“SECRETARY OF LABOR,Complainant,v.ATLANTA FORMING CO., INC.,Respondent.OSHRC Docket No. 80-6925DECISIONBefore: ROWLAND, Chairman; CLEARY, Commissioner.BY THE COMMISSION:The issue in this case is whether Atlanta Forming Company is engaged ina business affecting commerce within the meaning of 29 U.S.C. ? 652(5),section 3(5) of the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-678. [[1\/]] This case had been remanded to anadministrative law judge for further consideration in light of AvalotisPainting Co., 81 OSAHRC 7\/B1, 9 BNA OSHC 1226, 1981 CCH OSHD (P) 25,157(No. 76-4774, 1981), which held that an employer’s use of goods producedout of state affects interstate commerce. The judge, however,misinterpreted our remand order as a finding that commerce coverage hadbeen shown. We granted the employer’s petition for discretionary reviewto decide the commerce issue.After review was granted, we issued Clarence M. Jones, 83 OSAHRC 23\/A2,11 BNA OSHC 1529, 1983 CCH OSHD (P) 26,516 (No. 77-3676, 1983), in whichwe held that construction work affects interstate commerce because it isin a class of activity that as a whole affects commerce. We alsoobserved that there is an interstate market in construction materialsand services. It is undisputed that Atlanta Forming was engaged in theconstruction of a multiple-story commercial building. Under ClarenceJones, therefore, Atlanta Forming’s activities affected interstatecommerce. See also Usery v.- Franklin R. Lacy, 628 F.2d 1226 (9th Cir.1980).There is another reason why we find commerce coverage. Atlanta formingowns and uses \”Skil\” brand power tools. At the Secretary’s request, wetake official notice that the Skil Corporation–a division of EmersonElectric Company–does not have any manufacturing plants in Georgia. See2 Moody’s Industrial Manual 4173-74 (1978). Under Avalotis Painting, anemployer’s use of goods produced out of state affects interstatecommerce. Accordingly, the judge’s dispositionis affirmed.[[2\/]]FOR THE COMMISSIONRay D Darling, Jr.Executive SecretaryDated: AUG 22 1983 ————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office By e-mail ( [email protected] ),telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1\/]] Section 3(5) provides: \”The term ’employer’ means a personengaged in a business affecting commerce. . . . \” Section 3(3) definescommerce\” in part as \”trade, traffic, commerce, transportation, orcommunication among the several states, or between a state and any placeoutside thereof . . . .\” 29 U.S.C. ? 652(3). Congress, in passing theAct, intended to exercise its full powers under the Commerce Clause ofthe Constitution, Art. 1, sec. 8. See, E.g., Godwin v. OSAHRC, 540 F.2d1013 (9th Cir. 1976).[[2\/]] The Judge’s decision affirmed two citation items allegingviolations of 29 C.F.R. ?? 1926.500(b)(1) and (d)(1) and vacated twocitation items alleging separate violations of the same standards.Because Atlanta Forming took exception only to the judge’s finding thatcommerce coverage had been established, and the direction for review waslimited to the commerce issue, we do not otherwise pass on thecorrectness of the judge’s decision. See Commission Rule 92(c).”