of Citation 1 and Items 13, 14, 17, and 21 of Citation 2 on the ground that the employees exposed to the allegedly violative working conditions were employed by an independent contractor.

For the reasons that follow, we vacate the judge’s ruling with respect to these six items and remand the cases for further proceedings.

I

At the hearing, Compliance Officer Watkins testified that he was accompanied during his inspection of Trinity’s West Memphis plant by Smittle, Trinity’s acting plant manager, and by Langford, Trinity’s purchasing agent. Watkins stated that during the opening conference he was informed by either Smittle or Langford that there were no outside contractors on the site. Watkins therefore concluded that the employees on the site were employed by Trinity.[5] During his inspection, Watkins entered the truck shop and the fuel pump shed at Trinity’s plant and was informed by either Smittle or Langford that three employees worked in those areas.

The only other witness was Jerry Lynn Riddles, Trinity’s associate corporate safety director. Riddles directed safety programs at approximately 15 to 20 Trinity plants, not all of which were engaged in the manufacture of LPG vessels. Approximately 7 to 9 plants in other divisions of Trinity were outside of Riddles’ authority. Riddles testified that, while the fuel pump shed was located on the property of Trinity’s West Memphis plant, it was not under Trinity’s control and usually Trinity’s employees would not be in the fuel shed. Riddles stated that the fuel shed was under the control of an independent contractor hired to perform maintenance on company vehicles and to do all transportation. The panel and nozzle of the fuel pump normally were kept locked and only the transportation company had a key. Riddles testified that it was unlikely that he or any of Trinity’s representatives would have any way of knowing about an unsafe condition in the fuel pump shed. Riddles also testified that the truck shop at Trinity’s plant was under the control of the transportation company and that Trinity’s employees do not normally work in the truck shop.

Riddles’ testimony was unclear concerning the nature of the relationship between Trinity and the transportation company. During portions of his testimony, Riddles stated that the transportation company was a ‘separate company,’ while at another instance he testified that the transportation company was ‘a division of Trinity.’ Riddles did not know the exact name of the transportation company, whether it was a wholly-owned subsidiary of Trinity, or whether it performed maintenance work for companies other than Trinity. Although not responsible for the fuel pump shed, Riddles stated that he ‘looks through’ that area during his safety inspections at the West Memphis plant. As a ‘courtesy,’ Riddles orally reports any problems concerning the fuel shed to T. C. Mashburn, an employee of the transportation company. Mr. Mashburn, Like Riddles, works in the Trinity Industries Building in Dallas.

II

In his decision, Judge Patton found that an independent contractor relationship existed at Respondent’s plant with respect to the transportation company. The judge noted Riddles’ testimony that the fuel pump shed and truck shop were maintained by an independent contractor and that only the employees of the independent contractor normally worked in these areas. The judge also noted Smittle’s statement to Watkins that Respondent did not have independent contractor relationships. Despite the testimony of the compliance officer, Judge Patton concluded that the evidence established an independent contractor relationship. The judge pointed out that the term ‘independent contractor’ is a legal term ‘which could be misinterpreted in a conversation between laymen.’ While noting that the exact relationship between Respondent and the company alleged to be an independent contractor was not ‘set out on the record to the extent that might have been desirable,’ the judge nevertheless concluded that the Secretary failed to prove that the employees exposed to hazards in the truck shop and the fuel pump shed were Respondent’s employees. The judge for this reason vacated the six items alleged to have occurred in these areas.[6]

III

On review, the Secretary argues that Respondent must do more than merely allege that employees at its plant were employed by an independent contractor in order to avoid liability under the Act. The Secretary in particular points out that (1) Respondent’s walkaround representative told the compliance officer that Respondent did not have independent contractor relationships, (2) the alleged independent contractor was a division of Respondent’s corporation and was quartered in the same building, and (3) Respondent did not raise its claim until midway in the evidentiary hearing. The Secretary further argues that no evidence supports Respondent’s position concerning the existence of independent contractors except for testimony by Respondent’s representative that the pump shed and truck shop areas were operated by a separate transportation company. In fact, according to the Secretary, the statement by Respondent’s representative that the transportation company is a division of Trinity indicates that the transportation company and Trinity may be a single entity for purposes of liability under the Act. The Secretary contends that Respondent should be required to supply additional evidence of the existence of the transportation company’s independent contractor status since that evidence is peculiarly within Respondent’s knowledge.[7]

On review, Trinity argues that the Secretary failed to prove either that Trinity’s employees had access to the cited hazards in the truck shop or fuel pump shed or that Respondent caused or controlled the hazards in these areas or knew that they existed. It points to testimony that Trinity’s employees did not enter areas controlled by the transportation company, that Trinity did not have keys to these areas, and that the transportation company and Trinity are entirely separate, each having its own employees. Respondent also contends that the statement by Smittle to the compliance officer that there were no outside contractors on the site does not disprove that an independent contractor relationship existed, since the compliance officer’s testimony makes it clear that the compliance officer only asked Respondent’s representative about temporary outside contractors. Respondent therefore requests that the Commission affirm the judge’s vacation of the six items because Trinity’s employees were not exposed to the hazardous conditions and did not have access to them.

In addition, Trinity argues that the Secretary should be estopped from obtaining a remand. Trinity points out that at the hearing it requested the record be kept open in order to submit ‘interrogatories’ to Smittle, the plant manager, and introduce his answers into evidence. The Secretary opposed this motion, which was denied by Judge Patton. Trinity contends that it would be unfair and a denial of due process for the Commission to remand the case when the Secretary did not move for the record to be reopened until after the judge issued his decision.

IV

The dispositive issue in this case is whether the transportation company is an entity independent of Trinity. Trinity’s sole witness, its associate safety director, testified that the only individuals who spent part of their work time in the truck shop and fuel pump shed were employees of a separate transportation company who were not under the control of Trinity. However, he also stated that the transportation company was a division of Trinity and that the office of his contact person in the transportation company was located in the Trinity Industries building in Dallas, the same building in which he worked. This testimony suggests that, while the truck shop and fuel pump shed were not operated by the division of Trinity Industries which manufacturers LPG vessels, they were operated by another division of Trinity rather than by a separate enterprise.[8]

The Commission was confronted with a similar fact situation in Advance Specialty Co., 76 OSAHRC 35/D4, 3 BNA OSHC 2072, 1975–76 CCH OSHD ¶20, 490 (No. 2279, 1976). In his lead opinion in that case, Commissioner Cleary expressed the view that, for purposes of the Act, two companies should be regarded as a single entity when they share a common worksite, have interrelated and integrated operations, and share a common president, management, supervision, or ownership.[9] We believe, for the reasons stated in that opinion, that the rule of decision suggested there is the appropriate one for determining whether two nominally separate employers should be treated as a single entity. However, in his separate opinions in both Advance Specialty Co., supra, and Bob McCaslin Steel Erection, supra, Commissioner Cleary affirmatively concluded on the basis of the evidence of record that the two corporate entities in issue should be treated as a single entity under the Act. Thus, an important aspect of the single entity rule, i.e., which party has the burden of persuasion, has not been addressed by the Commission. In this case, the Secretary has argued that the employer should be charged with this burden because it is defending against a citation on the basis of information that is peculiarly within its knowledge. The general rule, based upon considerations of fairness, is that a party should not be assigned the burden of establishing facts peculiarly within the knowledge of the opposing party. Campbell v. United States, 365 U.S. 85, 96 (1961); Browzin v. Catholic University of America, 527 F.2d 843 (D.C. Cir. 1975); Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1198 n. 14, 1975–76 CCH OSHD ¶ 20,690, p. 24,783 n. 14 (Nos. 3694 & 4409, 1976).[10] The issue of employer’s relationship with other entities with which it has integrated operations at the same worksite requires the introduction of evidence that is uniquely available to the employer and may be readily produced by this party. Therefore, it is appropriate, both in terms of fairness and the parties’ efficient use of their resources, that the employer be assigned the burden of persuasion when, in defense to a citation issued for a condition existing at its facility, the employer argues that it is not responsible for the violation because it has no control over the cited condition and is not the employer of the employees exposed to the cited hazard.[11]

Since at the time of trial this allocation of the burden of persuasion as well as the single entity rule itself had not been adopted by the Commission, it is appropriate to afford the parties an opportunity to present additional evidence relevant to the relationship between Trinity and the transportation company. See, e.g., Truland-Elliot, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976–77 CCH OSHD ¶20,908 (No. 11259, 1976). Therefore, we remand this case to the judge to allow the parties to present additional evidence and to allow the judge to evaluate the case under the criteria set forth in this opinion and the lead opinion in Advance Specialty Co.[12] If the judge concludes that Trinity and the transportation company are properly regarded as a single entity, he then should determine whether the cited standards were violated and should assess appropriate penalties.

V

Judge Patten vacated two of the items on review on additional grounds unrelated to the independent contractor issue. Therefore, although this case is remanded with respect to the independent contractor issue, it is necessary to determine whether the judge correctly vacated these items on the additional grounds.

Item 17 alleged that Respondent failed to comply with the standard at 29 C.F.R. § 1910.252(a)(2)(iv)(c) in that oxygen cylinders were not separated from fuel-gas cylinders according to the terms of the standard.[13] The compliance officer at the hearing testified that he did not know whether the cylinders at issue actually had oxygen in them. The judge vacated this item on the basis that, in the absence of evidence that the cylinders contained oxygen, no hazard had been established. However, the standards concerning cylinder storage raise the presumption that cylinders contain at least enough residual gas to present a hazard. Williams Enterprises of Georgia, Inc., 79 OSAHRC 92/A2, 7 BNA OSHC 1900, 1979 CCH OSHD ¶24,003 (No. 13875, 1979); Huber, Hunt & Nichols, Inc., and Blount Brothers Corp., A Joint Venture, 76 OSAHRC 71/A2, 4 BNA OSHC 1406, 1976–77 CCH OSHD ¶ 20,837 (No. 6007, 1976). Therefore, the judge erred in concluding that no hazard was present. His vacation of the citation on this basis is reversed.

Item 21 alleged that Respondent failed to comply with section 250–5(b)(1) of the National Electrical Code, as adopted by the standard at 29 C.F.R. § 1910.309(a), in that there was reverse polarity on the duplex receptacle above the work bench in the truck shop, and a similar infraction in the Hydro building.[14] The judge vacated this item on the basis that the cited standard only applies to equipment installed or repaired after March 15, 1972. However, in Delaware and Hudson Railway Co., 80 OSAHRC ——, 8 BNA OSHC 1252, 1980 CCH OSHD ¶24,422 (No. 76–787, 1980), the Commission held that the date of installation of Respondent’s equipment is irrelevant in determining whether there is a violation of Section 1910.309(a). Therefore, the judge erred in vacating this item on the basis that the standard was inapplicable to the cited condition.

VI

Accordingly, the administrative law judge’s decision is vacated, and this case is remanded to the judge for further proceedings consistent with this opinion. SO ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.,

EXECUTIVE SECRETARY

DATE: MAR 31, 1981

BARNAKO, Acting Chairman, dissenting:

I do not agree with the majority that this case should be remanded for the presentation of additional evidence concerning whether the transportation company and Trinity Industries, Inc., should be regarded as a single entity. I also do not agree that the burden of persuasion in this respect should be placed on Respondent. Rather, I would affirm the judge’s vacation of the six items on review because the Secretary failed to prove that Trinity was the employer of employee exposed to hazards in the truck shop and fuel pump shed.

In this case, it is undisputed that some individuals performed work in the truck shop and fuel pump shed and thus apparently were exposed to the allegedly violative conditions in those areas. Compliance officer Watkins testified that he was informed by Respondent’s acting plant manager that there were no outside contractors on the premises, which were owned by Trinity. Respondent’s associate safety director Riddles, on the other hand, testified that the truck shop and fuel pump shed were under the control of a separate transportation company, the transportation company’s employees worked in those areas, and Trinity’s employees normally did not work in those areas. The Secretary presented no evidence to rebut Riddles’ testimony.

The issue posed by this case is whether the transportation company and Trinity should be considered a single entity such that Trinity is considered to be an employer of the transportation company’s employees for the purposes of the Act. The Secretary argues that Trinity and the transportation company should be treated as a single entity and hence Trinity should be considered the employer of those employees.

In Advance Specialty Co., 76 OSAHRC 35/D4, 3 BNA OSHC 2072, 1975–76 CCH OSHD ¶ 20,490 (No. 2279, 1976), Commissioner Cleary, expressing his own view, stated that for purposes of the Act two companies should be regarded as a single entity when they share a common worksite, have interrelated and integrated operations, and share a common president, management, supervision, or ownership. The same position was expressed by Commissioner Cleary in his earlier opinion in Bob McCaslin Steel Erection Co., 75 OSAHRC 69/C10, 3 BNA OSHC 1311, 1974–75 CCH OSHD ¶19,755 (No. 3776, 1975) (separate opinion of Commissioner Cleary). The majority now adopts Commissioner Cleary’s view in Advance Specialty and remands this case for further proceedings consistent with Commissioner Cleary’s opinion in that case.

I agree with the majority insofar as they hold that two companies should be regarded as a single entity for purposes of the Act when they treat themselves as a single entity. Whether two companies are to be treated as a single entity should be decided on a case-by-case basis, depending upon whether the companies have ignored their distinct character.

This record is insufficient to establish that Trinity and the transportation company should be considered a single entity. Although Trinity and the transportation company are located in a building owned by Trinity, there is some physical separation between the two entities since the truck shop and fuel pump shed are not normally entered by Trinity’s employees. Riddles testified that he did not know whether the transportation company performed work for companies other than Trinity. Therefore, the degree to which the two entities are integrated in their operations is uncertain. Further, although Riddles ‘looks through’ the truck shop and fuel pump shed as a ‘courtesy,’ those areas are not under his ‘jurisdiction’ in his safety inspections. This testimony suggests that Trinity and the transportation company are under separate management. Hence, since the evidence fails to establish that the companies have ignored their distinct character, based on this record Trinity and the transportation company should not be considered a single entity.[15] Because the record does not establish that Trinity is the employer of the allegedly exposed employees, I would vacate the items on review.

Rather than vacating the items on review, however, the majority departs from Commission precedent holding that the Secretary must prove, among other things, that the cited Respondent was the employer of employees exposed to the allegedly violative condition.[16] See P & Z Co. and J. F. Shea Co., 79 OSAHRC 60/B6, 7 BNA OSHC 1589, 1979 CCH OSHD ¶23,777 (No. 14822, 1979); George Barry, et al., d/b/a Union Waterproofing, Roofing and Painting Co., 81 OSAHRC ——, 9 BNA OSHC 1264, 1980 CCH OSHD ¶25,173 (No. 77–2720, 1981). Instead, under the circumstances of this case, the majority shifts the burden of persuasion to Respondent to prove that it is not the employer of the employees exposed to the cited hazards. I disagree with this shifting of the burden of persuasion.

Under Commission Rule 73(a), 29 C.F.R. § 2200.73(a), in all proceedings commenced by the filing of a notice of contest, the burden of proving all elements of a violation rests with the Secretary. Further, several United States circuit courts of appeals have upheld the placement of the burden of proving all elements of a violation on the Secretary. See, e.g., Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139 (9th Cir. 1975);[17] Mountain States Telephone and Telegraph Co. v. OSHRC, 623 F.2d 155 (10th Cir. 1980). Therefore, by shifting the burden of persuasion to Respondent with respect to the element of employer status, the majority holds contrary to Commission Rule 73 and precedent.

The majority concludes that Trinity should be required to prove that the transportation company is a separate entity because information relating to such proof is peculiarly within its knowledge. This basis for shifting the burden of persuasion to Respondent is inadequate. If the transportation company is, in fact, a separate entity, then information relevant to establishing this fact is equally accessible both to Trinity and to the Secretary. The Secretary in his inspection can determine the employment status of the exposed employees by interviewing employees. Information concerning an employer’s corporate status can also be obtained in public records such as articles of incorporation. Further, the Secretary can obtain information through discovery in Commission proceedings. Therefore, it should not be burdensome for the Secretary to establish whether the Respondent’s employees are exposed to the alleged hazard.

The majority’s opinion also errs by drawing an analogy between proof of employer status under the single entity theory and proof that the cited employer has no control over the cited condition pursuant to the Commission’s decision in Anning-Johnson Co., 76 OSAHRC 54/A2, 4 BNA OSHC 1193, 1975–76 CCH OSHD ¶20,690 (Nos. 3694 & 4409, 1976) and related cases.[18]The latter is an affirmative defense and is applicable only after the Secretary has made a prima facie showing that the cited contractor is an employer whose employees are exposed to the cited hazards.

Finally, I do not believe that this case should be remanded for the production of additional evidence concerning the status of the transportation company. Both Advance Specialty and Bob McCaslin were decided prior to the hearing in this case. The Secretary, quoting Commissioner Cleary’s opinion in Bob McCaslin, argued the applicability of the single entity theory in his brief to the judge. The Secretary also was aware that, under the Commission Rules of Procedure and under Commission precedent, he had the burden of proving all elements of a violation including that of employer status. Since the Secretary was acquainted with the applicable legal theory and argued its relevance to the judge, the Secretary should not be granted a second opportunity to produce evidence consistent with this theory.[19]

This conclusion is further supported by the fact that, near the close of the hearing, counsel for Trinity requested permission to submit interrogatories from Mr. Smittle, Trinity’s acting plant manager. Counsel for the Secretary opposed this request, arguing that ‘both sides are going to have to stand on what we’ve got.’ The judge denied the request for interrogatories on the basis that ‘the fact that there were independent contractors is at present proven.’ Despite the fact that the judge indicated to the Secretary that he had failed to establish his proof on this issue, the Secretary did not move to supplement the record. Rather, the Secretary only moved for a remand after the judge’s decision vacating the items at issue was filed with the Commission. In view of these circumstances, the necessity to bring an end to litigation outweighs any countervailing interests of the Secretary. See Seattle Crescent Container Service, 79 OSAHRC 91/A2, 7 BNA OSHC 1895, 1979 CCH OSHD ¶24,002 (No. 15242, 1979).

Therefore, since the Secretary failed to prove that Respondent was the employer of employees exposed to the cited conditions, the judge’s vacation of the items on review should be affirmed.

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 77–3909
TRINITY INDUSTRIES, INC.,
Respondent.

November 2, 1978

DECISION AND ORDER

APPEARANCES

Gail M. Dickenson and David S. Jones, Attorneys, U. S. Department of Labor, Office of the Solicitor, Dallas, Texas, on behalf of complainant

Robert E. Rader, Esquire, Dallas, Texas, on behalf of respondent

STATEMENT OF THE CASE

PATTON, Judge:

This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to as the Act) contesting a citation issued by the complainant against the respondent under the authority vested in complainant by section 9(a) of the Act.

The citation alleges that as a result of the inspection of a workplace under the ownership, operation, and control of respondent located in West Memphis, Arkansas, the respondent has been charged with violating section 5(a)(2) of the Act by violating the following standards:

29 C.F.R. 1910.25(d)(1)(x),

29 C.F.R. 1910.106(g)(1)(i),

29 C.F.R. 1910.106(g)(3)(iii),

29 C.F.R. 1910.157(a)(1),

29 C.F.R. 1910.157(d)(3)(iv),

29 C.F.R. 1910.157(a)(5),

29 C.F.R. 1910.178(q)(7),

29 C.F.R. 1910.179(b)(5),

29 C.F.R. 1910.180(c)(2),

29 C.F.R. 1910.184(d),

29 C.F.R. 1910.212(a)(1),

29 C.F.R. 1910.215(a)(4),

29 C.F.R. 1910.219(d)(1),

29 C.F.R. 1910.219(e)(3)(i),

29 C.F.R. 1910.219(f)(3),

29 C.F.R. 1910.252(a)(1)(iii),

29 C.F.R. 1910.252(a)(2)(iv)(c),

29 C.F.R. 1910.252(b)(2)(iv)(d),

29 C.F.R. 1910.252(b)(4)(vii),

29 C.F.R. 1910.252(b)(4)(ix)(c),

Section 250–5(b)(1), National Electrical Code, NFPA 70–1971, as adopted by standard 29 C.F.R. 1910.309(a);

Section 400–4, National Electrical Code, NFPA 70–1971, as adopted by standard 29 C.F.R. 1910.309(a);

Section 400–5, National Electrical Code, NFPA 70–1971, as adopted by standard 29 C.F.R. 1910.309(a),

and Section 210–21(b), National Electrical Code, NFPA 70–1971, as adopted by standard 29 C.F.R. 1910.309(a); 29 C.F.R. 1910.212(a)(3)(ii);

Section 110–17(a), National Electrical Code, NFPA 70–1971, as adopted by standard 29 C.F.R. 1910.309(a);

Section 250–45(d), National Electrical Code, NFPA 70–1971, as adopted by standard 29 C.F.R. 1910.309(a);

and Section 250–51, National Electrical Code, NFPA 70–1971, as adopted by standard 29 C.F.R. 1910.309(a).

Hearing was held in Dallas, Texas, on May 31 and June 1, 1978. Both parties appeared and presented evidence. There was no motion to intervene.

LAW AND ISSUES IN THE CASE

It was alleged that the respondent was in violation of the Act as follows:

29 C.F.R. 1910.25(d)(1)(x): Portable wood ladders with defects were not withdrawn from service and tagged or marked as ‘Dangerous, Do Not Use’;

29 C.F.R. 1910.106(g)(1)(i): Liquids were not stored in containers not exceeding 60 gallons or in tanks located underground;

29 C.F.R. 1910.106(g)(3)(iii): A clearly identified and easily accessible switch or circuit breaker was not provided at a location remote from the dispensing device to shut off the power to all dispensing devices in the event of an emergency;

29 C.F.R. 1910.157(a)(1): Portable fire extinguishers were not maintained in a fully charged and operable condition;

29 C.F.R. 1910.157(d)(3)(iv): Portable fire extinguishers did not have durable tags attached showing the maintenance or recharge date;

29 C.F.R. 1910.157(a)(5): Portable fire extinguishers were not installed on hangers or brackets, mounted in cabinets, or set on shelves;

29 C.F.R. 1910.178(q)(7): Industrial trucks were not examined before being placed in service;

29 C.F.R. 1910.179(b)(5): The rated load of cranes was not plainly marked on each side of the crane;

29 C.F.R. 1910.180(c)(2): The cabs of truck cranes were not provided with a load-rating chart with clearly legible letters and figures, which was easily visible to the operator while seated at the control station;

29 C.F.R. 1910.184(d): Damaged or defective slings were not immediately removed from service;

29 C.F.R. 1910.212(a)(1): Machine guarding was not provided to protect operators and other employees from hazards created by rotating parts;

29 C.F.R. 1910.215(a)(4): Workrests on grinding machinery were not adjusted closely to the wheel with a maximum opening of one-eight inch;

29 C.F.R. 1910.219(d)(1): Pulleys with parts seven feet or less from the floor or work platform were not guarded in accordance with the requirements specified at 29 C.F.R. 1910.219(m) & (o);

29 C.F.R. 1910.219(e)(3)(i): Vertical or inclined belts were not enclosed by guards conforming to the requirements specified at 29 C.F.R. 1910.219(m) & (o);

29 C.F.R. 1910.219(f)(3): Sprocket wheels and chains which were seven feet or less above floors or platforms were not fully enclosed;

29 C.F.R. 1910.252(a)(1)(iii): Not all apparatus used with oxygen-fuel gas systems were approved for such use;

29 C.F.R. 1910.252(a)(2)(iv)(c): Oxygen cylinders in storage were not separated from fuel-gas cylinders by a minimum distance of 20 feet or by a noncombustible barrier at least five feet high having a fire-resistance rating of at least one-half hour;

29 C.F.R. 1910.252(b)(2)(iv)(d): Terminals for welding leads were not protected from accidental electrical contact by personnel or by metal objects;

29 C.F.R. 1910.252(b)(4)(vii): Arc welding electrode holders not in use were placed so that electrical contact could be made with an employee;

29 C.F.R. 1910.252(b)(4)(ix)(c): Lengths of arc welding or electrode lead cables were joined by connecting means not specifically intended for this purpose;

Section 250–5(b)(1), National Electrical Code, NFPA 70–1971, as adopted by Standard 29 C.F.R. 1910.309(a): The interior alternating current systems were not grounded where the system could be grounded so that the maximum voltage to ground on the ungrounded conductors would not exceed 150 volts;

Section 400–4, National Electrical Code, NFPA 70–1971, as adopted by Standard 29 C.F.R. 1910.309(a): Flexible cords were used in a prohibited manner, in that the cords were attached to building surfaces;

Section 400–5, National Electrical Code, NFPA 70–1971, as adopted by Standard 29 C.F.R. 1910.309(a): Spliced or taped flexible electrical cords were used;

Section 210–21(b), National Electrical Code, NFPA 70–1971, as adopted by Standard 29 C.F.R. 1910.309(a): Receptacles connected to circuits having different voltages, frequencies or types of current (AC or DC) on the same premises were not designed so that attached plugs used on such circuits were not interchangeable.

29 C.F.R. 1910.212(a)(3)(ii): Respondent failed to guard points of operation of machinery to prevent employees from having any part of their body in danger zones during operating cycles;

Section 110–17(a), National Electrical Code, NFPA 70–1971, as adopted by Standard 29 C.F.R. 1910.309(a): Live parts of electrical equipment operating at 50 volts or more were not guarded against accidental contact by approved cabinets or other forms of approved enclosures or other approved means;

Section 250–45(d), National Electrical Code, NFPA 70–1971, as adopted by Standard 29 C.F.R. 1910.309(a): Exposed, noncurrent-carrying metal parts of cord and plug-connected equipment, which were liable to become energized, were not grounded;

Section 250–51, National Electrical Code, NFPA 70–1971, as adopted by Standard 29 C.F.R. 1910.309(a): Paths to ground from circuits, equipment, and conductor enclosures were not permanent and continuous.

The complainant filed a request for admissions as to jurisdictional facts which request for admissions was not responded to. Said request for admissions must therefore be taken as true. Said request sets forth the following facts:

Respondent sells some of its products manufactured at its establishment in West Memphis, Arkansas, to companies or individuals located outside the State of Arkansas.

Respondent purchases some of the materials used in its manufacturing at West Memphis, Arkansas, from sources outside the State of Arkansas.

Employees of respondent located in West Memphis, Arkansas, make and receive telephone calls to and from places outside the State of Arkansas.

Respondent has a place of business and is doing business in a state other than Arkansas. The above facts establish that the respondent was, at all times relevant to this cause, engaged in a business affecting interstate commerce and is therefore within the jurisdiction of the Act.

The respondent moved for summary judgment on the ground that the citation was not issued with reasonable promptness as required by section 9(a) of the Act. The citation was not issued until 21 days subsequent to the inspection. The Act states that the citation should issue within 72 hours of the time of the inspection.

The respondent takes the position that respondent was prejudiced by the delay, in that complainant’s compliance officer testified that Mr. Smittles and Mr. Langford, who accompanied the compliance officer on the inspection, made a number of admissions. It is stated that Mr. Smittles denies making any of the statements testified to by the compliance officer, Mr. Watkins, and that Mr. Langford left the employ of respondent soon after the inspection, and counsel has been unable to interview him. Respondent also takes the position that a more prompt issuance of the citation would have made it possible to interview Mr. Langford before he left the vicinity.

In the case of Chicago Bridge and Iron Co., 74 OSAHRC 3/E10, 1 BNA OSHC 1485, 1973–74 CCH OSHD ¶17,187 (No. 744, 1974), vacated and remanded, 514 F.2d 1082 (7th Cir. 1975), the Review Commission held that the three working days period of time would begin to date from the day that the Area Director determines that a citation should issue. In the Chicago Iron case the Commission held that the citation must be vacated for not having issued with reasonable promptness within the three working days following the time that the Area Director made his decision. The Court of Appeals for the Seventh Circuit overruled the case holding that the rule of the Review Commission was too restrictive. Subsequent to the decision of the Seventh Circuit, the Review Commission revised its rule on reasonable promptness holding that a citation will be vacated on that ground only if the employer is prejudiced or the citation is issued following a unconscionable delay as demonstrated by the facts. Par Construction Co., 76 OSAHRC 133/Bll, 4 BNA OSHC 1779, 1976–77 CCH OSHD ¶21,216 (No. 11092, 1976); Concrete Construction Corp., 76 OSAHRC 47/A2, 4 BNA OSHC 1133, 1975–76 CCH OSHD ¶20,610 (No. 2490, 1976).

The Review Commission, however, has not changed its position that the time does not begin to run until the decision has been made by the Area Director.

In the case at bar, the evidence does not establish the date upon which the Area Director made a decision that the citation should issue. The record does not establish that the citation issued more than three working days after the Area Director’s determination that citation should issue. It would appear that there may have been prejudice to the respondent in a delay, but the delay is not an unjustified one. It will be noted that 24 standards are alleged to have been violated, and several of the standards are alleged to have been violated in more than one respect. To require that the report and analysis of the inspection must be made, and the Area Director must thoroughly consider and determine each of the issues and the citation should be properly drawn and issued all within three working days is to require a virtual impossibility. It must be noted that an Area Director has more than one case to work on at a time, and it would have been difficult to have met such a time schedule, even had this case been the only one that required his attention.

In view of the breadth and complexity of this case, it would appear that 21 days was a very reasonable time within which the Area Director could have made up his mind and the citation issue.

The motion for summary judgment on the ground of the late filing of the citation must therefore be denied.

Respondent makes several motions to dismiss on constitutional grounds. An Administrative Law Judge does not have the authority to rule upon the constitutionality of the Act under which he operates, and therefore these motions are denied.

It was alleged that the respondent committed a serious violation by violating standard 29 C.F.R. 1910.212(a)(1). It was alleged that respondent failed to provide machine guarding to protect operators and other employees from hazards created by nip points on the Niagara Shear. It was alleged that a point of operation of the shear was not properly guarded and also that the treadle was not properly guarded.

Mr. Watkins, the compliance officer, testified that if the operator got his hand into the position under the pads it would severely mash his fingers, and if his hand went further and got into the point of operation of the shear, it would mean the loss of fingers (Tr. 22). He stated that an unprotected treadle causes a hazard. Should the operator inadvertently activate the treadle while positioning the plate steel, he could reach into the point of operation at that time. Mr. Watkins stated that a slight modification of the treadle and putting on a treadle guard would cure the problem (Tr. 21, 22). He stated that an operator at the point of operation reaching into the front or going behind to obtain pieces of the sheared material could be prevented by placing a barrier there (Tr. 23). He described the operation as positioning sheet steel and pushing the heavy steel on a flatbed, moving it forward to trim the pieces off. If an employee reached into the point of operation for some reason and inadvertently activated the the treadle, these pads would come down and the shear would come down. He observed an employee behind the shear blades and in front of the blades. He stated that those accompanying him on the inspection told him that the employees do not get behind the shear, but he saw an operator get down and go under to retrieve pieces of steel (Tr. 23–24).

As to the point of operation, the respondent’s testimony was to the effect that a guard had been provided, and that the guard had been damaged. The respondent was fabricating a heavier guard at the time, and the heavier guard was installed the afternoon after the inspection (Tr. 202).

It would appear that if the guard was removed only because it had been damaged, and another and better guard was being fabricated and was installed the following afternoon, the respondent was doing all possible under the circumstances insofar as guarding the point of operation was concerned, and the allegations as to this alleged violation have not been sustained.

The position of the respondent, however, that the shear was not a danger at the back and, therefore, need not be guarded cannot be sustained. The respondent maintains that no one ever went behind the shear (Tr. 204, 205). It will be noted, however, that the compliance officer witnessed a person going in this point of danger to retrieve certain pieces of steel (Tr. 24). The employees, therefore, did expose themselves to positions of danger, and a guard should have been provided at this location. The allegations as to the shear, therefore, have been sustained.

The reason alleged for the treadle to be guarded was so the operator could not inadvertently activate the treadle while he was positioning the steel plate (Tr. 21). Had the guard been in place at the point of operation, it would not have been possible for the employee to have gotten his hand in the point of danger, even by hitting the treadle (Tr. 211). The complainant, therefore, has proven a violation in the failure to guard the back of the shear, but has not established a violation as to the allegations that the point of operation in front of the shear was not guarded or that the treadle was not guarded.

It was alleged that a switch box cover was left open, in violation of Section 110–17(a), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a). It is not disputed that the box cover was missing at the time of inspection. It was testified, however, that this was the first occasion in the plant when the box cover was found not to be on the switch box (Tr. 295–296). The company rules required that the cover always be on the box. Respondent had no knowledge of this occurrence at the time it happened. It would appear to be an isolated occurrence, concerning which respondent had no knowledge. Knowledge is an element of proof of both serious and nonserious violations. See Brennan v. OSAHRC, 511 F.2d 1139 (9th Cir. 1975). The evidence does not establish that the cover had been missing for sufficient time to impute knowledge to the respondent. The allegation, therefore, has not been sustained.

It was alleged that there was also a cover plate missing on a light switch above the foreman’s desk, in violation of part of the electrical code. It was testified that the foreman’s office was being repainted, which was the reason for the light switch cover being removed (Tr. 223, 225). It is necessary for a cover plate to be removed when painting is done, and this was a legitimate and proper reason for it not being on the light switch at the time of inspection. This allegation has therefore not been sustained.

It was further alleged that a light socket above the bed of the shear did not have a globe in it. It is undisputed that this was true. It was the position of the respondent that it would be most improbable for a person to accidentally stick his hand in the light socket. It is improbable that this would occur, but this does not seem to be beyond the realm of possibility. A person would not deliberately do so, but in reaching for something, it is possible that a person might, unless carefully watching what he is doing, inadvertently stick his finger into such a socket. This is an unlikely occurrence, but it is not so improbable as to be de minimis. It must therefore be held that a nonserious violation has occurred.

It was further alleged that said section was violated, in that a switch box cover was missing in the diesel fuel pump shed. While it is not denied that the cover was missing, the testimony of the respondent is to the effect that the diesel fuel pump shed was maintained by an independent contractor, and that only the employees of the independent contractor worked in this area. This allegation was not disputed. If the respondent’s employees were not exposed to the danger, the respondent is not in violation of the Act. Mr. Watkins testified that he was told by Mr. Smittle that the respondent did not have independent contractor relationships. The respondent’s counsel at the hearing requested permission to file an affidavit stating what was intended by Mr. Smittle’s conversation. Since there would be no chance to cross-examine the witness, this request was denied. The respondent, however, attached an affidavit to his brief. While the brief has been carefully read and studied, the affidavit has not been read by this Judge in view of the fact that the right to file same was denied.

Notwithstanding said testimony of the compliance officer, the weight of the evidence would indicate that there is an independent contractor relationship at the respondent’s factory. It is entirely possible that there could have been a misunderstanding between the parties. An independent contractor is a legal term which could be misinterpreted in a conversation between laymen. Unfortunately the exact relationship between the respondent and the company alleged to be an independent contractor was not set out on the record to the extent that might have been desirable. The respondent alleged an independent contractor relationship, and with the exception of said alleged admission by the executive of the respondent, the complainant did not in any way attack the position of the respondent that an independent contractor relationship existed. The obligation is on the complainant to establish that employees of the respondent were exposed. The respondent maintains that no person exposed was one of its employees. It therefore must be held that the complainant has failed to prevail as to these allegations.

It is also alleged that said standard was violated, in that a broken duplex receptacle was found east of the X-ray office. Testimony is to the effect that the respondent’s employees do not work in the area. X-ray work is done by an outside contractor (Tr. 223, 297–298). For the same reason set forth above, the complainant has not sustained these allegations. It is incumbent upon complainant to establish that employees of the respondent were exposed to the hazard, and this the complainant has failed to do.

A penalty in the amount of $300 is proposed by the complainant for all of the alleged violations of said standard. The only violation found to have been proven is the violation relating to the empty light socket. The likelihood of an employee being shocked as a result of this violation is very small, and therefore no penalty will be assessed for this violation.

Section 250–45(d) of the National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), is alleged to have been violated, in that the respondent failed to ground a Toledo pipe threader and a Jet bench drill press. The standard in question states as follows:

‘In other than residential occupancies, (1) refrigerators, freezers, air conditioners, and (2) clothes-washing, clothes-drying and dish-washing machines, sump pumps and (3) portable, handheld, motor-operated tools and appliances of the following types: drills, hedge clippers, lawn mowers, wet scrubbers, sanders and saws, and (4) cord- and plug-connected appliances used in damp or wet locations, or by persons standing on the ground or on metal floors or working inside of metal tanks or boilers, and (5) portable tools which are likely to be used in wet and conductive locations.’

It was the position of the complainant that (4) was the part of said standard which was violated. The complainant alleged that the respondent’s employees were standing on a concrete floor, and that this was the equivalent of standing on the ground. The compliance officer testified that it was a damp but not a wet location. He stated that the tools were not used inside a metal tank or boiler, nor when an employee was standing on the ground. Mr. Riddles of the respondent testified that they were not used on wet concrete, but the concrete was dry. He stated that there was no comparison between concrete and dirt insofar as one or the other being a good conductor of electricity.

The part of the standard relied upon by the complainant provides that a violation has occurred only if one of two circumstances arises: the employee must be standing in a wet or damp location or he must be standing on the ground or metal floors or working inside metal tanks or boilers. As will be above noted, there is a conflict in testimony as to whether the surface was damp, although it is conceded that it was not wet. The evidence is rather evenly balanced on the issue of whether or not the concrete was damp, and the complainant having the burden of proof has failed to carry that burden.

It is undisputed that the respondent’s employees were standing on concrete and neither on the ground, nor on metal floors, nor working inside metal tanks or boilers. It has not been proven that concrete is the equivalent of working on the ground, insofar as being a conductor of electricity is concerned. Furthermore, the standard does not say on the ground or its equivalent, and therefore the standard was not violated by employees standing on concrete without grounding of the electricity. The allegations, therefore, have not been sustained.

It was alleged that the respondent violated Section 250–51 of the National Electrical Code, in that there were open grounds in duplex receptacles. It was alleged that the paths to ground from circuits, equipment, and conductor enclosures were not permanent and continuous. Respondent defended on several grounds. The respondent’s evidence was to the effect that to the best of respondent’s knowledge the building was built prior to 1972 (Tr. 274). Respondent also defended on the ground that it was a latent defect that the respondent had no knowledge of, that the respondent had made a spot check of ten percent of the outlets and had found no failure to properly ground on those checked, and that the respondent, therefore, could not be held to be in violation for a defect created by others which the respondent had no knowledge of.

Respondent also defended on the ground that the alleged defective grounding was in the X-ray room to which the respondent had no access. It would appear that at least two of these defenses have merit. The respondent cannot be held in violation for a hazard to which its employees have not been exposed, and therefore, as above stated in a previous part of this decision, the failure to meet standards in the X-ray room to which the respondent’s employees did not have access does not constitute a violation of the Act by the respondent. Standard 29 C.F.R. 1910.309(b) states that said standard has application to equipment installed after March 15, 1972, or to equipment replaced, modified, repaired, or rehabilitated after said date. The evidence is to the effect that the installation was prior to March 15, 1972, and there is no evidence of replacement, modification, etc. A defect predating March 15, 1972, therefore, does not constitute a violation of the standard.

It was alleged that said standard was violated by the fact that a yellow extension cord in the truck shop did not have a ground pin. As above set forth, the truck shop was an area occupied by an independent contractor to which respondent’s employees did not go. The complainant, therefore, has failed to establish that employees of the respondent were exposed to a hazard.

As to other allegations of violation of said standard, the fact that the wiring was installed prior to 1972 makes the standard inapplicable.

It was alleged that the respondent violated standard 29 C.F.R. 1910.25(d)(1)(x), in that a portable wooden ladder with defects was not properly tagged as dangerous and not to be used. The compliance officer, Mr. Watkins, testified that a wooden ladder which had been set to one side was defective and was not tagged as such. He stated it had been removed from service (Tr. 41). Mr. Watkins was of the opinion that ‘human nature being what it is, if they need one, they grab the closest ladder’ (Tr. 42). He stated that respondent’s employees went by it (Tr. 43–44). The ladder was on the north wall of the storage tank area. Mr. Smittles testified for the respondent that an employee had taken the ladder out of service and placed it there to be picked up by the tool room man. The tool room man picks up anything defective once a day. It was out of the immediate work area. He was of the opinion it was very unlikely the ladder would be used. He stated that the defect was apparent (Tr. 232, 233, 234). Respondent defends on the ground that the ladder had been taken out of service, and therefore no hazard was presented.

The standard, however, specifically requires that a broken ladder be marked as ‘dangerous.’ The ladder was out of service. If the ladder was not properly tagged, the standard was violated. This Judge cannot go behind the standard and rule upon the wisdom of the standard. It would appear, however, that there is always some possibility that a person looking for a ladder will secure any ladder that he may see, and if he does not notice that it is broken, he may suffer an injury. The allegations of violation of this standard, therefore, have been sustained.

The complainant alleged a violation of standard 29 C.F.R. 1910.106(g)(1)(i) in a failure by the respondent to locate diesel fuel tanks underground. The standard applies only to service stations. It is not disputed that the tanks contain diesel fuel and were not underground. Evidence was to the effect that the diesel tanks were not open to or used by the public, but were used only for the equipment of the respondent (Tr. 142–143, 234–235). In the case of AMOCO Oil Co. v. OSAHRC, 76 OSAHRC 9/A2, 3 BNA OSHC 1985, reversed, 4 BNA OSHC 1991 (No. 76–1220, 7th Cir. 1976), the Court of Appeals held that the term ‘service station’ only applied to a facility that sold to the public. Subsequent to the decision of the Court of Appeals, in the cases of Kansas City Power and Light Co., 77 OSAHRC 117/C3, 5 BNA OSHC 1745, 1977–78 CCH OSHD ¶21, 683 (No. 76–2954, 1977), and Rocky Mountain Prestress, Inc., 77 OSAHRC 134/C2, 5 BNA OSHC 1888, 1977–78 CCH OSHD ¶21,699 (No. 76–3153, 1977), Administrative Law Judges held that the term ‘service station’ did not cover a facility only serving the respondent. These cases were not reversed by the Review Commission; therefore, it may be assumed that the Review Commission is following the decision of the Seventh Circuit. The allegations of violation in the case at bar therefore cannot be sustained.

It is alleged that the respondent violated standard 29 C.F.R. 1910.106(g)(3)(iii), in that respondent failed to provide a remote switch or circuit breaker to shut off diesel fuel pumps. Mr. Watkins testified that there was a cutoff on the wall above the gas or diesel pump inside the fuel shed, but that there was no remote control switch (Tr. 48). He stated that a remote cutoff is utilized in the event of an uncontrolled flow to shut down the operation and to reduce any additional flow of fuel. It was contended that to have the only switch at the pump would be to bring an employee into the hazardous area in order to shut if off. There could be a fire. It was readily apparent that there was no other cutoff (Tr. 50). Mr. Watkins, however, subsequently testified on cross-examination that he did not know if there was another remote shutoff or not (Tr. 147). Mr. Riddles, Assistant Corporate Safety Director, testified that there were three remote shutoffs: one located just above the fuel pump, one located at the guardhouse approximately 50 feet away from the pumps, and one easy to reach in the adjacent building (Tr. 235). Mr. Riddles stated that at the time the building was closed, the remote cutoff was operational. It was in a location easily accessible, right beside the guardhouse. He stated that when the operation is closed there is a guard in the guardhouse. He reports 30 minutes before the employees go home and stays about 15 or 30 minutes after they come to work (Tr. 241–242).

It would appear that the weight of the above evidence is to the effect that there were remote cutoffs, and therefore the allegations have not been sustained.

It was alleged that the respondent had violated standard 29 C.F.R. 1910.157(a)(1), in that a portable fire extinguisher was not maintained in fully-charged condition.

It was alleged that standard 29 C.F.R. 1910.157(d)(3)(iv) was violated, in that a portable fire extinguisher did not have a durable tag attached showing maintenance or recharge date.

It was also alleged that respondent violated standard 29 C.F.R. 1910.157(a)(5), in that a portable fire extinguisher was not installed on the hanger.

The evidence was to the effect that the area involved, the truck shop, was only operated by the separate transportation company, and that respondent’s employees had no reason to go into the truck shop and, therefore, were not exposed (Tr. 242, 243). In view of this fact, the allegations of violation of said sections of standard 29 C.F.R. 1910.157(a)(1) have not been sustained.

It was alleged that the respondent was in violation of standard 29 C.F.R. 1910.178(q)(7), because a horn on a forklift was inoperable. Mr. Watkins testified that the forklift had an inoperable horn, and that it was necessary to have a horn in case the forklift backed up or came into a blind spot (Tr. 61).

Respondent defended on the ground that the inspection and maintenance of the forklift is performed by an independent contractor, and that the respondent did not have knowledge of the defect (Tr. 250–251). The fact remains, however, that the respondent’s employees were exposed to danger by the absence of a horn on the forklift, and the fact that an independent contractor had been employed to maintain the equipment did not free the respondent of responsibility for permitting its employees to work with defective equipment.

The respondent further defends on the ground that there were no blind corners, and that there was, therefore, no need for a horn (Tr. 61). It is never possible to know when a person might inadvertently get in the path of a vehicle, and in the event an employee should do so, a horn could make the difference in an accident occurring or not occurring. It cannot be said that there was no need for some means of warning any employee who might get in the way of a forklift. It would be as logical to say that the only time an automobile would need a horn would be when it turned a corner. Experience has shown that there are needs for a horn on an automobile, even when the automobile is in clear view of people who may have neglected to look for it. The same situation would apply with reference to a forklift. It must therefore be held that this allegation has been sustained.

It was alleged that the respondent violated standard 29 C.F.R. 1910.179(b)(5), in that respondent failed to mark the rated loads on two overhead cranes. Mr. Watkins testified that he did not recall how many hoisting units the crane had (Tr. 152–153). He admitted that the load blocks of the crane were marked (Tr. 152–153). Mr. Riddles testified that the load ratings were marked on the load block. He stated that it was easier to see the ratings on the block than if they had been on the crane (Tr. 252–253).

Said standard is as follows:

The rated load of the crane shall be plainly marked on each side of the crane, and if the crane has more than one hoisting unit, each hoist shall have its rated load marked on it or its load block and this marking shall be clearly legible from the ground or floor.

The respondent takes the position that the above language means that a crane shall be marked only in the event there is only one hoisting unit, and in the event there is more than one hoisting unit, it is adequate to mark the load block.

A careful reading of this section does not indicate that it is in the alternative. The standard requires that the crane be marked, and in the event there is more than one hoisting unit, each hoist shall also have its rated load marked on it, or it shall be on the load block. It is not entirely clear, but the above would be the most logical interpretation on a careful reading of same. The respondent does not deny that there is no load rating on the crane itself, and therefore said standard has been violated.

It was alleged that respondent violated standard 29 C.F.R. 1910.180(c)(2), in that a truck crane in the yard area did not have the load rated capacity, nor did it have the boom angle indicator. There were two employees in the area at the time. It was testified that the hazard was that if they picked up at a bad angle and bad load, it might hit the ground operator giving instructions. The crane could be at such an angle that it would fall, and the ground operator would be in jeopardy. It was testified that this could be easily abated. The manufacturer could furnish a boom angle indicator which worked on a gravity needle or load capacity for that angle. The standard is as follows:

A substantial and durable rating chart with clearly legible letters and figures shall be provided with each crane and securely fixed to the crane cab in a location easily visible to the operator while seated at his control station.’

This requirement apparently was not followed, and this allegation has therefore been sustained.

It was alleged that respondent violated standard 29 C.F.R. 1910.184(d), in that respondent failed to remove an allegedly defective wire rope sling from service. The standard is, in part, as follows:

Damaged or defective slings shall be immediately removed from service.

Mr. Watkins testified that there were 31 strands broken and one wire on one lei (Tr. 184). The record establishes that the sling was made up of seven leis or wire rope braids (Tr.156, 253). Respondent defends on the ground that the complainant’s witness testified he did not know whether there was an excess load factor or not. He did not know the maximum weight the slings were used to pick up (Tr. 154–156, 157). Mr. Riddles testified that the sling was rated for 17 tons, and that the maximum it would be lifting would be probably 25,000 pounds, so there would be at least a 10,000 pound safety factor. Also, employees did not go underneath any loads that were overhead or being moved (Tr. 253).

Mr. Watkins stated that the 31 broken strands were not the total. He stated he stopped counting when he got to 31. He was of the opinion that the defect could cause a failure under a load, and someone could be crushed. He stated the breaks were readily observable.

Admittedly the sling was damaged and, to some extent, defective. Breaks could well increase if not remedied and thereby create a still greater hazard. In view of the margin of error testified to by the respondent, the possibility of an injury may not have been great, but it cannot be said that with the defect admittedly present there was absolutely no danger. This allegation, therefore, has been established.

It was alleged that the respondent failed to guard the Wells metal bandsaw to protect employees from the hazard created by the unusued portion of the blade, in violation of standard 29 C.F.R. 1910.212(a)(1). The respondent took the position that the blade did not constitute a hazard because the teeth pointed toward the floor, and no one could fall onto it (Tr. 160). Respondent also testified that there will always be a part of the blade that is not guarded. It was stated that the blade can be adjusted from a quarter of an inch all the way to a foot and a half, and because of that adjustable cut, even with a guard, there would always be some portion of the blade not guarded (Tr. 255–257).

Mr. Watkins testified, however, that an unused part of the blade is unguarded and could be guarded (Tr. 162–163). The fact that there would still be a part of the blade that is used that could not be guarded does not alter the necessity of guarding all portions of the blade that would not be in use. It must therefore be held that this violation has been established.

It was alleged that respondent violated standard 29 C.F.R. 1910.215(a)(4), in that the workrest on two bench grinders were more than one-eighth inch from the wheel. The grinders in question had workrests set at approximately three-fourths inch and one-half inch (Tr. 73). Mr. Watkins testified that he did not know the dimensions of the material that was ground on the two grinders (Tr. 165). Mr. Riddles testified that the dimensions were big enough that the grinder would not jam (Tr. 260). It would appear that the weight of the evidence, therefore, is to the effect that the size is such as to prevent jamming. The complainant, in its brief, states that if it is found that the size of the pieces being ground preclude jamming, the violation should be reduced to de minimis in accordance with OSHA Program Directive Number 100–39 and the case of Hamilton Foundry Div., Hamilton Allied Corp., 77 OSAHRC 132/B6, 5 BNA OSHD 1866, 1977–78 CCH OSHD ¶21,932 (No. 76–1420, 1977). It therefore is held that a de minimis violation has occurred.

It was further alleged that there was a failure to guard pulleys and belts on the diesel fuel pump in the fuel shed, in violation of standards 29 C.F.R. 1910.219(d)(1) and 29 C.F.R. 1910.219(e)(3)(i). In view of the fact that respondent’s employees do not use the diesel fuel pump and have no reason to be in the fuel pump shed, but that it is handled by The Transportation Company, another employer, there is no exposure of respondent’s employees, and the violation has not been established.

Mr. Riddles testified that respondent’s employees are never in the area (Tr. 77). He further stated that Trinity does not even keep a key to the area (Tr. 67–68).

It was alleged that respondent failed to guard the sprockets and chains in the Lorain truck crane, in violation of standard 29 C.F.R. 1910.219(f)(3).

Mr. Riddles testified that the vehicle maintenance people, an independent contractor, had done some work on the crane and had forgotten to replace the guard when they finished. He stated Trinity had no reason to suspect the guard had been left off. He stated to his knowledge it had not been left off before (Tr. 263). He testified that uncovered chains did not constitute a hazard, only the maintenance people would have to go behind the seat where the machinery was, and while on the seat, a person would have to reach back further than normal to get caught in the chains (Tr. 265–266). The fact that the work was done by an independent contractor does not affect the responsibility of the respondent. It is not disputed that the respondent’s employees worked in and around the machinery in question. Since the evidence establishes that no guard was on the machinery at the time of inspection, it is incumbent upon the respondent to establish that the guard had been removed for such a short time that the respondent could not be expected to have knowledge of it. Defense as to the difficulty of reaching the chains would go more to the weight of the violation than to the question of whether a violation has occurred. It still would be quite possible that an employee might become careless and reach back far enough to become entangled. Allegations of this violation, therefore, have been sustained.

It is further alleged that respondent violated standard 29 C.F.R. 1910.252(a)(1)(iii), in that the oxygen regulator had a broken lens and bent gauge face. Mr. Watkins testified that the lens were broken on the rig on the oxygen regulator, and the face plate was bent out so that it would not readily come up with a true indication of pressure readings on the gauge. He stated that Mr. Smittle admitted it was there for temporary use only, and they were planning to use it again later that afternoon (Tr. 84). Mr. Watkins stated there was a possible hazard to an operator in getting incorrect fuel and air mixture at the acetylene torch, and it could lead to a fire (Tr. 85). He stated he had been told it had been used that morning but did not know whether it was broken at the time used (Tr. 167). It was indicated that there was oxygen and acetylene both in the cylinders (Tr. 167). Mr. Watkins stated he was not relying on the broken gauge to determine whether there was any gas in the cylinder (Tr. 167).

Respondent defends on the ground that there was no evidence that the regulator or the broken gauge had been used.

The evidence having established that the regulator had been used that morning and further establishing that, at the time of inspection, the gauge was broken, a prima facie case has been made out that the gauge was used when broken. If it were broken subsequent to the time used, it was incumbent upon the respondent to establish that fact, which respondent has failed to do. It must therefore be held that said allegations of violation have been sustained.

It was alleged that the respondent violated standard 29 C.F.R. 1910.252(a)(2)(iv)(c), in that certain oxygen cylinders along the north wall of the domestic line and on the north side of the truck shop were not separated from fuel gas cylinders or combustible materials. Standard 29 C.F.R. 1910.252(a)(2)(iv)(c) relates to oxygen cylinders ‘in storage.’

It was testified that the acetylene and oxygen had been separated into bins, the third separation being CO2 containers placed between them. The total distance between the cylinders was three feet, six inches. There was a fuel cylinder immediately next to the CO2 cylinders, and three and a half feet further was an air cylinder, oxygen (Tr. 85). Respondent defends on numerous grounds. It was not established that there was oxygen in the cylinders. Mr. Watkins testified that he could not say whether they had oxygen in them or not (Tr. 167–168). In the absence of evidence that the cylinders had oxygen in them, no hazard is presented, and the violation has not been established. It will further be noted that this occurred in the truck shop area, which is controlled by the Transportation Company, which is a separate company from that of the respondent. Having not been established that there was a hazard or that, even if there had been a hazard, respondent’s employees were in the area, the allegation has not been sustained.

Respondent defended on the further ground that cylinders were in use rather than in storage. The evidence was that they were located there for use as needed throughout the plant and did not stay there longer than two weeks (Tr. 270–271). Under this evidence, they were in storage.

It was alleged that respondent violated standard 29 C.F.R. 1910.252(b)(4)(vii), in that a man used a welding rod to light a cigarette. Mr. Riddles testified that this was so surprising as to be totally unanticipated. He stated that this had never happened before to his knowledge, and that he felt it as unnecessary to establish a rule against it as to establish a rule telling employees not to go up to the top of a roof and jump off (Tr. 271–272).

It would appear that this was an isolated instance which was so patently dangerous as to be totally unexpected and something which the respondent could not be expected to have anticipated or guarded against; therefore, this alleged violation has not been established.

It was alleged that the respondent violated standard 29 C.F.R. 1910.252(b)(2)(iv)(d), in that terminals for welding leads were not protected from accidental electrical contact by personnel or by metal objects. Mr. Watkins testified that there were bare wires at the terminals by the units. The wires were exposed. If energized, it would not take much to contact both the lead and the ground which would cause possible electrocution. It was possible someone walking by could touch them with their hand and be shocked or electrocuted. He stated the defect was easily observable, and that there were no guards at the terminal (Tr. 96, 97, 98, 99). It would appear that the allegations of violation have been sustained.

It was alleged that standard 29 C.F.R. 1910.252(b)(4)(ix)(c) was violated, in that working cables on units 33 and 39 had damage to portions of the working leads with bare wires and were still in use. Mr. Watkins testified that such was the case (Tr. 103, 104). He stated that it raised the possibility of shock or electrocution. The wires were near an access way and two or three welders were exposed (Tr. 104). He stated that a working cable was one that carries the welding lead and is used to hold the rod. It would appear that this violation has been sustained.

It was alleged that respondent violated Section 250–5(b)(1) of the National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that there was reverse play at the junction at the workbench in the truck shop, as well as a similar problem in the Hydro building. Mr. Watkins testified to seeing the above-described conditions. It was a minimal hazard, in that it would take a double failure to cause a shock. Three employees were exposed in the truck shop.

The truck shop is not an area in which respondent’s employees were proven to have worked and, therefore, no hazard having been established, the allegation insofar as the truck shop is concerned cannot be sustained. In will further be noted that the wiring had been installed prior to March 1972 by an independent contractor and prior to acquisition of the plant by the respondent. It was testified that it is not possible to detect a reverse polarity in a duplex receptacle except with a woodhead or circuit tester (Tr. 170–171). Respondent’s testimony was that it was believed the building was properly wired, spot checks had been taken and no problems were found, and respondent knew nothing of the defect (Tr. 272–274). Standard 29 C.F.R. 1910.309(b) states that ‘Every new electrical installation and all new utilization equipment installed after March 15, 1972, and every replacement, modification, or repair or rehabilitation after March 15, 1972, of any part of any electrical installation or utilization equipment installed before March 15, 1972, shall be installed or made, and maintained, in accordance with the provisions of the 1971 National Electrical Code, NFPA 70–1971.’ The evidence is to the effect that the wiring was done prior to 1972, and no repairs have been made, and the only rehabilitation or updating was performed approximately a month before the hearing. The question is whether any of the things suggested in standard 29 C.F.R. 1910.309(b) were done prior to the date of inspection. The answer being in the negative, standard 29 C.F.R. 1910.309 has no application.

It is also alleged that the respondent violated standard 29 C.F.R. 1910.309(a), in that Section 400–4, National Electrical Code was violated in three subsections.

It was alleged that flexible cords in the Hydro building, as well as in another area, were in contact with the steel structure of the building. Mr. Watkins testified that as long as the cords were in good shape there was no problem, but the cables could break coming into contact with the structure. He stated with 110 volts or greater, an employee could lean against a structure and get shocked or electrocuted (Tr. 104). The allegations of violation have been sustained.

It was also alleged that Section 400–5 of the National Electrical Code had been violated. It was stated that on the north wall from the panel box, there was a large flexible cable that had been taped (Tr. 113). Mr. Smittle told Mr. Watkins that the cable had been spliced and taped. The splicing of a cord constitutes a repair and, therefore, it was done after 1972, and the standard would apply.

Section 400–5 of the National Electrical Code is as follows:

Flexible cord shall be used only in continuous lengths without splice or tap.

The respondent defends on the ground that it is not shown that the tape was removed and that a splice had actually been made. The fact remains that Mr. Smittle admitted that it had been spliced. There is no evidence contradicting this fact and, therefore, it is proven.

Respondent further defends on the ground that the National Electrical Code of 1975 permits some splicing. The 1975 Code, however, has not been adopted by the Occupational Safety and Health Administration and has not been incorporated into its standards.

The respondent cites the case of Clifford B. Hanney & Son, Inc., 78 OSAHRC 12/A2, 6 BNA OSHC 1336, 1978 CCH OSHD ¶22,525 (No. 15983, 1978), as holding that with the amendment of 1975, the most the violation could be found would be de minimis. The Hanney case, supra, stated (at 27,180):

The revision in the 1975 NEC coupled with the opinion of the inspector for the New York State Board of Underwriters, who had 17 years of experience as an electrical inspector, is persuasive evidence that no danger was posed by the conditions at respondent’s plant.

It will be noted that the Review Commission did not hold that the 1975 change of the NEC was alone adequate to reduce the violation to de minimis. In the Hannay case, the violation was reduced to de minimis because the case also reflected the opinion of the inspector of the New York State Board of Underwriters that no danger was posed.

The record in the case at bar lacks such expert opinion to go with the 1975 changes in the NEC. It therefore must be held that the allegations of violation have been sustained, and it is nonserious rather than de minimis.

It was alleged that two outlets were spliced into one other line and then wrapped (Tr. 115). This violation has been sustained under the same circumstances as that previously discussed relating to splicing.

The wire, instead of going to a receptacle, was taped right into the plug of the air conditioning unit. This violation has also been proven. A domestic line near the south wall was also taped, which could cause a possible shock or electrocution if there was a breakdown (Tr. 117). This alleged violation has apparently been sustained for the reasons set forth above.

It was alleged that the respondent violated Section 210–21(b), National Electrical Code, NFPA 70–1971, as adopted by standard 29 C.F.R. 1910.309(e), in that receptacles connected to circuits having different voltages, frequencies, or types of current, AC or DC, on the same premises were not designed so that attachment plugs used on such circuits were not interchangeable. Mr. Watkins testified that either Mr. Smittle or Mr. Langford informed him that there were 220-volt outlets on three lines which he checked which appeared to be ordinary 110 receptacles (Tr. 118). He had three lights on a woodhead tester that indicates that either something was really awry or that 220 volts were coming into the receptacle (Tr. 119). He stated that 220 volts coming into a 110 receptacle creates an overdrive and will break it down a great deal faster with serious results. It could cause shock or worse (Tr. 119). Exposure would be to employees hooking up power tools.

On the other hand, Mr. Riddles testified that respondent does not use interchangeable 110 and 220 plugs. He stated that they cannot be mixed up or interchanged and introduced plugs as exhibits to prove it (Tr. 92–93). He stated that he took the 110 from his stock, but the 220 was borrowed from X-ray personnel at respondent (Tr. 93–94). He testified that respondent does not use 220 plugs. He stated that all but one in the building belonged to the X-ray people. He stated that none of his employees would use the 220 plug.

The physical exhibits introduced into evidence bear out the testimony of Mr. Riddles that they are not interchangeable. It must therefore be held that the weight of the evidence sustains the position of the respondent in this regard.

FINDINGS OF FACT

1. Respondent is a corporation having a place of business and office at West Memphis, Arkansas. Some of the products manufactured at the West Memphis, Arkansas Plant are shipped to points beyond the State of Arkansas, and some of the materials used at the West Memphis Plant are shipped from points outside the State of Arkansas to West Memphis, Arkansas.

2. Employees of respondent located in West Memphis, Arkansas, make and receive telephone calls to and from places outside the State of Arkansas.

3. Respondent has a place of business and is doing business in a state other than the State of Arkansas.

4. The citation in this case was issued 21 days subsequent to the inspection, but the record does not establish that it was issued more than 3 days after the decision to issue was made by the Area Director. There is some prejudice to the respondent in the delay in that a principal witness had left the employ of respondent and could not be found to give testimony.

5. In view of the extremely large number of alleged violations, the evidence does not establish that there was unreasonable delay in the issuance of the citation.

6. On or about September 27 and 28, 1977, the guard to protect operators and other employees from hazards created by nip points on the Niagara shear had been removed.

7. The absence of the guard created a hazard because, if an employee’s hand went under the pads, his fingers would be severely mashed or possibly amputated.

8. The guard was removed because it was damaged and, at the time of inspection, was being worked on and was replaced on the machine the afternoon after the inspection.

9. No guard had been provided to guard the shear at the back of the machine, although employees did, on occasion, go into the area where they could be injured by the shear.

10. If the treadle had been guarded, an operator could not have inadvertently activated the treadle while he was positioning the steel plate. The guard being in place at the point of operation, it would not have been possible for the employee to have gotten his hand in the point of danger, even by hitting the treadle.

11. The electric switch box cover was left open, the box cover not being on the box at the time of inspection.

12. This was the first occasion in the plant when the box cover had not been on the switch box, and the respondent had no prior knowledge of the absence of the cover, making said incident an isolated occurrence.

13. A cover plate was missing on a light switch above the foreman’s desk, but the plate had been removed because painting was being done.

14. A light switch above the bed of the shear did not have a globe in it, exposing an employee to possible shock or electrocution in the event his hand was stuck in the light socket.

15. It is the position of the respondent that the diesel fuel pump shed was maintained by an independent contractor, and that only employees of the independent contractor were exposed, and the evidence does not establish that the employees were employees of the respondent.

16. There was a broken duplex electrical receptacle east of the X-ray room.

17. The employees of the respondent were not exposed to the hazard in said area; the complainant having failed to establish that the employees working in said area were employees of respondent rather than employees of an independent contractor.

18. The respondent failed to ground a Toledo pipe threader and jet bench drill press.

19. The employee operating same was standing on concrete and was not standing on the ground, nor were tools used inside a metal tank or boiler.

20. The weight of the evidence does not establish that the concrete was wet or damp.

21. The respondent maintained open grounds on duplex receptacles. The grounds from circuits, equipment, and conductor enclosures were not permanent and continuous.

22. The building was built prior to 1972.

23. Receptacles were in the X-ray room to which only employees of an independent contractor were exposed.

24. A yellow extension cord in the truck shop did not have a ground pin.

25. The truck shop was occupied by employees of an independent contractor, and respondent’s employees were not exposed.

26. The respondent had a wooden ladder which was defective and had been set to one side, but had not been tagged.

27. The ladder was at such location that an employee could have taken it and used it.

28. The respondent has diesel fuel tanks underground with which he puts fuel into respondent’s own vehicles.

29. The fuel is not sold to the public or furnished to anyone other than respondent.

30. The respondent maintained three shut-offs, one located just above the fuel pump, one located at the guardhouse, approximately 50 feet away from the pump, and one easy to reach in the adjacent building.

31. A remote cut-off was operational and accessible at all times.

32. There was a portable fire extinguisher in the truck shop which was not maintained in a fully charged condition.

33. There was a portable fire extinguisher in the truck shop which did not have a durable tag attached showing maintenance or recharge date.

34. There was a portable fire extinguisher which was not installed on a hanger in the truck shop.

35. The record does not establish that employees of respondent were exposed to the hazards in the truck shop.

36. The respondent maintained a forklift which did not have an operable horn, creating a hazard to its employees.

37. The respondent failed to mark the rated load on two overhead cranes, although it was marked on the load block.

38. The respondent maintained a truck crane in the yard area that did not have the load rated capacity and did not have a boom angle indicator.

39. The respondent failed to remove from service a defective wire rope sling.

40. The respondent failed to guard the Wells metal bandsaw to protect employees from the hazard created by the unused portion of the blade.

41. Not all of the unguarded part of the blade could be guarded, but the blade could be guarded to a greater extent than was done.

42. Pulleys and belts on the diesel fuel pump and fuel shed were not adequately guarded.

43. The record establishes that an independent contractor’s employees worked in the fuel pump shed and does not establish that the respondent’s employees were exposed to the hazard.

44. Respondent failed to guard the exposed chains in the cab of the Lorain truck crane.

45. Work had been performed on the crane by an independent contractor, but the respondent’s employees were exposed to the hazard.

46. The record does not establish that the time of exposure was of such short duration that the respondent would not have known of exposure.

47. The lens were broken on the rig of the oxygen regulator and the gauge face was bent.

48. The defective regulator created a possible hazard to an operator in getting incorrect fuel and air mixture at the acetylene torch and could lead to a fire.

49. Said regulator and broken gauge had been used the morning of the inspection.

50. Certain oxygen cylinders on the north wall of the domestic line and on the north side of the truck shop were not separated from fuel gas cylinders or combustible materials.

51. The record does not establish that there was oxygen in the cylinder at the time of inspection.

52. The record does not establish that employees of respondent, rather than the independent contractor, were exposed to the hazard.

53. The cylinders were in storage at the time of the inspection.

54. An employee of the respondent, at the time of inspection, used a welding rod to light a cigarette.

55. The respondent had no reason to anticipate that the employee would use the welding rod to light a cigarette, and said occurrence is an isolated instance.

56. Terminals for welding leads were not protected from accidental electrical contact by personnel or by metal objects, creating a hazard to respondent’s employees.

57. Working cables on units 33 and 39 had damage to portions of the working leads with bare wires and were still in use at the time of inspection, creating a hazard for respondent’s employees.

58. There was reverse play at the junction at the workbench in the truck shop.

59. It would require a double failure to cause a shock. The record does not establish that employees of respondent were exposed to the alleged hazard in the truck shop.

60. There was reverse play at the junction at the workbench in the Hydro building. It would require a double failure to cause a shock.

61. All of the wiring at both locations were done prior to 1972.

62. Flexible cords in the Hydro building, as well as in another area, were in contact with the steel structure of the building, creating a hazard for respondent’s employees.

63. On the north wall of the panel box was a large flexible cable that had been taped, same having been spliced.

64. Two outlets were spliced into one other line and then wrapped, causing a hazard to respondent’s employees.

65. The cord, instead of going into a receptacle, was taped right into the plug of the air conditioning unit, constituting danger of shock or electrocution to respondent’s employees.

66. Respondent does not interchange 110 and 220 plugs, respondent’s employees using 220 plugs.

67. The guard rest on two bench grinders were more than one inch from the wheel, but the size of pieces being ground precluded jamming.

CONCLUSIONS OF LAW

1. Respondent is engaged in a business affecting interstate commerce and is within the jurisdiction of the Occupational Safety and Health Act.

2. The motion for summary judgment based on the ground that the citation was not issued with reasonable promptness is without merit and should be denied.

3. This Judge having no jurisdiction to rule upon the constitutionality of the Act, the motions to dismiss based on constitutional grounds should be denied.

4. Respondent was in violation of standard 29 C.F.R. 1910.212(a)(3)(ii) by failing to provide a guard at the back of the Niagara shear.

5. The allegations of violation of standard 29 C.F.R. 1910.212(a)(3)(ii) to the effect the operation in front of the shear was not guarded have not been sustained.

6. The allegations of violation of standard 29 C.F.R. 1910.212(a)(1) to the effect that the treadle was not guarded have not been sustained.

7. The allegations of violation of Section 110–17(a), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a) as to the absence of switch box covers have not been sustained.

8. The allegations of violation of Section 110–17(a), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), alleging that a cover plate was missing on a light switch above the foreman’s desk have not been sustained.

9. The allegations of violation of Section 110–17(a), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that there was no globe in the light socket above the bed of the shear have been sustained, and said section has been thereby violated.

10. The allegations of violation of Section 110–17, National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that there was a broken duplex receptacle found east of the X-ray room, which exposed respondent’s employees, have not been sustained.

11. The allegations of violation of Section 250–45(d) of the National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), have not been sustained.

12. The allegations of violation of Section 250–51, National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), have not been sustained.

13. The respondent was in violation of standard 29 C.F.R. 1910.25(d)(1)(x).

14. The allegations of violation of standard 29 C.F.R. 1910.106(g)(1)(i) have not been sustained.

15. The allegations of violation of standard 29 C.F.R. 1910.106(g)(3)(iii) have not been sustained.

16. The allegations of violation of standard 29 C.F.R. 1910.157(a)(1) have not been sustained.

17. The allegations of violation of standard 29 C.F.R. 1910.157(d)(3)(iv) have not been sustained.

18. The allegations of violation of standard 29 C.F.R. 1910.157(a)(5) have not been sustained.

19. The respondent was in violation of standard 29 C.F.R. 1910.178(q)(7).

20. The respondent was in violation of standard 29 C.F.R. 1910.179(b)(5).

21. The respondent was in violation of standard 29 C.F.R. 1910.180(c)(2).

22. The respondent was in violation of standard 29 C.F.R. 1910.184(d).

23. The respondent was in violation of standard 29 C.F.R. 1910.212(a)(1), in that respondent failed to guard the Wells metal bandsaw to protect employees from the hazard created by the unused portion of the blade.

24. The respondent was in violation of standard 29 C.F.R. 1910.215(a)(4), but said violation was only a de minimis violation.

25. The allegations of violation of standard 29 C.F.R. 1910.219(d)(1) has not been sustained.

26. The allegations of violation of standard 29 C.F.R. 1910.219(e)(3)(i) have not been sustained.

27. The respondent was in violation of standard 29 C.F.R. 1910.219(f)(3).

28. The respondent was in violation of standard 29 C.F.R. 1910.252(a)(1)(iii).

29. The allegations of violation of standard 29 C.F.R. 1910.252(a)(2)(iv)(c) have not been sustained.

30. The allegations of violation of standard 29 C.F.R. 1910.252(b)(4)(vii) have not been sustained.

31. The respondent was in violation of standard 29 C.F.R. 1910.252(b)(2)(iv)(d).

32. The allegations of violation of standard 29 C.F.R. 1910.252(b)(4)(ix)(c) have not been sustained.

33. The allegations of violation as to Section 250–5(b)(1), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a) have not been sustained.

34. The respondent was in violation of Section 400–4, National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that flexible cords in the Hydro building were in contact with the steel structure of the building.

35. The respondent was in violation of Section 400–5, National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that a large flexible cable on the north wall from the panel box had been spliced and taped.

36. The respondent was in violation of Section 400–4, National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that two outlets were spliced into one other line and then wrapped.

37. The respondent was in violation of Section 400–4, National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that a wire, instead of going to a receptacle, was taped right into the plug of the air conditioning unit.

38. The allegations of violation of Section 210–21(b), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(e), have not been sustained.

ORDER

It is therefore ORDERED that:

Respondent’s motions for summary judgment are denied.

Allegations of violation of standard 29 C.F.R. 1910.212(a)(1) that respondent maintained an unprotected treadle on the Niagara number 913 3/8-inch mile steel shear in the domestic line are dismissed.

Respondent was in violation of standard 29 C.F.R. 1910.212(a)(3)(ii). No penalty is assessed for said violation. Said violation must be abated within 30 days of the date of the issuance of this decision.

The allegations of violation of standard 29 C.F.R. 1910.212(a)(3)(ii) that the operation in front of the shear was not guarded are dismissed.

The allegations of violation of Section 110–17(a), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), alleging that switch boxes were left uncovered are dismissed.

The allegations of violation of Section 110–17(a), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that a cover plate was missing on a light switch above the foreman’s desk are dismissed.

The respondent violated Section 110–17(a), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a) by failing to have a globe in a light socket above the bed of a shear. No penalty is assessed. Said violation shall be immediately abated.

The allegations of violation of Section 110–17(a), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that broken duplex receptacles existed east of the X-ray room, are dismissed.

The allegations of violation of Section 250–51 of the National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), are dismissed.

The respondent was in nonserious violation of standard 29 C.F.R. 1910.25(d)(1)(x). No penalty is assessed for said violation. Said violation shall be immediately abated.

The allegations of violation of standard 29 C.F.R. 1910.106(g)(1)(i) are dismissed.

The allegations of violation of standard 29 C.F.R. 1910.106(g)(3)(iii) are dismissed.

The allegations of violation of standard 29 C.F.R. 1910.157(a)(1) are dismissed.

The allegations of violation of standard 29 C.F.R. 1910.157(d)(3)(iv) are dismissed.

The respondent was in nonserious violation of Section 110–17(a), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a) by not having a globe in the light socket above the bed of the shear. No penalty is assessed for this violation. This violation shall be immediately abated.

The allegations of violation of Section 110–17(a), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a) by not having a cover over a switch box in the diesel fuel pump shed are dismissed.

The allegations of violation of Section 110–17(a), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a) by having a broken duplex receptacle east of the X-ray office are dismissed.

The allegations of violation of Section 250–45(d), National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), are dismissed.

The allegations of violation of standard 29 C.F.R. 1910.157(a)(5) are dismissed.

The respondent was in nonserious violation of standard 29 C.F.R. 1910.178(q)(7). No penalty is assessed for said violation. The violation shall be immediately abated.

The respondent was in nonserious violation of standard 29 C.F.R. 1910.179(b)(5). No penalty is assessed for said violation. The violation shall be abated within 30 days of the date of issuance of this decision.

The respondent was in nonserious violation of standard 29 C.F.R. 1910.180(c)(2). No penalty is assessed for said violation. The violation shall be abated within 30 days of the issuance of this decision.

The respondent was in nonserious violation of standard 29 C.F.R. 1910.184(d). No penalty is assessed for said violation. Said violation shall be abated within 20 days of the date of issuance of this decision.

The respondent was in nonserious violation of standard 29 C.F.R. 1910.212(a)(1) by failing to guard the Wells metal bandsaw to protect employees from the hazard created by the unused portion of the blade. No penalty is assessed for this violation. This violation shall be abated within 30 days of the date of the issuance of this decision.

The respondent was in de minimis violation of standard 29 C.F.R. 1910.215(a)(4).

The allegations of violation of standard 29 C.F.R. 1910.219(d)(1) are dismissed.

The allegations of violation of standard 29 C.F.R. 1910.219(e)(3)(i) are dismissed.

The respondent was in nonserious violation of standard 29 C.F.R. 1910.219(f)(3). No penalty is assessed for said violation. Said violation shall be abated within 20 days of the date of issuance of this order.

The respondent was in nonserious violation of standard 29 C.F.R. 1910.252(a)(1)(iii). No penalty is assessed for said violation. Said violation shall be abated within 20 days of the date of the issuance of this order.

The allegations of violation of standard 29 C.F.R. 1910.252(a)(2)(iv)(c) are dismissed.

The allegations of violation of standard 29 C.F.R. 1910.252(b)(4)(vii) are dismissed.

The respondent was in nonserious violation of standard 29 C.F.R. 1910.252(b)(2)(iv)(d). No penalty is assessed for said violation. Said violation shall be abated within 20 days of the date of the issuance of this order.

The allegations of violation of standard 29 C.F.R. 1910.252(b)(4)(ix)(c) are dismissed.

The allegations of violation of Section 250–5(b)(1) of the National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), are dismissed.

The respondent was in nonserious violation of Section 400–4, National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that flexible cords were in contact with the steel structure of the building. No penalty is assessed for said violation. Said violation shall be abated within 20 days of the date of issuance of this decision.

The respondent was in nonserious violation of Section 400–5, National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a). No penalty is assessed for said violation. Said violation shall be abated within 20 days of the date of issuance of this decision.

The respondent was in nonserious violation of Section 400–4, National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that two outlets were spliced into one line and then wrapped. No penalty is assessed for this violation. Said violation shall be abated within 20 days of the date of issuance of this decision.

The respondent was in violation of Section 400–4, National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that a wire, instead of going to a receptacle, was taped right into the plug of the air conditioning unit. No penalty is assessed for this violation. Said violation shall be immediately abated.

The allegations of violation of Section 210-21(b) of the National Electrical Code, as adopted by standard 29 C.F.R. 1910.309(e), are dismissed.

Dated this 2nd day of November 1978.

JOHN S. PATTON

Judge

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[1] 29 U.S.C. § 661(i).

[2] The items in citation 1 were alleged to be serious violations of the Act. The items in citation 2 were alleged to be other than serious violations.

[3] The items excepted to by the Secretary alleged violations of the following standards:

Citation 1: Item 2a(d)—section 110–17(a), National Electric Code (‘NEC’), adopted by 29 CFR § 1910.309(a)

Item 2c(a)—section 250–51, NEC, adopted by 29 CFR § 1910.309(a)

Citation 2: Item 13–29 CFR § 1910.219(d)(1)

Item 14–29 CFR § 1910.219(e)(3)(i)

Item 17–29 CFR § 1910.252(a)(2)(iv)(c)

Item 21—section 250–5(b)(1), NEC, adopted by 29 CFR § 1910.309(a)

[4] The Secretary, aside, from these six items, does not take exception to other aspects of the Judge’s decision. Respondent, after the case was directed for review, filed a Motion to Vacate Direction for Review or Alternatively To Have Additional Issues Directed For Review. This motion was denied by the Commission.

[5] When cross-examined about this conversation, Watkins testified that he asked Smittle whether there were any outside contractors on the premises, and the response was ‘there was none going on.’

[6] For two of these items the judge also gave alternative reasons for vacating the alleged violations. See text accompanying notes 11 and 12 infra.

[7] In his petition for discretionary review, the Secretary requested that the Commission either reverse the judge’s decision as a matter of law or remand the case to a judge for additional factual findings as to the nature of the alleged independent contractor relationship. The Secretary did not file a brief to the Commission but rather submitted a motion requesting that the Commission remand the case to require Respondent to present further facts to prove that an independent contractor status existed. The Commission deferred ruling on the motion pending disposition of the issues on review. The Secretary’s motion is satisfied by our disposition of this case.

[8] The testimony of compliance officer Watkins that he was told by a representative of Trinity that there were no outside contractors on the worksite is of little significance to determining the status of the company that operated the truck shop and fuel pump shed. It is apparent that this statement meant only that there were no outside contractors, such as construction contractors, temporarily working in Trinity’s plant.

[9] See also Bob McCaslin Steel Erection Co., 75 OSAHRC 69/C10, 3 BNA OSHC 1311, 1974–75 CCH OSHD ¶19,755 (No. 3776, 1975) (separate opinion of Commissioner Cleary); Home Supply Co., 74 OSAHRC 16/A2, 1 BNA OSHC 1615, 1973–74 CCH OSHD ¶17,521 (No. 69, 1974).

[10] U.S. Courts of Appeals for the Fifth and Eighth Circuits have sustained Commission decisions applying the availability of evidence rule when allocating burdens of proof with respect to alleged violations at multi-employer worksites. See Bratton Corp. v. OSHRC, 590 F.2d 275 (8th Cir. 1979); Central of Ga. R.R. v. OSHRC, 576 F.2d 620, 624 (5th Cir. 1978).

[11] In Anning-Johnson Co., supra, and related cases the Commission has allowed a limited defense to employers whose employees at a multi-employer worksite were exposed to hazards, but those hazards were created or controlled by other employers.

[12] Trinity asserts it would be prejudiced by a remand since Mr. Smittle, Trinity’s manager at the West Memphis plant, left Trinity’s employ over a salary dispute. However, Trinity should be able to establish the identity of the transportation company and its relationship to Trinity through sources other than the testimony of Smittle. Further, if necessary, Respondent may compel Smittle to testify under subpoena. Commission Rule 55, 29 C.F.R. § 2200.55.

[13] The standard provides the follows:

1910.252 Welding, Cutting, and Brazing.

(a) Installation and operation of oxygen-fuel gas systems for welding and cutting—

(2) Cylinders and containers—

(iv) oxygen storage.

(c) Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet or by a noncombustible barrier at least 5 feet high having a fire-resistance rating of at least one-half hour.

[14] The standard at 29 C.F.R. § 1910.309(a) provides, in pertinent part:

§ 1910.309 National Electrical Code.

(a) The requirements contained in the following articles and sections of the National Electrical Code, NFPA 70 1971; ANSI CI–1971 (Rev. of CI–1968) shall apply to all electrical installations and utilization equipment.

Articles

250–5(a), (b), and (c) . . . A.C. Circuits and Systems. To be Grounded.

Section 250–5(b)(1) of the NEC provides, in pertinent part:

250–5. Alternating-Current Circuits and Systems to be Grounded.

(b) Alternating-Current Systems of 50 Volts and Over. AC systems supplying interior wiring and interior wiring systems shall be grounded under any of the following conditions:

(1) Where the system can be so grounded that the maximum voltage to ground on the ungrounded conductors does not exceed 150 volts.

[15] The Secretary disputes the judge’s finding that the transportation company was an ‘independent contractor.’ Consideration of whether a cited employer is an independent contractor is not the appropriate test in applying the single entity theory.

The term ‘independent contractor’ essentially concerns the nature of an employment relationship under common law. The Commission has held that employment relationships under the Act are not defined according to common law principles but rather are broadly construed in light of the statutory purpose and economic realities of the relationship at issue. Griffin & Brand of McAllen, Inc., 78 OSAHRC 48/C13, 6 BNA OSHC 1702, 1978 CCH OSHD ¶22,829 (No. 14801, 1978). In Griffin & Brand, the Commission stated that, while there is no single criterion for determining the existence of an employer-employee relationship, the following factors should be considered in making this determination:

(1) whom do the workers consider their employer;

(2) who pays the workers’ wages;

(3) who has the responsibility to control the workers;

(4) does the alleged employer have the power to control the workers;

(5) does the alleged employer have the power to fire, hire, or modify the employment condition of workers;

(6) does the workers’ ability to increase their income depend on efficiency rather than initiative, judgment, and foresight; and

(7) how are the workers’ wages established.

6 BNA OSHC at 1703, 1978 CCH OSHD at 27,600–01.

The application of the factors considered in Griffin & Brand leads to the conclusion that Trinity should not be considered the employer of employees of the transportation company. There is no indication that the employees of the transportation company considered themselves to be employed by Trinity. Further, there is no evidence that Trinity paid those workers, had the responsibility or power to control them, hire or fire them, or modify their employment conditions. Nor is there any indication of the factors on which increases in the workers’ earnings depended or of how their wages were established. Thus, under the ‘economic realities’ test, Trinity should not be considered the employer of the transportation company’s employees.

[16] Pursuant to Commission precedent, on a non-construction worksite an employer may also be found in violation of the Act if it creates or controls a violative condition to which employees of another contractor are exposed. Harvey Workover, Inc., 79 OSAHRC 72/D5, 7 BNA OSHC 1687, 1979 CCH OSHC ¶23, 830 (No. 76–1408, 1979). (I would limit this rule to multi-employer construction worksites and have not yet ruled upon its extension to non-construction worksites.) Since the transportation company, rather than Trinity, controlled the areas which contained the cited conditions, this rule is inapplicable here. Thus, Trinity cannot be held in violation unless its own employees are shown to have been exposed to the cited conditions.

[17] In Alsea Lumber Co., the court stated:

We hold that the Commission’s procedural requirement, placing upon the Secretary the burden of proving all elements of a violation, one element of which is employer knowledge thereof, is a proper exercise of the Commission’s authority under the Act.

511 F.2d at 1143.

[18] In these cases the Commission has allowed a limited defense to contractors whose employees at a multi-employer worksite were exposed to hazards, but these hazards were created or controlled by other employers.

[19] The majority, in concluding that a remand is appropriate, relies upon Truland-Elliott, 77 OSAHRC 163/A7, 4 BNA OSHC 1455, 1976–77 CCH OSHD ¶20, 908 (No. 11259, 1976). Reliance upon Truland is misplaced. The Commission, after the hearing in Truland, modified its position concerning the liability of construction subcontractors and created an affirmative defense for employers on multi-employer construction sites. Although Truland had argued it should not be held responsible for the alleged violations, it was not aware of nor did it argue all elements needed to make out the newly created defense. Accordingly, it was appropriate for the Commission in Truland to give Respondent an opportunity to introduce additional evidence.

In this case the Secretary relied in his brief to the judge on the theory that the Commission now adopts. Not only was the Secretary aware of the single entity theory as adopted by the majority, which is based upon the practice under the National Labor Relations Act, but he referred to it in his brief to the judge as a ‘common-sense issue.’ This case is, therefore, distinguishable from Truland and a remand based upon Truland is not appropriate.