“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 12892 ?4G PLUMBING & HEATING, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0April 3, 1978DECISIONBefore CLEARY, Chairman; and BARNAKO, Commissioner.CLEARY, Chairman:??????????? Adecision of Administrative Law Judge John J. Morris is before the Commissionfor review pursuant to section 12(j) of the Occupational Safety and Health Actof 1970.[1] Judge Morris vacated acitation alleging that respondent violated section 5(a)(2) of the Act byfailing to comply with the standard at 29 CFR ? 1926.401(c).[2] The Secretary of Laborpetitioned the Commission for review of this decision and an order granting hispetition was issued. We affirm the Judge?s decision.??????????? Thebasic facts are not in dispute. Respondent contracted with the State of Montanato install the plumbing and heating equipment for a construction project at astate prison farm. The State had awarded contracts to three contractors:respondent; an electrical contractor; and a ?general contractor?. Each of thesecontractors was a prime contractor. None exercised formal supervisory authorityover the others. The testimony established that, in ?a spirit of cooperation,?the contractors informally resolved any problems that might be encountered.??????????? Temporaryelectrical receptacles had been installed at the site by the electricalcontractor. During an OSHA inspection, the compliance officer tested thereceptacles with a ?wood head? tester and discovered that the outlet to whichrespondent?s electric band saw was connected had an open ground. This conditionformed the basis of the citation issued to respondent alleging a failure tocomply with ? 1926.401(c).??????????? Atthe hearing, the parties stipulated that the cited noncomplying conditionexisted. The parties disagreed, however, on the issue of whether respondentshould be held responsible for this noncompliance. The Secretary argued thatsince respondent could have discovered the violation through the use of asimple testing device, respondent is responsible for the exposure of its own employeesto the hazard. The Judge rejected the Secretary?s argument and vacated thecitation. The Secretary repeats the argument on review. For the reasons thatfollow, we reject the Secretary?s argument and hold that vacation of thecitation was proper.??????????? Theapproach to be followed, in determining whether an employer on a multi-employerconstruction worksite can be held responsible for a noncomplying condition, isdiscussed at length in cases decided subsequent to the issuance of the Judge?sdecision in the present case. E.g., Grossman Steel & Aluminum Corp.,76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1975?76 CCH OAHD para. 20,691 (No. 12775,1976); Anning-Johnson Co., 76 OSAHRC 54\/A2, 4 BNA OSHC 1193, 1975?76 CCH OSHDpara. 20,690 (No. 3694, 1976); Data Electric Co., Inc., 77 OSAHRC28\/C14, 5 BNA OSHC 1077, 1977?78 CCH OSHD para. 21,593 (No. 13122, 1977). Forthe reasons stated in those decisions, a contractor who did not create orcontrol the noncomplying condition may defend against the citation on theground that he neither knew, nor with the exercise of reasonable diligencecould have known, that the condition was hazardous.??????????? Applyingthese principles to the present case, respondent cannot be held in violation ofthe Act for the failure to ground the electrical outlet. Respondent did notcreate the hazard; the receptacles were installed by the electrical contractor.Nor did respondent control the hazard such that it had the means to rectify thenoncomplying condition in the manner contemplated by the standard; respondentcontracted to install plumbing and heating equipment only. Respondent did notknow of the existence of the open ground; it was a non-obvious hazarddetectable only through the use of a testing device. Therefore, respondent canbe found in violation only if, in the exercise of reasonable diligence, it wasrequired to test the electrical receptacles for proper grounding before usingthem. We hold that reasonable diligence did not require respondent, theplumbing and heating contractor on a construction worksite, to do so. See A.A. Will Sand & Gravel Corp., 76 OSAHRC 81\/G2, 4 BNA OSHC 1442, 1976?77CCH OSHD para. 20,864 (No. 5139, 1976). See also Knutson Constr. Co., 76OSAHRC 131\/F3, 4 BNA OSHC 1759, 1976?77 CCH OSHD para. 21,185 (No. 765, 1976),aff?d., 566 F.2d 596 (8th Cir., 1977).??????????? Accordingly,the Judge?s decision is affirmed.?FOR THE COMMISSION:?Ray H. Darling, Jr.Executive SecretaryDATED: APR 3, 1978\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 12892 ?4G PLUMBING & HEATING, INC., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 February 12, 1976APPEARANCES:Thomas E. Korson, Attorney, Office of theAssociate Regional Solicitor, U. S. Department of LaborRoom 15019 Federal Office Building, 1961Stout Street, Denver, Coloradofor the Complainant,\u00a0Norman Carey, (Pro Se), 4G Plumbing &Heating, Inc.Box 3538, Missoula, Montanafor the Respondent.\u00a0DECISION AND ORDER?Morris, Judge:??????????? ?citation alleges a violation of theOccupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., hereafter?Act?). Complainant asserts a violation occurred on March 26, 1975 and wasdetected when complainant inspected a construction site near Deer Lodge, Montana.The citation was issued on April 3, 1975. A notice contesting the citation andpenalty was dated April 7, 1975.??????????? Thecitation alleges a nonserious violation of 29 CFR 1926.401(c). It reads:The temporary power receptacles located inthe south end of Rothe Hall which supplied power to the metal band saw did nothave a permanent and continuous path to ground.?Proposed civil penalty: $25.???????????? Thecited standard reads:? 1926.401 Grounding and bonding.?(c) Effective grounding. The path fromcircuits, equipment, structures, and conduit or enclosures to ground shall bepermanent and continuous; have ample carrying capacity to conduct safely thecurrents liable to be imposed on it; and have impedance sufficiently low tolimit the potential above ground and to result in the operation of theovercurrent devices in the circuit.???????????? Theevidence: Respondent contracted with the State of Montana to install plumbing,heating, and related piping on state owned property (Tr. 5?7, 33). In Montanastate agencies award contracts to three bidders, all designated primecontractors. They consist of the general, the mechanical, and the electricalcontractor (Tr. 6?7, 18?19). A cooperative effort usually prevails as no primecontractor has authority over the other (Tr. 7?9, 24). On this project theelectrical contractor installed temporary power receptacles (Tr. 9, 12?13).Respondent?s employees and workers of other employers used one of thereceptacles at the south end of Roche Hall. The receptacles are similar tothose on other construction sites (Tr. 9?10, 14?15).??????????? Usinga woodhead tester a compliance officer detected an open ground in the powerreceptacle outlet (Tr. 19, 21, 23?24; compl?s ex. 1). An open ground can onlybe determined by instrumentation; a yellow light shines on the tester (Tr. 15,21). Respondent?s band saw and extension cord were properly grounded butrespondent had not checked the outlet (Tr. 10, 29). If any of respondent?semployees detect an ungrounded outlet its foreman notifies the electricalforeman who remedies the condition (Tr. 11?12). A ground might be effective oneday and not the next (Tr. 30).??????????? Theparties stipulated a violation existed at the worksite, but they disagree onthe issue of responsibility.??????????? Complainantargues respondent could have assumed the initiative and responsibility to testthe outlet. Complainant further argues each employer is responsible for thesafety of his workers, therefore, the decision in Anning?Johnson Company, etal v. Occupational Safety and Health Review Commission et al, 516 F.2d 1081(7th Circ., 1975) incorrectly decided the law. In the alternative: if Anning?Johnsoncorrectly decided the law then the facts in the instant case aredistinguishable because there was no prime contractor at the worksite as thatterm is generally understood.??????????? Factsanalogous to the instant case are set forth in Secretary v. The MountainStates Telephone and Telegraph Company, Docket No. 355, 2 OSAHRC 168(1973). Therein the Commission rejected the trial judge?s ruling which renderedan employer absolutely responsible for the safe condition of his tools. TheCommission stated, at 171:?. . . Where the facts show that theemployer knew, or should have known, of the unsafe condition of the tool, orfailed to act where there were circumstances which would indicate that heshould have the tool checked to be sure it was safe, then the employer hasviolated this standard.???????????? As inthe Commission decision, this case fails to develop facts establishing aviolation. If the Secretary of Labor desires to protect employees in factssimilar to the instant case, he should promulgate a standard requiring thatevery employer test all power outlets used by his employees on a jobsite.??????????? Inasmuchas complainant failed to establish any liability it is not necessary toconsider his other contentions.??????????? Respondentemployer admits it engages in a business affecting commerce. Accordingly, basedon the uncontroverted record the undersigned enters the following:ORDER??????????? 1.Citation 8 is vacated.??????????? 2.The proposed civil penalty of $25 is vacated.So ordered in the City and County of Denver, Colorado.?John J. MorrisJudge, OSAHRC[1] 29 U.S.C. ? 651et seq. (hereinafter ?the Act?).[2] This standardprovides:? 1926.401 Grounding and bonding.(c)Effective grounding. The path from circuits, equipment, structures, and conduitor enclosures to ground shall be permanent and continuous. . . .”