“Docket No. 85-0445 SECRETARY OF LABOR, Complainant, v. D. H. SHELTON AND ASSOCIATES, INC., Respondent.OSHRC DOCKET NO. 85-0445ORDERThe Commission approves the parties’ stipulation andsettlement agreement.FOR THE COMMISSIONRAY H. DARLING, JR.EXECUTIVE SECRETARY Dated:\u00a0 February 27, 1987WILLIAM F. BROCK, SECRETARY OF LABOR,Complainant,v.D. H. SHELTON & ASSOCIATES, INC. Respondent.OSHRC DOCKET No. 85-0445STIPULATION AND SETTLEMENT AGREEMENTIThe parties have reached agreement on a full andcomplete settlement of the instant matter which is presently pending before theCommission.IIThe parties stipulate as follows:(a) The Occupational Safety and Health ReviewCommission (hereinafter \”the Commission\”) has jurisdiction of this matterpursuant to section 10(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., isa corporation with its principal place of business in El Paso, Texas.It is engaged in the business of plumbing, heatingand air conditioning and during the course of its business its employee perform varioustasks in the nature of construction and related work.\u00a0 During the course of itsbusiness, respondent uses materials and equipment which it receives from places locatedoutside El Paso, Texas.\u00a0 Respondent, as a result of the aforesaid activities, is anemployer engaged in a business affecting commerce as defined by section 3(3) and 3(5) ofthe Act, and is subject to the requirements of the Act.(c) As a result of an inspection conducted on March7, 1985 at respondent’s workplace at 9109 Dyer, El Paso, Texas, a citation for one seriousviolation and a citation for two other-than-serious violations were issued to respondenton April 19, 1985 pursuant to section 9(a) of the Act.\u00a0 A penalty of $300.00 wasproposed for the serious violation.(d) Respondent contested the citations and proposedpenalty, and on August 23, 1985, Commission Administrative Law Judge Dee C. Blythe issuedhis Decision and Order in which he affirmed both the serious item alleging a violation of29 CFR 1926.400(j)(1) and the other-than-serious violations of 29 CFR 1926.150(c)(1)(vi)and 29 CFR 1926.401(h).\u00a0 The Judge also assessed a penalty of $200.00 for the seriousviolation.\u00a0 Therefore, respondent filed a timely Petition for Review which wasgranted by the Commission on October 21, 1985.III Now, the Secretary of Labor and D.H. Shelton &Associates, Inc., in order 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 violation of 29 C.F.R.1926.400(h)(1) from $200.00 to $1.00.(b) Respondent hereby withdraws its Notice of Contestto the citations and to the Notification of Proposed Penalty as amended in subparagraph(a) above.\u00a0 Respondent states that the violations have been abated and shall remainabated.(c) Respondent and Complainant agree that each partyshall bear its own costs.(d) Respondent agrees to pay a penalty of $1.00within twenty (20) days after the signing of the settlement agreement, by mailing a checkto the complainant 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. 85-0445DECISION AND ORDERAppearances: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 March7, 1985, by a compliance 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-serious violations of ? 5(a)(2) ofthe Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”theAct\”), and safety standards at 29 C.F.R. ?? 400(h)(1), 150(c)(1)(vi), and401(h).\u00a0 Respondent timely filed notice of contest on April 25, 1985, initiating thisproceeding before the Occupational Safety and Health Review Commission (\”theCommission\”) under ?10(c) of the Act.\u00a0 Thereafter a formal complaint and aninformal answer thereto were filed with the Commission.The case came on regularly for hearing July 19, 1985,at El Paso.\u00a0 Both parties have filed posthearing briefs.\u00a0 No affected employeeor authorized representative of affected employees has taken part in this proceeding.THE ISSUESJurisdiction and coverage were established by thepleadings; respondent’s answer did not deny the allegations of the complaint on theseissues, so they are deemed admitted under Commission Rule 33(b)(2).The remaining issues are:\u00a0 (1) Whetherrespondent was in serious violation of 29 C.F.R. 1926.400(h)(1) (lack of ground faultcircuit interrupter), and, if so, the appropriate penalty therefor; (2) whether respondentwas in nonserious violation of 29 C.F.R. 1926.150(c)(1)(vi) (lack of fire extinguisher);(3) whether respondent was in nonserious violation of 29 C.F.R. 1926.401(h) (ungroundedtemporary electric wiring); and (4) whether the lack of a warrant invalidates theinspection.DISCUSSION AND OPINIONI.\u00a0 The alleged electrical violations.Item 1 of serious citation 1 and item 2 of nonseriouscitation 2 will be discussed together because they involve the same equipment (a Milwaukeeright-angle drill) and the same hazard of electrical shock from a 110-120 volt, 20 amperecurrent from a temporary power supply.\u00a0 The alleged serious violation was the lack ofa ground fault circuit interrupter (\”GFCI\”) or an assured equipment groundingconductor program (\”AEGC program\”) as prescribed by 29 C.F.R.1926.400(h)(1)[[1]], and the nonserious item involves an extension cord with the third(ground) prong removed from the male plug in alleged violation of 29 C.F.R.1926.401(h).[[2]]Respondent, one of several subcontractorsconstructing a small shopping mall at 9105 Dyer Street in El Paso, had the contract forthe plumbing, heating and air conditioning.\u00a0 The project was about 50 percentcomplete at the time of the inspection.The only witnesses at the hearing were the formercompliance officer, James Jaffe (now a Department of Defense employee), and D. H. Shelton,respondent’s president.\u00a0 There is essentially no conflict in their testimony.Jaffe testified that their was no GFCI between the temporary power pole and the buildingwhere five of respondent’s employees were engaged in plumbing and sheet metal work; thatrespondent’s employees told him no GFCI was available and that they had no AEGCprogram[[3]]; that two orange-colored extension cords with their ground prongs missingwere plugged into the 30 amp. receptacle on the temporary power pole; that he followed oneof the orange extension cords into the building and found its female end connected to ablack extension cord connected to the Milwaukee right-angle drill, which Respondent’semployees were using to drill holes in studs for pipes to be laid; that the drill couldnot be used without touching its ungrounded metal case; that there was a danger ofelectric shock if the equipment was not grounded; that he tested the wiring with acontinuity tester and found it ungrounded; and that three of respondent’s employees usedthe drill.Shelton admitted the lack of a GFCI but testified that no general contractor in the ElPaso area provided them, that if respondent did it would be the only sub-contractor doingso, and that to force respondent to provide GFCIs would be unfair.\u00a0 He testifiedfurther that a small, portable GFCI is available at a cost of $25.53 but that respondenthad 50 jobs going at one time.\u00a0 He was not asked whether respondent had an AEGCprogram.\u00a0 On cross-examination, Shelton said he used GFCIs at home in damp placessuch as the spa and the bathroom.As for the missing ground plug, Shelton said that thecompany had 60 to 100 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 noGFCI or AEGC program was in use at the time of the inspection.\u00a0 Where there is aspecific requirement for a safety device, the existence of a hazard is presumed.\u00a0 NationalRolling Mills Co., 76 OSAHRC 121\/D7, 4 BNA OSHC 719, 1976-77 CCH OSHD ? 21,114 (No.7987, 1976).\u00a0 However, the compliance officer testified, without contradiction, thatthe absence of a GFCI (or the alternative AEGC program) posed a danger of electric shock,possibly electrocution.\u00a0 Respondent’s argument that it is unfair to make it supplyGDCIs when other subcontractors, as well as general contractors, are not required to doso, is not a defense since its competitors are required to comply with the standards, too.\u00a0 A. E. Burgess Leather Co., 77 OSAHRC 25\/D6, 5 BNA OSHC 1096, 1976-77CCH OSHD ? 25,713 (No. 12501, 1977).\u00a0 There is no evidence that respondent wassingled out for selective enforcement of ? 1926.400(h)(1).\u00a0 The compliance officertestified that two other subcontractors on this job at the time of the inspection werecited for the same violation (Tr. 46-47).\u00a0 Respondent argues that the generalcontractor should have the responsibility of providing the GFCI and that he could notforce the general contractor to do so.\u00a0 However, it is the responsibility of eachemployer to protect its own employees.\u00a0 This would be no great financial burden sincea portable GFCI can be purchased for $25.53.\u00a0 Even this small cost can be avoidedthrough use of an AEGC program.Respondent also argues that OSHA should order thecity of El Paso to require the installation of a GFCI on each temporary power pole. \u00a0Of course, OSHA has no statutory power to do so.Respondent apparently contends that it cannot keepground prongs on its extension cords because employees cut them off when it is necessaryto plug into a two-opening outlet.\u00a0 There is no evidence of such a necessityhere.\u00a0 Neither is there any evidence that respondent even attempted to prevent thispractice either by training disciplining employees.Undoubtedly respondent was in violation of both ?1926.400(h)(1) and ?1926.401(h).\u00a0 The hazard of electric shock is the same, and theSecretary might well have combined them to form one serious violation rather than oneserious and one nonserious violations.\u00a0 Harold A. Simpson & AssociatesDevelopment Co., 76 OSAHRC 144\/A2, 4 BNA OSHC 1894, 1976-77 CCH OSHD ? 21,353 (Nos.5572, etc., 1976).On the other hand, it appears that respondent mighthave been charged with a repeat violation of ? 1926.401(h).\u00a0 Shelton testified thathis firm had a prior citation for a missing ground prong (Tr. 41), but apparently thematter was settled and the actual disposition of this item is unclear.Respondent suffers no prejudice from being citedseparately for a nonserious violation of ? 1900.401(h), for no penalty is proposed forless than 10 nonserious violations.Jaffe testified that the absence of a GFCI couldcause electrical shock–even electrocution–and that he had investigated between 20 and 30electrocutions caused in a 110-volt current (Tr. 16, 26).\u00a0 With regard to the missingground prong, he said that \”there is not that possibility of a serious injuryoccurring\” (Tr. 27), but he did not explain why one 110-volt shock would be seriousand another not.A GFCI would have provided complete protection fromshock to employees using the drill, whether or not the extension cord had its ground prongmissing.\u00a0 However, such redundancy in protection afforded by the safety standards isnot a defense.\u00a0 In the interest of safety in the workplace, the Secretary may providefor double protection.\u00a0 Section 1926.400(h)(1) provides that the GFCI (or AEGCprogram) requirements \”are in addition to any other requirements for equipmentgrounding conductors.\”The Secretary has the burden of proving employerknowledge of violative conditions, but this knowledge may be actual or constructive.\u00a0 The employer is charged with knowledge of conditions he could have discovered withreasonable diligence Chicago & North Western Transportation Co., 77OSAHRC 30\/B4, 5 BNA OSHC 1121, 1977 CCH OSHD ? 21,608 (No. 13071, 1977). Here therespondent’s president was well aware of GFCIs, since he used them in his own home, andthe absence of a GFCl at the jobsite was readily discernible.\u00a0 He also knew that hisemployees frequently cut ground prongs from extension cords, and here again the violationwas clearly visible.\u00a0 Respondent must be charged with constructive knowledge of bothviolations.Section 17(j) of the act requires the Commission, inassessing penalties, to consider the gravity of the violation and the employer’s size,good faith and history of previous violations.\u00a0 These factors need not be accordedequal weight, but the gravity is usually of greater significance than the others.\u00a0 ColonialCraft Reproductions, 72 OSAHRC 11\/B10, 1 BNA OSHC 1063, 1971-73 CCH OSHD ? 15,277(No. 881, 1972).\u00a0 Elements to be considered in determining gravity include the numberof employees exposed to the risk of injury, duration of the exposure, precautions takenagainst injury, and the degree of probability of occurrence of an injury.\u00a0 NationalRealty & Construction Co., Inc., 72 OSAHRC 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 ismoderate.\u00a0 Respondent had about 75 employees at the time of the inspection, there isno evidence of bad faith, and there is some history of prior violations.\u00a0 Theproposed penalty of $300, as respondent points out, is small in comparison to thegovernment’s expenditure of resources.\u00a0 However, the penalty is of minor importance;abatement of unsafe working conditions is the goal of the Act, and the possibility ofrepeat citations for similar violations in the future (with possible penalties of $10,000each) should encourage compliance.\u00a0 On balance, I find a penalty of $200 to beappropriate.II.\u00a0 The alleged fire extinguisher violationItem 1 of citation 2 alleges a nonserious violationof 29 C.F.R. 1926.150(c)(1)(vi)[[4]] in that(a) No fire extinguisher was provided for the area ofsite in which the plumbers were using a gas-fueled soldering torch to solder copper pipebetween 2 x 4 studs of the building.The compliance officer’s testimony substantiated thecitation, and Shelton indicated at the hearing that respondent conceded this violation(Tr. 35).IV.\u00a0 The warrant issueFor the first time, respondent in its posthearingbrief raises the issue of the lack of a warrant for the inspection, stating:Further [sic] in a previous encounter with OSHA, Iwas told that they were required to provide a warrant, before they could harass ouremployees.\u00a0 In a previous conversation and settlement with our Area Director, Irequested and was promised that a warrant would be provided, and it was not.There was no testimony to support this assertion, andthere is nothing in the record to indicate that the respondent’s representative at thejobsite objected to the inspection.\u00a0 Moreover, respondent made no motion forsuppression of evidence gathered during the inspection.Compliance Officer Jaffe testified that he firstcontacted the general contractor’s job superintendent, Naji Hajjar, who had no objectionto the inspection (Tr. 7); and that he later contacted Hector Garcia, whom he described asa \”sort of a field foreman\” for respondent, who likewise had no objection to theinspection (Tr. 20).Shelton testified that Garcia was not a foreman butwas 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 for the inspection orits portion of the project (if, indeed, it had control of a discreet portion thereof,regarding which the record is silent).On a multi-employer worksite, the compliance officerhas no duty to do more than contact the employer’s ranking employee on the job. \u00a0 AndyAnderson, d\/b\/a Andy Anderson Irrigation and Construction, 78 OSAHRC 34\/A2, 6 BNA OSHC1595, 1977-78 CCH OSHD ? 21,739 (No. 76-4092, 1978).\u00a0 This was done in this case.I find that the inspection was consensual and that nowarrant was required.FINDINGS OF FACTOn the basis of all creditable evidence of record andthe foregoing Discussion and Opinion, the following findings of fact are made:1.\u00a0 Respondent is an employer engaged incommerce within the meaning of ? 3(5) of the Act.2.\u00a0 On March 7, 1985, respondent, was engaged inthe construction of a small shopping mall at 9105 Dyer Street in El Paso, Texas, on whichit had the subcontract for plumbing, heating and air conditioning. \u00a0 The project wasabout 50% completed when it was inspected by an OSHA compliance officer.3.\u00a0 Electric power was supplied to respondentand other subcontractors from a temporary power pole from which extension cords ran acrossthe ground to the building.\u00a0 The compliance officer traced one of these cords intothe building and found it connected by another extension cord to respondent’s Milwaukeeright-angle drill, which was being used by two or three of respondent’s employees.\u00a0The first extension cord had the third (ground) prong broken off where it was plugged intoa receptacle on the temporary power pole.\u00a0 A test by the compliance officer verifiedthat the temporary wiring was not grounded.4.\u00a0 There was no ground fault circuitinterrupter provided on the temporary wiring, and respondent had no assured equipmentgrounding conductor program.\u00a0 The lack of a GFCI or an AEGC program exposedrespondent’s employees to the hazard of serious electric shock or electrocution.\u00a0 Apenalty of $200 is appropriate for this violation.5.\u00a0 Respondent did not provide a fireextinguisher in the area where employees were using a brazing torch with more than fivepounds of flammable gas.6.\u00a0 The inspection was consented to byrespondent’s ranking employee on the job.CONCLUSIONS OF LAWOn the basis of the foregoing findings of fact andthe entire record of the case, the following conclusions of law are made.1.\u00a0 The Commission has jurisdiction of theparties and of the subject matter this proceeding.2.\u00a0 On March 7, 1985, respondent was in seriousviolation of 29 C.F.R. 1926.400(h)(1).3.\u00a0 On said date respondent was in nonseriousviolation of 29 C.F.R. 1910.150(c)(1)(vi) and 29 C.F.R. 1926.401(h).4.\u00a0 The inspection was consensual, and nowarrant was required.ORDEROn the basis of the foregoing findings of fact andconclusions of law, it is ORDERED that:1.\u00a0 Item 1 of citation 1, for serious violationof 29 C.F.R. is AFFIRMED, and a civil penalty of $200 is ASSESSED. 2.\u00a0 Item 1 of citation 2, for nonseriousviolation of 29 C.F.R. 1926.150(c)(1)(vi), is AFFIRMED.3.\u00a0 Item 2 of citation 2, for nonseriousviolation of 29 C.F.R. 1926.401(h), is AFFIRMED.DEE C. BLYTHEAdministrative Law JudgeDate:\u00a0 September 13, 1985FOOTNOTES[[1]] 29 C.F.R. 1926.400(h)(1) provides:(h) Ground-Fault protection.(1) General.\u00a0 Notwithstanding any other provision of this part, the requirement insection 210-7 of the 1971 National Electrical Code (NFPA 70-1971; ANSI C1-1971) that all15- and 20-ampere receptacle outlets on single-phased circuits for construction sites haveapproved ground-fault circuit protection for personnel does not apply.\u00a0 In lieuthereof, the employer shall use either ground-fault circuit interrupters as specified inparagraph (h)(2) of this section or an assured equipment grounding conductor program asspecified in paragraph (h)(3) of this section, to protect employees on construction sites.\u00a0 These requirements are in addition to any other requirements for equipmentgrounding conductors.[[2]] 29 C.F.R. 1926.401(h) provides: (h) Temporary wiringAll temporary wiring shall be effectively grounded in accordance with the nationalElectrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968), Articles 305 and 310.[[3]] The requirements for an AEGC program aredetailed in ? 1926.400(h)(3) but will not be set out here because respondent does notclaim to have such a program.\u00a0 Briefly an AEGC program must be in writing and includeperiodic inspection and testing of wiring and equipment for grounding and a record of suchinspections and tests.[[4]] The cited standard provides:(vi) A fire extinguisher, rated not less than 10B,shall be provided within 50 feet of wherever more than 5 gallons of flammable orcombustible liquids or 5 pounds of flammable gas are being used on the jobsite.\u00a0 Thisrequirement does not apply to the integral fuel tanks of motor vehicles.”