“SECRETARY OF LABOR,Complainant,v.CLARENCE M. JONES, d\/b\/aC. JONES CO.,Respondent.OSHRC Docket No. 77- 3676DECISIONBefore: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.BY THE COMMISSION:The Secretary of Labor issued to Clarence M. Jones, d\/b\/a C. Jones Co.,two citations that alleged violations of several construction safetystandards as well as the \”posting\” standard. Judge Paul L. Brady heldthat Jones failed to comply with several standards and had thereforeviolated the Occupational Safety and Health Act of 1970, 29 U.S.C. ??651-678 (\”the Act\”). The case is before us under 29 U.S.C. ? 661(i). Weaffirm the judge’s decision.Jones had undertaken the exterior renovation of a residential apartmentbuilding that he owns and leases. During an inspection, a complianceofficer observed five workmen under the supervision of a foremanperforming various duties at the worksite. The compliance officernoticed two ladders at the worksite that are alleged to violate 29C.F.R. ? 1926.450(a)(2). A straight ladder in use during the inspectionhad a broken siderail tied together with wire; a stepladder was missingpart of the base of one siderail. The compliance officer observed aworker on the straight ladder chipping material from the facade of thebuilding with a hammer and chisel. Fragments of brick and cement wereseen flying out toward the worker. It is alleged that contrary tosection 1926.102(a)(1), the worker was not wearing eye protection. Thecompliance officer also observed several workers standing beneath thestraight ladder and beneath scaffolding erected next to the building. Hetestified that the workers were exposed to head injury from fallingtools and equipment. The workers were not wearing hardhats or any otherform of head protection, allegedly contrary to section 1926.100(a). Thecompliance officer also stated that contrary to section 1903.2(a)(1), astandard notice informing the workers of their rights under the Act wasnot posted at the worksite.Jones’ foreman testified that—pursuant to Jones’ instructions—he hadremoved the broken ladders from service, but that they were improperlyreturned to service on the day of the inspection by one of the workers.The foreman also stated that goggles and hardhats were available at theworksite, if an employee had asked for or needed them. One workertestified that he did not wear goggles while chipping brick because\”[t]hey are uncomfortable.\”On review, Jones raises several threshold arguments. First, he contendsthat he is entitled to a jury trial on the issues raised by thecitations. Second, he argues that he is not an \”employer\” within themeaning of the Act. Third, he argues that he is not engaged ininterstate commerce, and that his activities therefore do not fallwithin the coverage of the Act. With respect to the ladder and personalprotective equipment violations, Jones also argues that he had noknowledge of the violative conditions, and that unpreventable employeemisconduct created the violative conditions. The Secretary argues thatthe citations should be affirmed for the reasons assigned by the judge.The administrative law judge rejected Jones’ arguments that he was notan \”employer\” and that he was not engaged in interstate commerce.[[1]]We are in essential agreement with the judge’s findings and conclusionswith respect to these matters; we therefore will not discuss them atlength. However, we do emphasize the following points. In S & S DivingCo. , 80 OSAHRC 85\/D3, 8 BNA OSHC 2041, 1980 CCH OSHD ? 24,742 (No.77-4234, 1980), the Commission set forth the factors it considers whendeciding whether an employer- employee relationship exists. Some ofthose factors are: whom do the workers consider their employer; who paysthe workers’ wages; who has the responsibility to control the workers;does the alleged employer have the power to control the worker; does thealleged employer have the power to fire, hire, or modify the employmentcondition of workers; and how are the workers’ wages established.Although two workers-Swingle, and Debord–testified at the hearing thatthey did not consider themselves employed by Jones, but rather.considered themselves to be independent contractors, the record revealsthat Jones set their wages and paid them at an hourly rate. Jones hadthe power to hire and fire them. He also directed their activities andinspected their work. indeed, Swingle had been working for Jones forapproximately one year at the time of the inspection, and acted asJones’ foreman at the worksite. We therefore affirm the judge’s findingthat Jones was an \”employer\” within the meaning of the Act.We also affirm the judge’s finding that Jones was \”engaged in a businessaffecting commerce\” within the meaning of section 3(5) of the Act. Thejudge found that Jones \”utilizes the United States mail …. andemployees are hired through newspaper advertisements and contact bytelephone…. [L]umber, paint and plumbing supplies, including sinks,bathtubs, and hot water tanks, are purchased for use in the business. Atruck, power tools, and a lawnmower are provided which requireelectricity, gasoline, and oil.\” We agree with the United States Courtof Appeals for the Ninth Circuit that \”statutory jurisdiction [exists]so long as the business is in a class of activity that as a wholeaffects commerce.\” Usery v. Franklin R. Lacy 628 F.2d 1226 (9th Cir.1980). Although Jones was engaged in a small construction project andhis activities and purchases may have been purely local, hisconstruction activity nevertheless affected interstate commerce. Thereis an interstate market in construction materials and services andtherefore construction work affects interstate commerce. See NLRB v.International Union of Operating Engineers, Local 571, 317 F.2d 638, 643n.5 (8th Cir. 1963) (judicial notice taken that construction industryaffects interstate commerce); cf. Papadopoulos- v. Sheraton Park Hotel410 F.Supp 217 (D.D.C. 1976) (hotel industry); Lang v. American MotorsCorp. 254 F.Supp 892 (E.D. Wis. 1966) (automobile manufacturingindustry). Thus, even if Jones’ contribution to this stream of commercewas small and his activity and purchases were purely local, theynecessarily had an effect on interstate commerce when aggregated withthe similar activities of others. See Wickard v. Filburn 317 U.S. 111,127-28 (1942).As for Jones’ demand for a jury trial, in Atlas Roofing Co. v. OSHRC,430 U.S. 442 (1977), the Supreme Court held that the Commission mayassess penalties without the aid of a jury trial consistent with theUnited States Constitution. Accordingly, Jones’ contention is without merit.With respect to the merits of the citations, we agree with the judge’sdecision and the reasons he assigned. We shall therefore comment on onlysome of Jones’ arguments. Jones argues that he had no knowledge that thebroken ladders were returned to service after he had ordered theirremoval. [[2]] However, the ladders were in plain view, and Jones’foreman was present at the worksite at all times. Under Commissionprecedent, the Secretary must prove that the employer either knew or,with the exercise of reasonable diligence, could have known of thenon-complying condition. Prestressed Systems, Inc., 81 OSAHRC 43\/D5, 9BNA OSHC 1864, 1868, 1981 CCH OSHD ? 25,358, p.31,500 (No. 16147, 1981).Inasmuch as the record reveals that the foreman could have known of thepresence and continued use of the defective ladders through the exerciseof reasonable diligence, constructive knowledge on the part of theemployer was established. See MCC of Florida, Inc., 81 OSAHRC 57\/C10, 9BNA OSHC 1895, 1981 CCH OSHD ? 24,420 (No. 15757, 1981) (knowledge offoreman imputed to employer), and cases cited therein.Jones was also cited for failing to provide head protection foremployees exposed to a hazard of falling tools or material fromemployees working overhead, contrary to section 1926.100(a), [[3]] andfor failing to provide eye protection to employees chipping materialfrom the face of the apartment building, contrary to section1926.102(a)(1). [[4]] The record shows that although hardhats andgoggles were available for use in Jones’ car and in the basement of theapartment building, it was not Jones’ practice to require workers to usesuch equipment except when operating certain tools not at issue here.Jones argues that it is the workers’ responsibility to requestprotective equipment if they need it. Jones contends that he requiredgoggles to be worn for dangerous work, and that the worker on the ladderwas chipping wood rather than brick and cement as the compliance officercontended. Finally, Jones argues that he had no knowledge that theworkers had failed to use hardhats or goggles.Our cases make clear that merely having protective equipment availableat a worksite does not satisfy a standard that requires that thisequipment be used. Section 1926.100(a) requires that employees \”beprotected\” by the use of helmets \”where there is a possible danger ofhead injury from impact, or from falling or flying objects…. \” SeeFranklin R. Lacy (Aqua View Apartments) 81 OSAHRC 7\/A2, 9 BNA OSHC 1253,1254, 1981 CCH OSHD ? 25,171, p.31,073 (No. 3701, 1981) (headprotection). Although section 1926.102(a)(1) states that employees shallbe \”provided\” with eye and face protection equipment when there is apotential for eye or face injury, section 1926.28(a) makes clear thatemployers are generally \”responsible for requiring the wearing\” ofprotective equipment where \”there is an exposure to hazardousconditions….\” Moreover, we have held that \”a standard that requires anemployer to provide a safety device implicitly requires that the devicebe used.\” Borton, Inc., 82 OSAHRC 17\/E13, 10 BNA OSHC 1462, 1465, 1982CCH OSHD ? 25,983, p.32,599 (No. 77-2115, 1982), appeal filed, No. 82-1661 (10th Cir. May 26, 1982), and cases cited therein. We thereforereject Jones’ contention that making such protection available \”onrequest\” constitutes compliance with these standards.As for Jones’ apparent contention that the chipping operation did notpose an eye hazard, we have previously recognized that \”the eye is anespecially delicate organ and… any foreign material in the eyepresents the potential for injury.\” Stearns-Roger, Inc., 79 OSAHRC94\/A2, 7 BNA OSHC 1919, 1921, 1979 CCH OSHD ? 24,008, p.29,156 (No.76-2326, 2979). Inasmuch as the compliance officer observed chippedfragments flying out toward the unprotected employee, we affirm thejudge’s finding that the standard was violated. See Vanco Construction,Inc., 82 OSAHRC 71\/A2, 11 BNA OSHC 1058, 1060, 1983 CCH OSHD ? 26,372 atp. 33,453 (No. 79-4945, 1982). We also reject Jones’ argument that theviolative conditions were created by unpreventable employee misconduct.The Commission has held that it will sustain the unpreventable employeemisconduct defense only if an employer demonstrates that an employee’sconduct was a departure from a uniformly and effectively communicatedand enforced work rule.H.B. Zachry Co., 80 OSAHRC 9\/08, 7 BNA OSHC 2202, 1980 CCH OSHD ? 24,196(No. 76-1393, 1980), aff’d, 638 F.2d 812 (5th Cir. 1981). The onlyevidence of a workrule concerned the use of a power tool not at issuehere. There is no evidence that the workers were instructed to weargoggles while chipping brick. In addition, although the foremantestified that he had removed the ladders from service, there is noevidence that the workers were told not to use them. That such aninstruction was given seems particularly doubtful because, as we havenoted, the ladders were in plain view and the foreman was at the site atall times.As for the hardhat violations, we are not convinced that barricades andsigns warning of danger amount to a workrule forbidding entry into thedanger zone. There is no evidence that the employees understood or couldbe expected to understand that the barricades and signs were directed tothem rather than to the public. See J.K. Butler Builders, Inc., 77OSAHRC 26\/A2, 5 BNA OSHC 1075, 1977-78 CCH OSHD ? 21,585 (No. 12354,1977) (workrule too general to be effective), and cases cited therein.In any event, there is no evidence that workrules with respect togoggles, hardhats, or ladders were uniformly enforced. As for Jones’claim that he lacked knowledge of these violations, the recordreveals–as with the ladder violations–that the foreman could haveknown of the violative conditions through the exercise of reasonablediligence. We therefore affirm the judge’s conclusion that Jones failedto comply with sections 1926.100(a) and 102(a)(1).Jones was cited for failure to comply with the regulation at section1903. 2(a)(1) that requires an employer to display an OSHA posteraffirmed the citation item, noting that Jones had failed to introduceany evidence denying the allegation. On remand, Jones does not deny thathe failed to display the poster nor does he deny that one was furnishedto him; he argues only that he was ignorant of the legal requirementthat it be posted. Unlike Puterbaugh Enterprises, Inc., 74 OSAHRC44\/B11, 2 BNA OSHC 1030, 1032, 1973-74 CCH OSHD ? 18,158, p. 22,327 (No.1097, 1974), or Oak Lane Diner, 73 OSAHRC 28\/D2, 1 BNA OSHC 1248,1971-73 CCH OSHD ? 16,338, p. 21,258 (No. 398, 1973), there is here noevidence nor is there a claim that the Secretary failed to furnish thenotice to Jones. Under these circumstances, and in accordance with thepresumption of regularity of administrative action, we affirm thecitation item. See Lousiana-Pacific Corp., 77 OSAHRC 131\/B7, 5 BNA OSHC1572, 1573, 1977- 78 CCH OSHD ? 21,977, p. 26,486 (No. 6277, 1977).The judge assessed total penalties of $121.00. Jones does not take issuewith judge’s assessments and we see no reason to overturn them.Accordingly, items 1a, 1b, and 4 of citation No. 1, and item 1 ofcitation No. 2, are affirmed. A penalty of $121.00 is assessed.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 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]] \”Employer\” is defined under section 3(5) of the Act, 29 U.S.C. ?652(5), as \”a person engaged in a business affecting commerce who hasemployees….\”[[2]] Section 1926.450(a)(2) provides in part:The use of ladders with broken or missing rungs or steps, broken orsplit side rails, or other faulty or defective construction isprohibited. When ladders with such defects are discovered, they shall beimmediately withdrawn from service….[[3]] Section 1926.100(a) provides:Employees working in areas where there is a possible danger of headinjury from impact, or from falling or flying objects, or fromelectrical shock and burns, shall be protected by protective helmets.[[4]] Section 1926.102 (a)(1) provides:Employees shall be provided with eye and face protection equipment whenmachines or operations present potential eye or face injury fromphysical, chemical, or radiation agents.[[5]] The judge Section 1903.2(a)(1) provides in part:Each employer shall post and keep posted a notice or notices, to befurnished by the Occupational Safety and Health Administrative, U.S.Department of Labor, informing employees of the protections andobligations provided for in the Act….”