“Docket No. 77-3676 SECRETARY OF LABOR,Complainant, v.CLARENCE M. JONES, d\/b\/a C. JONES CO.,Respondent.OSHRC Docket No. 77- 3676DECISION Before: 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 thatalleged violations of several construction safety standards as well as the\”posting\” standard. Judge Paul L. Brady held that Jones failed to comply withseveral standards and had therefore violated the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The case is before us under 29 U.S.C.? 661(i). We affirm the judge’s decision.Jones had undertaken the exterior renovation of a residential apartment building that heowns and leases. During an inspection, a compliance officer observed five workmen underthe supervision of a foreman performing various duties at the worksite. The complianceofficer noticed two ladders at the worksite that are alleged to violate 29 C.F.R. ?1926.450(a)(2). A straight ladder in use during the inspection had a broken siderail tiedtogether with wire; a stepladder was missing part of the base of one siderail. Thecompliance officer observed a worker on the straight ladder chipping material from thefacade of the building with a hammer and chisel. Fragments of brick and cement were seenflying out toward the worker. It is alleged that contrary to section 1926.102(a)(1), theworker was not wearing eye protection. The compliance officer also observed severalworkers standing beneath the straight ladder and beneath scaffolding erected next to thebuilding. He testified that the workers were exposed to head injury from falling tools andequipment. The workers were not wearing hardhats or any other form of head protection,allegedly contrary to section 1926.100(a). The compliance officer also stated thatcontrary to section 1903.2(a)(1), a standard notice informing the workers of their rightsunder the Act was not posted at the worksite.Jones’ foreman testified that—pursuant to Jones’ instructions—he had removed thebroken ladders from service, but that they were improperly returned to service on the dayof the inspection by one of the workers. The foreman also stated that goggles and hardhatswere available at the worksite, if an employee had asked for or needed them. One workertestified that he did not wear goggles while chipping brick because \”[t]hey areuncomfortable.\”On review, Jones raises several threshold arguments. First, he contends that he isentitled to a jury trial on the issues raised by the citations. Second, he argues that heis not an \”employer\” within the meaning of the Act. Third, he argues that he isnot engaged in interstate commerce, and that his activities therefore do not fall withinthe coverage of the Act. With respect to the ladder and personal protective equipmentviolations, Jones also argues that he had no knowledge of the violative conditions, andthat unpreventable employee misconduct created the violative conditions. The Secretaryargues that the citations should be affirmed for the reasons assigned by the judge.The administrative law judge rejected Jones’ arguments that he was not an\”employer\” and that he was not engaged in interstate commerce.[[1]] We are inessential agreement with the judge’s findings and conclusions with respect to thesematters; we therefore will not discuss them at length. However, we do emphasize thefollowing points. In S & S Diving Co. , 80 OSAHRC 85\/D3, 8 BNA OSHC 2041, 1980 CCHOSHD ? 24,742 (No. 77-4234, 1980), the Commission set forth the factors it considers whendeciding whether an employer- employee relationship exists. Some of those factors are:whom do the workers consider their employer; who pays the workers’ wages; who has theresponsibility to control the workers; does the alleged employer have the power to controlthe worker; does the alleged employer have the power to fire, hire, or modify theemployment condition of workers; and how are the workers’ wages established. Although twoworkers-Swingle, and Debord–testified at the hearing that they did not considerthemselves employed by Jones, but rather .considered themselves to be independentcontractors, the record reveals that Jones set their wages and paid them at an hourlyrate. Jones had the power to hire and fire them. He also directed their activities andinspected their work. indeed, Swingle had been working for Jones for approximately oneyear at the time of the inspection, and acted as Jones’ foreman at the worksite. Wetherefore affirm the judge’s finding that Jones was an \”employer\” within themeaning of the Act.We also affirm the judge’s finding that Jones was \”engaged in a business affectingcommerce\” within the meaning of section 3(5) of the Act. The judge found that Jones\”utilizes the United States mail …. and employees are hired through newspaperadvertisements and contact by telephone…. [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 require electricity, gasoline, andoil.\” We agree with the United States Court of Appeals for the Ninth Circuit that\”statutory jurisdiction [exists] so long as the business is in a class of activitythat as a whole affects commerce.\” Usery v. Franklin R. Lacy 628 F.2d 1226 (9th Cir.1980). Although Jones was engaged in a small construction project and his activities andpurchases may have been purely local, his construction activity nevertheless affectedinterstate commerce. There is an interstate market in construction materials and servicesand therefore construction work affects interstate commerce. See NLRB v. InternationalUnion of Operating Engineers, Local 571, 317 F.2d 638, 643 n.5 (8th Cir. 1963) (judicialnotice taken that construction industry affects interstate commerce); cf. Papadopoulos- v.Sheraton Park Hotel 410 F.Supp 217 (D.D.C. 1976) (hotel industry); Lang v. American MotorsCorp. 254 F.Supp 892 (E.D. Wis. 1966) (automobile manufacturing industry). Thus, even ifJones’ contribution to this stream of commerce was small and his activity and purchaseswere purely local, they necessarily had an effect on interstate commerce when aggregatedwith the 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 may assess penalties without the aid of a jurytrial consistent with the United States Constitution. Accordingly, Jones’ contention iswithout merit.With respect to the merits of the citations, we agree with the judge’s decision and thereasons he assigned. We shall therefore comment on only some of Jones’ arguments. Jonesargues that he had no knowledge that the broken ladders were returned to service after hehad ordered their removal. [[2]] However, the ladders were in plain view, and Jones’foreman was present at the worksite at all times. Under Commission precedent, theSecretary must prove that the employer either knew or, with the exercise of reasonablediligence, could have known of the non-complying condition. Prestressed Systems, Inc., 81OSAHRC 43\/D5, 9 BNA 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 the presence andcontinued use of the defective ladders through the exercise of reasonable diligence,constructive knowledge on the part of the employer was established. See MCC of Florida,Inc., 81 OSAHRC 57\/C10, 9 BNA OSHC 1895, 1981 CCH OSHD ? 24,420 (No. 15757, 1981)(knowledge of foreman imputed to employer), and cases cited therein.Jones was also cited for failing to provide head protection for employees exposed to ahazard of falling tools or material from employees working overhead, contrary to section1926.100(a), [[3]] and for failing to provide eye protection to employees chippingmaterial from the face of the apartment building, contrary to section 1926.102(a)(1).[[4]] The record shows that although hardhats and goggles were available for use in Jones’car and in the basement of the apartment building, it was not Jones’ practice to requireworkers to use such equipment except when operating certain tools not at issue here. Jonesargues that it is the workers’ responsibility to request protective equipment if they needit. Jones contends that he required goggles to be worn for dangerous work, and that theworker on the ladder was chipping wood rather than brick and cement as the complianceofficer contended. Finally, Jones argues that he had no knowledge that the workers hadfailed to use hardhats or goggles.Our cases make clear that merely having protective equipment available at a worksite doesnot satisfy a standard that requires that this equipment be used. Section 1926.100(a)requires that employees \”be protected\” by the use of helmets \”where thereis a possible danger of head injury from impact, or from falling or flying objects….\” See Franklin 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) (head protection). Although section1926.102(a)(1) states that employees shall be \”provided\” with eye and faceprotection equipment when there is a potential for eye or face injury, section 1926.28(a)makes clear that employers are generally \”responsible for requiring the wearing\”of protective equipment where \”there is an exposure to hazardous conditions….\”Moreover, we have held that \”a standard that requires an employer to provide a safetydevice implicitly requires that the device be used.\” Borton, Inc., 82 OSAHRC 17\/E13,10 BNA OSHC 1462, 1465, 1982 CCH OSHD ? 25,983, p.32,599 (No. 77-2115, 1982), appealfiled, No. 82- 1661 (10th Cir. May 26, 1982), and cases cited therein. We therefore rejectJones’ contention that making such protection available \”on request\” constitutescompliance with these standards.As for Jones’ apparent contention that the chipping operation did not pose an eye hazard,we have previously recognized that \”the eye is an especially delicate organ and…any foreign material in the eye presents the potential for injury.\” Stearns-Roger,Inc., 79 OSAHRC 94\/A2, 7 BNA OSHC 1919, 1921, 1979 CCH OSHD ? 24,008, p.29,156 (No.76-2326, 2979). Inasmuch as the compliance officer observed chipped fragments flying outtoward the unprotected employee, we affirm the judge’s finding that the standard wasviolated. See Vanco Construction, Inc., 82 OSAHRC 71\/A2, 11 BNA OSHC 1058, 1060, 1983 CCHOSHD ? 26,372 at p. 33,453 (No. 79-4945, 1982). We also reject Jones’ argument that theviolative conditions were created by unpreventable employee misconduct. The Commission hasheld that it will sustain the unpreventable employee misconduct defense only if anemployer demonstrates that an employee’s conduct was a departure from a uniformly andeffectively communicated and 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 only evidence of a workrule concerned theuse of a power tool not at issue here. There is no evidence that the workers wereinstructed to wear goggles while chipping brick. In addition, although the foremantestified that he had removed the ladders from service, there is no evidence that theworkers were told not to use them. That such an instruction was given seems particularlydoubtful because, as we have noted, the ladders were in plain view and the foreman was atthe site at all times.As for the hardhat violations, we are not convinced that barricades and signs warning ofdanger amount to a workrule forbidding entry into the danger zone. There is no evidencethat the employees understood or could be expected to understand that the barricades andsigns were directed to them 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 toogeneral to be effective), and cases cited therein. In any event, there is no evidence thatworkrules with respect to goggles, hardhats, or ladders were uniformly enforced. As forJones’ claim that he lacked knowledge of these violations, the record reveals–as with theladder violations–that the foreman could have known of the violative conditions throughthe exercise of reasonable diligence. We therefore affirm the judge’s conclusion thatJones failed to comply with sections 1926.100(a) and 102(a)(1).Jones was cited for failure to comply with the regulation at section 1903. 2(a)(1) thatrequires an employer to display an OSHA poster affirmed the citation item, noting thatJones had failed to introduce any evidence denying the allegation. On remand, Jones doesnot deny that he failed to display the poster nor does he deny that one was furnished tohim; he argues only that he was ignorant of the legal requirement that it be posted.Unlike Puterbaugh Enterprises, Inc., 74 OSAHRC 44\/B11, 2 BNA OSHC 1030, 1032, 1973-74 CCHOSHD ? 18,158, p. 22,327 (No. 1097, 1974), or Oak Lane Diner, 73 OSAHRC 28\/D2, 1 BNA OSHC1248, 1971-73 CCH OSHD ? 16,338, p. 21,258 (No. 398, 1973), there is here no evidence noris there a claim that the Secretary failed to furnish the notice to Jones. Under thesecircumstances, and in accordance with the presumption of regularity of administrativeaction, we affirm the citation item. See Lousiana-Pacific Corp., 77 OSAHRC 131\/B7, 5 BNAOSHC 1572, 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 issue with judge’sassessments and we see no reason to overturn them. Accordingly, items 1a, 1b, and 4 ofcitation No. 1, and item 1 of citation No. 2, are affirmed. A penalty of $121.00 isassessed.SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 27 1983The Administrative Law Judge decision in this matter is unavailable in this format. Toobtain a copy of this document, please request one from our Public Information Office bye-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 has employees….\”[[2]] Section 1926.450(a)(2) provides in part:The use of ladders with broken or missing rungs or steps, broken or split side rails, orother faulty or defective construction is prohibited. When ladders with such defects arediscovered, they shall be immediately withdrawn from service….[[3]] Section 1926.100(a) provides:Employees working in areas where there is a possible danger of head injury from impact, orfrom falling or flying objects, or from electrical shock and burns, shall be protected byprotective helmets.[[4]] Section 1926.102 (a)(1) provides:Employees shall be provided with eye and face protection equipment when machines oroperations present potential eye or face injury from physical, chemical, or radiationagents.[[5]] The judge Section 1903.2(a)(1) provides in part:Each employer shall post and keep posted a notice or notices, to be furnished by theOccupational Safety and Health Administrative, U.S. Department of Labor, informingemployees of the protections and obligations provided for in the Act….”