“SECRETARY OF LABOR,Complainant,v.D. H. SHELTON AND ASSOCIATES, INC.,Respondent.OSHRC DOCKET NO. 85-0445_ORDER_The Commission approves the parties’ stipulation and settlement agreement.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARYDated: February 27, 1987————————————————————————WILLIAM F. BROCK, SECRETARY OF LABOR,Complainant,v.D. H. SHELTON & ASSOCIATES, INC.Respondent.OSHRC DOCKET No. 85-0445_STIPULATION AND SETTLEMENT AGREEMENT_IThe parties have reached agreement on a full and complete settlement ofthe instant matter which is presently pending before the Commission.IIThe parties stipulate as follows:(a) The Occupational Safety and Health Review Commission (hereinafter\”the Commission\”) has jurisdiction of this matter pursuant to section10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590;29 U.S.C. ? 651 _et seq_.) (hereinafter \”the Act\”).(b) Respondent, D.H. Shelton and Associates, Inc., is a corporation withits principal place of business in El Paso, Texas.It is engaged in the business of plumbing, heating and air conditioningand during the course of its business its employee perform various tasksin the nature of construction and related work. During the course ofits business, respondent uses materials and equipment which it receivesfrom places located outside El Paso, Texas. Respondent, as a result ofthe aforesaid activities, is an employer engaged in a business affectingcommerce as defined by section 3(3) and 3(5) of the Act, and is subjectto the requirements of the Act.(c) As a result of an inspection conducted on March 7, 1985 atrespondent’s workplace at 9109 Dyer, El Paso, Texas, a citation for oneserious violation and a citation for two other-than-serious violationswere issued to respondent on April 19, 1985 pursuant to section 9(a) ofthe Act. A penalty of $300.00 was proposed for the serious violation.(d) Respondent contested the citations and proposed penalty, and onAugust 23, 1985, Commission Administrative Law Judge Dee C. Blytheissued his Decision and Order in which he affirmed both the serious itemalleging a violation of 29 CFR 1926.400(j)(1) and the other-than-seriousviolations of 29 CFR 1926.150(c)(1)(vi) and 29 CFR 1926.401(h). TheJudge also assessed a penalty of $200.00 for the serious violation. Therefore, respondent filed a timely Petition for Review which wasgranted by the Commission on October 21, 1985.IIINow, the Secretary of Labor and D.H. Shelton & Associates, Inc., inorder to conclude this matter without the necessity of furtherlitigation or review, stipulate and agree as follows:(a) The Secretary hereby agrees to reduce the penalty for the violationof 29 C.F.R. 1926.400(h)(1) from $200.00 to $1.00.(b) Respondent hereby withdraws its Notice of Contest to the citationsand to the Notification of Proposed Penalty as amended in subparagraph(a) above. Respondent states that the violations have been abated andshall remain abated.(c) Respondent and Complainant agree that each party shall bear its owncosts.(d) Respondent agrees to pay a penalty of $1.00 within twenty (20) daysafter the signing of the settlement agreement, by mailing a check to thecomplainant as full and complete payment of the penalty.ANTHONY F. Gil,Attorney for the Secretary of Labor,D.H. SHELTON, PRESIDENTD.H. Shelton Associates, Inc.————————————————————————SECRETARY OF LABOR,Complainant,v.D. H. SHELTON &ASSOCIATES, INC.,RespondentOSHRC DOCKET NO. 85-0445_DECISION AND ORDER_Appearances:Ana Maria Soares, Esq., and William E . Everheart, Esq., of Dallas,Texas, for the Complainant.D. H. Shelton, President (pro se) of El Paso, Texas, for the respondent.PROCEDURAL HISTORYAs the result of a general schedule inspection March 7, 1985, by acompliance officer of the Occupational Safety and Health Administration(\”OSHA\”) of a multi-employer construction project in El Paso, Texas, twocitations were issued April 19, 1985, charging the respondent, D. H.Shelton & Associates, Inc., with one serious and two other-than-seriousviolations of ? 5(a)(2) of the Occupational Safety and Health Act of1970, 29 U.S.C. ?? 651-678 (\”the Act\”), and safety standards at 29C.F.R. ?? 400(h)(1), 150(c)(1)(vi), and 401(h). Respondent timely filednotice of contest on April 25, 1985, initiating this proceeding beforethe Occupational Safety and Health Review Commission (\”the Commission\”)under ?10(c) of the Act. Thereafter a formal complaint and an informalanswer thereto were filed with the Commission.The case came on regularly for hearing July 19, 1985, at El Paso. Bothparties have filed posthearing briefs. No affected employee orauthorized representative of affected employees has taken part in thisproceeding.THE ISSUESJurisdiction and coverage were established by the pleadings;respondent’s answer did not deny the allegations of the complaint onthese issues, so they are deemed admitted under Commission Rule 33(b)(2).The remaining issues are: (1) Whether respondent was in seriousviolation of 29 C.F.R. 1926.400(h)(1) (lack of ground fault circuitinterrupter), and, if so, the appropriate penalty therefor; (2) whetherrespondent was in nonserious violation of 29 C.F.R. 1926.150(c)(1)(vi)(lack of fire extinguisher); (3) whether respondent was in nonseriousviolation of 29 C.F.R. 1926.401(h) (ungrounded temporary electricwiring); and (4) whether the lack of a warrant invalidates the inspection.DISCUSSION AND OPINIONI. _The alleged electrical violations._Item 1 of serious citation 1 and item 2 of nonserious citation 2 will bediscussed together because they involve the same equipment (a Milwaukeeright-angle drill) and the same hazard of electrical shock from a110-120 volt, 20 ampere current from a temporary power supply. Thealleged serious violation was the lack of a ground fault circuitinterrupter (\”GFCI\”) or an assured equipment grounding conductor program(\”AEGC program\”) as prescribed by 29 C.F.R. 1926.400(h)(1)[[1]], and thenonserious item involves an extension cord with the third (ground) prongremoved from the male plug in alleged violation of 29 C.F.R.1926.401(h).[[2]]Respondent, one of several subcontractors constructing a small shoppingmall at 9105 Dyer Street in El Paso, had the contract for the plumbing,heating and air conditioning. The project was about 50 percent completeat the time of the inspection.The only witnesses at the hearing were the former compliance officer,James Jaffe (now a Department of Defense employee), and D. H. Shelton,respondent’s president. There is essentially no conflict in theirtestimony.Jaffe testified that their was no GFCI between the temporary power poleand the building where five of respondent’s employees were engaged inplumbing and sheet metal work; that respondent’s employees told him noGFCI was available and that they had no AEGC program[[3]]; that twoorange-colored extension cords with their ground prongs missing wereplugged into the 30 amp. receptacle on the temporary power pole; that hefollowed one of the orange extension cords into the building and foundits female end connected to a black extension cord connected to theMilwaukee right-angle drill, which Respondent’s employees were using todrill holes in studs for pipes to be laid; that the drill could not beused without touching its ungrounded metal case; that there was a dangerof electric shock if the equipment was not grounded; that he tested thewiring with a continuity tester and found it ungrounded; and that threeof respondent’s employees used the drill.Shelton admitted the lack of a GFCI but testified that no generalcontractor in the El Paso area provided them, that if respondent did itwould be the only sub-contractor doing so, and that to force respondentto provide GFCIs would be unfair. He testified further that a small,portable GFCI is available at a cost of $25.53 but that respondent had50 jobs going at one time. He was not asked whether respondent had anAEGC program. On cross-examination, Shelton said he used GFCIs at homein damp places such as the spa and the bathroom.As for the missing ground plug, Shelton said that the company had 60 to100 extension cords and that employees frequently cut off ground plugswhen the power supply receptacle was for two prongs instead of three.It is abundantly clear from the testimony that no GFCI or AEGC programwas in use at the time of the inspection. Where there is a specificrequirement for a safety device, the existence of a hazard is presumed. _National Rolling Mills Co_., 76 OSAHRC 121\/D7, 4 BNA OSHC 719, 1976-77CCH OSHD ? 21,114 (No. 7987, 1976). However, the compliance officertestified, without contradiction, that the absence of a GFCI (or thealternative AEGC program) posed a danger of electric shock, possiblyelectrocution. Respondent’s argument that it is unfair to make itsupply GDCIs when other subcontractors, as well as general contractors,are not required to do so, is not a defense since its competitors arerequired to comply with the standards, too. _A. E_. _Burgess LeatherCo_., 77 OSAHRC 25\/D6, 5 BNA OSHC 1096, 1976-77 CCH OSHD ? 25,713 (No.12501, 1977). There is no evidence that respondent was singled out forselective enforcement of ? 1926.400(h)(1). The compliance officertestified that two other subcontractors on this job at the time of theinspection were cited for the same violation (Tr. 46-47). Respondentargues that the general contractor should have the responsibility ofproviding the GFCI and that he could not force the general contractor todo so. However, it is the responsibility of each employer to protectits own employees. This would be no great financial burden since aportable GFCI can be purchased for $25.53. Even this small cost can beavoided through use of an AEGC program.Respondent also argues that OSHA should order the city of El Paso torequire the installation of a GFCI on each temporary power pole. Ofcourse, OSHA has no statutory power to do so.Respondent apparently contends that it cannot keep ground prongs on itsextension cords because employees cut them off when it is necessary toplug into a two-opening outlet. There is no evidence of such anecessity here. Neither is there any evidence that respondent evenattempted to prevent this practice either by training discipliningemployees.Undoubtedly respondent was in violation of both ? 1926.400(h)(1) and?1926.401(h). The hazard of electric shock is the same, and theSecretary might well have combined them to form one serious violationrather than one serious and one nonserious violations. _Harold A.Simpson & Associates Development Co_., 76 OSAHRC 144\/A2, 4 BNA OSHC1894, 1976-77 CCH OSHD ? 21,353 (Nos. 5572, etc., 1976).On the other hand, it appears that respondent might have been chargedwith a repeat violation of ? 1926.401(h). Shelton testified that hisfirm had a prior citation for a missing ground prong (Tr. 41), butapparently the matter was settled and the actual disposition of thisitem is unclear.Respondent suffers no prejudice from being cited separately for anonserious violation of ? 1900.401(h), for no penalty is proposed forless than 10 nonserious violations.Jaffe testified that the absence of a GFCI could cause electricalshock–even electrocution–and that he had investigated between 20 and30 electrocutions caused in a 110-volt current (Tr. 16, 26). Withregard to the missing ground prong, he said that \”there is not thatpossibility of a serious injury occurring\” (Tr. 27), but he did notexplain why one 110-volt shock would be serious and another not.A GFCI would have provided complete protection from shock to employeesusing the drill, whether or not the extension cord had its ground prongmissing. However, such redundancy in protection afforded by the safetystandards is not a defense. In the interest of safety in the workplace,the Secretary may provide for double protection. Section 1926.400(h)(1)provides that the GFCI (or AEGC program) requirements \”are in additionto any other requirements for equipment grounding conductors.\”The Secretary has the burden of proving employer knowledge of violativeconditions, but this knowledge may be actual or constructive. Theemployer is charged with knowledge of conditions he could havediscovered with reasonable diligence _Chicago &_ _North WesternTransportation Co_., 77 OSAHRC 30\/B4, 5 BNA OSHC 1121, 1977 CCH OSHD ?21,608 (No. 13071, 1977). Here the respondent’s president was well awareof GFCIs, since he used them in his own home, and the absence of a GFClat the jobsite was readily discernible. He also knew that his employeesfrequently cut ground prongs from extension cords, and here again theviolation was clearly visible. Respondent must be charged withconstructive knowledge of both violations.Section 17(j) of the act requires the Commission, in assessingpenalties, to consider the gravity of the violation and the employer’ssize, good faith and history of previous violations. These factors neednot be accorded equal weight, but the gravity is usually of greatersignificance than the others. _Colonial Craft Reproductions_, 72 OSAHRC11\/B10, 1 BNA OSHC 1063, 1971-73 CCH OSHD ? 15,277 (No. 881, 1972). Elements to be considered in determining gravity include the number ofemployees exposed to the risk of injury, duration of the exposure,precautions taken against injury, and the degree of probability ofoccurrence of an injury. _National Realty & Construction Co., Inc_., 72OSAHRC 9\/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ? 15,188 (No. 85, 1972)_rev’d on other grounds_, 489 F.2d 1257 (D.C. Cir., 1973).Here the gravity of the serious violation is moderate. Respondent hadabout 75 employees at the time of the inspection, there is no evidenceof bad faith, and there is some history of prior violations. Theproposed penalty of $300, as respondent points out, is small incomparison to the government’s expenditure of resources. However, thepenalty is of minor importance; abatement of unsafe working conditionsis the goal of the Act, and the possibility of repeat citations forsimilar violations in the future (with possible penalties of $10,000each) should encourage compliance. On balance, I find a penalty of $200to be appropriate.II. _The alleged fire extinguisher violation_Item 1 of citation 2 alleges a nonserious violation of 29 C.F.R.1926.150(c)(1)(vi)[[4]] in that(a) No fire extinguisher was provided for the area of site in which theplumbers were using a gas-fueled soldering torch to solder copper pipebetween 2 x 4 studs of the building.The compliance officer’s testimony substantiated the citation, andShelton indicated at the hearing that respondent conceded this violation(Tr. 35).IV. _The warrant issue_For the first time, respondent in its posthearing brief raises the issueof the lack of a warrant for the inspection, stating:Further [sic] in a previous encounter with OSHA, I was told that theywere required to provide a warrant, before they could harass ouremployees. In a previous conversation and settlement with our AreaDirector, I requested and was promised that a warrant would be provided,and it was not.There was no testimony to support this assertion, and there is nothingin the record to indicate that the respondent’s representative at thejobsite objected to the inspection. Moreover, respondent made no motionfor suppression of evidence gathered during the inspection.Compliance Officer Jaffe testified that he first contacted the generalcontractor’s job superintendent, Naji Hajjar, who had no objection tothe inspection (Tr. 7); and that he later contacted Hector Garcia, whomhe described as a \”sort of a field foreman\” for respondent, who likewisehad no objection to the inspection (Tr. 20).Shelton testified that Garcia was not a foreman but was a lead man or\”master\” on the sheet metal working crew, with one helper (Tr. 38).There was nothing to alert Jaffe that respondent demanded a warrant forthe inspection or its portion of the project (if, indeed, it had controlof a discreet portion thereof, regarding which the record is silent).On a multi-employer worksite, the compliance officer has no duty to domore than contact the employer’s ranking employee on the job. _AndyAnderson, d\/b\/a Andy Anderson Irrigation and Construction_, 78 OSAHRC34\/A2, 6 BNA OSHC 1595, 1977-78 CCH OSHD ? 21,739 (No. 76-4092, 1978). This was done in this case.I find that the inspection was consensual and that no warrant was required.FINDINGS OF FACTOn the basis of all creditable evidence of record and the foregoingDiscussion and Opinion, the following findings of fact are made:1. Respondent is an employer engaged in commerce within the meaning of? 3(5) of the Act.2. On March 7, 1985, respondent, was engaged in the construction of asmall shopping mall at 9105 Dyer Street in El Paso, Texas, on which ithad the subcontract for plumbing, heating and air conditioning. Theproject was about 50% completed when it was inspected by an OSHAcompliance officer.3. Electric power was supplied to respondent and other subcontractorsfrom a temporary power pole from which extension cords ran across theground to the building. The compliance officer traced one of thesecords into the building and found it connected by another extension cordto respondent’s Milwaukee right-angle drill, which was being used by twoor three of respondent’s employees. The first extension cord had thethird (ground) prong broken off where it was plugged into a receptacleon the temporary power pole. A test by the compliance officer verifiedthat the temporary wiring was not grounded.4. There was no ground fault circuit interrupter provided on thetemporary wiring, and respondent had no assured equipment groundingconductor program. The lack of a GFCI or an AEGC program exposedrespondent’s employees to the hazard of serious electric shock orelectrocution. A penalty of $200 is appropriate for this violation.5. Respondent did not provide a fire extinguisher in the area whereemployees were using a brazing torch with more than five pounds offlammable gas.6. The inspection was consented to by respondent’s ranking employee onthe job.CONCLUSIONS OF LAWOn the basis of the foregoing findings of fact and the entire record ofthe case, the following conclusions of law are made.1. The Commission has jurisdiction of the parties and of the subjectmatter this proceeding.2. On March 7, 1985, respondent was in serious violation of 29 C.F.R.1926.400(h)(1).3. On said date respondent was in nonserious violation of 29 C.F.R.1910.150(c)(1)(vi) and 29 C.F.R. 1926.401(h).4. The inspection was consensual, and no warrant was required._ORDER_On the basis of the foregoing findings of fact and conclusions of law,it is ORDERED that:1. Item 1 of citation 1, for serious violation of 29 C.F.R. isAFFIRMED, and a civil penalty of $200 is ASSESSED.2. Item 1 of citation 2, for nonserious violation of 29 C.F.R.1926.150(c)(1)(vi), is AFFIRMED.3. Item 2 of citation 2, for nonserious violation of 29 C.F.R.1926.401(h), is AFFIRMED.DEE C. BLYTHEAdministrative Law JudgeDate: September 13, 1985FOOTNOTES[[1]] 29 C.F.R. 1926.400(h)(1) provides:(h) _Ground-Fault protection._(1) General. Notwithstanding any other provision of this part, therequirement in section 210-7 of the 1971 National Electrical Code (NFPA70-1971; ANSI C1-1971) that all 15- and 20-ampere receptacle outlets onsingle-phased circuits for construction sites have approved ground-faultcircuit protection for personnel does not apply. In lieu thereof, theemployer shall use either ground-fault circuit interrupters as specifiedin paragraph (h)(2) of this section or an assured equipment groundingconductor program as specified in paragraph (h)(3) of this section, toprotect employees on construction sites. These requirements are inaddition to any other requirements for equipment grounding conductors.[[2]] 29 C.F.R. 1926.401(h) provides:(h) _Temporary wiring_All temporary wiring shall be effectively grounded in accordance withthe national Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. ofC1-1968), Articles 305 and 310.[[3]] The requirements for an AEGC program are detailed in ?1926.400(h)(3) but will not be set out here because respondent does notclaim to have such a program. Briefly an AEGC program must be inwriting and include periodic inspection and testing of wiring andequipment for grounding and a record of such inspections and tests.[[4]] The cited standard provides:(vi) A fire extinguisher, rated not less than 10B, shall be providedwithin 50 feet of wherever more than 5 gallons of flammable orcombustible liquids or 5 pounds of flammable gas are being used on thejobsite. This requirement does not apply to the integral fuel tanks ofmotor vehicles.”