“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?3909 \u00a0 TRINITY INDUSTRIES, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 31, 1981DECISIONBefore: BARNAKO, Acting Chairman; CLEARY and COTTINE,Commissioners.BY THE COMMISSION:??????????? Thiscase is before us for review under section 12(j)[1] of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ?? 651?78 (?the Act?). Respondent, TrinityIndustries, Inc. (?Trinity?), manufactures liquid petroleum gas (?LPG?) vesselsat its plant in West Memphis, Arkansas. As a result of an inspection of thatplant by an authorized representative of the Secretary of Labor (?Secretary?),two citations were issued.[2] Respondent timely contestedthese citations and a hearing was held before Administrative Law Judge John S.Patton. The judge affirmed some items of the citations and vacated others.??????????? TheSecretary petitioned for review of the judge?s decision with respect to sixitems that had been vacated.[3] All six of these itemswere alleged to have occurred in either the diesel fuel pump shed or the truckshop at Trinity?s plant. Commissioner Cleary granted review of the Secretary?spetition on the following issue:[4]??????????? Whetherthe Administrative Law Judge erred by dismissing Items 2a(d) and 2c(a) ofCitation 1 and Items 13, 14, 17, and 21 of Citation 2 on the ground that theemployees exposed to the allegedly violative working conditions were employedby an independent contractor.??????????? Forthe reasons that follow, we vacate the judge?s ruling with respect to these sixitems and remand the cases for further proceedings.I??????????? Atthe hearing, Compliance Officer Watkins testified that he was accompaniedduring his inspection of Trinity?s West Memphis plant by Smittle, Trinity?sacting plant manager, and by Langford, Trinity?s purchasing agent. Watkinsstated that during the opening conference he was informed by either Smittle orLangford that there were no outside contractors on the site. Watkins thereforeconcluded that the employees on the site were employed by Trinity.[5] During his inspection,Watkins entered the truck shop and the fuel pump shed at Trinity?s plant andwas informed by either Smittle or Langford that three employees worked in thoseareas.??????????? Theonly other witness was Jerry Lynn Riddles, Trinity?s associate corporate safetydirector. Riddles directed safety programs at approximately 15 to 20 Trinityplants, not all of which were engaged in the manufacture of LPG vessels.Approximately 7 to 9 plants in other divisions of Trinity were outside ofRiddles? authority. Riddles testified that, while the fuel pump shed waslocated on the property of Trinity?s West Memphis plant, it was not underTrinity?s control and usually Trinity?s employees would not be in the fuelshed. Riddles stated that the fuel shed was under the control of an independentcontractor hired to perform maintenance on company vehicles and to do alltransportation. The panel and nozzle of the fuel pump normally were kept lockedand only the transportation company had a key. Riddles testified that it wasunlikely that he or any of Trinity?s representatives would have any way ofknowing about an unsafe condition in the fuel pump shed. Riddles also testifiedthat the truck shop at Trinity?s plant was under the control of thetransportation company and that Trinity?s employees do not normally work in thetruck shop.??????????? Riddles?testimony was unclear concerning the nature of the relationship between Trinityand the transportation company. During portions of his testimony, Riddlesstated that the transportation company was a ?separate company,? while atanother instance he testified that the transportation company was ?a divisionof Trinity.? Riddles did not know the exact name of the transportation company,whether it was a wholly-owned subsidiary of Trinity, or whether it performedmaintenance work for companies other than Trinity. Although not responsible forthe fuel pump shed, Riddles stated that he ?looks through? that area during hissafety inspections at the West Memphis plant. As a ?courtesy,? Riddles orallyreports any problems concerning the fuel shed to T. C. Mashburn, an employee ofthe transportation company. Mr. Mashburn, Like Riddles, works in the TrinityIndustries Building in Dallas.II??????????? Inhis decision, Judge Patton found that an independent contractor relationshipexisted at Respondent?s plant with respect to the transportation company. Thejudge noted Riddles? testimony that the fuel pump shed and truck shop weremaintained by an independent contractor and that only the employees of theindependent contractor normally worked in these areas. The judge also notedSmittle?s statement to Watkins that Respondent did not have independentcontractor relationships. Despite the testimony of the compliance officer,Judge Patton concluded that the evidence established an independent contractorrelationship. The judge pointed out that the term ?independent contractor? is alegal term ?which could be misinterpreted in a conversation between laymen.? Whilenoting that the exact relationship between Respondent and the company allegedto be an independent contractor was not ?set out on the record to the extentthat might have been desirable,? the judge nevertheless concluded that theSecretary failed to prove that the employees exposed to hazards in the truckshop and the fuel pump shed were Respondent?s employees. The judge for thisreason vacated the six items alleged to have occurred in these areas.[6]III??????????? Onreview, the Secretary argues that Respondent must do more than merely allegethat employees at its plant were employed by an independent contractor in orderto avoid liability under the Act. The Secretary in particular points out that(1) Respondent?s walkaround representative told the compliance officer thatRespondent did not have independent contractor relationships, (2) the allegedindependent contractor was a division of Respondent?s corporation and wasquartered in the same building, and (3) Respondent did not raise its claimuntil midway in the evidentiary hearing. The Secretary further argues that noevidence supports Respondent?s position concerning the existence of independentcontractors except for testimony by Respondent?s representative that the pumpshed and truck shop areas were operated by a separate transportation company.In fact, according to the Secretary, the statement by Respondent?srepresentative that the transportation company is a division of Trinityindicates that the transportation company and Trinity may be a single entity forpurposes of liability under the Act. The Secretary contends that Respondentshould be required to supply additional evidence of the existence of thetransportation company?s independent contractor status since that evidence ispeculiarly within Respondent?s knowledge.[7]??????????? Onreview, Trinity argues that the Secretary failed to prove either that Trinity?semployees had access to the cited hazards in the truck shop or fuel pump shedor that Respondent caused or controlled the hazards in these areas or knew thatthey existed. It points to testimony that Trinity?s employees did not enterareas controlled by the transportation company, that Trinity did not have keysto these areas, and that the transportation company and Trinity are entirelyseparate, each having its own employees. Respondent also contends that thestatement by Smittle to the compliance officer that there were no outsidecontractors on the site does not disprove that an independent contractorrelationship existed, since the compliance officer?s testimony makes it clearthat the compliance officer only asked Respondent?s representative abouttemporary outside contractors. Respondent therefore requests that theCommission affirm the judge?s vacation of the six items because Trinity?semployees were not exposed to the hazardous conditions and did not have accessto them.??????????? Inaddition, Trinity argues that the Secretary should be estopped from obtaining aremand. Trinity points out that at the hearing it requested the record be keptopen in order to submit ?interrogatories? to Smittle, the plant manager, andintroduce his answers into evidence. The Secretary opposed this motion, whichwas denied by Judge Patton. Trinity contends that it would be unfair and adenial of due process for the Commission to remand the case when the Secretarydid not move for the record to be reopened until after the judge issued hisdecision.IV??????????? Thedispositive issue in this case is whether the transportation company is anentity independent of Trinity. Trinity?s sole witness, its associate safetydirector, testified that the only individuals who spent part of their work timein the truck shop and fuel pump shed were employees of a separatetransportation company who were not under the control of Trinity. However, healso stated that the transportation company was a division of Trinity and thatthe office of his contact person in the transportation company was located inthe Trinity Industries building in Dallas, the same building in which heworked. This testimony suggests that, while the truck shop and fuel pump shedwere not operated by the division of Trinity Industries which manufacturers LPGvessels, they were operated by another division of Trinity rather than by aseparate enterprise.[8]??????????? TheCommission was confronted with a similar fact situation in Advance Specialty Co., 76 OSAHRC 35\/D4, 3 BNA OSHC 2072, 1975?76CCH OSHD ?20, 490 (No. 2279, 1976). In his lead opinion in that case,Commissioner Cleary expressed the view that, for purposes of the Act, twocompanies should be regarded as a single entity when they share a commonworksite, have interrelated and integrated operations, and share a commonpresident, management, supervision, or ownership.[9] We believe, for thereasons stated in that opinion, that the rule of decision suggested there isthe appropriate one for determining whether two nominally separate employersshould be treated as a single entity. However, in his separate opinions in bothAdvance Specialty Co., supra, and Bob McCaslin Steel Erection, supra,Commissioner Cleary affirmatively concluded on the basis of the evidence ofrecord that the two corporate entities in issue should be treated as a singleentity under the Act. Thus, an important aspect of the single entity rule,i.e., which party has the burden of persuasion, has not been addressed by theCommission. In this case, the Secretary has argued that the employer should becharged with this burden because it is defending against a citation on thebasis of information that is peculiarly within its knowledge. The general rule,based upon considerations of fairness, is that a party should not be assignedthe burden of establishing facts peculiarly within the knowledge of theopposing party. Campbell v. United States,365 U.S. 85, 96 (1961); Browzin v.Catholic University of America, 527 F.2d 843 (D.C. Cir. 1975); Anning-Johnson Co., 76 OSAHRC 54\/A2, 4BNA OSHC 1193, 1198 n. 14, 1975?76 CCH OSHD ? 20,690, p. 24,783 n. 14 (Nos.3694 & 4409, 1976).[10] The issue of employer?srelationship with other entities with which it has integrated operations at thesame worksite requires the introduction of evidence that is uniquely availableto the employer and may be readily produced by this party. Therefore, it isappropriate, both in terms of fairness and the parties? efficient use of theirresources, that the employer be assigned the burden of persuasion when, indefense to a citation issued for a condition existing at its facility, theemployer argues that it is not responsible for the violation because it has nocontrol over the cited condition and is not the employer of the employeesexposed to the cited hazard.[11]??????????? Sinceat the time of trial this allocation of the burden of persuasion as well as thesingle entity rule itself had not been adopted by the Commission, it isappropriate to afford the parties an opportunity to present additional evidencerelevant to the relationship between Trinity and the transportation company.See, e.g., Truland-Elliot, 77 OSAHRC163\/A7, 4 BNA OSHC 1455, 1976?77 CCH OSHD ?20,908 (No. 11259, 1976). Therefore,we remand this case to the judge to allow the parties to present additionalevidence and to allow the judge to evaluate the case under the criteria setforth in this opinion and the lead opinion in Advance Specialty Co.[12] If the judge concludesthat Trinity and the transportation company are properly regarded as a singleentity, he then should determine whether the cited standards were violated andshould assess appropriate penalties.V??????????? JudgePatten vacated two of the items on review on additional grounds unrelated tothe independent contractor issue. Therefore, although this case is remandedwith respect to the independent contractor issue, it is necessary to determinewhether the judge correctly vacated these items on the additional grounds.??????????? Item17 alleged that Respondent failed to comply with the standard at 29 C.F.R. ?\u00a01910.252(a)(2)(iv)(c)in that oxygen cylinders were not separated from fuel-gas cylinders accordingto the terms of the standard.[13] The compliance officer atthe hearing testified that he did not know whether the cylinders at issueactually had oxygen in them. The judge vacated this item on the basis that, inthe absence of evidence that the cylinders contained oxygen, no hazard had beenestablished. However, the standards concerning cylinder storage raise thepresumption that cylinders contain at least enough residual gas to present ahazard. Williams Enterprises of Georgia,Inc., 79 OSAHRC 92\/A2, 7 BNA OSHC 1900, 1979 CCH OSHD ?24,003 (No. 13875,1979); Huber, Hunt & Nichols, Inc.,and Blount Brothers Corp., A Joint Venture, 76 OSAHRC 71\/A2, 4 BNA OSHC1406, 1976?77 CCH OSHD ? 20,837 (No. 6007, 1976). Therefore, the judge erred inconcluding that no hazard was present. His vacation of the citation on thisbasis is reversed.??????????? Item21 alleged that Respondent failed to comply with section 250?5(b)(1) of theNational Electrical Code, as adopted by the standard at 29 C.F.R. ?1910.309(a), in that there was reverse polarity on the duplex receptacle abovethe work bench in the truck shop, and a similar infraction in the Hydrobuilding.[14]The judge vacated this item on the basis that the cited standard only appliesto equipment installed or repaired after March 15, 1972. However, in Delawareand Hudson Railway Co., 80 OSAHRC ??, 8 BNA OSHC 1252, 1980 CCH OSHD ?24,422(No. 76?787, 1980), the Commission held that the date of installation ofRespondent?s equipment is irrelevant in determining whether there is aviolation of Section 1910.309(a). Therefore, the judge erred in vacating thisitem on the basis that the standard was inapplicable to the cited condition.VI??????????? Accordingly,the administrative law judge?s decision is vacated, and this case is remandedto the judge for further proceedings consistent with this opinion. SO ORDERED.FOR THE COMMISSION:RAY H. DARLING, JR.,EXECUTIVE SECRETARYDATE: MAR 31, 1981\u00a0BARNAKO, Acting Chairman, dissenting:??????????? I donot agree with the majority that this case should be remanded for thepresentation of additional evidence concerning whether the transportationcompany and Trinity Industries, Inc., should be regarded as a single entity. Ialso do not agree that the burden of persuasion in this respect should beplaced on Respondent. Rather, I would affirm the judge?s vacation of the sixitems on review because the Secretary failed to prove that Trinity was theemployer of employee exposed to hazards in the truck shop and fuel pump shed.??????????? Inthis case, it is undisputed that some individuals performed work in the truckshop and fuel pump shed and thus apparently were exposed to the allegedlyviolative conditions in those areas. Compliance officer Watkins testified thathe was informed by Respondent?s acting plant manager that there were no outsidecontractors on the premises, which were owned by Trinity. Respondent?sassociate safety director Riddles, on the other hand, testified that the truckshop and fuel pump shed were under the control of a separate transportationcompany, the transportation company?s employees worked in those areas, andTrinity?s employees normally did not work in those areas. The Secretarypresented no evidence to rebut Riddles? testimony.??????????? Theissue posed by this case is whether the transportation company and Trinityshould be considered a single entity such that Trinity is considered to be anemployer of the transportation company?s employees for the purposes of the Act.The Secretary argues that Trinity and the transportation company should betreated as a single entity and hence Trinity should be considered the employerof those employees.??????????? In Advance Specialty Co., 76 OSAHRC 35\/D4,3 BNA OSHC 2072, 1975?76 CCH OSHD ? 20,490 (No. 2279, 1976), CommissionerCleary, expressing his own view, stated that for purposes of the Act twocompanies should be regarded as a single entity when they share a commonworksite, have interrelated and integrated operations, and share a commonpresident, management, supervision, or ownership. The same position wasexpressed by Commissioner Cleary in his earlier opinion in Bob McCaslin Steel Erection Co., 75 OSAHRC 69\/C10, 3 BNA OSHC 1311,1974?75 CCH OSHD ?19,755 (No. 3776, 1975) (separate opinion of CommissionerCleary). The majority now adopts Commissioner Cleary?s view in Advance Specialty and remands this casefor further proceedings consistent with Commissioner Cleary?s opinion in thatcase.??????????? Iagree with the majority insofar as they hold that two companies should beregarded as a single entity for purposes of the Act when they treat themselvesas a single entity. Whether two companies are to be treated as a single entityshould be decided on a case-by-case basis, depending upon whether the companieshave ignored their distinct character.??????????? Thisrecord is insufficient to establish that Trinity and the transportation companyshould be considered a single entity. Although Trinity and the transportationcompany are located in a building owned by Trinity, there is some physicalseparation between the two entities since the truck shop and fuel pump shed arenot normally entered by Trinity?s employees. Riddles testified that he did notknow whether the transportation company performed work for companies other thanTrinity. Therefore, the degree to which the two entities are integrated intheir operations is uncertain. Further, although Riddles ?looks through? thetruck shop and fuel pump shed as a ?courtesy,? those areas are not under his?jurisdiction? in his safety inspections. This testimony suggests that Trinityand the transportation company are under separate management. Hence, since theevidence fails to establish that the companies have ignored their distinctcharacter, based on this record Trinity and the transportation company shouldnot be considered a single entity.[15] Because the record doesnot establish that Trinity is the employer of the allegedly exposed employees,I would vacate the items on review.??????????? Ratherthan vacating the items on review, however, the majority departs fromCommission precedent holding that the Secretary must prove, among other things,that the cited Respondent was the employer of employees exposed to theallegedly violative condition.[16] See P & Z Co. and J. F. Shea Co., 79 OSAHRC 60\/B6, 7 BNA OSHC1589, 1979 CCH OSHD ?23,777 (No. 14822, 1979); George Barry, et al., d\/b\/a Union Waterproofing, Roofing and PaintingCo., 81 OSAHRC ??, 9 BNA OSHC 1264, 1980 CCH OSHD ?25,173 (No. 77?2720,1981). Instead, under the circumstances of this case, the majority shifts theburden of persuasion to Respondent to prove that it is not the employer of theemployees exposed to the cited hazards. I disagree with this shifting of theburden of persuasion.??????????? UnderCommission Rule 73(a), 29 C.F.R. ? 2200.73(a), in all proceedings commenced bythe filing of a notice of contest, the burden of proving all elements of aviolation rests with the Secretary. Further, several United States circuitcourts of appeals have upheld the placement of the burden of proving allelements of a violation on the Secretary. See, e.g., Brennan v. OSHRC (Alsea Lumber Co.), 511 F.2d 1139 (9th Cir. 1975);[17] Mountain States Telephone and Telegraph Co. v. OSHRC, 623 F.2d 155(10th Cir. 1980). Therefore, by shifting the burden of persuasion to Respondentwith respect to the element of employer status, the majority holds contrary toCommission Rule 73 and precedent.??????????? Themajority concludes that Trinity should be required to prove that thetransportation company is a separate entity because information relating tosuch proof is peculiarly within its knowledge. This basis for shifting theburden of persuasion to Respondent is inadequate. If the transportation companyis, in fact, a separate entity, then information relevant to establishing thisfact is equally accessible both to Trinity and to the Secretary. The Secretaryin his inspection can determine the employment status of the exposed employeesby interviewing employees. Information concerning an employer?s corporatestatus can also be obtained in public records such as articles ofincorporation. Further, the Secretary can obtain information through discoveryin Commission proceedings. Therefore, it should not be burdensome for theSecretary to establish whether the Respondent?s employees are exposed to thealleged hazard.??????????? Themajority?s opinion also errs by drawing an analogy between proof of employerstatus under the single entity theory and proof that the cited employer has nocontrol over the cited condition pursuant to the Commission?s decision in Anning-Johnson Co., 76 OSAHRC 54\/A2, 4BNA OSHC 1193, 1975?76 CCH OSHD ?20,690 (Nos. 3694 & 4409, 1976) andrelated cases.[18]Thelatter is an affirmative defense and is applicable only after the Secretary hasmade a prima facie showing that the cited contractor is an employer whoseemployees are exposed to the cited hazards.??????????? Finally,I do not believe that this case should be remanded for the production ofadditional evidence concerning the status of the transportation company. Both Advance Specialty and Bob McCaslin were decided prior to thehearing in this case. The Secretary, quoting Commissioner Cleary?s opinion in Bob McCaslin, argued the applicabilityof the single entity theory in his brief to the judge. The Secretary also wasaware that, under the Commission Rules of Procedure and under Commissionprecedent, he had the burden of proving all elements of a violation includingthat of employer status. Since the Secretary was acquainted with the applicablelegal theory and argued its relevance to the judge, the Secretary should not begranted a second opportunity to produce evidence consistent with this theory.[19]??????????? Thisconclusion is further supported by the fact that, near the close of thehearing, counsel for Trinity requested permission to submit interrogatoriesfrom Mr. Smittle, Trinity?s acting plant manager. Counsel for the Secretaryopposed this request, arguing that ?both sides are going to have to stand onwhat we?ve got.? The judge denied the request for interrogatories on the basisthat ?the fact that there were independent contractors is at present proven.?Despite the fact that the judge indicated to the Secretary that he had failedto establish his proof on this issue, the Secretary did not move to supplementthe record. Rather, the Secretary only moved for a remand after the judge?sdecision vacating the items at issue was filed with the Commission. In view ofthese circumstances, the necessity to bring an end to litigation outweighs anycountervailing interests of the Secretary. SeeSeattle Crescent Container Service, 79 OSAHRC 91\/A2, 7 BNA OSHC 1895, 1979CCH OSHD ?24,002 (No. 15242, 1979).??????????? Therefore,since the Secretary failed to prove that Respondent was the employer ofemployees exposed to the cited conditions, the judge?s vacation of the items onreview should be affirmed.\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 77?3909 \u00a0 TRINITY INDUSTRIES, INC., \u00a0 \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 November 2, 1978DECISION AND ORDERAPPEARANCESGail M. Dickenson and David S. Jones,Attorneys, U. S. Department of Labor, Office of the Solicitor, Dallas, Texas,on behalf of complainant\u00a0Robert E. Rader, Esquire, Dallas, Texas,on behalf of respondent\u00a0STATEMENT OF THE CASEPATTON, Judge:??????????? Thisis a proceeding pursuant to section 10 of the Occupational Safety and HealthAct of 1970 (29 U.S.C. 651, et seq., 84 Stat. 1590, hereinafter referred to asthe Act) contesting a citation issued by the complainant against the respondentunder the authority vested in complainant by section 9(a) of the Act.??????????? Thecitation alleges that as a result of the inspection of a workplace under theownership, operation, and control of respondent located in West Memphis,Arkansas, the respondent has been charged with violating section 5(a)(2) of theAct by violating the following standards: 29 C.F.R. 1910.25(d)(1)(x),29 C.F.R. 1910.106(g)(1)(i),29 C.F.R. 1910.106(g)(3)(iii), 29 C.F.R. 1910.157(a)(1), 29 C.F.R. 1910.157(d)(3)(iv), 29 C.F.R. 1910.157(a)(5), 29 C.F.R. 1910.178(q)(7), 29 C.F.R. 1910.179(b)(5), 29 C.F.R. 1910.180(c)(2), 29 C.F.R. 1910.184(d), 29 C.F.R. 1910.212(a)(1), 29 C.F.R. 1910.215(a)(4), 29 C.F.R. 1910.219(d)(1), 29 C.F.R. 1910.219(e)(3)(i), 29 C.F.R. 1910.219(f)(3), 29 C.F.R. 1910.252(a)(1)(iii), 29 C.F.R. 1910.252(a)(2)(iv)(c), 29 C.F.R. 1910.252(b)(2)(iv)(d), 29 C.F.R. 1910.252(b)(4)(vii), 29 C.F.R. 1910.252(b)(4)(ix)(c), Section 250?5(b)(1), National Electrical Code, NFPA70?1971, as adopted by standard 29 C.F.R. 1910.309(a); Section 400?4, National Electrical Code, NFPA 70?1971,as adopted by standard 29 C.F.R. 1910.309(a); Section 400?5, National Electrical Code, NFPA 70?1971,as adopted by standard 29 C.F.R. 1910.309(a), and Section 210?21(b), National Electrical Code, NFPA70?1971, as adopted by standard 29 C.F.R. 1910.309(a); 29 C.F.R.1910.212(a)(3)(ii); Section 110?17(a), National Electrical Code, NFPA70?1971, as adopted by standard 29 C.F.R. 1910.309(a); Section 250?45(d), National Electrical Code, NFPA70?1971, as adopted by standard 29 C.F.R. 1910.309(a); and Section 250?51, National Electrical Code, NFPA70?1971, as adopted by standard 29 C.F.R. 1910.309(a).??????????? Hearingwas held in Dallas, Texas, on May 31 and June 1, 1978. Both parties appearedand presented evidence. There was no motion to intervene.LAW AND ISSUES IN THE CASE??????????? Itwas alleged that the respondent was in violation of the Act as follows:29 C.F.R. 1910.25(d)(1)(x): Portable woodladders with defects were not withdrawn from service and tagged or marked as?Dangerous, Do Not Use?;?29 C.F.R. 1910.106(g)(1)(i): Liquids werenot stored in containers not exceeding 60 gallons or in tanks located underground;?29 C.F.R. 1910.106(g)(3)(iii): A clearlyidentified and easily accessible switch or circuit breaker was not provided ata location remote from the dispensing device to shut off the power to alldispensing devices in the event of an emergency;?29 C.F.R. 1910.157(a)(1): Portable fireextinguishers were not maintained in a fully charged and operable condition;?29 C.F.R. 1910.157(d)(3)(iv): Portablefire extinguishers did not have durable tags attached showing the maintenanceor recharge date;?29 C.F.R. 1910.157(a)(5): Portable fireextinguishers were not installed on hangers or brackets, mounted in cabinets,or set on shelves;?29 C.F.R. 1910.178(q)(7): Industrialtrucks were not examined before being placed in service;?29 C.F.R. 1910.179(b)(5): The rated loadof cranes was not plainly marked on each side of the crane;?29 C.F.R. 1910.180(c)(2): The cabs oftruck cranes were not provided with a load-rating chart with clearly legibleletters and figures, which was easily visible to the operator while seated atthe control station;?29 C.F.R. 1910.184(d): Damaged ordefective slings were not immediately removed from service;?29 C.F.R. 1910.212(a)(1): Machine guardingwas not provided to protect operators and other employees from hazards created byrotating parts;?29 C.F.R. 1910.215(a)(4): Workrests ongrinding machinery were not adjusted closely to the wheel with a maximumopening of one-eight inch;?29 C.F.R. 1910.219(d)(1): Pulleys withparts seven feet or less from the floor or work platform were not guarded inaccordance with the requirements specified at 29 C.F.R. 1910.219(m) & (o);?29 C.F.R. 1910.219(e)(3)(i): Vertical orinclined belts were not enclosed by guards conforming to the requirementsspecified at 29 C.F.R. 1910.219(m) & (o);?29 C.F.R. 1910.219(f)(3): Sprocket wheelsand chains which were seven feet or less above floors or platforms were notfully enclosed;?29 C.F.R. 1910.252(a)(1)(iii): Not allapparatus used with oxygen-fuel gas systems were approved for such use;?29 C.F.R. 1910.252(a)(2)(iv)(c): Oxygencylinders in storage were not separated from fuel-gas cylinders by a minimumdistance of 20 feet or by a noncombustible barrier at least five feet highhaving a fire-resistance rating of at least one-half hour;?29 C.F.R. 1910.252(b)(2)(iv)(d): Terminalsfor welding leads were not protected from accidental electrical contact bypersonnel or by metal objects;?29 C.F.R. 1910.252(b)(4)(vii): Arc weldingelectrode holders not in use were placed so that electrical contact could bemade with an employee;?29 C.F.R. 1910.252(b)(4)(ix)(c): Lengthsof arc welding or electrode lead cables were joined by connecting means notspecifically intended for this purpose;?Section 250?5(b)(1), National ElectricalCode, NFPA 70?1971, as adopted by Standard 29 C.F.R. 1910.309(a): The interioralternating current systems were not grounded where the system could begrounded so that the maximum voltage to ground on the ungrounded conductorswould not exceed 150 volts;?Section 400?4, National Electrical Code,NFPA 70?1971, as adopted by Standard 29 C.F.R. 1910.309(a): Flexible cords wereused in a prohibited manner, in that the cords were attached to buildingsurfaces;?Section 400?5, National Electrical Code,NFPA 70?1971, as adopted by Standard 29 C.F.R. 1910.309(a): Spliced or tapedflexible electrical cords were used;?Section 210?21(b), National ElectricalCode, NFPA 70?1971, as adopted by Standard 29 C.F.R. 1910.309(a): Receptaclesconnected to circuits having different voltages, frequencies or types ofcurrent (AC or DC) on the same premises were not designed so that attachedplugs used on such circuits were not interchangeable.?29 C.F.R. 1910.212(a)(3)(ii): Respondentfailed to guard points of operation of machinery to prevent employees fromhaving any part of their body in danger zones during operating cycles;?Section 110?17(a), National ElectricalCode, NFPA 70?1971, as adopted by Standard 29 C.F.R. 1910.309(a): Live parts ofelectrical equipment operating at 50 volts or more were not guarded againstaccidental contact by approved cabinets or other forms of approved enclosuresor other approved means;?Section 250?45(d), National ElectricalCode, NFPA 70?1971, as adopted by Standard 29 C.F.R. 1910.309(a): Exposed,noncurrent-carrying metal parts of cord and plug-connected equipment, whichwere liable to become energized, were not grounded;?Section 250?51, National Electrical Code,NFPA 70?1971, as adopted by Standard 29 C.F.R. 1910.309(a): Paths to groundfrom circuits, equipment, and conductor enclosures were not permanent andcontinuous.???????????? Thecomplainant filed a request for admissions as to jurisdictional facts whichrequest for admissions was not responded to. Said request for admissions musttherefore be taken as true. Said request sets forth the following facts:??????????? Respondentsells some of its products manufactured at its establishment in West Memphis,Arkansas, to companies or individuals located outside the State of Arkansas.??????????? Respondentpurchases some of the materials used in its manufacturing at West Memphis,Arkansas, from sources outside the State of Arkansas.??????????? Employeesof respondent located in West Memphis, Arkansas, make and receive telephonecalls to and from places outside the State of Arkansas.??????????? Respondenthas a place of business and is doing business in a state other than Arkansas.The above facts establish that the respondent was, at all times relevant tothis cause, engaged in a business affecting interstate commerce and istherefore within the jurisdiction of the Act.??????????? Therespondent moved for summary judgment on the ground that the citation was notissued with reasonable promptness as required by section 9(a) of the Act. Thecitation was not issued until 21 days subsequent to the inspection. The Actstates that the citation should issue within 72 hours of the time of theinspection.??????????? Therespondent takes the position that respondent was prejudiced by the delay, inthat complainant?s compliance officer testified that Mr. Smittles and Mr.Langford, who accompanied the compliance officer on the inspection, made anumber of admissions. It is stated that Mr. Smittles denies making any of thestatements testified to by the compliance officer, Mr. Watkins, and that Mr.Langford left the employ of respondent soon after the inspection, and counselhas been unable to interview him. Respondent also takes the position that amore prompt issuance of the citation would have made it possible to interviewMr. Langford before he left the vicinity.??????????? Inthe case of Chicago Bridge and Iron Co.,74 OSAHRC 3\/E10, 1 BNA OSHC 1485, 1973?74 CCH OSHD ?17,187 (No. 744, 1974), vacated and remanded, 514 F.2d 1082 (7thCir. 1975), the Review Commission held that the three working days period oftime would begin to date from the day that the Area Director determines that acitation should issue. In the Chicago Iron case the Commission held that thecitation must be vacated for not having issued with reasonable promptnesswithin the three working days following the time that the Area Director madehis decision. The Court of Appeals for the Seventh Circuit overruled the caseholding that the rule of the Review Commission was too restrictive. Subsequentto the decision of the Seventh Circuit, the Review Commission revised its ruleon reasonable promptness holding that a citation will be vacated on that groundonly if the employer is prejudiced or the citation is issued following aunconscionable delay as demonstrated by the facts. Par Construction Co., 76 OSAHRC 133\/Bll, 4 BNA OSHC 1779, 1976?77CCH OSHD ?21,216 (No. 11092, 1976); ConcreteConstruction Corp., 76 OSAHRC 47\/A2, 4 BNA OSHC 1133, 1975?76 CCH OSHD?20,610 (No. 2490, 1976).??????????? TheReview Commission, however, has not changed its position that the time does notbegin to run until the decision has been made by the Area Director.??????????? Inthe case at bar, the evidence does not establish the date upon which the AreaDirector made a decision that the citation should issue. The record does notestablish that the citation issued more than three working days after the AreaDirector?s determination that citation should issue. It would appear that theremay have been prejudice to the respondent in a delay, but the delay is not anunjustified one. It will be noted that 24 standards are alleged to have beenviolated, and several of the standards are alleged to have been violated inmore than one respect. To require that the report and analysis of theinspection must be made, and the Area Director must thoroughly consider anddetermine each of the issues and the citation should be properly drawn andissued all within three working days is to require a virtual impossibility. Itmust be noted that an Area Director has more than one case to work on at atime, and it would have been difficult to have met such a time schedule, evenhad this case been the only one that required his attention.??????????? Inview of the breadth and complexity of this case, it would appear that 21 dayswas a very reasonable time within which the Area Director could have made uphis mind and the citation issue.??????????? Themotion for summary judgment on the ground of the late filing of the citationmust therefore be denied.??????????? Respondentmakes several motions to dismiss on constitutional grounds. An AdministrativeLaw Judge does not have the authority to rule upon the constitutionality of theAct under which he operates, and therefore these motions are denied.??????????? Itwas alleged that the respondent committed a serious violation by violatingstandard 29 C.F.R. 1910.212(a)(1). It was alleged that respondent failed toprovide machine guarding to protect operators and other employees from hazardscreated by nip points on the Niagara Shear. It was alleged that a point ofoperation of the shear was not properly guarded and also that the treadle wasnot properly guarded.??????????? Mr.Watkins, the compliance officer, testified that if the operator got his handinto the position under the pads it would severely mash his fingers, and if hishand went further and got into the point of operation of the shear, it wouldmean the loss of fingers (Tr. 22). He stated that an unprotected treadle causesa hazard. Should the operator inadvertently activate the treadle whilepositioning the plate steel, he could reach into the point of operation at thattime. Mr. Watkins stated that a slight modification of the treadle and puttingon a treadle guard would cure the problem (Tr. 21, 22). He stated that anoperator at the point of operation reaching into the front or going behind toobtain pieces of the sheared material could be prevented by placing a barrierthere (Tr. 23). He described the operation as positioning sheet steel andpushing the heavy steel on a flatbed, moving it forward to trim the pieces off.If an employee reached into the point of operation for some reason andinadvertently activated the the treadle, these pads would come down and theshear would come down. He observed an employee behind the shear blades and infront of the blades. He stated that those accompanying him on the inspectiontold him that the employees do not get behind the shear, but he saw an operatorget down and go under to retrieve pieces of steel (Tr. 23?24).??????????? As tothe point of operation, the respondent?s testimony was to the effect that aguard had been provided, and that the guard had been damaged. The respondentwas fabricating a heavier guard at the time, and the heavier guard wasinstalled the afternoon after the inspection (Tr. 202).??????????? Itwould appear that if the guard was removed only because it had been damaged,and another and better guard was being fabricated and was installed thefollowing afternoon, the respondent was doing all possible under thecircumstances insofar as guarding the point of operation was concerned, and theallegations as to this alleged violation have not been sustained.??????????? Theposition of the respondent, however, that the shear was not a danger at theback and, therefore, need not be guarded cannot be sustained. The respondentmaintains that no one ever went behind the shear (Tr. 204, 205). It will benoted, however, that the compliance officer witnessed a person going in thispoint of danger to retrieve certain pieces of steel (Tr. 24). The employees,therefore, did expose themselves to positions of danger, and a guard shouldhave been provided at this location. The allegations as to the shear,therefore, have been sustained.??????????? Thereason alleged for the treadle to be guarded was so the operator could notinadvertently activate the treadle while he was positioning the steel plate(Tr. 21). Had the guard been in place at the point of operation, it would nothave been possible for the employee to have gotten his hand in the point ofdanger, even by hitting the treadle (Tr. 211). The complainant, therefore, hasproven a violation in the failure to guard the back of the shear, but has notestablished a violation as to the allegations that the point of operation infront of the shear was not guarded or that the treadle was not guarded.??????????? Itwas alleged that a switch box cover was left open, in violation of Section110?17(a), National Electrical Code, as adopted by standard 29 C.F.R.1910.309(a). It is not disputed that the box cover was missing at the time ofinspection. It was testified, however, that this was the first occasion in theplant when the box cover was found not to be on the switch box (Tr. 295?296).The company rules required that the cover always be on the box. Respondent hadno knowledge of this occurrence at the time it happened. It would appear to bean isolated occurrence, concerning which respondent had no knowledge. Knowledgeis an element of proof of both serious and nonserious violations. See Brennan v. OSAHRC, 511 F.2d 1139(9th Cir. 1975). The evidence does not establish that the cover had beenmissing for sufficient time to impute knowledge to the respondent. The allegation,therefore, has not been sustained.??????????? Itwas alleged that there was also a cover plate missing on a light switch abovethe foreman?s desk, in violation of part of the electrical code. It wastestified that the foreman?s office was being repainted, which was the reasonfor the light switch cover being removed (Tr. 223, 225). It is necessary for acover plate to be removed when painting is done, and this was a legitimate andproper reason for it not being on the light switch at the time of inspection. Thisallegation has therefore not been sustained.??????????? Itwas further alleged that a light socket above the bed of the shear did not havea globe in it. It is undisputed that this was true. It was the position of therespondent that it would be most improbable for a person to accidentally stickhis hand in the light socket. It is improbable that this would occur, but thisdoes not seem to be beyond the realm of possibility. A person would notdeliberately do so, but in reaching for something, it is possible that a personmight, unless carefully watching what he is doing, inadvertently stick hisfinger into such a socket. This is an unlikely occurrence, but it is not soimprobable as to be de minimis. It must therefore be held that a nonseriousviolation has occurred.??????????? Itwas further alleged that said section was violated, in that a switch box coverwas missing in the diesel fuel pump shed. While it is not denied that the coverwas missing, the testimony of the respondent is to the effect that the dieselfuel pump shed was maintained by an independent contractor, and that only theemployees of the independent contractor worked in this area. This allegationwas not disputed. If the respondent?s employees were not exposed to the danger,the respondent is not in violation of the Act. Mr. Watkins testified that hewas told by Mr. Smittle that the respondent did not have independent contractorrelationships. The respondent?s counsel at the hearing requested permission tofile an affidavit stating what was intended by Mr. Smittle?s conversation.Since there would be no chance to cross-examine the witness, this request wasdenied. The respondent, however, attached an affidavit to his brief. While thebrief has been carefully read and studied, the affidavit has not been read bythis Judge in view of the fact that the right to file same was denied.??????????? Notwithstandingsaid testimony of the compliance officer, the weight of the evidence wouldindicate that there is an independent contractor relationship at therespondent?s factory. It is entirely possible that there could have been amisunderstanding between the parties. An independent contractor is a legal termwhich could be misinterpreted in a conversation between laymen. Unfortunatelythe exact relationship between the respondent and the company alleged to be anindependent contractor was not set out on the record to the extent that mighthave been desirable. The respondent alleged an independent contractorrelationship, and with the exception of said alleged admission by the executiveof the respondent, the complainant did not in any way attack the position ofthe respondent that an independent contractor relationship existed. Theobligation is on the complainant to establish that employees of the respondentwere exposed. The respondent maintains that no person exposed was one of itsemployees. It therefore must be held that the complainant has failed to prevailas to these allegations.??????????? It isalso alleged that said standard was violated, in that a broken duplexreceptacle was found east of the X-ray office. Testimony is to the effect thatthe respondent?s employees do not work in the area. X-ray work is done by anoutside contractor (Tr. 223, 297?298). For the same reason set forth above, thecomplainant has not sustained these allegations. It is incumbent uponcomplainant to establish that employees of the respondent were exposed to thehazard, and this the complainant has failed to do.??????????? Apenalty in the amount of $300 is proposed by the complainant for all of thealleged violations of said standard. The only violation found to have beenproven is the violation relating to the empty light socket. The likelihood ofan employee being shocked as a result of this violation is very small, andtherefore no penalty will be assessed for this violation.??????????? Section250?45(d) of the National Electrical Code, as adopted by standard 29 C.F.R.1910.309(a), is alleged to have been violated, in that the respondent failed toground a Toledo pipe threader and a Jet bench drill press. The standard in questionstates as follows:?In other than residential occupancies,(1) refrigerators, freezers, air conditioners, and (2) clothes-washing,clothes-drying and dish-washing machines, sump pumps and (3) portable,handheld, motor-operated tools and appliances of the following types: drills,hedge clippers, lawn mowers, wet scrubbers, sanders and saws, and (4) cord- andplug-connected appliances used in damp or wet locations, or by persons standingon the ground or on metal floors or working inside of metal tanks or boilers,and (5) portable tools which are likely to be used in wet and conductivelocations.????????????? Itwas the position of the complainant that (4) was the part of said standardwhich was violated. The complainant alleged that the respondent?s employees werestanding on a concrete floor, and that this was the equivalent of standing onthe ground. The compliance officer testified that it was a damp but not a wetlocation. He stated that the tools were not used inside a metal tank or boiler,nor when an employee was standing on the ground. Mr. Riddles of the respondenttestified that they were not used on wet concrete, but the concrete was dry. Hestated that there was no comparison between concrete and dirt insofar as one orthe other being a good conductor of electricity.??????????? Thepart of the standard relied upon by the complainant provides that a violationhas occurred only if one of two circumstances arises: the employee must bestanding in a wet or damp location or he must be standing on the ground ormetal floors or working inside metal tanks or boilers. As will be above noted,there is a conflict in testimony as to whether the surface was damp, althoughit is conceded that it was not wet. The evidence is rather evenly balanced onthe issue of whether or not the concrete was damp, and the complainant havingthe burden of proof has failed to carry that burden.??????????? It isundisputed that the respondent?s employees were standing on concrete andneither on the ground, nor on metal floors, nor working inside metal tanks orboilers. It has not been proven that concrete is the equivalent of working onthe ground, insofar as being a conductor of electricity is concerned.Furthermore, the standard does not say on the ground or its equivalent, andtherefore the standard was not violated by employees standing on concretewithout grounding of the electricity. The allegations, therefore, have not beensustained.??????????? Itwas alleged that the respondent violated Section 250?51 of the NationalElectrical Code, in that there were open grounds in duplex receptacles. It wasalleged that the paths to ground from circuits, equipment, and conductorenclosures were not permanent and continuous. Respondent defended on severalgrounds. The respondent?s evidence was to the effect that to the best ofrespondent?s knowledge the building was built prior to 1972 (Tr. 274).Respondent also defended on the ground that it was a latent defect that therespondent had no knowledge of, that the respondent had made a spot check often percent of the outlets and had found no failure to properly ground on thosechecked, and that the respondent, therefore, could not be held to be inviolation for a defect created by others which the respondent had no knowledgeof.??????????? Respondentalso defended on the ground that the alleged defective grounding was in theX-ray room to which the respondent had no access. It would appear that at leasttwo of these defenses have merit. The respondent cannot be held in violationfor a hazard to which its employees have not been exposed, and therefore, asabove stated in a previous part of this decision, the failure to meet standardsin the X-ray room to which the respondent?s employees did not have access doesnot constitute a violation of the Act by the respondent. Standard 29 C.F.R. 1910.309(b)states that said standard has application to equipment installed after March15, 1972, or to equipment replaced, modified, repaired, or rehabilitated aftersaid date. The evidence is to the effect that the installation was prior toMarch 15, 1972, and there is no evidence of replacement, modification, etc. Adefect predating March 15, 1972, therefore, does not constitute a violation ofthe standard.??????????? Itwas alleged that said standard was violated by the fact that a yellow extensioncord in the truck shop did not have a ground pin. As above set forth, the truckshop was an area occupied by an independent contractor to which respondent?semployees did not go. The complainant, therefore, has failed to establish thatemployees of the respondent were exposed to a hazard.??????????? As toother allegations of violation of said standard, the fact that the wiring wasinstalled prior to 1972 makes the standard inapplicable.??????????? Itwas alleged that the respondent violated standard 29 C.F.R. 1910.25(d)(1)(x),in that a portable wooden ladder with defects was not properly tagged asdangerous and not to be used. The compliance officer, Mr. Watkins, testifiedthat a wooden ladder which had been set to one side was defective and was nottagged as such. He stated it had been removed from service (Tr. 41). Mr.Watkins was of the opinion that ?human nature being what it is, if they needone, they grab the closest ladder? (Tr. 42). He stated that respondent?semployees went by it (Tr. 43?44). The ladder was on the north wall of the storagetank area. Mr. Smittles testified for the respondent that an employee had takenthe ladder out of service and placed it there to be picked up by the tool roomman. The tool room man picks up anything defective once a day. It was out ofthe immediate work area. He was of the opinion it was very unlikely the ladderwould be used. He stated that the defect was apparent (Tr. 232, 233, 234).Respondent defends on the ground that the ladder had been taken out of service,and therefore no hazard was presented.??????????? Thestandard, however, specifically requires that a broken ladder be marked as?dangerous.? The ladder was out of service. If the ladder was not properlytagged, the standard was violated. This Judge cannot go behind the standard andrule upon the wisdom of the standard. It would appear, however, that there isalways some possibility that a person looking for a ladder will secure anyladder that he may see, and if he does not notice that it is broken, he maysuffer an injury. The allegations of violation of this standard, therefore,have been sustained.??????????? Thecomplainant alleged a violation of standard 29 C.F.R. 1910.106(g)(1)(i) in afailure by the respondent to locate diesel fuel tanks underground. The standardapplies only to service stations. It is not disputed that the tanks containdiesel fuel and were not underground. Evidence was to the effect that thediesel tanks were not open to or used by the public, but were used only for theequipment of the respondent (Tr. 142?143, 234?235). In the case of AMOCO Oil Co. v. OSAHRC, 76 OSAHRC 9\/A2,3 BNA OSHC 1985, reversed, 4 BNA OSHC1991 (No. 76?1220, 7th Cir. 1976), the Court of Appeals held that the term?service station? only applied to a facility that sold to the public.Subsequent to the decision of the Court of Appeals, in the cases of Kansas City Power and Light Co., 77OSAHRC 117\/C3, 5 BNA OSHC 1745, 1977?78 CCH OSHD ?21, 683 (No. 76?2954, 1977),and Rocky Mountain Prestress, Inc.,77 OSAHRC 134\/C2, 5 BNA OSHC 1888, 1977?78 CCH OSHD ?21,699 (No. 76?3153,1977), Administrative Law Judges held that the term ?service station? did notcover a facility only serving the respondent. These cases were not reversed bythe Review Commission; therefore, it may be assumed that the Review Commissionis following the decision of the Seventh Circuit. The allegations of violationin the case at bar therefore cannot be sustained.??????????? It isalleged that the respondent violated standard 29 C.F.R. 1910.106(g)(3)(iii), inthat respondent failed to provide a remote switch or circuit breaker to shutoff diesel fuel pumps. Mr. Watkins testified that there was a cutoff on thewall above the gas or diesel pump inside the fuel shed, but that there was noremote control switch (Tr. 48). He stated that a remote cutoff is utilized inthe event of an uncontrolled flow to shut down the operation and to reduce anyadditional flow of fuel. It was contended that to have the only switch at thepump would be to bring an employee into the hazardous area in order to shut ifoff. There could be a fire. It was readily apparent that there was no othercutoff (Tr. 50). Mr. Watkins, however, subsequently testified oncross-examination that he did not know if there was another remote shutoff ornot (Tr. 147). Mr. Riddles, Assistant Corporate Safety Director, testified thatthere were three remote shutoffs: one located just above the fuel pump, onelocated at the guardhouse approximately 50 feet away from the pumps, and oneeasy to reach in the adjacent building (Tr. 235). Mr. Riddles stated that atthe time the building was closed, the remote cutoff was operational. It was ina location easily accessible, right beside the guardhouse. He stated that whenthe operation is closed there is a guard in the guardhouse. He reports 30minutes before the employees go home and stays about 15 or 30 minutes afterthey come to work (Tr. 241?242).??????????? Itwould appear that the weight of the above evidence is to the effect that therewere remote cutoffs, and therefore the allegations have not been sustained.??????????? Itwas alleged that the respondent had violated standard 29 C.F.R. 1910.157(a)(1),in that a portable fire extinguisher was not maintained in fully-chargedcondition.??????????? Itwas alleged that standard 29 C.F.R. 1910.157(d)(3)(iv) was violated, in that aportable fire extinguisher did not have a durable tag attached showingmaintenance or recharge date.??????????? Itwas also alleged that respondent violated standard 29 C.F.R. 1910.157(a)(5), inthat a portable fire extinguisher was not installed on the hanger.??????????? Theevidence was to the effect that the area involved, the truck shop, was onlyoperated by the separate transportation company, and that respondent?semployees had no reason to go into the truck shop and, therefore, were notexposed (Tr. 242, 243). In view of this fact, the allegations of violation ofsaid sections of standard 29 C.F.R. 1910.157(a)(1) have not been sustained.??????????? Itwas alleged that the respondent was in violation of standard 29 C.F.R.1910.178(q)(7), because a horn on a forklift was inoperable. Mr. Watkinstestified that the forklift had an inoperable horn, and that it was necessaryto have a horn in case the forklift backed up or came into a blind spot (Tr.61).??????????? Respondentdefended on the ground that the inspection and maintenance of the forklift isperformed by an independent contractor, and that the respondent did not haveknowledge of the defect (Tr. 250?251). The fact remains, however, that therespondent?s employees were exposed to danger by the absence of a horn on theforklift, and the fact that an independent contractor had been employed tomaintain the equipment did not free the respondent of responsibility forpermitting its employees to work with defective equipment.??????????? Therespondent further defends on the ground that there were no blind corners, andthat there was, therefore, no need for a horn (Tr. 61). It is never possible toknow when a person might inadvertently get in the path of a vehicle, and in theevent an employee should do so, a horn could make the difference in an accidentoccurring or not occurring. It cannot be said that there was no need for somemeans of warning any employee who might get in the way of a forklift. It wouldbe as logical to say that the only time an automobile would need a horn wouldbe when it turned a corner. Experience has shown that there are needs for ahorn on an automobile, even when the automobile is in clear view of people whomay have neglected to look for it. The same situation would apply withreference to a forklift. It must therefore be held that this allegation hasbeen sustained.??????????? Itwas alleged that the respondent violated standard 29 C.F.R. 1910.179(b)(5), inthat respondent failed to mark the rated loads on two overhead cranes. Mr.Watkins testified that he did not recall how many hoisting units the crane had(Tr. 152?153). He admitted that the load blocks of the crane were marked (Tr.152?153). Mr. Riddles testified that the load ratings were marked on the loadblock. He stated that it was easier to see the ratings on the block than ifthey had been on the crane (Tr. 252?253).??????????? Saidstandard is as follows:The rated load of the crane shall beplainly marked on each side of the crane, and if the crane has more than onehoisting unit, each hoist shall have its rated load marked on it or its loadblock and this marking shall be clearly legible from the ground or floor.?The respondent takes the position that the abovelanguage means that a crane shall be marked only in the event there is only onehoisting unit, and in the event there is more than one hoisting unit, it isadequate to mark the load block.??????????? Acareful reading of this section does not indicate that it is in thealternative. The standard requires that the crane be marked, and in the eventthere is more than one hoisting unit, each hoist shall also have its rated loadmarked on it, or it shall be on the load block. It is not entirely clear, butthe above would be the most logical interpretation on a careful reading ofsame. The respondent does not deny that there is no load rating on the craneitself, and therefore said standard has been violated.??????????? Itwas alleged that respondent violated standard 29 C.F.R. 1910.180(c)(2), in thata truck crane in the yard area did not have the load rated capacity, nor did ithave the boom angle indicator. There were two employees in the area at thetime. It was testified that the hazard was that if they picked up at a badangle and bad load, it might hit the ground operator giving instructions. Thecrane could be at such an angle that it would fall, and the ground operator wouldbe in jeopardy. It was testified that this could be easily abated. Themanufacturer could furnish a boom angle indicator which worked on a gravityneedle or load capacity for that angle. Thestandard is as follows:A substantial anddurable rating chart with clearly legible letters and figures shall be providedwith each crane and securely fixed to the crane cab in a location easilyvisible to the operator while seated at his control station.????????????? Thisrequirement apparently was not followed, and this allegation has therefore beensustained.It was alleged that respondent violated standard 29C.F.R. 1910.184(d), in that respondent failed to remove an allegedly defectivewire rope sling from service. The standard is, in part, as follows:Damaged or defective slings shall beimmediately removed from service.???????????? Mr.Watkins testified that there were 31 strands broken and one wire on one lei(Tr. 184). The record establishes that the sling was made up of seven leis orwire rope braids (Tr.156, 253). Respondent defends on the ground that thecomplainant?s witness testified he did not know whether there was an excessload factor or not. He did not know the maximum weight the slings were used topick up (Tr. 154?156, 157). Mr. Riddles testified that the sling was rated for17 tons, and that the maximum it would be lifting would be probably 25,000pounds, so there would be at least a 10,000 pound safety factor. Also,employees did not go underneath any loads that were overhead or being moved(Tr. 253).??????????? Mr.Watkins stated that the 31 broken strands were not the total. He stated hestopped counting when he got to 31. He was of the opinion that the defect couldcause a failure under a load, and someone could be crushed. He stated thebreaks were readily observable.??????????? Admittedlythe sling was damaged and, to some extent, defective. Breaks could wellincrease if not remedied and thereby create a still greater hazard. In view ofthe margin of error testified to by the respondent, the possibility of aninjury may not have been great, but it cannot be said that with the defectadmittedly present there was absolutely no danger. This allegation, therefore,has been established.??????????? Itwas alleged that the respondent failed to guard the Wells metal bandsaw toprotect employees from the hazard created by the unusued portion of the blade,in violation of standard 29 C.F.R. 1910.212(a)(1). The respondent took theposition that the blade did not constitute a hazard because the teeth pointedtoward the floor, and no one could fall onto it (Tr. 160). Respondent alsotestified that there will always be a part of the blade that is not guarded. Itwas stated that the blade can be adjusted from a quarter of an inch all the wayto a foot and a half, and because of that adjustable cut, even with a guard,there would always be some portion of the blade not guarded (Tr. 255?257).??????????? Mr.Watkins testified, however, that an unused part of the blade is unguarded andcould be guarded (Tr. 162?163). The fact that there would still be a part ofthe blade that is used that could not be guarded does not alter the necessityof guarding all portions of the blade that would not be in use. It musttherefore be held that this violation has been established.??????????? Itwas alleged that respondent violated standard 29 C.F.R. 1910.215(a)(4), in thatthe workrest on two bench grinders were more than one-eighth inch from thewheel. The grinders in question had workrests set at approximatelythree-fourths inch and one-half inch (Tr. 73). Mr. Watkins testified that hedid not know the dimensions of the material that was ground on the two grinders(Tr. 165). Mr. Riddles testified that the dimensions were big enough that thegrinder would not jam (Tr. 260). It would appear that the weight of theevidence, therefore, is to the effect that the size is such as to preventjamming. The complainant, in its brief, states that if it is found that thesize of the pieces being ground preclude jamming, the violation should bereduced to de minimis in accordance with OSHA Program Directive Number 100?39and the case of Hamilton Foundry Div.,Hamilton Allied Corp., 77 OSAHRC 132\/B6, 5 BNA OSHD 1866, 1977?78 CCH OSHD?21,932 (No. 76?1420, 1977). It therefore is held that a de minimis violationhas occurred.??????????? Itwas further alleged that there was a failure to guard pulleys and belts on thediesel fuel pump in the fuel shed, in violation of standards 29 C.F.R.1910.219(d)(1) and 29 C.F.R. 1910.219(e)(3)(i). In view of the fact thatrespondent?s employees do not use the diesel fuel pump and have no reason to bein the fuel pump shed, but that it is handled by The Transportation Company,another employer, there is no exposure of respondent?s employees, and theviolation has not been established.??????????? Mr.Riddles testified that respondent?s employees are never in the area (Tr. 77).He further stated that Trinity does not even keep a key to the area (Tr.67?68).??????????? Itwas alleged that respondent failed to guard the sprockets and chains in theLorain truck crane, in violation of standard 29 C.F.R. 1910.219(f)(3).??????????? Mr.Riddles testified that the vehicle maintenance people, an independentcontractor, had done some work on the crane and had forgotten to replace theguard when they finished. He stated Trinity had no reason to suspect the guardhad been left off. He stated to his knowledge it had not been left off before(Tr. 263). He testified that uncovered chains did not constitute a hazard, onlythe maintenance people would have to go behind the seat where the machinerywas, and while on the seat, a person would have to reach back further thannormal to get caught in the chains (Tr. 265?266). The fact that the work wasdone by an independent contractor does not affect the responsibility of therespondent. It is not disputed that the respondent?s employees worked in andaround the machinery in question. Since the evidence establishes that no guardwas on the machinery at the time of inspection, it is incumbent upon therespondent to establish that the guard had been removed for such a short timethat the respondent could not be expected to have knowledge of it. Defense asto the difficulty of reaching the chains would go more to the weight of theviolation than to the question of whether a violation has occurred. It stillwould be quite possible that an employee might become careless and reach backfar enough to become entangled. Allegations of this violation, therefore, havebeen sustained.??????????? It isfurther alleged that respondent violated standard 29 C.F.R.1910.252(a)(1)(iii), in that the oxygen regulator had a broken lens and bentgauge face. Mr. Watkins testified that the lens were broken on the rig on theoxygen regulator, and the face plate was bent out so that it would not readilycome up with a true indication of pressure readings on the gauge. He statedthat Mr. Smittle admitted it was there for temporary use only, and they wereplanning to use it again later that afternoon (Tr. 84). Mr. Watkins statedthere was a possible hazard to an operator in getting incorrect fuel and airmixture at the acetylene torch, and it could lead to a fire (Tr. 85). He statedhe had been told it had been used that morning but did not know whether it wasbroken at the time used (Tr. 167). It was indicated that there was oxygen andacetylene both in the cylinders (Tr. 167). Mr. Watkins stated he was notrelying on the broken gauge to determine whether there was any gas in thecylinder (Tr. 167).??????????? Respondentdefends on the ground that there was no evidence that the regulator or thebroken gauge had been used.??????????? Theevidence having established that the regulator had been used that morning andfurther establishing that, at the time of inspection, the gauge was broken, aprima facie case has been made out that the gauge was used when broken. If itwere broken subsequent to the time used, it was incumbent upon the respondentto establish that fact, which respondent has failed to do. It must therefore beheld that said allegations of violation have been sustained.??????????? Itwas alleged that the respondent violated standard 29 C.F.R. 1910.252(a)(2)(iv)(c),in that certain oxygen cylinders along the north wall of the domestic line andon the north side of the truck shop were not separated from fuel gas cylindersor combustible materials. Standard 29 C.F.R. 1910.252(a)(2)(iv)(c) relates tooxygen cylinders ?in storage.???????????? Itwas testified that the acetylene and oxygen had been separated into bins, thethird separation being CO2 containers placed between them. The total distancebetween the cylinders was three feet, six inches. There was a fuel cylinderimmediately next to the CO2 cylinders, and three and a half feet further was anair cylinder, oxygen (Tr. 85). Respondent defends on numerous grounds. It wasnot established that there was oxygen in the cylinders. Mr. Watkins testifiedthat he could not say whether they had oxygen in them or not (Tr. 167?168). Inthe absence of evidence that the cylinders had oxygen in them, no hazard ispresented, and the violation has not been established. It will further be notedthat this occurred in the truck shop area, which is controlled by theTransportation Company, which is a separate company from that of therespondent. Having not been established that there was a hazard or that, evenif there had been a hazard, respondent?s employees were in the area, theallegation has not been sustained.??????????? Respondentdefended on the further ground that cylinders were in use rather than instorage. The evidence was that they were located there for use as neededthroughout the plant and did not stay there longer than two weeks (Tr. 270?271).Under this evidence, they were in storage.??????????? Itwas alleged that respondent violated standard 29 C.F.R. 1910.252(b)(4)(vii), inthat a man used a welding rod to light a cigarette. Mr. Riddles testified thatthis was so surprising as to be totally unanticipated. He stated that this hadnever happened before to his knowledge, and that he felt it as unnecessary toestablish a rule against it as to establish a rule telling employees not to goup to the top of a roof and jump off (Tr. 271?272).??????????? Itwould appear that this was an isolated instance which was so patently dangerousas to be totally unexpected and something which the respondent could not beexpected to have anticipated or guarded against; therefore, this allegedviolation has not been established.??????????? Itwas alleged that the respondent violated standard 29 C.F.R.1910.252(b)(2)(iv)(d), in that terminals for welding leads were not protectedfrom accidental electrical contact by personnel or by metal objects. Mr.Watkins testified that there were bare wires at the terminals by the units. Thewires were exposed. If energized, it would not take much to contact both thelead and the ground which would cause possible electrocution. It was possiblesomeone walking by could touch them with their hand and be shocked orelectrocuted. He stated the defect was easily observable, and that there wereno guards at the terminal (Tr. 96, 97, 98, 99). It would appear that theallegations of violation have been sustained.??????????? Itwas alleged that standard 29 C.F.R. 1910.252(b)(4)(ix)(c) was violated, in thatworking cables on units 33 and 39 had damage to portions of the working leadswith bare wires and were still in use. Mr. Watkins testified that such was thecase (Tr. 103, 104). He stated that it raised the possibility of shock orelectrocution. The wires were near an access way and two or three welders wereexposed (Tr. 104). He stated that a working cable was one that carries thewelding lead and is used to hold the rod. It would appear that this violationhas been sustained.??????????? Itwas alleged that respondent violated Section 250?5(b)(1) of the NationalElectrical Code, as adopted by standard 29 C.F.R. 1910.309(a), in that therewas reverse play at the junction at the workbench in the truck shop, as well asa similar problem in the Hydro building. Mr. Watkins testified to seeing theabove-described conditions. It was a minimal hazard, in that it would take adouble failure to cause a shock. Three employees were exposed in the truckshop.??????????? Thetruck shop is not an area in which respondent?s employees were proven to haveworked and, therefore, no hazard having been established, the allegationinsofar as the truck shop is concerned cannot be sustained. In will further benoted that the wiring had been installed prior to March 1972 by an independentcontractor and prior to acquisition of the plant by the respondent. It wastestified that it is not possible to detect a reverse polarity in a duplexreceptacle except with a woodhead or circuit tester (Tr. 170?171). Respondent?stestimony was that it was believed the building was properly wired, spot checkshad been taken and no problems were found, and respondent knew nothing of thedefect (Tr. 272?274). Standard 29 C.F.R. 1910.309(b) states that ?Every newelectrical installation and all new utilization equipment installed after March15, 1972, and every replacement, modification, or repair or rehabilitationafter March 15, 1972, of any part of any electrical installation or utilizationequipment installed before March 15, 1972, shall be installed or made, andmaintained, in accordance with the provisions of the 1971 National ElectricalCode, NFPA 70?1971.? The evidence is to the effect that the wiring was doneprior to 1972, and no repairs have been made, and the only rehabilitation orupdating was performed approximately a month before the hearing. The questionis whether any of the things suggested in standard 29 C.F.R. 1910.309(b) weredone prior to the date of inspection. The answer being in the negative,standard 29 C.F.R. 1910.309 has no application.It is also alleged that the respondent violatedstandard 29 C.F.R. 1910.309(a), in that Section 400?4, National Electrical Codewas violated in three subsections.??????????? Itwas alleged that flexible cords in the Hydro building, as well as in anotherarea, were in contact with the steel structure of the building. Mr. Watkinstestified that as long as the cords were in good shape there was no problem,but the cables could break coming into contact with the structure. He statedwith 110 volts or greater, an employee could lean against a structure and getshocked or electrocuted (Tr. 104). The allegations of violation have beensustained.??????????? Itwas also alleged that Section 400?5 of the National Electrical Code had beenviolated. It was stated that on the north wall from the panel box, there was alarge flexible cable that had been taped (Tr. 113). Mr. Smittle told Mr.Watkins that the cable had been spliced and taped. The splicing of a cordconstitutes a repair and, therefore, it was done after 1972, and the standardwould apply.??????????? Section400?5 of the National Electrical Code is as follows:Flexible cord shall be used only incontinuous lengths without splice or tap.???????????? Therespondent defends on the ground that it is not shown that the tape was removedand that a splice had actually been made. The fact remains that Mr. Smittleadmitted that it had been spliced. There is no evidence contradicting this factand, therefore, it is proven.?Respondent further defends on the ground that theNational Electrical Code of 1975 permits some splicing. The 1975 Code, however,has not been adopted by the Occupational Safety and Health Administration andhas not been incorporated into its standards.??????????? Therespondent cites the case of Clifford B.Hanney & Son, Inc., 78 OSAHRC 12\/A2, 6 BNA OSHC 1336, 1978 CCH OSHD?22,525 (No. 15983, 1978), as holding that with the amendment of 1975, the mostthe violation could be found would be de minimis. The Hanney case, supra,stated (at 27,180):The revision in the 1975 NEC coupled withthe opinion of the inspector for the New York State Board of Underwriters, whohad 17 years of experience as an electrical inspector, is persuasive evidencethat no danger was posed by the conditions at respondent?s plant.???????????? It will be noted that the ReviewCommission did not hold that the 1975 change of the NEC was alone adequate toreduce the violation to de minimis. In the Hannaycase, the violation was reduced to de minimis because the case also reflectedthe opinion of the inspector of the New York State Board of Underwriters thatno danger was posed.??????????? Therecord in the case at bar lacks such expert opinion to go with the 1975 changesin the NEC. It therefore must be held that the allegations of violation havebeen sustained, and it is nonserious rather than de minimis.??????????? Itwas alleged that two outlets were spliced into one other line and then wrapped(Tr. 115). This violation has been sustained under the same circumstances asthat previously discussed relating to splicing.??????????? Thewire, instead of going to a receptacle, was taped right into the plug of theair conditioning unit. This violation has also been proven. A domestic linenear the south wall was also taped, which could cause a possible shock orelectrocution if there was a breakdown (Tr. 117). This alleged violation hasapparently been sustained for the reasons set forth above.??????????? Itwas alleged that the respondent violated Section 210?21(b), National ElectricalCode, NFPA 70?1971, as adopted by standard 29 C.F.R. 1910.309(e), in thatreceptacles connected to circuits having different voltages, frequencies, ortypes of current, AC or DC, on the same premises were not designed so thatattachment plugs used on such circuits were not interchangeable. Mr. Watkinstestified that either Mr. Smittle or Mr. Langford informed him that there were220-volt outlets on three lines which he checked which appeared to be ordinary110 receptacles (Tr. 118). He had three lights on a woodhead tester thatindicates that either something was really awry or that 220 volts were cominginto the receptacle (Tr. 119). He stated that 220 volts coming into a 110receptacle creates an overdrive and will break it down a great deal faster withserious results. It could cause shock or worse (Tr. 119). Exposure would be toemployees hooking up power tools.??????????? Onthe other hand, Mr. Riddles testified that respondent does not useinterchangeable 110 and 220 plugs. He stated that they cannot be mixed up orinterchanged and introduced plugs as exhibits to prove it (Tr. 92?93). Hestated that he took the 110 from his stock, but the 220 was borrowed from X-raypersonnel at respondent (Tr. 93?94). He testified that respondent does not use220 plugs. He stated that all but one in the building belonged to the X-raypeople. He stated that none of his employees would use the 220 plug.??????????? Thephysical exhibits introduced into evidence bear out the testimony of Mr.Riddles that they are not interchangeable. It must therefore be held that theweight of the evidence sustains the position of the respondent in this regard.FINDINGS OF FACT??????????? 1.Respondent is a corporation having a place of business and office at WestMemphis, Arkansas. Some of the products manufactured at the West Memphis,Arkansas Plant are shipped to points beyond the State of Arkansas, and some ofthe materials used at the West Memphis Plant are shipped from points outsidethe State of Arkansas to West Memphis, Arkansas.??????????? 2.Employees of respondent located in West Memphis, Arkansas, make and receivetelephone calls to and from places outside the State of Arkansas.??????????? 3.Respondent has a place of business and is doing business in a state other thanthe State of Arkansas.??????????? 4.The citation in this case was issued 21 days subsequent to the inspection, butthe record does not establish that it was issued more than 3 days after thedecision to issue was made by the Area Director. There is some prejudice to therespondent in the delay in that a principal witness had left the employ ofrespondent and could not be found to give testimony.??????????? 5. Inview of the extremely large number of alleged violations, the evidence does notestablish that there was unreasonable delay in the issuance of the citation.??????????? 6. Onor about September 27 and 28, 1977, the guard to protect operators and otheremployees from hazards created by nip points on the Niagara shear had beenremoved.??????????? 7.The absence of the guard created a hazard because, if an employee?s hand wentunder the pads, his fingers would be severely mashed or possibly amputated.??????????? 8.The guard was removed because it was damaged and, at the time of inspection,was being worked on and was replaced on the machine the afternoon after theinspection.??????????? 9. Noguard had been provided to guard the shear at the back of the machine, althoughemployees did, on occasion, go into the area where they could be injured by theshear.??????????? 10.If the treadle had been guarded, an operator could not have inadvertentlyactivated the treadle while he was positioning the steel plate. The guard beingin place at the point of operation, it would not have been possible for theemployee to have gotten his hand in the point of danger, even by hitting thetreadle.??????????? 11.The electric switch box cover was left open, the box cover not being on the boxat the time of inspection.??????????? 12.This was the first occasion in the plant when the box cover had not been on theswitch box, and the respondent had no prior knowledge of the absence of thecover, making said incident an isolated occurrence.??????????? 13. Acover plate was missing on a light switch above the foreman?s desk, but theplate had been removed because painting was being done.??????????? 14. Alight switch above the bed of the shear did not have a globe in it, exposing anemployee to possible shock or electrocution in the event his hand was stuck inthe light socket.??????????? 15.It is the position of the respondent that the diesel fuel pump shed wasmaintained by an independent contractor, and that only employees of theindependent contractor were exposed, and the evidence does not establish thatthe employees were employees of the respondent.??????????? 16.There was a broken duplex electrical receptacle east of the X-ray room.??????????? 17.The employees of the respondent were not exposed to the hazard in said area;the complainant having failed to establish that the employees working in saidarea were employees of respondent rather than employees of an independentcontractor.??????????? 18.The respondent failed to ground a Toledo pipe threader and jet bench drill press.??????????? 19.The employee operating same was standing on concrete and was not standing onthe ground, nor were tools used inside a metal tank or boiler.??????????? 20.The weight of the evidence does not establish that the concrete was wet ordamp.??????????? 21.The respondent maintained open grounds on duplex receptacles. The grounds fromcircuits, equipment, and conductor enclosures were not permanent andcontinuous.??????????? 22.The building was built prior to 1972.??????????? 23.Receptacles were in the X-ray room to which only employees of an independentcontractor were exposed.??????????? 24. Ayellow extension cord in the truck shop did not have a ground pin.??????????? 25.The truck shop was occupied by employees of an independent contractor, andrespondent?s employees were not exposed.??????????? 26.The respondent had a wooden ladder which was defective and had been set to oneside, but had not been tagged.??????????? 27.The ladder was at such location that an employee could have taken it and usedit.??????????? 28.The respondent has diesel fuel tanks underground with which he puts fuel intorespondent?s own vehicles.??????????? 29.The fuel is not sold to the public or furnished to anyone other thanrespondent.??????????? 30.The respondent maintained three shut-offs, one located just above the fuelpump, one located at the guardhouse, approximately 50 feet away from the pump,and one easy to reach in the adjacent building.??????????? 31. Aremote cut-off was operational and accessible at all times.??????????? 32.There was a portable fire extinguisher in the truck shop which was notmaintained in a fully charged condition.??????????? 33.There was a portable fire extinguisher in the truck shop which did not have adurable tag attached showing maintenance or recharge date.??????????? 34.There was a portable fire extinguisher which was not installed on a hanger inthe truck shop.??????????? 35.The record does not establish that employees of respondent were exposed to thehazards in the truck shop.??????????? 36.The respondent maintained a forklift which did not have an operable horn,creating a hazard to its employees.??????????? 37.The respondent failed to mark the rated load on two overhead cranes, althoughit was marked on the load block.??????????? 38.The respondent maintained a truck crane in the yard area that did not have theload rated capacity and did not have a boom angle indicator.??????????? 39.The respondent failed to remove from service a defective wire rope sling.??????????? 40.The respondent failed to guard the Wells metal bandsaw to protect employeesfrom the hazard created by the unused portion of the blade.??????????? 41.Not all of the unguarded part of the blade could be guarded, but the bladecould be guarded to a greater extent than was done.??????????? 42.Pulleys and belts on the diesel fuel pump and fuel shed were not adequatelyguarded.??????????? 43.The record establishes that an independent contractor?s employees worked in thefuel pump shed and does not establish that the respondent?s employees wereexposed to the hazard.??????????? 44.Respondent failed to guard the exposed chains in the cab of the Lorain truckcrane.??????????? 45.Work had been performed on the crane by an independent contractor, but therespondent?s employees were exposed to the hazard.??????????? 46.The record does not establish that the time of exposure was of such shortduration that the respondent would not have known of exposure.??????????? 47.The lens were broken on the rig of the oxygen regulator and the gauge face wasbent.??????????? 48.The defective regulator created a possible hazard to an operator in gettingincorrect fuel and air mixture at the acetylene torch and could lead to a fire.??????????? 49.Said regulator and broken gauge had been used the morning of the inspection.??????????? 50.Certain oxygen cylinders on the north wall of the domestic line and on thenorth side of the truck shop were not separated from fuel gas cylinders orcombustible materials.??????????? 51.The record does not establish that there was oxygen in the cylinder at the timeof inspection.??????????? 52.The record does not establish that employees of respondent, rather than theindependent contractor, were exposed to the hazard.??????????? 53.The cylinders were in storage at the time of the inspection.??????????? 54.An employee of the respondent, at the time of inspection, used a welding rod tolight a cigarette.??????????? 55.The respondent had no reason to anticipate that the employee would use thewelding rod to light a cigarette, and said occurrence is an isolated instance.??????????? 56.Terminals for welding leads were not protected from accidental electricalcontact by personnel or by metal objects, creating a hazard to respondent?semployees.??????????? 57.Working cables on units 33 and 39 had damage to portions of the working leadswith bare wires and were still in use at the time of inspection, creating ahazard for respondent?s employees.??????????? 58.There was reverse play at the junction at the workbench in the truck shop.??????????? 59.It would require a double failure to cause a shock. The record does notestablish that employees of respondent were exposed to the alleged hazard inthe truck shop.??????????? 60.There was reverse play at the junction at the workbench in the Hydro building.It would require a double failure to cause a shock.??????????? 61.All of the wiring at both locations were done prior to 1972.??????????? 62.Flexible cords in the Hydro building, as well as in another area, were incontact with the steel structure of the building, creating a hazard forrespondent?s employees.??????????? 63.On the north wall of the panel box was a large flexible cable that had beentaped, same having been spliced.??????????? 64.Two outlets were spliced into one other line and then wrapped, causing a hazardto respondent?s employees.??????????? 65.The cord, instead of going into a receptacle, was taped right into the plug ofthe air conditioning unit, constituting danger of shock or electrocution torespondent?s employees.??????????? 66.Respondent does not interchange 110 and 220 plugs, respondent?s employees using220 plugs.??????????? 67.The guard rest on two bench grinders were more than one inch from the wheel,but the size of pieces being ground precluded jamming.CONCLUSIONS OF LAW??????????? 1.Respondent is engaged in a business affecting interstate commerce and is withinthe jurisdiction of the Occupational Safety and Health Act.??????????? 2.The motion for summary judgment based on the ground that the citation was notissued with reasonable promptness is without merit and should be denied.??????????? 3.This Judge having no jurisdiction to rule upon the constitutionality of theAct, the motions to dismiss based on constitutional grounds should be denied.??????????? 4.Respondent was in violation of standard 29 C.F.R. 1910.212(a)(3)(ii) by failingto provide a guard at the back of the Niagara shear.??????????? 5.The allegations of violation of standard 29 C.F.R. 1910.212(a)(3)(ii) to theeffect the operation in front of the shear was not guarded have not beensustained.??????????? 6.The allegations of violation of standard 29 C.F.R. 1910.212(a)(1) to the effectthat the treadle was not guarded have not been sustained.??????????? 7.The allegations of violation of Section 110?17(a), National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a) as to the absence of switch boxcovers have not been sustained.??????????? 8.The allegations of violation of Section 110?17(a), National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), alleging that a cover plate wasmissing on a light switch above the foreman?s desk have not been sustained.??????????? 9.The allegations of violation of Section 110?17(a), National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), in that there was no globe in thelight socket above the bed of the shear have been sustained, and said sectionhas been thereby violated.??????????? 10.The allegations of violation of Section 110?17, National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), in that there was a broken duplexreceptacle found east of the X-ray room, which exposed respondent?s employees,have not been sustained.??????????? 11.The allegations of violation of Section 250?45(d) of the National ElectricalCode, as adopted by standard 29 C.F.R. 1910.309(a), have not been sustained.??????????? 12.The allegations of violation of Section 250?51, National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), have not been sustained.??????????? 13.The respondent was in violation of standard 29 C.F.R. 1910.25(d)(1)(x).??????????? 14.The allegations of violation of standard 29 C.F.R. 1910.106(g)(1)(i) have notbeen sustained.??????????? 15.The allegations of violation of standard 29 C.F.R. 1910.106(g)(3)(iii) have notbeen sustained.??????????? 16.The allegations of violation of standard 29 C.F.R. 1910.157(a)(1) have not beensustained.??????????? 17.The allegations of violation of standard 29 C.F.R. 1910.157(d)(3)(iv) have notbeen sustained.??????????? 18.The allegations of violation of standard 29 C.F.R. 1910.157(a)(5) have not beensustained.??????????? 19.The respondent was in violation of standard 29 C.F.R. 1910.178(q)(7).??????????? 20.The respondent was in violation of standard 29 C.F.R. 1910.179(b)(5).??????????? 21.The respondent was in violation of standard 29 C.F.R. 1910.180(c)(2).??????????? 22.The respondent was in violation of standard 29 C.F.R. 1910.184(d).??????????? 23.The respondent was in violation of standard 29 C.F.R. 1910.212(a)(1), in thatrespondent failed to guard the Wells metal bandsaw to protect employees fromthe hazard created by the unused portion of the blade.??????????? 24.The respondent was in violation of standard 29 C.F.R. 1910.215(a)(4), but saidviolation was only a de minimis violation.??????????? 25.The allegations of violation of standard 29 C.F.R. 1910.219(d)(1) has not beensustained.??????????? 26.The allegations of violation of standard 29 C.F.R. 1910.219(e)(3)(i) have notbeen sustained.??????????? 27.The respondent was in violation of standard 29 C.F.R. 1910.219(f)(3).??????????? 28.The respondent was in violation of standard 29 C.F.R. 1910.252(a)(1)(iii).??????????? 29.The allegations of violation of standard 29 C.F.R. 1910.252(a)(2)(iv)(c) havenot been sustained.??????????? 30.The allegations of violation of standard 29 C.F.R. 1910.252(b)(4)(vii) have notbeen sustained.??????????? 31.The respondent was in violation of standard 29 C.F.R. 1910.252(b)(2)(iv)(d).??????????? 32.The allegations of violation of standard 29 C.F.R. 1910.252(b)(4)(ix)(c) havenot been sustained.??????????? 33.The allegations of violation as to Section 250?5(b)(1), National ElectricalCode, as adopted by standard 29 C.F.R. 1910.309(a) have not been sustained.??????????? 34.The respondent was in violation of Section 400?4, National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), in that flexible cords in the Hydrobuilding were in contact with the steel structure of the building.??????????? 35.The respondent was in violation of Section 400?5, National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), in that a large flexible cable onthe north wall from the panel box had been spliced and taped.??????????? 36.The respondent was in violation of Section 400?4, National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), in that two outlets were splicedinto one other line and then wrapped.??????????? 37.The respondent was in violation of Section 400?4, National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), in that a wire, instead of going toa receptacle, was taped right into the plug of the air conditioning unit.??????????? 38.The allegations of violation of Section 210?21(b), National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(e), have not been sustained.ORDER??????????? It istherefore ORDERED that:??????????? Respondent?smotions for summary judgment are denied.??????????? Allegationsof violation of standard 29 C.F.R. 1910.212(a)(1) that respondent maintained anunprotected treadle on the Niagara number 913 3\/8-inch mile steel shear in thedomestic line are dismissed.??????????? Respondentwas in violation of standard 29 C.F.R. 1910.212(a)(3)(ii). No penalty isassessed for said violation. Said violation must be abated within 30 days ofthe date of the issuance of this decision.??????????? Theallegations of violation of standard 29 C.F.R. 1910.212(a)(3)(ii) that theoperation in front of the shear was not guarded are dismissed.??????????? Theallegations of violation of Section 110?17(a), National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), alleging that switch boxes were leftuncovered are dismissed.??????????? Theallegations of violation of Section 110?17(a), National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), in that a cover plate was missing ona light switch above the foreman?s desk are dismissed.??????????? Therespondent violated Section 110?17(a), National Electrical Code, as adopted bystandard 29 C.F.R. 1910.309(a) by failing to have a globe in a light socketabove the bed of a shear. No penalty is assessed. Said violation shall beimmediately abated.??????????? Theallegations of violation of Section 110?17(a), National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), in that broken duplex receptaclesexisted east of the X-ray room, are dismissed.??????????? Theallegations of violation of Section 250?51 of the National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), are dismissed.??????????? Therespondent was in nonserious violation of standard 29 C.F.R. 1910.25(d)(1)(x).No penalty is assessed for said violation. Said violation shall be immediatelyabated.??????????? Theallegations of violation of standard 29 C.F.R. 1910.106(g)(1)(i) are dismissed.??????????? Theallegations of violation of standard 29 C.F.R. 1910.106(g)(3)(iii) aredismissed.??????????? Theallegations of violation of standard 29 C.F.R. 1910.157(a)(1) are dismissed.??????????? The allegations of violation ofstandard 29 C.F.R. 1910.157(d)(3)(iv) are dismissed.??????????? Therespondent was in nonserious violation of Section 110?17(a), NationalElectrical Code, as adopted by standard 29 C.F.R. 1910.309(a) by not having aglobe in the light socket above the bed of the shear. No penalty is assessedfor this violation. This violation shall be immediately abated.??????????? Theallegations of violation of Section 110?17(a), National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a) by not having a cover over a switchbox in the diesel fuel pump shed are dismissed.??????????? Theallegations of violation of Section 110?17(a), National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a) by having a broken duplex receptacleeast of the X-ray office are dismissed.??????????? Theallegations of violation of Section 250?45(d), National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), are dismissed.??????????? Theallegations of violation of standard 29 C.F.R. 1910.157(a)(5) are dismissed.??????????? Therespondent was in nonserious violation of standard 29 C.F.R. 1910.178(q)(7). Nopenalty is assessed for said violation. The violation shall be immediatelyabated.??????????? Therespondent was in nonserious violation of standard 29 C.F.R. 1910.179(b)(5). Nopenalty is assessed for said violation. The violation shall be abated within 30days of the date of issuance of this decision.??????????? Therespondent was in nonserious violation of standard 29 C.F.R. 1910.180(c)(2). Nopenalty is assessed for said violation. The violation shall be abated within 30days of the issuance of this decision.??????????? Therespondent was in nonserious violation of standard 29 C.F.R. 1910.184(d). Nopenalty is assessed for said violation. Said violation shall be abated within20 days of the date of issuance of this decision.??????????? Therespondent was in nonserious violation of standard 29 C.F.R. 1910.212(a)(1) byfailing to guard the Wells metal bandsaw to protect employees from the hazardcreated by the unused portion of the blade. No penalty is assessed for thisviolation. This violation shall be abated within 30 days of the date of theissuance of this decision.??????????? Therespondent was in de minimis violation of standard 29 C.F.R. 1910.215(a)(4).??????????? Theallegations of violation of standard 29 C.F.R. 1910.219(d)(1) are dismissed.??????????? Theallegations of violation of standard 29 C.F.R. 1910.219(e)(3)(i) are dismissed.??????????? Therespondent was in nonserious violation of standard 29 C.F.R. 1910.219(f)(3). Nopenalty is assessed for said violation. Said violation shall be abated within20 days of the date of issuance of this order.??????????? Therespondent was in nonserious violation of standard 29 C.F.R.1910.252(a)(1)(iii). No penalty is assessed for said violation. Said violationshall be abated within 20 days of the date of the issuance of this order.??????????? Theallegations of violation of standard 29 C.F.R. 1910.252(a)(2)(iv)(c) aredismissed.??????????? Theallegations of violation of standard 29 C.F.R. 1910.252(b)(4)(vii) aredismissed.??????????? Therespondent was in nonserious violation of standard 29 C.F.R.1910.252(b)(2)(iv)(d). No penalty is assessed for said violation. Saidviolation shall be abated within 20 days of the date of the issuance of thisorder.??????????? Theallegations of violation of standard 29 C.F.R. 1910.252(b)(4)(ix)(c) aredismissed.??????????? Theallegations of violation of Section 250?5(b)(1) of the National ElectricalCode, as adopted by standard 29 C.F.R. 1910.309(a), are dismissed.??????????? Therespondent was in nonserious violation of Section 400?4, National ElectricalCode, as adopted by standard 29 C.F.R. 1910.309(a), in that flexible cords werein contact with the steel structure of the building. No penalty is assessed forsaid violation. Said violation shall be abated within 20 days of the date ofissuance of this decision.??????????? Therespondent was in nonserious violation of Section 400?5, National ElectricalCode, as adopted by standard 29 C.F.R. 1910.309(a). No penalty is assessed forsaid violation. Said violation shall be abated within 20 days of the date ofissuance of this decision.??????????? Therespondent was in nonserious violation of Section 400?4, National ElectricalCode, as adopted by standard 29 C.F.R. 1910.309(a), in that two outlets werespliced into one line and then wrapped. No penalty is assessed for this violation.Said violation shall be abated within 20 days of the date of issuance of thisdecision.??????????? Therespondent was in violation of Section 400?4, National Electrical Code, asadopted by standard 29 C.F.R. 1910.309(a), in that a wire, instead of going to areceptacle, was taped right into the plug of the air conditioning unit. Nopenalty is assessed for this violation. Said violation shall be immediatelyabated.??????????? Theallegations of violation of Section 210-21(b) of the National Electrical Code,as adopted by standard 29 C.F.R. 1910.309(e), are dismissed.?Dated this 2nd day of November 1978.?JOHN S. PATTONJudge[1] 29 U.S.C. ?661(i).[2] The items incitation 1 were alleged to be serious violations of the Act. The items incitation 2 were alleged to be other than serious violations.[3] The items exceptedto by the Secretary alleged violations of the following standards:Citation 1: Item 2a(d)?section 110?17(a),National Electric Code (?NEC?), adopted by 29 CFR ? 1910.309(a)Item 2c(a)?section 250?51, NEC, adopted by29 CFR ? 1910.309(a)Citation 2: Item 13?29 CFR ?1910.219(d)(1)Item 14?29 CFR ? 1910.219(e)(3)(i)Item 17?29 CFR ? 1910.252(a)(2)(iv)(c)Item 21?section 250?5(b)(1), NEC, adoptedby 29 CFR ? 1910.309(a)[4] The Secretary,aside, from these six items, does not take exception to other aspects of theJudge?s decision. Respondent, after the case was directed for review, filed aMotion to Vacate Direction for Review or Alternatively To Have AdditionalIssues Directed For Review. This motion was denied by the Commission.[5] Whencross-examined about this conversation, Watkins testified that he asked Smittlewhether there were any outside contractors on the premises, and the responsewas ?there was none going on.?[6] For two of theseitems the judge also gave alternative reasons for vacating the allegedviolations. See text accompanying notes 11 and 12 infra.[7] In his petitionfor discretionary review, the Secretary requested that the Commission eitherreverse the judge?s decision as a matter of law or remand the case to a judgefor additional factual findings as to the nature of the alleged independentcontractor relationship. The Secretary did not file a brief to the Commissionbut rather submitted a motion requesting that the Commission remand the case torequire Respondent to present further facts to prove that an independentcontractor status existed. The Commission deferred ruling on the motion pendingdisposition of the issues on review. The Secretary?s motion is satisfied by ourdisposition of this case.[8] The testimony ofcompliance officer Watkins that he was told by a representative of Trinity thatthere were no outside contractors on the worksite is of little significance todetermining the status of the company that operated the truck shop and fuelpump shed. It is apparent that this statement meant only that there were nooutside contractors, such as construction contractors, temporarily working inTrinity?s plant.[9] See also Bob McCaslin Steel Erection Co., 75 OSAHRC69\/C10, 3 BNA OSHC 1311, 1974?75 CCH OSHD ?19,755 (No. 3776, 1975) (separateopinion of Commissioner Cleary); HomeSupply Co., 74 OSAHRC 16\/A2, 1 BNA OSHC 1615, 1973?74 CCH OSHD ?17,521 (No.69, 1974).[10] U.S. Courts ofAppeals for the Fifth and Eighth Circuits have sustained Commission decisionsapplying the availability of evidence rule when allocating burdens of proofwith respect to alleged violations at multi-employer worksites. See Bratton Corp. v. OSHRC, 590 F.2d 275(8th Cir. 1979); Central of Ga. R.R. v.OSHRC, 576 F.2d 620, 624 (5th Cir. 1978).[11] In Anning-Johnson Co., supra, and relatedcases the Commission has allowed a limited defense to employers whose employeesat a multi-employer worksite were exposed to hazards, but those hazards werecreated or controlled by other employers.[12] Trinity asserts itwould be prejudiced by a remand since Mr. Smittle, Trinity?s manager at theWest Memphis plant, left Trinity?s employ over a salary dispute. However,Trinity should be able to establish the identity of the transportation companyand its relationship to Trinity through sources other than the testimony ofSmittle. Further, if necessary, Respondent may compel Smittle to testify undersubpoena. Commission Rule 55, 29 C.F.R. ? 2200.55.[13] The standardprovides the follows:1910.252 Welding, Cutting, and Brazing.(a) Installation and operation ofoxygen-fuel gas systems for welding and cutting?(2) Cylinders and containers?(iv) oxygen storage.(c) Oxygen cylinders in storage shall beseparated from fuel-gas cylinders or combustible materials (especially oil orgrease), a minimum distance of 20 feet or by a noncombustible barrier at least5 feet high having a fire-resistance rating of at least one-half hour.[14] The standard at 29C.F.R. ? 1910.309(a) provides, in pertinent part:? 1910.309 National Electrical Code.(a) The requirements contained in thefollowing articles and sections of the National Electrical Code, NFPA 70 1971;ANSI CI?1971 (Rev. of CI?1968) shall apply to all electrical installations andutilization equipment.Articles250?5(a), (b), and (c) . . . A.C. Circuitsand Systems. To be Grounded.Section 250?5(b)(1) of the NEC provides,in pertinent part:250?5. Alternating-Current Circuits andSystems to be Grounded. (b) Alternating-Current Systems of 50Volts and Over. AC systems supplying interior wiring and interior wiringsystems shall be grounded under any of the following conditions:(1) Where the system can be so groundedthat the maximum voltage to ground on the ungrounded conductors does not exceed150 volts.[15] The Secretarydisputes the judge?s finding that the transportation company was an?independent contractor.? Consideration of whether a cited employer is anindependent contractor is not the appropriate test in applying the singleentity theory.Theterm ?independent contractor? essentially concerns the nature of an employmentrelationship under common law. The Commission has held that employmentrelationships under the Act are not defined according to common law principlesbut rather are broadly construed in light of the statutory purpose and economicrealities of the relationship at issue. Griffin& Brand of McAllen, Inc., 78 OSAHRC 48\/C13, 6 BNA OSHC 1702, 1978 CCHOSHD ?22,829 (No. 14801, 1978). In Griffin& Brand, the Commission stated that, while there is no single criterionfor determining the existence of an employer-employee relationship, thefollowing factors should be considered in making this determination:(1) whom do the workers consider theiremployer;(2) who pays the workers? wages;(3) who has the responsibility to controlthe workers;(4) does the alleged employer have thepower to control the workers;(5) does the alleged employer have thepower to fire, hire, or modify the employment condition of workers;(6) does the workers? ability to increasetheir income depend on efficiency rather than initiative, judgment, andforesight; and(7) how are the workers? wagesestablished.6 BNA OSHC at 1703, 1978 CCH OSHD at27,600?01.Theapplication of the factors considered in Griffin& Brand leads to the conclusion that Trinity should not be consideredthe employer of employees of the transportation company. There is no indicationthat the employees of the transportation company considered themselves to beemployed by Trinity. Further, there is no evidence that Trinity paid thoseworkers, had the responsibility or power to control them, hire or fire them, ormodify their employment conditions. Nor is there any indication of the factorson which increases in the workers? earnings depended or of how their wages wereestablished. Thus, under the ?economic realities? test, Trinity should not beconsidered the employer of the transportation company?s employees.[16] Pursuant toCommission precedent, on a non-construction worksite an employer may also befound in violation of the Act if it creates or controls a violative conditionto which employees of another contractor are exposed. Harvey Workover, Inc., 79 OSAHRC 72\/D5, 7 BNA OSHC 1687, 1979 CCHOSHC ?23, 830 (No. 76?1408, 1979). (I would limit this rule to multi-employerconstruction worksites and have not yet ruled upon its extension tonon-construction worksites.) Since the transportation company, rather thanTrinity, controlled the areas which contained the cited conditions, this ruleis inapplicable here. Thus, Trinity cannot be held in violation unless its ownemployees are shown to have been exposed to the cited conditions.[17] In Alsea Lumber Co., the court stated:We hold that theCommission?s procedural requirement, placing upon the Secretary the burden of provingall elements of a violation, one element of which is employer knowledgethereof, is a proper exercise of the Commission?s authority under the Act.511F.2d at 1143.[18] In these cases theCommission has allowed a limited defense to contractors whose employees at amulti-employer worksite were exposed to hazards, but these hazards were createdor controlled by other employers.[19] The majority, inconcluding that a remand is appropriate, relies upon Truland-Elliott, 77 OSAHRC 163\/A7, 4 BNA OSHC 1455, 1976?77 CCHOSHD ?20, 908 (No. 11259, 1976). Reliance upon Truland is misplaced. The Commission, after the hearing in Truland, modified its positionconcerning the liability of construction subcontractors and created anaffirmative defense for employers on multi-employer construction sites.Although Truland had argued it shouldnot be held responsible for the alleged violations, it was not aware of nor didit argue all elements needed to make out the newly created defense.Accordingly, it was appropriate for the Commission in Truland to give Respondent an opportunity to introduce additionalevidence.Inthis case the Secretary relied in his brief to the judge on the theory that theCommission now adopts. Not only was the Secretary aware of the single entitytheory as adopted by the majority, which is based upon the practice under theNational Labor Relations Act, but he referred to it in his brief to the judgeas a ?common-sense issue.? This case is, therefore, distinguishable from Truland and a remand based upon Truland is not appropriate.”