Docket No. 85-0445

SECRETARY OF LABOR,
Complainant,

D. H. SHELTON AND ASSOCIATES, INC.,
Respondent.

OSHRC DOCKET NO. 85-0445

ORDER

The Commission approves the parties' stipulation and settlement agreement.

FOR THE COMMISSION

RAY H. DARLING, JR.
EXECUTIVE SECRETARY

Dated: February 27, 1987

WILLIAM F. BROCK, SECRETARY OF LABOR,
Complainant,

D. H. SHELTON & ASSOCIATES, INC.
Respondent.

OSHRC DOCKET No. 85-0445

STIPULATION AND SETTLEMENT AGREEMENT

The parties have reached agreement on a full and complete settlement of the instant matter which is presently pending before the Commission.

The parties stipulate as follows:

(a) The Occupational Safety and Health Review Commission (hereinafter "the Commission") has jurisdiction of this matter pursuant to section 10(c) of the Occupational Safety and Health Act of 1970 (84 Stat. 1590; 29 U.S.C. ї 651 et seq.) (hereinafter "the Act").

(b) Respondent, D.H. Shelton and Associates, Inc., is a corporation with its principal place of business in El Paso, Texas.

It is engaged in the business of plumbing, heating and air conditioning and during the course of its business its employee perform various tasks in the nature of construction and related work. During the course of its business, respondent uses materials and equipment which it receives from places located outside El Paso, Texas. Respondent, as a result of the aforesaid activities, is an employer engaged in a business affecting commerce as defined by section 3(3) and 3(5) of the Act, and is subject to the requirements of the Act.

(c) As a result of an inspection conducted on March 7, 1985 at respondent's workplace at 9109 Dyer, El Paso, Texas, a citation for one serious violation and a citation for two other-than-serious violations were issued to respondent on April 19, 1985 pursuant to section 9(a) of the Act. A penalty of $300.00 was proposed for the serious violation.

(d) Respondent contested the citations and proposed penalty, and on August 23, 1985, Commission Administrative Law Judge Dee C. Blythe issued his Decision and Order in which he affirmed both the serious item alleging a violation of 29 CFR 1926.400(j)(1) and the other-than-serious violations of 29 CFR 1926.150(c)(1)(vi) and 29 CFR 1926.401(h). The Judge also assessed a penalty of $200.00 for the serious violation. Therefore, respondent filed a timely Petition for Review which was granted by the Commission on October 21, 1985.

III

Now, the Secretary of Labor and D.H. Shelton & Associates, Inc., in order to conclude this matter without the necessity of further litigation or review, stipulate and agree as follows:

(a) The Secretary hereby agrees to reduce the penalty for the violation of 29 C.F.R. 1926.400(h)(1) from $200.00 to $1.00.

(b) Respondent hereby withdraws its Notice of Contest to the citations and to the Notification of Proposed Penalty as amended in subparagraph (a) above. Respondent states that the violations have been abated and shall remain abated.

(d) Respondent agrees to pay a penalty of $1.00 within twenty (20) days after the signing of the settlement agreement, by mailing a check to the complainant as full and complete payment of the penalty.

ANTHONY F. Gil,
Attorney for the Secretary of Labor,

D.H. SHELTON, PRESIDENT
D.H. Shelton Associates, Inc.

SECRETARY OF LABOR,
Complainant,

D. H. SHELTON &
ASSOCIATES, INC.,
Respondent

OSHRC DOCKET NO. 85-0445

DECISION AND ORDER

Appearances:

Ana Maria Soares, Esq., and William E . Everheart, Esq., of Dallas, Texas, for the Complainant.

D. H. Shelton, President (pro se) of El Paso, Texas, for the respondent.

PROCEDURAL HISTORY

As the result of a general schedule inspection March 7, 1985, by a compliance officer of the Occupational Safety and Health Administration ("OSHA") of a multi-employer construction project in El Paso, Texas, two citations were issued April 19, 1985, charging the respondent, D. H. Shelton & Associates, Inc., with one serious and two other-than-serious violations of ї 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"), and safety standards at 29 C.F.R. її 400(h)(1), 150(c)(1)(vi), and 401(h). Respondent timely filed notice of contest on April 25, 1985, initiating this proceeding before the Occupational Safety and Health Review Commission ("the Commission") under ї10(c) of the Act. Thereafter a formal complaint and an informal answer thereto were filed with the Commission.

The case came on regularly for hearing July 19, 1985, at El Paso. Both parties have filed posthearing briefs. No affected employee or authorized representative of affected employees has taken part in this proceeding.

THE ISSUES

Jurisdiction and coverage were established by the pleadings; respondent's answer did not deny the allegations of the complaint on these issues, so they are deemed admitted under Commission Rule 33(b)(2).

The remaining issues are: (1) Whether respondent was in serious violation of 29 C.F.R. 1926.400(h)(1) (lack of ground fault circuit interrupter), and, if so, the appropriate penalty therefor; (2) whether respondent was in nonserious violation of 29 C.F.R. 1926.150(c)(1)(vi) (lack of fire extinguisher); (3) whether respondent was in nonserious violation of 29 C.F.R. 1926.401(h) (ungrounded temporary electric wiring); and (4) whether the lack of a warrant invalidates the inspection.

DISCUSSION AND OPINION

I. The alleged electrical violations.

Item 1 of serious citation 1 and item 2 of nonserious citation 2 will be discussed together because they involve the same equipment (a Milwaukee right-angle drill) and the same hazard of electrical shock from a 110-120 volt, 20 ampere current from a temporary power supply. The alleged serious violation was the lack of a ground fault circuit interrupter ("GFCI") or an assured equipment grounding conductor program ("AEGC program") as prescribed by 29 C.F.R. 1926.400(h)(1)[[1]], and the nonserious item involves an extension cord with the third (ground) prong removed from the male plug in alleged violation of 29 C.F.R. 1926.401(h).[[2]]

Respondent, one of several subcontractors constructing a small shopping mall at 9105 Dyer Street in El Paso, had the contract for the plumbing, heating and air conditioning. The project was about 50 percent complete at the time of the inspection.

The only witnesses at the hearing were the former compliance officer, James Jaffe (now a Department of Defense employee), and D. H. Shelton, respondent's president. There is essentially no conflict in their testimony.

Jaffe testified that their was no GFCI between the temporary power pole and the building where five of respondent's employees were engaged in plumbing and sheet metal work; that respondent's employees told him no GFCI was available and that they had no AEGC program[[3]]; that two orange-colored extension cords with their ground prongs missing were plugged into the 30 amp. receptacle on the temporary power pole; that he followed one of the orange extension cords into the building and found its female end connected to a black extension cord connected to the Milwaukee right-angle drill, which Respondent's employees were using to drill holes in studs for pipes to be laid; that the drill could not be used without touching its ungrounded metal case; that there was a danger of electric shock if the equipment was not grounded; that he tested the wiring with a continuity tester and found it ungrounded; and that three of respondent's employees used the drill.

Shelton admitted the lack of a GFCI but testified that no general contractor in the El Paso area provided them, that if respondent did it would be the only sub-contractor doing so, and that to force respondent to provide GFCIs would be unfair. He testified further that a small, portable GFCI is available at a cost of $25.53 but that respondent had 50 jobs going at one time. He was not asked whether respondent had an AEGC program. On cross-examination, Shelton said he used GFCIs at home in damp places such as the spa and the bathroom.

As for the missing ground plug, Shelton said that the company had 60 to 100 extension cords and that employees frequently cut off ground plugs when the power supply receptacle was for two prongs instead of three.

It is abundantly clear from the testimony that no GFCI or AEGC program was in use at the time of the inspection. Where there is a specific requirement for a safety device, the existence of a hazard is presumed. National Rolling Mills Co., 76 OSAHRC 121/D7, 4 BNA OSHC 719, 1976-77 CCH OSHD І 21,114 (No. 7987, 1976). However, the compliance officer testified, without contradiction, that the absence of a GFCI (or the alternative AEGC program) posed a danger of electric shock, possibly electrocution. Respondent's argument that it is unfair to make it supply GDCIs when other subcontractors, as well as general contractors, are not required to do so, is not a defense since its competitors are required to comply with the standards, too. A. E. Burgess Leather Co., 77 OSAHRC 25/D6, 5 BNA OSHC 1096, 1976-77 CCH OSHD І 25,713 (No. 12501, 1977). There is no evidence that respondent was singled out for selective enforcement of ї 1926.400(h)(1). The compliance officer testified that two other subcontractors on this job at the time of the inspection were cited for the same violation (Tr. 46-47). Respondent argues that the general contractor should have the responsibility of providing the GFCI and that he could not force the general contractor to do so. However, it is the responsibility of each employer to protect its own employees. This would be no great financial burden since a portable GFCI can be purchased for $25.53. Even this small cost can be avoided through use of an AEGC program.

Respondent also argues that OSHA should order the city of El Paso to require the installation of a GFCI on each temporary power pole. Of course, OSHA has no statutory power to do so.

Respondent apparently contends that it cannot keep ground prongs on its extension cords because employees cut them off when it is necessary to plug into a two-opening outlet. There is no evidence of such a necessity here. Neither is there any evidence that respondent even attempted to prevent this practice either by training disciplining employees.

Undoubtedly respondent was in violation of both ї 1926.400(h)(1) and ї1926.401(h). The hazard of electric shock is the same, and the Secretary might well have combined them to form one serious violation rather than one serious and one nonserious violations. Harold A. Simpson & Associates Development Co., 76 OSAHRC 144/A2, 4 BNA OSHC 1894, 1976-77 CCH OSHD І 21,353 (Nos. 5572, etc., 1976).

On the other hand, it appears that respondent might have been charged with a repeat violation of ї 1926.401(h). Shelton testified that his firm had a prior citation for a missing ground prong (Tr. 41), but apparently the matter was settled and the actual disposition of this item is unclear.

Respondent suffers no prejudice from being cited separately for a nonserious violation of ї 1900.401(h), for no penalty is proposed for less than 10 nonserious violations.

Jaffe testified that the absence of a GFCI could cause electrical shock--even electrocution--and that he had investigated between 20 and 30 electrocutions caused in a 110-volt current (Tr. 16, 26). With regard to the missing ground prong, he said that "there is not that possibility of a serious injury occurring" (Tr. 27), but he did not explain why one 110-volt shock would be serious and another not.

A GFCI would have provided complete protection from shock to employees using the drill, whether or not the extension cord had its ground prong missing. However, such redundancy in protection afforded by the safety standards is not a defense. In the interest of safety in the workplace, the Secretary may provide for double protection. Section 1926.400(h)(1) provides that the GFCI (or AEGC program) requirements "are in addition to any other requirements for equipment grounding conductors."

The Secretary has the burden of proving employer knowledge of violative conditions, but this knowledge may be actual or constructive. The employer is charged with knowledge of conditions he could have discovered with reasonable diligence Chicago & North Western Transportation Co., 77 OSAHRC 30/B4, 5 BNA OSHC 1121, 1977 CCH OSHD І 21,608 (No. 13071, 1977). Here the respondent's president was well aware of GFCIs, since he used them in his own home, and the absence of a GFCl at the jobsite was readily discernible. He also knew that his employees frequently cut ground prongs from extension cords, and here again the violation was clearly visible. Respondent must be charged with constructive knowledge of both violations.

Section 17(j) of the act requires the Commission, in assessing penalties, to consider the gravity of the violation and the employer's size, good faith and history of previous violations. These factors need not be accorded equal weight, but the gravity is usually of greater significance than the others. Colonial Craft Reproductions, 72 OSAHRC 11/B10, 1 BNA OSHC 1063, 1971-73 CCH OSHD І 15,277 (No. 881, 1972). Elements to be considered in determining gravity include the number of employees exposed to the risk of injury, duration of the exposure, precautions taken against injury, and the degree of probability of occurrence of an injury. National Realty & Construction Co., Inc., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD І 15,188 (No. 85, 1972) rev'd on other grounds, 489 F.2d 1257 (D.C. Cir., 1973).

Here the gravity of the serious violation is moderate. Respondent had about 75 employees at the time of the inspection, there is no evidence of bad faith, and there is some history of prior violations. The proposed penalty of $300, as respondent points out, is small in comparison to the government's expenditure of resources. However, the penalty is of minor importance; abatement of unsafe working conditions is the goal of the Act, and the possibility of repeat citations for similar violations in the future (with possible penalties of $10,000 each) should encourage compliance. On balance, I find a penalty of $200 to be appropriate.

II. The alleged fire extinguisher violation

Item 1 of citation 2 alleges a nonserious violation of 29 C.F.R. 1926.150(c)(1)(vi)[[4]] in that

(a) No fire extinguisher was provided for the area of site in which the plumbers were using a gas-fueled soldering torch to solder copper pipe between 2 x 4 studs of the building.

The compliance officer's testimony substantiated the citation, and Shelton indicated at the hearing that respondent conceded this violation (Tr. 35).

IV. The warrant issue

For the first time, respondent in its posthearing brief raises the issue of the lack of a warrant for the inspection, stating:

Further [sic] in a previous encounter with OSHA, I was told that they were required to provide a warrant, before they could harass our employees. In a previous conversation and settlement with our Area Director, I requested and was promised that a warrant would be provided, and it was not.

There was no testimony to support this assertion, and there is nothing in the record to indicate that the respondent's representative at the jobsite objected to the inspection. Moreover, respondent made no motion for suppression of evidence gathered during the inspection.

Compliance Officer Jaffe testified that he first contacted the general contractor's job superintendent, Naji Hajjar, who had no objection to the inspection (Tr. 7); and that he later contacted Hector Garcia, whom he described as a "sort of a field foreman" for respondent, who likewise had no objection to the inspection (Tr. 20).

Shelton testified that Garcia was not a foreman but was a lead man or "master" on the sheet metal working crew, with one helper (Tr. 38).

There was nothing to alert Jaffe that respondent demanded a warrant for the inspection or its portion of the project (if, indeed, it had control of a discreet portion thereof, regarding which the record is silent).

On a multi-employer worksite, the compliance officer has no duty to do more than contact the employer's ranking employee on the job. Andy Anderson, d/b/a Andy Anderson Irrigation and Construction, 78 OSAHRC 34/A2, 6 BNA OSHC 1595, 1977-78 CCH OSHD І 21,739 (No. 76-4092, 1978). This was done in this case.

I find that the inspection was consensual and that no warrant was required.

FINDINGS OF FACT

On the basis of all creditable evidence of record and the foregoing Discussion and Opinion, the following findings of fact are made:

1. Respondent is an employer engaged in commerce within the meaning of ї 3(5) of the Act.

2. On March 7, 1985, respondent, was engaged in the construction of a small shopping mall at 9105 Dyer Street in El Paso, Texas, on which it had the subcontract for plumbing, heating and air conditioning. The project was about 50% completed when it was inspected by an OSHA compliance officer.

3. Electric power was supplied to respondent and other subcontractors from a temporary power pole from which extension cords ran across the ground to the building. The compliance officer traced one of these cords into the building and found it connected by another extension cord to respondent's Milwaukee right-angle drill, which was being used by two or three of respondent's employees. The first extension cord had the third (ground) prong broken off where it was plugged into a receptacle on the temporary power pole. A test by the compliance officer verified that the temporary wiring was not grounded.

4. There was no ground fault circuit interrupter provided on the temporary wiring, and respondent had no assured equipment grounding conductor program. The lack of a GFCI or an AEGC program exposed respondent's employees to the hazard of serious electric shock or electrocution. A penalty of $200 is appropriate for this violation.

5. Respondent did not provide a fire extinguisher in the area where employees were using a brazing torch with more than five pounds of flammable gas.

6. The inspection was consented to by respondent's ranking employee on the job.

CONCLUSIONS OF LAW

On the basis of the foregoing findings of fact and the entire record of the case, the following conclusions of law are made.

1. The Commission has jurisdiction of the parties and of the subject matter this proceeding.

2. On March 7, 1985, respondent was in serious violation of 29 C.F.R. 1926.400(h)(1).

3. On said date respondent was in nonserious violation of 29 C.F.R. 1910.150(c)(1)(vi) and 29 C.F.R. 1926.401(h).

4. The inspection was consensual, and no warrant was required.

ORDER

On the basis of the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. Item 1 of citation 1, for serious violation of 29 C.F.R. is AFFIRMED, and a civil penalty of $200 is ASSESSED.

2. Item 1 of citation 2, for nonserious violation of 29 C.F.R. 1926.150(c)(1)(vi), is AFFIRMED.

3. Item 2 of citation 2, for nonserious violation of 29 C.F.R. 1926.401(h), is AFFIRMED.

DEE C. BLYTHE
Administrative Law Judge
Date: September 13, 1985

FOOTNOTES

[[1]] 29 C.F.R. 1926.400(h)(1) provides:

(h) Ground-Fault protection.
(1) General. Notwithstanding any other provision of this part, the requirement in section 210-7 of the 1971 National Electrical Code (NFPA 70-1971; ANSI C1-1971) that all 15- and 20-ampere receptacle outlets on single-phased circuits for construction sites have approved ground-fault circuit protection for personnel does not apply. In lieu thereof, the employer shall use either ground-fault circuit interrupters as specified in paragraph (h)(2) of this section or an assured equipment grounding conductor program as specified in paragraph (h)(3) of this section, to protect employees on construction sites. These requirements are in addition to any other requirements for equipment grounding conductors.

[[2]] 29 C.F.R. 1926.401(h) provides:

(h) Temporary wiring
All temporary wiring shall be effectively grounded in accordance with the national Electrical Code, NFPA 70-1971; ANSI C1-1971 (Rev. of C1-1968), Articles 305 and 310.

[[3]] The requirements for an AEGC program are detailed in ї 1926.400(h)(3) but will not be set out here because respondent does not claim to have such a program. Briefly an AEGC program must be in writing and include periodic inspection and testing of wiring and equipment for grounding and a record of such inspections and tests.

[[4]] The cited standard provides:

(vi) A fire extinguisher, rated not less than 10B, shall be provided within 50 feet of wherever more than 5 gallons of flammable or combustible liquids or 5 pounds of flammable gas are being used on the jobsite. This requirement does not apply to the integral fuel tanks of motor vehicles.