“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-154 BAILEY CONSTRUCTION COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September 29, 1978DECISIONBefore: CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BARNAKO, Commissioner:??????????? Administrative Law Judge Foster Furcolo vacated that itemof a citation alleging Bailey Construction Company?s failure to comply with thestandard at 29 C.F.R. 1926.401(a)(1)[1] on the ground that theSecretary did not prove that a defective saw had actually been used or would beused by Bailey?s employee. We conclude the judge erred.[2]??????????? The citation was issued to Bailey after an OSHAcompliance officer inspected its worksite, a correctional facility in New YorkState, where two of Bailey?s employees, a foreman and a laborer, were engagedin alteration and repair at the laundry building. Specifically, they werepreparing a hole in the concrete floor for the installation of a scale frame.??????????? A Rockwell hand saw belonging to Bailey was lying on thefloor with the grounding prong snapped off. When the compliance officerinformed the foreman that an electrical hazard existed if the saw were used,the foreman went to Bailey?s truck and obtained a replacement saw with a propergrounding plug.??????????? The defective saw was not used during the inspection. Thecompliance officer testified the laborer, who was 15 feet from the saw, wouldhave no occasion to use it. However, Bailey?s President testified that theforeman was a carpenter who possibly might use the saw to cut wood formwork forthe hole after the concrete had been broken out.??????????? In vacating the citation Judge Furcolo stated that theSecretary failed to show that Bailey?s employee used or would be likely to usethe defective saw. Although he specifically found that the foreman intended touse a saw at the jobsite and that the hazard of electric shock existed if anungrounded saw were used, he reasoned that an employee who needed such a sawwould be ?as likely? to replace it with the other saw as to use one with adefective plug.??????????? We conclude that the Judge erred in vacating thecitation. In Palmer Christiansen Co., 76 OSAHRC 39\/D10, 4 BNA OSHC 1020,1975?76 CCH OSHD para. 20,517 (No. 3108, 1976), we held that, in order to provea violation of 29 C.F.R. 1926.401(a)(1), the Secretary need only show that adefective tool was available for use. That burden has been satisfied here. Seealso Gilles and Cotting, Inc. 76 OSAHRC 30\/D9, 3 BNA OSHC 2002, 1975?76CCH OSHD para. 20,448 (No. 504, 1976).??????????? The Judge?s reasoning as to why the foreman would not belikely to use the defective saw is unconvincing. We think it is more likelythan not that an employee having need of a saw would use one immediately availableat the worksite than go to some other location to obtain one. Since Bailey hasnot shown that it took any specific steps to prevent its employee from usingthe ungrounded tool, we conclude it violated the cited standard. Gilles& Cotting, Inc., supra, 3 BNA OSHC at 2004, 1975?76 CCH OSHD at p.24,425. We also conclude that the penalty of $50 proposed by the Secretary isappropriate.??????????? The citation for nonserious violation of 29 C.F.R.1926.401(a)(1) is affirmed, and a penalty of $50 is assessed.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: September 29, 1978\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 76-154 BAILEY CONSTRUCTION COMPANY, \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0January 24, 1977APPEARANCESRudolph E. DeMeo,Esq. For Complainant\u00a0John Perez, Jr.,Esq. For Respondent?DECISIONAND ORDERFurcolo, Judge:??????????? This is a proceeding pursuant to the Occupational Safetyand Health Act of 1970, as amended (29 U.S.C. ? 651 et seq.), hereinaftercalled the Act. The Complainant alleges that the Respondent has violated ?5(a)(2) of the Act (? 654) by not complying with occupational safety and healthstandards.??????????? The Respondent is a corporation engaged in the businessof general construction, and its business affects the commerce of the UnitedStates.??????????? The Respondent?s worksite at the New York StateCorrectional Facility, Coxsackie, New York, was inspected by the OccupationalSafety and Health Administration (hereinafter called OSHA) on December 24,1975.??????????? On December 30, 1975, the following citations, togetherwith notice of proposed penalty, were issued against the Respondent:??????????? Citation #1??????????? Item #1, the nonserious violation of standard 29 C.F.R. ?1903.2(a)….. $0??????????? Item #2, the nonserious violation of standard 29 C.F.R. ?1926.50(d)(2)….. $0???????????? Item #3, the nonserious violation of standard ?1926.401(a)(1)….. $50??????????? Citation #2??????????? Item #1, the serious violation of standard 29 C.F.R. ?1926.102(a)(1)….. $500??????????? On January 13, 1976, the Respondent filed notice ofcontest to the citations and the penalties proposed therefor.??????????? On January 29, 1976, the Respondent filed with the OSHARegional Director a request for an informal conference.??????????? The pertinent words of the standards involved are:? 1903.2(a):Employer shall post an OSHA poster ?to be furnished by the Occupational Safetyand Health Administration . …??? 1926.50(d)(2):?The first-aid kit shall consist of materials approved by the consultingphysician . . . checked by the employer . . . to ensure that the expended itemsare replaced.??? 1926.401(a)(1):?. . . portable and\/or plug-connected equipment shall be grounded.??? 1926.102(a)(1):?Employees shall be provided with eye and face protection equipment . . ..??? 1903.19: ?At therequest of an affected employer . . . the Assistant Regional Director may holdan informal conference for the purpose of discussing any issues raised by aninspection, citation . . ..?\u00a0MOTIONS??????????? I. Respondent?s Motion to Dismiss??????????? At the beginning of the hearing, the Respondent moved todismiss the citation on three grounds:??????????? 1. Its business did not affect interstate commerce,??????????? 2. The Complainant had violated his own internalprocedure by not affording the Respondent an informal conference,??????????? 3. The inspection was improper and illegal because it wasconducted without having first obtained a search warrant.??????????? The motion was taken under advisement pending thepresentation of evidence . . . Tr. 3?9.??????????? Concerning the interstate commerce, the Respondentstipulated that it had done Federally-funded work within the last three years;and it deals generally in its business in interstate commerce but not at thisparticular jobsite . . . Tr. 19, 22, 60.??????????? I find that, although practically and factually theRespondent?s business affects interstate commerce only infinitesimally at most,it does affect interstate commerce in the technical legal sense.??????????? As concerns the Secretary?s failure to grant theRespondent an informal conference: The Respondent?s letter requesting aninformal conference was sent on January 29 whereas its notice of contest hadalready been filed on January 13. However, even if the Secretary had failed togrant any timely request, I find that such failure did not invalidate thecitation or prejudice the Respondent in its defense.??????????? As concerns the inspection: Compliance Officer Sullivantestified that he was admitted to the correctional facility by a guard whoconducted him to the jobsite in its laundry building where the Respondent wasdoing a repair and alteration job. He presented his credentials to Feeley, whotold him he was in charge and represented the Respondent, and Feeleyaccompanied him on the walk-around . . . Tr. 26, 27, 48. He did not have asearch warrant and had not applied for one. He did not tell Feeley he had aright to counsel or to object to the inspection. He told Feeley that he had a rightto accompany him on the inspection . . . Tr. 35, 36. The Respondent?sPresident, Bailey, testified that Feeley was in charge of the jobsite inquestion . . . Tr. 12.??????????? I find that the compliance officer did not have a searchwarrant, had not applied for one, and did not tell the Respondent?srepresentative that he had a right to counsel or to object to the inspection. Ifind that the jobsite was not on the Respondent?s premises but was analteration and repair project being conducted by Respondent at the New YorkState Correctional Facility, the property of a third person (New York State);the compliance officer had been given permission to enter by the propertyowner?s agent, a guard, and had as much right to the where he was as theRespondent; there was no search and seizure of any kind; and the Respondent?ssuperintendent permitted the compliance officer to make the inspection. I findthe inspection was proper and legal.??????????? II. Complainant?s Motion to Amend??????????? In the early stages of the hearing, just after thecompliance officer had testified to his qualifications, the Complainant?sattorney stated that, when the Complainant?s case was completed, he was goingto move to amend the citation and complaint to conform to the evidence . . .Tr. 21. At the conclusion of the Complainant?s presentation of evidence, theComplainant moved to amend Item #1 of Citation #2, and paragraph V(a) of thecomplaint to change the words ?pavement clipper? to ?pavement chipper orhammer? . . . Tr. 51.??????????? The motion was allowed because the Respondent?ssuperintendent was present during the inspection, there had never been anyquestion about the implement that was the subject of the citation, the misnomerwas apparently an inadvertent typographical error, and the Respondent was not prejudicedin any way by the allowance of the motion to amend.??????????? III. The Respondent?s Motion to Dismiss??????????? After the Complainant had rested, the Respondent moved todismiss the citations on the ground that interstate commerce was not affected.The Respondent also moved to dismiss paragraph V, section a-d, of the complainton the ground that there was no evidence to substantiate those allegations.??????????? Those motions will be treated as denied for the reasonsstated herein.EVIDENCE??????????? The Respondent is a very small corporation that, for allpractical purposes, is owned and operated by Mr. and Mrs. George E. Bailey, whoare respectively its President and Secretary-Treasurer. It has a generalsuperintendent and, directly below him in the organizational chart, various tradeforemen who are temporary employees during particular jobs. Feeley was incharge of the jobsite in question. There was no evidence of any priorviolations by the Respondent . . . Tr. 11, 12, 49.??????????? The Complainant?s case was presented primarily by ArthurJ. Sullivan, who testified that he has been an OSHA compliance officer for 15months and before that was for over 20 years a construction safety inspectorand supervisor for the State of New York. He has conducted about 4,000inspections in construction. (The Respondent agreed that he was fully qualifiedas an expert in construction matters . . . Tr. 24, 25.)??????????? Concerning Item #1 of Citation #1, Compliance OfficerSullivan testified that there was no OSHA poster at the jobsite. Feeley said hedid not have a poster so he gave him one and he put it up . . . Tr. 27, 28. TheRespondent?s President, Bailey, testified he had not received a poster fromOSHA for the job . . . Tr. 56.??????????? In the absence of evidence that the Respondent had beenfurnished with an OSHA poster, I find that the Complainant has not sustainedthe burden of proving noncompliance with standard ? 1903(2)(a).??????????? Concerning Item #2 of Citation #1, Compliance OfficerSullivan testified that several articles were missing from the first-aid kit;and Feeley said he would take care of it . . . Tr. 28, 33, 36. The Respondent?sPresident, Bailey, testified that the practice was to have a first-aid kit inevery vehicle. He inspects from time to time but does not know about the one inquestion here . . . Tr. 62.??????????? I find that the first-aid kit was substandard and thatrequired articles were missing from it.??????????? Concerning Item #3 of Citation #1, Compliance OfficerSullivan testified that the grounding plug of the electric saw was snapped off;the saw could not be grounded. There was water on the concrete floor at thejobsite. He did not see the saw being used and it was not connected, but it wasin the immediate work area laying on the floor . . . Tr. 28, 38. The employee,Willingham, who was chipping, was 15 feet away from the saw, but he would nothave any use for that implement because he was a laborer. The saw might havebeen there for Feeley?s use . . . Tr. 31, 40. Feeley said he would replace thesaw with another; and he did with another one with a grounding plug . . . Tr.28, 40. It is common practice to tag something that is to be removed forrepair, but the saw was not tagged . . . Tr. 47. The hazard was the possibilityof an electric shock to an employee using the saw . . . Tr. 28, 31. TheRespondent?s President, Bailey, testified that the only two employees at thejobsite were Feeley and Willingham. It was possible that Feeley might need touse the saw . . . Tr. 49, 50.??????????? I find that the Respondent?s employee, Feeley, intendedto use an electric saw at the jobsite. If it had not been intended to use sucha saw, why would it have been brought there? And (when the defect was pointedout) replaced by another? I also find that the combination of concrete floor,water, and defective plug created the hazard of electrical shock to one ofRespondent?s employees if an ungrounded saw were used. However, I find that thesaw had not been used, and there was no proof that it would be used. Anemployee who needed such a saw would be as likely to replace it with the othersaw as to use one with a defective plug. A saw in good working order wasreadily available and was brought in by Feeley as soon as the defective plugwas called to his attention. In that state of the evidence, I find that theComplainant has not sustained the burden of proving noncompliance with standard? 1926.401(a)(1).??????????? Concerning Citation #2, Compliance Officer Sullivantestified that Joseph Willingham was chipping the concrete floor in an area4?1\/2 x 4?1\/2 and 5 ?? deep. He was chipping with a Bosch electric chipper, theconcrete chips were flying, and he was not wearing glasses or any protectiveeye equipment. Both Willingham and Feeley told him that Willingham was theRespondent?s employee, and Feeley said that were protective glasses in thetruck outside… Tr. 29, 30. That was not in the area of the jobsite . . . Tr.41. It was a pavement chipper or hammer, and he was chipping down directly intothe floor to make a hole for a steel frame to be installed . . . Tr. 37, 38.The hazard was that the flying chips could injure an employee or cause the lossof sight. The Respondent?s President, Bailey, testified that the Respondentsupplies employees at the worksite with protective masks. The vehicles carrygoggles . . . Tr. 31, 57.??????????? Is the Respondent required to do more than merely?provide? the protective equipment? There is authority both ways on the variousstandards that have such words as ?supply? or ?provide?. My own opinion is thatthe standard here requires the Respondent not only to ?provide? the equipmentbut also to take adequate positive steps to see that the equipment is used. Ifind that the Respondent did not take such steps. In addition, I find that theprotective equipment was not provided at the jobsite but was in a truck someslight distance outside the building in which the jobsite was located.??????????? I find that the Respondent?s employee, Willingham, waschipping concrete with an electric pavement chipper or hammer; concreteparticles were flying, and he was not wearing any protective eye equipment; andthere was a substantial probability that the employee could sustain seriousinjury or loss of sight from a particle striking him.??????????? Bailey also testified that he and his wife constitute theRespondent. He does his best to supervise and see that the Respondent complieswith all OSHA regulations. The Respondent supplies first-aid kits andprotective eye equipment and inspects from time to time to see if replacementsare needed . . . Tr. 11, 54?57.??????????? I was very favorably impressed with both Mr. Bailey andCompliance Officer Sullivan; both were candid and direct in their testimonyand, in my opinion, were honest and did not embellish the facts. Although theRespondent had constructive knowledge of the violations, I believe that theRespondent?s President had tried to have proper equipment available and complywith OSHA regulations. Having in mind the size of the Respondent, its goodfaith, and the other circumstances developed by the evidence, it does not seemto me that a large civil penalty is necessary.FINDINGSOF FACT??????????? Having heard the testimony, observed the witnesses, andexamined the exhibits, the following Findings of Fact are made, in addition tothose made under various paragraphs above:??????????? 1. At all times concerned, the Respondent regularlyreceived, handled or worked with goods which had moved across state lines;??????????? 2. As concerns Item 1 of Citation #1, there was no OSHAposter at the jobsite, but the Respondent had not been furnished with one;??????????? 3. As concerns Item 2 of Citation #1, the first-aid kitdid not contain all the essential items;??????????? 4. As concerns Item 3 of Citation #1, the electric sawwas a plug-connected piece of equipment that was not grounded, but it had notbeen used and there was no proof that it was going to be used;??????????? 5. As concerns Item 1 of Citation #2, the Respondent?semployee was chipping concrete with an electric pavement chipper or hammer, andthe Respondent had not provided him with eye protection equipment at thejobsite for that task. The Respondent had provided eye protection equipment buthad not taken adequate steps to require said employee to use such equipment;??????????? 6. The conditions described in Item 3 of Citation #1exposed the Respondent?s employees to sustaining harm because of the hazard ofan injury that required first-aid materials that were missing;??????????? 7. The conditions described in Item 1 of Citation #2exposed the Respondent?s employees to sustaining serious harm because of thehazard of concrete chips striking the face or eye;??????????? 8. One or more officers or supervisory personnel of theRespondent knew of the hazardous conditions described herein and knew theemployees were exposed to such hazards;??????????? 9. The ?informal conference? requested by the Respondentunder Standard ? 1903.19 was never granted, but the failure was not prejudicialto the Respondent?s defense.CONCLUSIONSOF LAW??????????? 1. At all times concerned, the Respondent was an employerengaged in a business affecting commerce within the meaning of the Act, and theOccupational Safety and Health Review Commission has jurisdiction over thesubject matter and the parties;??????????? 2. At all times concerned, the Respondent knew, or withthe exercise of due diligence should have known, of the alleged violations;??????????? 3. On the date in question, the Respondent was not incompliance with standards 29 C.F.R. ? 1926.50(d)(2) and ? 1926.102(a)(1), andthe Complainant has sustained the burden of proving the Respondent violated ?5(a)(2) of the Act (? 654);??????????? 4. The Complainant has not sustained the burden ofproving the Respondent violated 29 C.F.R. ? 1903.2(a) and ? 1926.401(a)(1);??????????? 5. The inspection conducted by the compliance officer wasproper and legal;??????????? 6. The failure to grant the Respondent an ?informalconference? under standard ? 1903.19 did not invalidate the citation or givecause to dismiss the complaint.ORDER??????????? The whole record having been considered and dueconsideration having been given to 29 U.S.C. ? 666(j), it is ORDERED:??????????? 1. Item 2 of Citation #1 is affirmed;??????????? 2. Item 1 of Citation #2 is affirmed and a penalty of$100 is assessed therefor;??????????? 3. Items 1 and 3 of Citation #1, and the penaltiesproposed therefor, are vacatedSO ORDERED.?FOSTER FURCOLOJudge, OSHRCDated: January 24, 1977Boston, Massachusetts\u00a0[1] 29 C.F.R.1926.401(a)(1) provides:(a) Portable and\/or cord and plugconnected equipment.(1) The noncurrent-carrying metalparts of portable and\/or plug connected equipment shall be grounded.[2] The Judge alsovacated a citation item alleging a violation of 29 C.F.R. 1903.2(a) andaffirmed items alleging violations of 1926.50(d)(2) and 1926.102(a)(1). Heassessed a $100 penalty for the latter violation.TheSecretary petitioned for review with respect to the Judge?s vacation of thecitation for violation of 29 C.F.R. 1926.401(a)(1), and review was directed onthat item by Chairman Cleary. Although former Commissioner Moran also issued a?for error? Direction for Review, the parties have only addressed the Judge?sdisposition of the 29 C.F.R. 1926.401(a)(1) item. Inasmuch as neither party hastaken exception to the Judge?s disposition of the other items, they are notbefore us for review. Water Works Installation Corp., 76 OSAHRC 61\/B8, 4BNA OSHC 1339 1976?77 CCH OSHD para. 20,780 (No. 4136, 1976).”