“Docket No. 89-1366 SECRETARY OF LABOR, Complainant, v. MAUTZ & OREN, INC.,Respondent.OSHRC DOCKET NO. 89-1366ORDEROn April 2, 1991, the Secretary filed a Notice of Withdrawal ofCitation in the above-captioned case. The Secretary has withdrawn the only remaining itemat issue in this case, item 1 of Citation 1.The Commission acknowledges receipt of the Secretary’s Noticeof Withdrawal and sets aside the Judge’s Decision and Order which affirmed item 1 ofCitation 1. and assessed a $980 penalty. There being no matters remaining before theCommission requiring further consideration, the Commission orders the above-captioned casedismissed. Edwin G. Foulke, Jr. ChairmanVelma Montoya CommissionerDonald G. Wiseman CommissionerDate: April 18, 1991SECRETARY OF LABOR, Complainant, v. MAUTZ & OREN, INC.,Respondent.OSHRC Docket No. 89-1366APPEARANCE: Miguel J. Carmona, Esquire, Office of the Solicitor, U. S. Department of Labor, Chicago,Illinois, on behalf of complainant.Michael J. Bobroff, Esquire, Husch, Eppenberger, Donohue, Cornfeld and Jenkins, St. Louis,Missouri, on behalf of respondent.DECISION AND ORDERSALYERS, Judge: Respondent, Mautz and Oren, Inc., is thegeneral contractor at a project located in Salem, Illinois, where it was engaged in therestoration and expansion of a sewer treatment plant for the city. This work was performedunder a federally funded grant administered by the Environmental Protection Agency whichagency utilized the Corps of Engineers to provide field surveillance and technicalassistance in the construction phase of the operation.Elvin L. Pauls is a project engineer employed by the U.S. Army Corps of Engineers (Tr. 8).His duties include safety inspection of work sites at projects under the jurisdiction ofhis agency (Tr. 14). Pauls visited respondent’s work site on several occasions prior toMarch 11, 1989, and had 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 project engineer at this sitefor his use in discussing this matter with the general contractor (Tr. 21).Pauls returned to the work site on March 3, 1989, anddetermined that GFCI’s were still not being used on the project. He then drafted areferral letter to the Occupational Safety and Health Administration (Ex. C-1) whichcontained the following paragraph:The need for ground fault circuit interrupters was discussed onPrevious visits. During this inspection it was observed that this protection was notincorporated in the control panels as previously informed. The contractor was informed onMarch 1 by the Engineer that these deficiencies must be corrected. The contractor agreedto provide a circuit breaker type GFCI on a temporary receptacle near the constructionoffices, however the electrician refused to provide portable GFCIs on permanentlyinstalled receptacles which provide power for 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 withBud Tewell, respondent’s job superintendent, and John Luthe, a representative for theelectrical contractor; presented his credentials and explained the purpose of his visit(Tr. 69-71). During the course of the opening conference, Giefer asked both Tewell andLuthe if they were using either GFCIs or the assured equipment grounding conductor program(hereinafter \”AEGC\”) at the work site and was told that neither was used (Tr.73-74, 91).Tewell also admitted to Giefer that he (Tewell) and one other employee had usedextension cords without GFCIs to operate hand-held tools in the sludge pump building onthe day before the inspection (Tr. 77-78, 82, 167).As a result of Giefer’s inspection, respondent was issued onMarch 22, 1989, the following citation:29 CFR 1926.404(b)(1)(i): Employer did not use eitherground-fault circuit interrupters as specified in paragraph (b)(1)(ii) of this section, oran assured equipment ground conductor program as specified in paragraph (b)(1)(iii) ofthis section to protect employees on construction sites:In the filter building and behind the sludge pump room, theemployer did not use either ground fault circuit interrupters or an assured equipmentgrounding conductor program on temporary wiring systems created by using extension cordson a fixed permanent wiring system, exposing employees to the hazard of electric shock.Respondent contends that the citation should be vacated,because OSHA did not follow the procedures set forth in its Field Operations Manual (ExR-3) for handling referrals from other government agencies. The manual provides:\”government agency referrals shall normally be handled by letter according to theinstructions for nonformal complaints\” (Ex. R-3, p. IX-16). Section 8(a) of themanual specifies:Responding by Letter to Nonformal Complaints. Upon receipt andevaluation of a nonformal complaint, the Area Director, as soon as possible, shall preparea letter to the employer advising him of the complaint, informing him of the standardsallegedly violated (including copies of such standards) and outlining the means to assessthe hazard and\/or the corrective action required. The employer shall be asked toinvestigate the alleged conditions and respond to OSHA within a specified time. Thisletter shall be sent by certified mail with return receipt requested.The manual further provides that an area director hasdiscretion to conduct 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 rather than to deal with the matter byletter (Tr. 131), and this choice was entirely within his discretion.Respondent’s argument misconstrues the intent and purpose ofthe FOM which contains only guidelines for the execution of enforcement operations. As theCommission stated in FMC Corp., 77 OSAHRC 153\/D4, 5 BNA OSHC 1707, 1977-78 CCH OSHD ?22,060 (No. 13155, 1977), \”the guidelines provided by the manual are plainly forinternal application to promote efficiency and not to create an administrative straightjacket. They do not have the force and effect of law nor do they accord importantprocedural or substantive rights to individuals\” (Id. at 1710).On the merits, respondent contends:1. The Secretary’s interpretation of the cited standard isunreasonable and not in accord with the language of the standard.2. The evidence does not support the allegations contained inthe citation.The cited standard, C.F.R. ? 1926.404(b)(1) provides: (b) Branch Circuits–(1) Ground-fault protection-(i) General.The employer shall use either ground fault circuit interrupters as specified in paragraph(b)(1)(ii) of this section or an assured equipment grounding conductor program asspecified in paragraph (b)(1)(iii) of this section to protect employees on constructionsites. These requirements are in addition to any other requirements for equipmentgrounding conductors.(ii) Ground-fault circuit interrupters. All 120-volt, single-phase, 15- and 20-amperereceptacle outlets on construction sites, which are not a part of the permanent wiring ofthe building or structure and which are in use by employees, shall have approvedground-fault circuit interrupters for personnel protection . . . .(iii) Assured equipment grounding conductor program. The employer shall establish andimplement an assured equipment grounding conductor program on construction sites coveringall 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 used by employees.This program shall comply with the following minimum requirements:(A) A written description of the program, including the specific procedures adopted by theemployer, shall be available at the jobsite for inspection and copying by the AssistantSecretary and any affected employee.(B) The employer shall designate one or more competent persons (as defined in ?1926.32(f)) to implement the program.(C) Each cord set attachment cap, plug and receptacle of cord sets, and any equipmentconnected by cord and plug, except cord sets and receptacles which are fixed and notexposed to damage, shall be visually inspected before each day’s use for external defects,such as deformed or missing pins or insulation damage, and for indications of possibleinternal damage. Equipment found damaged or defective shall not be used until repaired.(D) The following tests shall be performed on all cord sets, receptacles which are not apart of the permanent wiring of the building or structure, and cord and plug-connectedequipment required to be grounded:(1) All equipment grounding conductors shall be tested for continuity and shall beelectrically continuous.(12) Each receptacle and attachment cap or plug shall be tested for correct attachment ofthe equipment grounding conductor. The equipment grounding conductor shall be connected toits 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 reasonably suspected to havecaused damage (for example, when a cord set is run over); and(4) At intervals not to exceed 3 months, except that cord sets and receptacles which arefixed and not exposed to damage shall be tested at intervals not exceeding 6 months.(F) The employer shall not make available or permit the use by employees of any equipmentwhich 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 recordshall identify each receptacle, cord set, and cord- and plug-connected equipment thatpassed the test and shall indicate the last date it was tested or the interval for whichit was tested. This record shall be kept by means of logs, color coding, or othereffective means and shall be maintained until replaced by a more current record. Therecord shall be made available on the jobsite for inspection by the Assistant Secretaryand any affected employee.The Secretary maintains the standard is obligatory and requiresan employer to protect employees on construction sites by the use of GFCIs or an AEGCprogram whenever employees utilize cord sets and receptacles (extension cords) which areplugged into any power source. The Secretary stresses that an extension cord plugged intoa permanent power source does not become a part of the permanent wiring of the buildingbut creates an addition to the system subject to the normal abuses which can occur on aconstruction site, e.g., the cord may be crushed by heavy equipment, cut by abrasion ofrocks, etc. The Secretary urges that extension cords to which tools are attached andplugged into the permanent wiring system create a temporary power source at the end of theextension cord which must be protected by either GFCIs or by use of an AEGC program (Tr.185-187). This interpretation appears to be in accord with the language of 1926.404(b)(1)which mandates the use of either GFCIs or an AEGC program \”to protect employees onconstruction sites\” and specifies that \”these requirements are in addition toany other requirement for equipment grounding conductors,\” 1926.404(b)(1)(ii) whichspecifies \”receptacle outlets on construction sites, which are not a part of thepermanent wiring of the building . . . in use by employees, shall have approvedground-fault circuit interrupters for personnel protection,\” and 1926.404(b)(1)(iii)which requires an AEGC program \”on construction sites covering all cord sets,receptacles which are not a part of the building or structure and equipment connected bycord and plug which are available for use or used by employees.\”Respondent’s opposition to the Secretary’s interpretation is based upon its theory thatthe use of an extension cord plugged into a permanent power source \”does not changethe permanent nature of the power source into ‘temporary power\” (resp. brief p. 13).Respondent bases this theory on the testimony of John Luthe, an employee of the electricalsubcontractor on the project, who advised respondent that the addition of extension cordsto a permanent power source did not constitute \”temporary power\” that requiredthe use of GFCIs or an AEGC program (Tr. 157-159). Respondent’s reliance upon Luthe’sadvice is misplaced. The standard does not make reference to \”temporary power\”but speaks in terms of \”receptacle outlets on construction sites, which are not apart of the permanent wiring of the building. . . \” (1926.404(b)(1)(iii) and\”Each cord set, attachment cap, plug and receptacle of cord sets, and any equipmentconnected by cord and plug, except cord sets and receptacles which are fixed and notexposed to damage\” (1926.404(b)(1)(iii.)). It is obvious that the thrust of thestandard is directed at the use of all cord sets and receptacles which are exposed todamage at a construction site regardless of the power source to which they are connected(Tr. 187-188). It is concluded, therefore, that the Secretary’s interpretation of thestandard conforms to its intent and purpose. Respondent’s interpretation is rejected.Respondent contends that the evidence adduced by the Secretary is insufficient to sustainher burden of proof with regard to the allegations that respondent violated the citedstandard. On March 3, 1989, Engineer Pauls conducted an inspection of respondent’s worksite and determined GFCIs were not being used on the project (Tr. 27). He took specificnote of an extension cord running from the sludge pump building to the rear of thebuilding where small power tools were ready for use (Tr. 28). This situation wasphotographed by Pauls. Exhibit C-24 shows the cord plugged into a receptacle inside thesludge 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 \”fifty footplus\” in length (Tr. 41).On March 15, 1989, Compliance Officer Giefer conducted aninspection of respondent’s work site which was the basis upon which the citation wasissued. Upon his arrival, Giefer met with Bud Tewell, respondent’s superintendent, JohnLuthe, the electrical subcontractor’s representative, and Tommy Arnold, Jr., respondent’sproject engineer, and explained to these individuals the scope of his inspection (Tr.69-71). During the course of his opening conference, Giefer asked Tewell, Luthe and Arnoldif they were using either GFCIs or an AEGC program at the site and was told that neitherwas in use (Tr. 74). Giefer then conducted a walkaround inspection with the threerepresentatives and determined that some corrective action had been taken with respect toitems raised in Paul’s, referral letter, e.g., cords in use were not frayed, tools withimproper grounding had been removed from the site, etc. (Tr. 75). At the conclusion of hisinspection, Giefer once again asked Tewell and Luthe about the use of GFCIs and an AEGCprogram at this site and obtained admissions that neither had been used (Tr. 77, 82).Since Giefer had not seen any work in progress on the day of his inspection, he asked(Tewell) if they had used extension cords out of the existing power system to operate handheld tools,\” and was advised that Tewell and one other employee had used an extensioncord attached to a power saw behind the sludge pump building to cut grating (Tr. 77-78).Respondent argues in its brief that the admissions obtained byGiefer from Tewell are insufficient as a matter of law to support a finding thatrespondent violated the cited standard (resp. brief p. 17). However, Tewell testifiedunder oath at the hearing to the same effect. During the inspection conducted by Giefer onMarch 15, 1989, Tewell admitted respondent was not using GFCIs and did not obtain themuntil after the inspection (Tr. 143-144). He also admitted that GFCIs had not been used atany time before the inspection (Tr. 145). He further admitted that respondent had no AEGCprogram [[1]] in effect prior to the Secretary’s Inspection (Tr. 145). Tewell confirmedthe fact that respondent’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). Inshort, Tewell reiterated at the hearing the admissions made to Giefer during theinspection. The Secretary’s charges are supported by the weight of the evidence and willbe affirmed.The remaining issues in the case concern the characterizationof the violation as \”repeat\” and the appropriateness of the Secretary’s proposedpenalty of $980.00. On May 24, 1988, OSHA, as a result of an inspection ofrespondent’s work site, 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 AEGC program (Ex. C-4; Tr.95-98). This citation became a final order of the Review Commission since it was notcontested by respondent (Ex. C-5; Tr. 110-114), In Potlatch Corp., 79 OSAHRC 6\/A2, 7 BNAOSHC 1061, 1979 CCH OSHD ? 23,294 at 28,171 (No. 16183, 1979), the Commission held:A violation is repeated under section 17(a) of the Act if, atthe time of the alleged repeated violation, there was a Commission final order against thesame employer for a substantially similar violation.The Secretary may establish substantial similarity in severalways. In cases arising under section 5(a)(2) of the Act, which states that each employershall comply with occupational safety and health standards, the Secretary may establish aprima facie case of similarity by showing that the prior and present violations are forfailure to comply with the same standard. (Footnote omitted.) Respondent argues that the previous citation did not involvecircumstances that were \”substantially similar\” to the current charges sincerespondent was admittedly using a temporary power source at that time and did not contestthe previous citation. As previously noted in this opinion, the determining factor underthis standard is not the nature of the power source but rather the use of cord sets andreceptacles which are not permanently fixed and, therefore, exposed to damage atconstruction sites. The facts of this case bring respondent squarely within the Potlatchrule and establish the \”repeat\” characterization as asserted by the Secretary.The Secretary proposes a penalty of $980.00 in this casecomputed as described in Giefer’s testimony (Tr. 100-111). Giefer’s computations were madein accordance with the agency’s standard operating procedures and appear to be accurate inall respects. The penalty will be affirmed as proposed.FINDINGS OF FACT1 Respondent, during the pertinent period, was the generalcontractor at a work site in Salem, Illinois, where employees were engaged in therenovation and expansion of a sewer treatment plant under a contract administered by theEnvironmental Protection Agency and the Army Corps of Engineers.2. In the early stages of this construction, respondent wasinspected on May 18, 1988, by the Occupational Safety and Health Administration todetermine its compliance with the Occupational Safety and Health Act of 1970 (29 U.S.C.651, et seq.). On May 24, 1988, respondent was issued a citation which included a chargeof violation under 29 C.F.R. ? 1926.404(b)(1) for its failure to use either GFCIs or anAEGC program to protect employees from electrical shock. The citation was not contested byrespondent and became a final order of the Review Commission.3. Prior to March 1989, Elvin Pauls, an engineer with the ArmyCorps of Engineers, had visited respondent’s work site on several occasions to makeinspections which included safety and had noted respondent was not using GFCIs to protectemployees from electrical shock. On March 1, 1989, he discussed this situation with theproject engineer at the site and left some instructive material with him for his use indiscussing the matter with respondent, the general contractor.4. Pauls returned to the site on March 3, 1989, and noted that GFCIs were still not beingused by respondent in connection with extension cords plugged into permanent receptacles.Pauls then referred the matter to OSHA by letter dated March 7, 1989, in accordance withan interagency agreement.5. Upon receipt of Pauls’ letter, the area director for OSHAscheduled an inspection of the work site as opposed to notifying respondent by letter.This choice was discretionary with the area director and was appropriate in view of thefact that respondent had been previously cited under the same standard and was apparentlyrefusing to comply based upon advice from respondent’s electrical subcontractor.6. Compliance Officer John Giefer inspected respondent’s worksite on March 15, 1989, during which he noted the absence of GFCIs. In discussions withBud Tewell, respondent’s job superintendent, Tommy Arnold, Jr., respondent’s projectengineer, and John Luthe, a representative of the electrical subcontractor, Giefer wasadvised that respondent did not and had not used GFCIs on extension cords connected topower tools and plugged into a power source. He was also advised that respondent did notutilize an AEGC program as an alternative to GFCIs. All of these admissions were confirmedin the sworn testimony of Bud Tewell, who further admitted that he and another employee ofrespondent had used an extension cord not protected by a GFCI to power a saw and drill onthe day preceding the inspection.CONCLUSIONS OF LAW1. Respondent, during the pertinent period, was engaged in abusiness affecting interstate commerce and was subject to the Act. The Review Commissionhas jurisdiction of respondent and the subject matter of this case.2. The inspection of respondent’s work site on March 15, 1989,was duly authorized 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 mandatoryand require that an employer working at a construction site whose employees use extensioncords to power tools must use GFCIs or an AEGC program to protect employees fromelectrical shock. Its application is not dependent upon the nature of the power source(permanent or temporary). The purpose of this standard is to protect employees using cordsand receptacles which are not a part of the permanent wiring of the building and,therefore, subject to damage or abuse which may cause electrical shocks. The evidence inthis case confirms that respondent did not follow 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 establish and implement anAEGC program. This program requires a written description of the procedures an employerintends to follow, a systematic testing of \”all cord sets, receptacles which are nota part of the permanent wiring of the building\” and a written record of all testswhich \”shall identify each receptacle, cord set and cord- and plug-connectedequipment that passed the test and shall indicate the last date it was tested or theinterval for which it was tested.\” Respondent conceded it had no written descriptionof the program nor did it keep records of test results which is an essential element ofthe program. As indicated above, the only evidence respondent offered on this question wasTewell’s testimony that he occasionally used a continuity checker to test cords and wouldremove defective cords from service by snipping off the receptacle. This evidence fallsshort of establishing that respondent had an effective AEGC program, especially in view ofTewell’s testimony that respondent had no program at the time of 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 waspreviously cited for a violation of 29 C.F.R. ? 1926.404(b)(1) and that this citationbecame a final order of the Review Commission. Accordingly, the Secretary properlycharacterized the current violations as repeat. The proposed penalty was computed by themethod ordinarily followed by the Secretary in making such computations and is appropriateunder the circumstances 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 with the requirementsfor an AEGC program because Tewell used a continuity checker and took defective cords outof service by snipping the ends off the cord. However; respondent concedes it kept norecords of tests performed on the cord sets, an essential element of the program. It isconcluded that respondent made no serious effort to implement an AEGC program.\u00a0″