SECRETARY OF LABOR,
Complainant,
v.

CLARENCE M. JONES, d/b/a
C. JONES CO.,
Respondent.

OSHRC Docket No. 77- 3676

DECISION

Before: ROWLAND, Chairman; CLEARY and COTTINE, Commissioners.
BY THE COMMISSION:

The Secretary of Labor issued to Clarence M. Jones, d/b/a C. Jones Co., two citations that alleged violations of several construction safety standards as well as the "posting" standard. Judge Paul L. Brady held that Jones failed to comply with several standards and had therefore violated the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act"). The case is before us under 29 U.S.C. § 661(i). We affirm the judge's decision.

Jones had undertaken the exterior renovation of a residential apartment building that he owns and leases. During an inspection, a compliance officer observed five workmen under the supervision of a foreman performing various duties at the worksite. The compliance officer noticed two ladders at the worksite that are alleged to violate 29 C.F.R. § 1926.450(a)(2). A straight ladder in use during the inspection had a broken siderail tied together with wire; a stepladder was missing part of the base of one siderail. The compliance officer observed a worker on the straight ladder chipping material from the facade of the building with a hammer and chisel. Fragments of brick and cement were seen flying out toward the worker. It is alleged that contrary to section 1926.102(a)(1), the worker was not wearing eye protection. The compliance officer also observed several workers standing beneath the straight ladder and beneath scaffolding erected next to the building. He testified that the workers were exposed to head injury from falling tools and equipment. The workers were not wearing hardhats or any other form of head protection, allegedly contrary to section 1926.100(a). The compliance officer also stated that contrary to section 1903.2(a)(1), a standard notice informing the workers of their rights under the Act was not posted at the worksite.

Jones' foreman testified that---pursuant to Jones' instructions---he had removed the broken ladders from service, but that they were improperly returned to service on the day of the inspection by one of the workers. The foreman also stated that goggles and hardhats were available at the worksite, if an employee had asked for or needed them. One worker testified that he did not wear goggles while chipping brick because "[t]hey are uncomfortable."

On review, Jones raises several threshold arguments. First, he contends that he is entitled to a jury trial on the issues raised by the citations. Second, he argues that he is not an "employer" within the meaning of the Act. Third, he argues that he is not engaged in interstate commerce, and that his activities therefore do not fall within the coverage of the Act. With respect to the ladder and personal protective equipment violations, Jones also argues that he had no knowledge of the violative conditions, and that unpreventable employee misconduct created the violative conditions. The Secretary argues that the citations should be affirmed for the reasons assigned by the judge.

The administrative law judge rejected Jones' arguments that he was not an "employer" and that he was not engaged in interstate commerce.[[1]] We are in essential agreement with the judge's findings and conclusions with respect to these matters; we therefore will not discuss them at length. However, we do emphasize the following points. In S & S Diving Co. , 80 OSAHRC 85/D3, 8 BNA OSHC 2041, 1980 CCH OSHD ¶ 24,742 (No. 77-4234, 1980), the Commission set forth the factors it considers when deciding whether an employer- employee relationship exists. Some of those factors are: whom do the workers consider their employer; who pays the workers' wages; who has the responsibility to control the workers; does the alleged employer have the power to control the worker; does the alleged employer have the power to fire, hire, or modify the employment condition of workers; and how are the workers' wages established. Although two workers-Swingle, and Debord--testified at the hearing that they did not consider themselves employed by Jones, but rather .considered themselves to be independent contractors, the record reveals that Jones set their wages and paid them at an hourly rate. Jones had the power to hire and fire them. He also directed their activities and inspected their work. indeed, Swingle had been working for Jones for approximately one year at the time of the inspection, and acted as Jones' foreman at the worksite. We therefore affirm the judge's finding that Jones was an "employer" within the meaning of the Act.

We also affirm the judge's finding that Jones was "engaged in a business affecting commerce" within the meaning of section 3(5) of the Act. The judge found that Jones "utilizes the United States mail .... and employees are hired through newspaper advertisements and contact by telephone.... [L]umber, paint and plumbing supplies, including sinks, bathtubs, and hot water tanks, are purchased for use in the business. A truck, power tools, and a lawnmower are provided which require electricity, gasoline, and oil." We agree with the United States Court of Appeals for the Ninth Circuit that "statutory jurisdiction [exists] so long as the business is in a class of activity that as a whole affects commerce." Usery v. Franklin R. Lacy 628 F.2d 1226 (9th Cir. 1980). Although Jones was engaged in a small construction project and his activities and purchases may have been purely local, his construction activity nevertheless affected interstate commerce. There is an interstate market in construction materials and services and therefore construction work affects interstate commerce. See NLRB v. International Union of Operating Engineers, Local 571, 317 F.2d 638, 643 n.5 (8th Cir. 1963) (judicial notice taken that construction industry affects interstate commerce); cf. Papadopoulos- v. Sheraton Park Hotel 410 F.Supp 217 (D.D.C. 1976) (hotel industry); Lang v. American Motors Corp. 254 F.Supp 892 (E.D. Wis. 1966) (automobile manufacturing industry). Thus, even if Jones' contribution to this stream of commerce was small and his activity and purchases were purely local, they necessarily had an effect on interstate commerce when aggregated with the similar activities of others. See Wickard v. Filburn 317 U.S. 111, 127-28 (1942).

As for Jones' demand for a jury trial, in Atlas Roofing Co. v. OSHRC, 430 U.S. 442 (1977), the Supreme Court held that the Commission may assess penalties without the aid of a jury trial consistent with the United States Constitution. Accordingly, Jones' contention is without merit.

With respect to the merits of the citations, we agree with the judge's decision and the reasons he assigned. We shall therefore comment on only some of Jones' arguments. Jones argues that he had no knowledge that the broken ladders were returned to service after he had ordered their removal. [[2]] However, the ladders were in plain view, and Jones' foreman was present at the worksite at all times. Under Commission precedent, the Secretary must prove that the employer either knew or, with the exercise of reasonable diligence, could have known of the non-complying condition. Prestressed Systems, Inc., 81 OSAHRC 43/D5, 9 BNA OSHC 1864, 1868, 1981 CCH OSHD ¶ 25,358, p.31,500 (No. 16147, 1981). Inasmuch as the record reveals that the foreman could have known of the presence and continued use of the defective ladders through the exercise of reasonable diligence, constructive knowledge on the part of the employer was established. See MCC of Florida, Inc., 81 OSAHRC 57/C10, 9 BNA OSHC 1895, 1981 CCH OSHD ¶ 24,420 (No. 15757, 1981) (knowledge of foreman imputed to employer), and cases cited therein.

Jones was also cited for failing to provide head protection for employees exposed to a hazard of falling tools or material from employees working overhead, contrary to section 1926.100(a), [[3]] and for failing to provide eye protection to employees chipping material from the face of the apartment building, contrary to section 1926.102(a)(1). [[4]] The record shows that although hardhats and goggles were available for use in Jones' car and in the basement of the apartment building, it was not Jones' practice to require workers to use such equipment except when operating certain tools not at issue here. Jones argues that it is the workers' responsibility to request protective equipment if they need it. Jones contends that he required goggles to be worn for dangerous work, and that the worker on the ladder was chipping wood rather than brick and cement as the compliance officer contended. Finally, Jones argues that he had no knowledge that the workers had failed to use hardhats or goggles.

Our cases make clear that merely having protective equipment available at a worksite does not satisfy a standard that requires that this equipment be used. Section 1926.100(a) requires that employees "be protected" by the use of helmets "where there is a possible danger of head injury from impact, or from falling or flying objects.... " See Franklin R. Lacy (Aqua View Apartments) 81 OSAHRC 7/A2, 9 BNA OSHC 1253, 1254, 1981 CCH OSHD ¶ 25,171, p.31,073 (No. 3701, 1981) (head protection). Although section 1926.102(a)(1) states that employees shall be "provided" with eye and face protection equipment when there is a potential for eye or face injury, section 1926.28(a) makes clear that employers are generally "responsible for requiring the wearing" of protective equipment where "there is an exposure to hazardous conditions...." Moreover, we have held that "a standard that requires an employer to provide a safety device implicitly requires that the device be used." Borton, Inc., 82 OSAHRC 17/E13, 10 BNA OSHC 1462, 1465, 1982 CCH OSHD ¶ 25,983, p.32,599 (No. 77-2115, 1982), appeal filed, No. 82- 1661 (10th Cir. May 26, 1982), and cases cited therein. We therefore reject Jones' contention that making such protection available "on request" constitutes compliance with these standards.

As for Jones' apparent contention that the chipping operation did not pose an eye hazard, we have previously recognized that "the eye is an especially delicate organ and... any foreign material in the eye presents the potential for injury." Stearns-Roger, Inc., 79 OSAHRC 94/A2, 7 BNA OSHC 1919, 1921, 1979 CCH OSHD ¶ 24,008, p.29,156 (No. 76-2326, 2979). Inasmuch as the compliance officer observed chipped fragments flying out toward the unprotected employee, we affirm the judge's finding that the standard was violated. See Vanco Construction, Inc., 82 OSAHRC 71/A2, 11 BNA OSHC 1058, 1060, 1983 CCH OSHD ¶ 26,372 at p. 33,453 (No. 79-4945, 1982). We also reject Jones' argument that the violative conditions were created by unpreventable employee misconduct. The Commission has held that it will sustain the unpreventable employee misconduct defense only if an employer demonstrates that an employee's conduct was a departure from a uniformly and effectively communicated and enforced work rule.

H.B. Zachry Co., 80 OSAHRC 9/08, 7 BNA OSHC 2202, 1980 CCH OSHD ¶ 24,196 (No. 76-1393, 1980), aff'd, 638 F.2d 812 (5th Cir. 1981). The only evidence of a workrule concerned the use of a power tool not at issue here. There is no evidence that the workers were instructed to wear goggles while chipping brick. In addition, although the foreman testified that he had removed the ladders from service, there is no evidence that the workers were told not to use them. That such an instruction was given seems particularly doubtful because, as we have noted, the ladders were in plain view and the foreman was at the site at all times.

As for the hardhat violations, we are not convinced that barricades and signs warning of danger amount to a workrule forbidding entry into the danger zone. There is no evidence that the employees understood or could be expected to understand that the barricades and signs were directed to them rather than to the public. See J.K. Butler Builders, Inc., 77 OSAHRC 26/A2, 5 BNA OSHC 1075, 1977-78 CCH OSHD ¶ 21,585 (No. 12354, 1977) (workrule too general to be effective), and cases cited therein. In any event, there is no evidence that workrules with respect to goggles, hardhats, or ladders were uniformly enforced. As for Jones' claim that he lacked knowledge of these violations, the record reveals--as with the ladder violations--that the foreman could have known of the violative conditions through the exercise of reasonable diligence. We therefore affirm the judge's conclusion that Jones failed to comply with sections 1926.100(a) and 102(a)(1).

Jones was cited for failure to comply with the regulation at section 1903. 2(a)(1) that requires an employer to display an OSHA poster affirmed the citation item, noting that Jones had failed to introduce any evidence denying the allegation. On remand, Jones does not deny that he failed to display the poster nor does he deny that one was furnished to him; he argues only that he was ignorant of the legal requirement that it be posted. Unlike Puterbaugh Enterprises, Inc., 74 OSAHRC 44/B11, 2 BNA OSHC 1030, 1032, 1973-74 CCH OSHD ¶ 18,158, p. 22,327 (No. 1097, 1974), or Oak Lane Diner, 73 OSAHRC 28/D2, 1 BNA OSHC 1248, 1971-73 CCH OSHD ¶ 16,338, p. 21,258 (No. 398, 1973), there is here no evidence nor is there a claim that the Secretary failed to furnish the notice to Jones. Under these circumstances, and in accordance with the presumption of regularity of administrative action, we affirm the citation item. See Lousiana-Pacific Corp., 77 OSAHRC 131/B7, 5 BNA OSHC 1572, 1573, 1977- 78 CCH OSHD ¶ 21,977, p. 26,486 (No. 6277, 1977).

The judge assessed total penalties of $121.00. Jones does not take issue with judge's assessments and we see no reason to overturn them. Accordingly, items 1a, 1b, and 4 of citation No. 1, and item 1 of citation No. 2, are affirmed. A penalty of $121.00 is assessed.

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: APR 27 1983

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FOOTNOTES:

[[1]] "Employer" is defined under section 3(5) of the Act, 29 U.S.C. § 652(5), as "a person engaged in a business affecting commerce who has employees...."

[[2]] Section 1926.450(a)(2) provides in part:

The use of ladders with broken or missing rungs or steps, broken or split side rails, or other faulty or defective construction is prohibited. When ladders with such defects are discovered, they shall be immediately withdrawn from service....

[[3]] Section 1926.100(a) provides:

Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shock and burns, shall be protected by protective helmets.

[[4]] Section 1926.102 (a)(1) provides:

Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents.

[[5]] The judge Section 1903.2(a)(1) provides in part:

Each employer shall post and keep posted a notice or notices, to be furnished by the Occupational Safety and Health Administrative, U.S. Department of Labor, informing employees of the protections and obligations provided for in the Act....