“SECRETARY OF LABOR, Complainant, v. MAUTZ & OREN, INC., Respondent.OSHRC DOCKET NO. 89-1366ORDEROn April 2, 1991, the Secretary filed a Notice of Withdrawal of Citationin the above-captioned case. The Secretary has withdrawn the onlyremaining item at issue in this case, item 1 of Citation 1.The Commission acknowledges receipt of the Secretary’s Notice ofWithdrawal and sets aside the Judge’s Decision and Order which affirmeditem 1 of Citation 1. and assessed a $980 penalty. There being nomatters remaining before the Commission requiring further consideration,the Commission orders the above-captioned case dismissed.Edwin G. Foulke, Jr. ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDate: April 18, 1991————————————————————————SECRETARY OF LABOR, Complainant, v. MAUTZ & OREN, INC., Respondent.OSHRC Docket No. 89-1366APPEARANCE:Miguel J. Carmona, Esquire, Office of theSolicitor, U. S. Department of Labor, Chicago,Illinois, on behalf ofcomplainant.Michael J. Bobroff, Esquire, Husch, Eppenberger, Donohue, Cornfeld andJenkins, St. Louis, Missouri, on behalf of respondent.DECISION AND ORDERSALYERS, Judge: Respondent, Mautz and Oren, Inc., is the generalcontractor at a project located in Salem, Illinois, where it was engagedin the restoration and expansion of a sewer treatment plant for thecity. This work was performed under a federally funded grantadministered by the Environmental Protection Agency which agencyutilized the Corps of Engineers to provide field surveillance andtechnical assistance in the construction phase of the operation.Elvin L. Pauls is a project engineer employed by the U.S. Army Corps ofEngineers (Tr. 8). His duties include safety inspection of work sites atprojects under the jurisdiction of his agency (Tr. 14). Pauls visitedrespondent’s work site on several occasions prior to March 11, 1989, andhad noted that ground-fault circuit interrupters (hereinafter \”GFCI\”)were not being used (Tr. 20). On March 1, 1989, Pauls discussed thissituation and gave some literature on this subject to the projectengineer at this site for his use in discussing this matter with thegeneral contractor (Tr. 21).Pauls returned to the work site on March 3, 1989, and determined thatGFCI’s were still not being used on the project. He then drafted areferral letter to the Occupational Safety and Health Administration(Ex. C-1) which contained the following paragraph:The need for ground fault circuit interrupters was discussed on Previousvisits. During this inspection it was observed that this protection wasnot incorporated in the control panels as previously informed. Thecontractor was informed on March 1 by the Engineer that thesedeficiencies must be corrected. The contractor agreed to provide acircuit breaker type GFCI on a temporary receptacle near theconstruction offices, however the electrician refused to provideportable GFCIs on permanently installed receptacles which provide powerfor extension chords.In response to Pauls’ letter, Compliance officer John A. Gieferconducted an inspection of respondent’s work site on March 15, 1989 (Tr.65). He met with Bud Tewell, respondent’s job superintendent, and JohnLuthe, a representative for the electrical contractor; presented hiscredentials and explained the purpose of his visit (Tr. 69-71). Duringthe course of the opening conference, Giefer asked both Tewell and Lutheif they were using either GFCIs or the assured equipment groundingconductor program (hereinafter \”AEGC\”) at the work site and was toldthat neither was used (Tr. 73-74, 91).Tewell also admitted to Gieferthat he (Tewell) and one other employee had used extension cords withoutGFCIs to operate hand-held tools in the sludge pump building on the daybefore the inspection (Tr. 77-78, 82, 167).As a result of Giefer’s inspection, respondent was issued on March 22,1989, the following citation:29 CFR 1926.404(b)(1)(i): Employer did not use either ground-faultcircuit interrupters as specified in paragraph (b)(1)(ii) of thissection, or an assured equipment ground conductor program as specifiedin paragraph (b)(1)(iii) of this section to protect employees onconstruction sites:In the filter building and behind the sludge pump room, the employer didnot use either ground fault circuit interrupters or an assured equipmentgrounding conductor program on temporary wiring systems created by usingextension cords on a fixed permanent wiring system, exposing employeesto the hazard of electric shock.Respondent contends that the citation should be vacated, because OSHAdid not follow the procedures set forth in its Field Operations Manual(Ex R-3) for handling referrals from other government agencies. Themanual provides: \”government agency referrals shall normally be handledby letter according to the instructions for nonformal complaints\” (Ex.R-3, p. IX-16). Section 8(a) of the manual specifies:Responding by Letter to Nonformal Complaints. Upon receipt andevaluation of a nonformal complaint, the Area Director, as soon aspossible, shall prepare a letter to the employer advising him of thecomplaint, informing him of the standards allegedly violated (includingcopies of such standards) and outlining the means to assess the hazardand\/or the corrective action required. The employer shall be asked toinvestigate the alleged conditions and respond to OSHA within aspecified time. This letter shall be sent by certified mail with returnreceipt requested.The manual further provides that an area director has discretion toconduct an on-site inspection in the event the \”referral identifies ahazard of a potentially serious nature\” [Ex. R-3, p. IX-16, para. (e)].In this case, the area director chose to conduct an inspection ratherthan to deal with the matter by letter (Tr. 131), and this choice wasentirely within his discretion.Respondent’s argument misconstrues the intent and purpose of the FOMwhich contains only guidelines for the execution of enforcementoperations. As the Commission stated in FMC Corp., 77 OSAHRC 153\/D4, 5BNA OSHC 1707, 1977-78 CCH OSHD ? 22,060 (No. 13155, 1977), \”theguidelines provided by the manual are plainly for internal applicationto promote efficiency and not to create an administrative straightjacket. They do not have the force and effect of law nor do they accordimportant procedural or substantive rights to individuals\” (Id. at 1710).On the merits, respondent contends:1. The Secretary’s interpretation of the cited standard is unreasonableand not in accord with the language of the standard.2. The evidence does not support the allegations contained in the citation.The cited standard, C.F.R. ? 1926.404(b)(1) provides:(b) Branch Circuits–(1) Ground-fault protection-(i) General. Theemployer shall use either ground fault circuit interrupters as specifiedin paragraph (b)(1)(ii) of this section or an assured equipmentgrounding conductor program as specified in paragraph (b)(1)(iii) ofthis section to protect employees on construction sites. Theserequirements are in addition to any other requirements for equipmentgrounding conductors.(ii) Ground-fault circuit interrupters. All 120-volt, single-phase, 15-and 20-ampere receptacle outlets on construction sites, which are not apart of the permanent wiring of the building or structure and which arein use by employees, shall have approved ground-fault circuitinterrupters for personnel protection . . . .(iii) Assured equipment grounding conductor program. The employer shallestablish and implement an assured equipment grounding conductor programon construction sites covering all cord sets, receptacles which are nota part of the building or structure, and equipment connected by cord andplug which are available for use or used by employees. This programshall comply with the following minimum requirements:(A) A written description of the program, including the specificprocedures adopted by the employer, shall be available at the jobsitefor inspection and copying by the Assistant Secretary and any affectedemployee.(B) The employer shall designate one or more competent persons (asdefined in ? 1926.32(f)) to implement the program.(C) Each cord set attachment cap, plug and receptacle of cord sets, andany equipment connected by cord and plug, except cord sets andreceptacles which are fixed and not exposed to damage, shall be visuallyinspected before each day’s use for external defects, such as deformedor missing pins or insulation damage, and for indications of possibleinternal damage. Equipment found damaged or defective shall not be useduntil repaired.(D) The following tests shall be performed on all cord sets, receptacleswhich are not a part of the permanent wiring of the building orstructure, and cord and plug-connected equipment required to be grounded:(1) All equipment grounding conductors shall be tested for continuityand shall be electrically continuous.(12) Each receptacle and attachment cap or plug shall be tested forcorrect attachment of the equipment grounding conductor. The equipmentgrounding conductor shall be connected to its proper terminal.(E) All required tests shall be performed:(1) Before first use;(2) Before equipment is returned to service following any repairs;(3) Before equipment is used after any incident which can be reasonablysuspected to have caused damage (for example, when a cord set is runover); and(4) At intervals not to exceed 3 months, except that cord sets andreceptacles which are fixed and not exposed to damage shall be tested atintervals not exceeding 6 months.(F) The employer shall not make available or permit the use by employeesof any equipment which has not met the requirements of this paragraph(b)(1)(iii) of this section.(G) Tests performed as required in this paragraph shall be recorded.This test record shall identify each receptacle, cord set, and cord- andplug-connected equipment that passed the test and shall indicate thelast date it was tested or the interval for which it was tested. Thisrecord shall be kept by means of logs, color coding, or other effectivemeans and shall be maintained until replaced by a more current record.The record shall be made available on the jobsite for inspection by theAssistant Secretary and any affected employee.The Secretary maintains the standard is obligatory and requires anemployer to protect employees on construction sites by the use of GFCIsor an AEGC program whenever employees utilize cord sets and receptacles(extension cords) which are plugged into any power source. The Secretarystresses that an extension cord plugged into a permanent power sourcedoes not become a part of the permanent wiring of the building butcreates an addition to the system subject to the normal abuses which canoccur on a construction site, e.g., the cord may be crushed by heavyequipment, cut by abrasion of rocks, etc. The Secretary urges thatextension cords to which tools are attached and plugged into thepermanent wiring system create a temporary power source at the end ofthe extension cord which must be protected by either GFCIs or by use ofan AEGC program (Tr. 185-187). This interpretation appears to be inaccord with the language of 1926.404(b)(1) which mandates the use ofeither GFCIs or an AEGC program \”to protect employees on constructionsites\” and specifies that \”these requirements are in addition to anyother requirement for equipment grounding conductors,\”1926.404(b)(1)(ii) which specifies \”receptacle outlets on constructionsites, which are not a part of the permanent wiring of the building . .. in use by employees, shall have approved ground-fault circuitinterrupters for personnel protection,\” and 1926.404(b)(1)(iii) whichrequires an AEGC program \”on construction sites covering all cord sets,receptacles which are not a part of the building or structure andequipment connected by cord and plug which are available for use or usedby employees.\”Respondent’s opposition to the Secretary’s interpretation is based uponits theory that the use of an extension cord plugged into a permanentpower source \”does not change the permanent nature of the power sourceinto ‘temporary power\” (resp. brief p. 13). Respondent bases this theoryon the testimony of John Luthe, an employee of the electricalsubcontractor on the project, who advised respondent that the additionof extension cords to a permanent power source did not constitute\”temporary power\” that required the use of GFCIs or an AEGC program (Tr.157-159). Respondent’s reliance upon Luthe’s advice is misplaced. Thestandard does not make reference to \”temporary power\” but speaks interms of \”receptacle outlets on construction sites, which are not a partof the permanent wiring of the building. . . \” (1926.404(b)(1)(iii) and\”Each cord set, attachment cap, plug and receptacle of cord sets, andany equipment connected by cord and plug, except cord sets andreceptacles which are fixed and not exposed to damage\”(1926.404(b)(1)(iii.)). It is obvious that the thrust of the standard isdirected at the use of all cord sets and receptacles which are exposedto damage at a construction site regardless of the power source to whichthey are connected (Tr. 187-188). It is concluded, therefore, that theSecretary’s interpretation of the standard conforms to its intent andpurpose. Respondent’s interpretation is rejected.Respondent contends that the evidence adduced by the Secretary isinsufficient to sustain her burden of proof with regard to theallegations that respondent violated the cited standard. On March 3,1989, Engineer Pauls conducted an inspection of respondent’s work siteand determined GFCIs were not being used on the project (Tr. 27). Hetook specific note of an extension cord running from the sludge pumpbuilding to the rear of the building where small power tools were readyfor use (Tr. 28). This situation was photographed by Pauls. Exhibit C-24shows the cord plugged into a receptacle inside the sludge pump building(Tr. 39), and Exhibit C-2B shows the cord lying on the ground in therear of the building near the small tools (Tr. 40). This cord was \”fiftyfoot plus\” in length (Tr. 41).On March 15, 1989, Compliance Officer Giefer conducted an inspection ofrespondent’s work site which was the basis upon which the citation wasissued. Upon his arrival, Giefer met with Bud Tewell, respondent’ssuperintendent, John Luthe, the electrical subcontractor’srepresentative, and Tommy Arnold, Jr., respondent’s project engineer,and explained to these individuals the scope of his inspection (Tr.69-71). During the course of his opening conference, Giefer askedTewell, Luthe and Arnold if they were using either GFCIs or an AEGCprogram at the site and was told that neither was in use (Tr. 74).Giefer then conducted a walkaround inspection with the threerepresentatives and determined that some corrective action had beentaken with respect to items raised in Paul’s, referral letter, e.g.,cords in use were not frayed, tools with improper grounding had beenremoved from the site, etc. (Tr. 75). At the conclusion of hisinspection, Giefer once again asked Tewell and Luthe about the use ofGFCIs and an AEGC program at this site and obtained admissions thatneither had been used (Tr. 77, 82). Since Giefer had not seen any workin progress on the day of his inspection, he asked (Tewell) if they hadused extension cords out of the existing power system to operate handheld tools,\” and was advised that Tewell and one other employee had usedan extension cord attached to a power saw behind the sludge pumpbuilding to cut grating (Tr. 77-78).Respondent argues in its brief that the admissions obtained by Gieferfrom Tewell are insufficient as a matter of law to support a findingthat respondent violated the cited standard (resp. brief p. 17).However, Tewell testified under oath at the hearing to the same effect.During the inspection conducted by Giefer on March 15, 1989, Tewelladmitted respondent was not using GFCIs and did not obtain them untilafter the inspection (Tr. 143-144). He also admitted that GFCIs had notbeen used at any time before the inspection (Tr. 145). He furtheradmitted that respondent had no AEGC program [[1]] in effect prior tothe Secretary’s Inspection (Tr. 145). Tewell confirmed the fact thatrespondent’s employees had used tools (an electric drill and power saw)connected to an extension cord on the day prior to Giefer’s inspection(Tr. 146-147). In short, Tewell reiterated at the hearing the admissionsmade to Giefer during the inspection. The Secretary’s charges aresupported by the weight of the evidence and will be affirmed.The remaining issues in the case concern the characterization of theviolation as \”repeat\” and the appropriateness of the Secretary’sproposed penalty of $980.00.On May 24, 1988, OSHA, as a result of an inspection of respondent’s worksite, issued a citation to respondent which included a violation of 29C.F.R. ? 1926.404(b)(1)(i) for failure to provide CFCls or an AEGCprogram (Ex. C-4; Tr. 95-98). This citation became a final order of theReview Commission since it was not contested by respondent (Ex. C-5; Tr.110-114), In Potlatch Corp., 79 OSAHRC 6\/A2, 7 BNA OSHC 1061, 1979 CCHOSHD ? 23,294 at 28,171 (No. 16183, 1979), the Commission held:A violation is repeated under section 17(a) of the Act if, at the timeof the alleged repeated violation, there was a Commission final orderagainst the same employer for a substantially similar violation.The Secretary may establish substantial similarity in several ways. Incases arising under section 5(a)(2) of the Act, which states that eachemployer shall comply with occupational safety and health standards, theSecretary may establish a prima facie case of similarity by showing thatthe prior and present violations are for failure to comply with the samestandard. (Footnote omitted.)Respondent argues that the previous citation did not involvecircumstances that were \”substantially similar\” to the current chargessince respondent was admittedly using a temporary power source at thattime and did not contest the previous citation. As previously noted inthis opinion, the determining factor under this standard is not thenature of the power source but rather the use of cord sets andreceptacles which are not permanently fixed and, therefore, exposed todamage at construction sites. The facts of this case bring respondentsquarely within the Potlatch rule and establish the \”repeat\”characterization as asserted by the Secretary.The Secretary proposes a penalty of $980.00 in this case computed asdescribed in Giefer’s testimony (Tr. 100-111). Giefer’s computationswere made in accordance with the agency’s standard operating proceduresand appear to be accurate in all respects. The penalty will be affirmedas proposed.FINDINGS OF FACT1 Respondent, during the pertinent period, was the general contractor ata work site in Salem, Illinois, where employees were engaged in therenovation and expansion of a sewer treatment plant under a contractadministered by the Environmental Protection Agency and the Army Corpsof Engineers.2. In the early stages of this construction, respondent was inspected onMay 18, 1988, by the Occupational Safety and Health Administration todetermine its compliance with the Occupational Safety and Health Act of1970 (29 U.S.C. 651, et seq.). On May 24, 1988, respondent was issued acitation which included a charge of violation under 29 C.F.R. ?1926.404(b)(1) for its failure to use either GFCIs or an AEGC program toprotect employees from electrical shock. The citation was not contestedby respondent and became a final order of the Review Commission.3. Prior to March 1989, Elvin Pauls, an engineer with the Army Corps ofEngineers, had visited respondent’s work site on several occasions tomake inspections which included safety and had noted respondent was notusing GFCIs to protect employees from electrical shock. On March 1,1989, he discussed this situation with the project engineer at the siteand left some instructive material with him for his use in discussingthe matter with respondent, the general contractor.4. Pauls returned to the site on March 3, 1989, and noted that GFCIswere still not being used by respondent in connection with extensioncords plugged into permanent receptacles. Pauls then referred the matterto OSHA by letter dated March 7, 1989, in accordance with an interagencyagreement.5. Upon receipt of Pauls’ letter, the area director for OSHA scheduledan inspection of the work site as opposed to notifying respondent byletter. This choice was discretionary with the area director and wasappropriate in view of the fact that respondent had been previouslycited under the same standard and was apparently refusing to complybased upon advice from respondent’s electrical subcontractor.6. Compliance Officer John Giefer inspected respondent’s work site onMarch 15, 1989, during which he noted the absence of GFCIs. Indiscussions with Bud Tewell, respondent’s job superintendent, TommyArnold, Jr., respondent’s project engineer, and John Luthe, arepresentative of the electrical subcontractor, Giefer was advised thatrespondent did not and had not used GFCIs on extension cords connectedto power tools and plugged into a power source. He was also advised thatrespondent did not utilize an AEGC program as an alternative to GFCIs.All of these admissions were confirmed in the sworn testimony of BudTewell, who further admitted that he and another employee of respondenthad used an extension cord not protected by a GFCI to power a saw anddrill on the day preceding the inspection.CONCLUSIONS OF LAW1. Respondent, during the pertinent period, was engaged in a businessaffecting interstate commerce and was subject to the Act. The ReviewCommission has jurisdiction of respondent and the subject matter of thiscase.2. The inspection of respondent’s work site on March 15, 1989, was dulyauthorized by the OSHA area director and did not contravene the agency’sguidelines or respondent’s due process rights.3. The provisions of 29 C.F.R. ? 1926.404(b)(1) are mandatory andrequire that an employer working at a construction site whose employeesuse extension cords to power tools must use GFCIs or an AEGC program toprotect employees from electrical shock. Its application is notdependent upon the nature of the power source (permanent or temporary).The purpose of this standard is to protect employees using cords andreceptacles which are not a part of the permanent wiring of the buildingand, therefore, subject to damage or abuse which may cause electricalshocks. The evidence in this case confirms that respondent did notfollow the provisions of 29 C.F.R. ? 1926.404(b)(1)(ii).4. It is also concluded that respondent did not comply with theprovisions of 29 C.F.R. ? 1926.404(b)(1)(iii) since it did not establishand implement an AEGC program. This program requires a writtendescription of the procedures an employer intends to follow, asystematic testing of \”all cord sets, receptacles which are not a partof the permanent wiring of the building\” and a written record of alltests which \”shall identify each receptacle, cord set and cord- andplug-connected equipment that passed the test and shall indicate thelast date it was tested or the interval for which it was tested.\”Respondent conceded it had no written description of the program nor didit keep records of test results which is an essential element of theprogram. As indicated above, the only evidence respondent offered onthis question was Tewell’s testimony that he occasionally used acontinuity checker to test cords and would remove defective cords fromservice by snipping off the receptacle. This evidence falls short ofestablishing that respondent had an effective AEGC program, especiallyin view of Tewell’s testimony that respondent had no program at the timeof the inspection. Respondent did not comply with 29 C.F.R. ?1926.404(b)(1)(iii).5. The evidence in this case discloses that respondent was previouslycited for a violation of 29 C.F.R. ? 1926.404(b)(1) and that thiscitation became a final order of the Review Commission. Accordingly, theSecretary properly characterized the current violations as repeat. Theproposed penalty was computed by the method ordinarily followed by theSecretary in making such computations and is appropriate under thecircumstances of this case.ORDERBased upon the foregoing, it is ORDERED:1. Respondent violated the provisions of 29 C.F.R. ? 1926.404(b)(1).Repeat Citation No. 1 is affirmed.2. A penalty of $980.00 is assessed.Dated this 25th day of April, 1990.EDWIN G. SALYERS JudgeFOOTNOTES:[[1]] Respondent argues in its brief that it substantially complied withthe requirements for an AEGC program because Tewell used a continuitychecker and took defective cords out of service by snipping the ends offthe cord. However; respondent concedes it kept no records of testsperformed on the cord sets, an essential element of the program. It isconcluded that respondent made no serious effort to implement an AEGCprogram. “