Docket No. 3322

ANCHORAGE PLASTERING COMPANY

OSHRC Docket No. 3322

Occupational Safety and Health Review Commission

June 9, 1975

[*1]

Before MORAN, Chairman; and CLEARY, Commissioner

OPINION:

BY THE COMMISSION: The February 7, 1974, decision of Administrative Law Judge Thomas J. Conegan is before this Commission for review pursuant to 29 U.S.C. § 661(i). Judge Donegan held that the Secretary of Labor failed to show that the respondent's employer was engaged in a business affecting interstate commerce and the Secretary of Labor has excepted to this holding.

Because the citations were issued on May 29, 1973, and the construction work involved is likely to have been completed by this date, the two members presently constituting the Commission agree to decide the case in spite of their separate views concerning the merits.

Chairman Moran would find no prejudicial error in the Judge's decision. He would affirm and uphold the Judge in all respects. Commissioner Cleary would reverse the Judge for the reasons stated in attached opinion.

The members consider this disposition to have no precedential value because of their divided views. The Judge's decision is affirmed.

CLEARY, COMMISSIONER: Judge Donegan held that the Secretary had failed to prove that the Anchorage Plastering Company, the respondent, was engaged [*2] in a business affecting interstate commerce and thereby failed to establish jurisdiction before the Commission.

Anchorage Plastering Company, the respondent, was at the time of the inspection working as a subcontractor in the construction of the Lake Otis Medical Center in Anchorage, Alaska. At the time of the inspection, five of respondent's employees were applying stucco on the second story wooden addition to the medical center. The citations that were issued pursuant to section 9(a) of the Act n1 alleged that respondent had violated the following standards: 29 CFR § 926.451(a)(13), (a)(15), (b)(2), (b)(15), (b)(16); 29 CFR § 1926.100(a); 29 CFR § 1926.152(a)(1).

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n1 Section 9(a) reads as follows:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an employer has violated a requirement of section 5 of this Act, of any standard, rule or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, he shall with reasonable promptness issue a citation to the employer. . . .

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The parties stipulated to the following facts:

(1) That cement and gasoline are used in the business of the respondent,

(2) That the respondent owns and uses in its business a truck and a cement mixer,

(3) That the employees of respondent are hired, when needed, out of a union hiring hall, and

(4) That the respondent has performed work on the Alaska Manpower Center in Anchorage, the TransAmerica Title Company building in Anchorage, the Bachelor Officer's Quarters (BOQ) at Fort Richardson and on various residential buildings in the Anchorage area, in addition to the Lake Otis Medical Center involved herein. . . .

The compliance officer testified that the material used by respondent to make stucco was manufactured outside of Alaska. Although he did not know where it was manufactured, he stated that it was "shipped in." In addition, the lumber used for scaffolding was marked "construction grade 51" by the West Coast Lumberman's Association.

I am not certain that the Secretary has the burden of showing that the activities of the employer affects interstate commerce. See my dissenting views in Les Mares Enterprises, [*4] Inc., No. 2455 (April 11, 1975). Of course an employer may raise a Constitutional objection under Commerce Clause which would be preserved for possible judicial examination. But it is not for us to pass upon such an objection.

Also, it is clear from the legislative history of the Occupational Safety and Health Act that Congress intended thereby to regulate the construction industry. Especially instructive is the text of the Conference Report on S.2193, which was subsequently enacted:

The conferees intend that the Secretary develop health and safety standards for construction workers covered by Public Law 91-54 [Construction Safety Act] pursuant to the provisions of that law and that he use the same mechanisms and resources for the development of health and safety standards for all other construction workers newly covered by this Act, . . . . n1 a

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n1 A Legislative History of the Occupational Safety and Health Act of 1970 1186 (Comm. Print 1971.)

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A Congressional finding that the construction industry [*5] affects interstate commerce is not explicit. Cf. Perez v. United States, 402 U.S. 146 (1971). Nevertheless a Congressional finding in this regard is perforce implicit.

Even if the Secretary had a burden of showing commerce coverage, he has carried it in this case. First, the lumber used by respondent for its scaffold was stamped "construction grade" by the West Coast Lumberman's Association. The dry material used in making the stucco was stamped "Columbia." It was shipped in. It was not manufactured in Alaska. Moreover, as indicated above, the Secretary and respondent stipulated that respondent used gasoline, a cement mixer, cement, and a truck in its operations. It may be inferred that more likely than not these items had either in whole or in part traveled in interstate commerce. Secondly, work on a medical center, the occupants of which will subsequently use goods shipped in interstate commerce, is sufficient to classify respondent as an employer engaged in a business affecting commerce. See, e.g. Martino v. Michigan Window Cleaning Co., 326 U.S. 173 (1946). n2 This situation is analogous to those cases wherein courts have found maintenance employees [*6] working on industrial and office buildings most of whose tenants had relatively little or no immediate connection with interstate manufacturing to be engaged in production of goods for commerce. Schulte v. Gangs, 328 U.S. 108 (1946); Kirschbaum Co. v. Wallings, 316 U.S. 517 (1942). n3 Indeed courts have held that workers are engaged in such production when they provide services for entities less than 0.1 percent of whose products find their way into commerce or become necessary for commerce after several intrastates steps. Phillips v. Star Overall Dry Cleaning, 149 F.2d 416, 418 (C.A. 2, 1975), cert. den. 327 U.S. 780. n4

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n2 See Farmers Irrigation Co. v. McComb, 337 U.S. 755 (1949); Butler Bros. v. N.L.R.B., 134 F.2d 981, 983-4 (C.A. 7, 1943), cert. den. 320 U.S. 789; Polish National Alliance, 322 U.S. 643, 647; N.L.R.B. v. Tri-State Casualty, Inc., Co., 188 F.2d 50, 51-2 (C.A. 10, 1951).

n3 See Borden Co. v. Borella, 325 U.S. 679 (1945); Roberg v. Phipps Estate, 156 F.2d 958, 970-963 (C.A. 2, 1946).

n4 Accord: Mitchell v. Jaffe, 261 F.2d 883 (C.A. 5, 1958); Tilbury v. Rodgers, 123 F.Supp. 109, 111-113 (D. La. 1954), aff'd. 220 F.2d 757 (C.A. 5, 1955), cert. den. 350 U.S. 939. See Mabee v. White Plains Publishing Co., 327 U.S. 178 (1946).

[*7]

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Other activities of respondent, including work on the Trans-America Title Company building and the BOQ for the U.S. Army at Fort Richardson are activities which affect commerce. The title company and the U.S. Army are substantially engaged in interstate commerce, and consequently the construction of such buildings affects that commerce. See Secretary v. Cable Car Advertisers, Inc., No. 354, 2 CCH ESHG Para. 15,153 (December 7, 1973); Schultz v. Instant Handling Co., 418 F.2d 1019 (C.A. 5, 1969); N.L.R.B. v. Vulcan Forging Co., 188 F.2d 927 (C.A. 6, 1951); Gerber d/b/a Parkview Gardens, 167 CCH N.L.R.B. Para. 21, 643, 166 N.L.R.B. (No. 80).

For the foregoing reasons, I would reverse the Judge.

[The Judge's decision referred to herein follows]

DONEGAN, JUDGE: This is a proceeding pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq., 84 Stat. 1590, hereinafter referred to as the Act).

Benjamin J. Longeski, while in the employ of the U.S. Department of Labor as a safety compliance officer under the OSHA 7-C-1 Program, [*8] inspected a worksite under the operation and control of the Respondent at the Lake Otis Medical Clinic, Anchorage, Alaska on May 21 and 22, 1973 (Exhibit R-5).

As a result of this inspection, a "Citation For Serious Violation" Number 1 and a Citation Number 1 for non-serious violations (4 items) were issued to the Respondent on May 29, 1973 for alleged violations at this worksite on May 21, 1973, under the authority vested in the Complainant by Section 9(a) of the Act. It is alleged in these Citations that the Respondent had violated Section 5(a)(2) of the Act by failing to comply with certain occupational safety and health standards promulgated by the Secretary of Labor pursuant to Section 6 of the Act.

Under the enforcement procedure set forth in Section 10(a) of the Act, a "Notification of Proposed Penalty" was issued to the Respondent on May 29, 1973 which proposed a monetary penalty of $600 for the alleged serious violation, and a total monetary penalty of $45 for the non-serious violations ($45 for item 1 and $0 for items 2 to 4 inclusive).

The Respondent timely contested "Citation For Serious Violation" Number 1, Citation Number 1 for non-serious violations (4 items), and [*9] the proposed penalties for these alleged violations.

The Respondent is charged in the "Citation for Serious Violation" Number 1, as follows:

CITATION FOR SERIOUS VIOLATION

Citation Number: 1 (Page 1 of 2 pages) -- Date Issued May 29, 1973 -- Employer: Anchorage Plastering Co., Inc. -- Address (Street) 7504 Arthur Court -- (City) Anchorage -- (State) Alaska -- (Zip) 99502 -- An inspection of a workplace under your ownership, operation, or control located at Anchorage, Alaska and described as follows: Lake Otis Medical Center has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR Part 1926 -- (Formerly 29 CFR Section 1518, as adopted by 29 CFR Section 1910.12) -- 1926.451(a)(15), (b)(2), and (b)(16) -- May 21, 1973, Failure to provide scafolding that meets requirements in that: 1. Failure to maintain upright members of scaffolding plumb. 2. Failure to provide splice plates of at least 4 feet in length on upright [*10] splices. 3. Failure to construct scaffold in accordance with standards in that: 1. Upright members improperly spaced. Continued . . . -- Immediately upon receipt of this citation

"Citation For Serious Violation" Number 1 continued as follows:

CITATION FOR SERIOUS VIOLATION

Citation Number: 1 (Page 2 of 2 pages) -- Date Issued May 29, 1973 -- Employer: Anchorage Plastering Co., Inc. -- Address (Street) 7504 Arthur Court -- (City) Anchorage -- (State) Alaska -- (Zip) 99502 -- An inspection of a workplace under your ownership, operation, or control located at Anchorage, Alaska and described as follows: Lake Otis Medical Center has been conducted. On the basis of its inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

1926.451(a)(15), (b)(2), and (b)(16) Continued . . . -- May 21, 1973, 2. Scaffold planks used with large open grain, knots and worm holes, not scaffold grade lumber or the equivalent.

THE ALLEGED VIOLATIONS OF THE ABOVE (3) TREEE STANDARDS ARE CONSIDERED [*11] TO RESULT IN ONE SERIOUS VIOLATION OF EXPOSURE OF PERSONNEL WORKING ON UNSAFE SCAFFOLDING, BECAUSE OF THE COMBINATION OF HAZARDS THAT EXIST.

The Respondent is charged in the Citation Number 1 for non-serious violations (4 items) as follows:

CITATION

Citation Number: 1 (Page 1 of 1 page) -- Date Issued: May 29, 1973 -- Employer: Anchorage Flastering Co., Inc. -- Address -- (City) Anchorage -- (State) Alaska -- (Zip) 99502 -- An inspection of a workplace under your ownership, operation, or control located at Anchorage, Alaska and described as follows: Lake Otis Medical Center has been conducted. On the basis of the inspection it is alleged that you have violated the Occupational Safety and Health Act of 1970, 29 U.S.C. 651, in the following respects:

Item number -- Standard or regulation allegedly violated -- Description of alleged violation -- Date on which alleged violation must be corrected

29 CFR Part 1926 (Formerly 29 CFR Section 1518, as adopted by 29 CFR Section 1910.12)

1 -- 1926.100(a) -- Failure to require employees to wear protective helmets where they are exposed to hazards of falling objects -- Immediately upon receipt of this citation

2 -- 1926.152(a)(1) [*12] -- Failure to provide approved metal safety cans for storage and handling of flammable liquids -- June 12, 1973

3 -- 1926.451(a)(13) -- Failure to provide access ladder or equivalent, for safe access to second level of scaffold -- Immediately upon receipt of this citation

4 -- 1926.451(b)(15) -- Failure to provide midrails and toe boards on scaffolding more than 10 feet above the ground -- Immediately upon receipt of this citation

The standard or regulation alleged to have been violated in "Citation For Serious Violation" Number 1 is as follows:

29 CFR 1926.451(a)(15), (b)(2), and (b)(16)

§ 1926.451 Scaffolding

(a) General requirements.

(15) The poles, legs, or uprights of scaffolds shall be plumb, and securely and rigidly braced to prevent swaying and displacement.

(b) Wood pole scaffolds.

(2) Where wood poles are spliced, the ends shall be squared and the upper section shall rest squarely on the lower section. Wood splice plates shall be provided on at least two adjacent sides and shall be not less than 4 feet in lenght, overlapping the abutted ends equally, and have the same width and not less than the cross-sectional area of the pole. Splice plates or [*13] other materials of equivalent strength may be used.

(b) Wood pole scaffolds.

(16) All wood pole scaffolds 60 feet or less in height shall be constructed and erected in accordance with Tables L-4 to 10. If they are over 60 feet in height, they shall be designed by a qualified engineer competent in this field, and it shall be constructed and erected in accordance with such design.

TABLE L -- 4 -- MINIMUM NOMINAL SIZE AND MAXIMUM SPACING OF
MEMBERS OF SINGLE POLE SCAFFOLDS, LIGHT DUTY

	Maximum height of scaffold
	20 ft.	60 ft.
Uniformly distributed load	Not to exceed 25 p.s.f.
Poles or uprights	2 X 4 in	4 X 4 in.
Poles spacing (longitudinal)d	6 ft. o in.	10 ft. 0 in.
Maximum width of scaffold	5 ft. 0 in.	5 ft. 0 in.
Bearers or putlogs to
3 ft. 0 in. width	2 X 4 in.	2 X 4 in.
Bearers or putlogs to
5 ft. 0 in. width	2 X 6 in. or 3 X 4 in.	2 X 6 in. or 3 X 4 in.
		(rough).
Ledgers	1 X 4 in.	1-1/4 X 9 in.
Planking	1-1/4 X 9 in. (rough)	2 X 10 in.
Vertical spacing of
Horizontal members	7 ft. 0 in.	9 ft. 0 in.
Bracing, horizontal
and diagonal	1 X 4 in.	1 X 4 in.
Tie-ins	1 X 4 in.	1 X 4 in.
Toeboards	4 in. high (minimum)	4 in. high (minimum)
Guardrail	2 X 4 in.	2 X 4 in.

[*14]

All members except planking are used on edge.

TABLE L -- 5 -- MINIMUM NOMINAL SIZE AND MAXIMUM SPACING
OF MEMBERS OF SINGLE POLE SCAFFOLDS -- MEDIUM DUTY

Uniformly distributed load	Not to exceed 50 p.s.f.
Maximum height of scaffold	60 ft.
Poles or uprights	4 X 4 in.
Pole spacing (longitudinal)	8 ft. 0 in.
Maximum width of scaffold	5 ft. 0 in.
Bearers or putlogs	2 X 10 in. or 3 X 4 in.
Spacing of bearers or putlogs	8 ft. 0 in.
Ledgers	2 X 10 in.
Vertical spacing of horizontal
members	7 ft. 0 in.
Bracing, horizontal	1 X 6 in. or 1-1/4 X 4 in.

TABLE L -- 5 -- MINIMUM NOMINAL SIZE AND MAXIMUM SPACING
OF MEMBERS OF SINGLE POLE SCAFFOLDS -- MEDIUM DUTY -- CON.

Bracing, diagonal	1 X 4 in.
Tie-ins	1 X 4 in.
Planking	2 X 10 in.
Toeboards	4-in. high (minimum)
Guardrail	2 X 4 in.

All members except planking are used on edge.

TABLE L -- 6 -- MINIMUM NOMINAL SIZE AND MAXIMUM SPACING
OF MEMBERS OF SINGLE POLE SCAFFOLDS -- HEAVY DUTY

Uniformly distributed load	Not to exceed 75 p.s.f.
Maximum height of scaffold	60 ft.
Poles or upright	4 X 6 in.
Pole spacing (longitudinal)	6 ft. 0 in.
Maximum width of scaffold	5 ft. 0 in.
Bearers or putlogs	2 X 10 in. or 3 X 5 in.
Spacing of bearers or putlogs	6 ft. 0 in.
Ledgers	2 X 10 in.
Vertical spacing of horizontal
members	6 ft. 6 in.
Bracing, horizontal and
diagonal	2 X 4 in.
Tie-ins	1 X 4 in.
Planking	2 X 10 in.
Toe boards	4-in. high (minimum)
Guardrail	2 X 4 in.

[*15]

All members except planking are used on edge.

TABLE L -- 7 -- MINIMUM NOMINAL SIZE AND MAXIMUM SPACING OF
MEMBERS OF INDEPENDENT POLE SCAFFOLD LIGHT DUTY

	Maximum height of scaffold
	20 ft.	60 ft.
Uniformly distributed load	Not to exceed 25 p.s.f.
Poles or uprights	2 X 4 in.	4 X 4 in.
Pole spacing (longitudinal)	6 ft. 0 in.	10 ft. 0 in.
Pole spacing (transverse)	6 ft. 0 in.	10 ft. 0 in.
Ledgers	1-1/4 X 4 in.	1-1/4 X 9 in.
Bearers to 3 ft. 0 in. span	2 X 4 in.	2 X 4 in
Bearers to 10
ft. 0 in. span	2 X 6 in. or 3 X 4 in.	2 X 10 (rough) or 3 X 8 in.
Planking	1-1/4 X 9 in.	2 X 10 in.
Vertical spacing of
horizontal members	7 ft. 0 in.	7 ft. 0 in.
Bracing, horizontal
and diagonal	1 X 4 in.	1 X 4 in.
Tie-ins	1 X 4 in.	1 X 4 in.
Toeboards	4 in. high	4 in. high (minimum)
Guardrail	2 X 4 in.	2 X 4 in.

All members except planking are used on edge.

TABLE L -- 8 -- MINIMUM NOMINAL SIZE AND MAXIMUM SPACING
OF MEMBERS OF INDEPENDENT POLE SCAFFOLDS -- MEDIUM DUTY

Uniformly distributed load	Not to exceed 50 p.s.f.
Maximum height of scaffold	60 ft.
Poles or uprights	4 X 4 in.
Pole spacing (longitudinal)	8 ft. 0 in.
Pole spacing (transverse)	8 ft. 0 in.
Ledgers	2 X 10 in.
Vertical spacing of horizontal
members	6 ft. 0 in.
Spacing of bearers	8 ft. 0 in.
Bearers	2 X 10 in.
Bracing, horizontal	1 X 6 in or 1-1/4 X 4 in.
Bracing, diagonal	1 X 4 in.
Tie-ins	1 X 4 in.
Planking	2 X 10 in.
Toeboards	4-in. high (minimum)
Guardrail	2 X 4 in.

[*16]

All members except planking are used on edge.

TABLE L -- 9 -- MINIMUM NOMINAL SIZE AND MAXIMUM SPACING
OF MEMBERS OF INDEPENDENT POLE SCAFFOLDS -- HEAVY DUTY

Uniformly distributed load	Not to exceed 75 p.s.f.
Maximum height of scaffold	60 ft.
Poles or uprights	4 X 4 in.
Pole spacing (longitudinal)	6 ft. 0 in.
Pole spacing (transverse)	8 ft. 0 in.
Ledgers	2 X 10 in.
Vertical spacing of horizontal
members	6 ft. 0 in.
Bearers	2 X 10 in. (rough)
Bracing, horizontal and
diagonal	2 X 4 in.
Tie-ins	1 X 4 in.
Planking	2 X 10 in.
Toeboards	4-in. high (minimum)
Guardrail	2 X 4 in.

All members except planking are used on edge.

TABLE L -- 10 -- TUBE AND COUPLER SCAFFOLDS LIGHT DUTY

Uniformly distributed load	Not to exceed 25 p.s.f.
Post spacing (longitudinal)	10 ft. 0 in.
Post spacing (transverse)	6 ft. 0 in.

	Additional planked	Maximum
Working levels	levels	eight
1	8	125 ft.
2	4	125 ft.
3	0	91 ft. 0 in.

TABLE L -- 11 -- TUBE AND COUPLER SCAFFOLDS MEDIUM DUTY
Uniformly distributed load	Not to exceed 50 p.s.f.
Post spacing (longitudinal)	8 ft. 0 in.
Post spacing (transverse)	6 ft. 0 in.

	Additional	Maximum
Working levels	levels	height
1	6	125 ft.
2	0	78 ft. 0 in.

[*17]

TABLE L -- 12 -- TUBE AND COUPLE SCAFFOLDS HEAVY DUTY

Uniformly distributed load	Not to exceed 75 p.s.f.
Post spacing (longitudinal)	6 ft. 6 in.
Post spacing (transverse)	6 ft. 0 in.

	Additional planked	Maximum
Working levels	levels	height
1	6	125 ft.

The standard or regulation alleged to have been violated in Citation Number 1 for non-serious violations (4 items) is as follows:

Item Number 1

29 CFR 1926.100(a)

§ 1926.100 Head Protection.

(a) 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.

Item Number 2

29 CFR 1926.152(a)(1)

§ 1926.152 Flammable and combustible liquids.

(a) General requirements.

(1) Only approved containers and portable tanks shall be used for storage and handling of flammable and combustible liquids. Approved metal safety cans shall be used for the handling and use of flammable liquids in quantities greater than one gallon except that this shall not apply to those flammable liquid materials which are highly viscid (extremely hard to pour), which may [*18] be used and handled in original shipping containers. For quantities of one gallon or less, only the original container or approved metal safety cans shall be used for storage, use, and handling of flammable liquids.

Item Number 3

29 CFR 1926.451(a)(13)

R1926.451 Scaffolding.

(a) General requirements.

(13) An access ladder or equivalent safe access shall be provided.

Item Number 4

29 CFR 1926.451(b)(15)

§ 1926.451 Scaffolding.

(b) Wood pole scaffolds.

(15) Guardrails, made of lumber not less than 2 X 4 inches (or other material providing equivalent protection), approximately 42 inches high, with a midrail of 1 X 6 inch lumber (or other material providing equivalent protection), and toe-boards, shall be installed at all open sides and ends on all scaffolds more than 10 feet above the ground or floor. Toeboards shall be a minimum of 4 inches in height. Wire mesh shall be installed in accordance with paragraph (a)(6) of this section, when required.

Section (a)(6) as follows:

(a) General requirements.

(6) Where persons are required to work or pass under the scaffold, scaffolds shall be provided with a screen between the toeboard and the [*19] guardrail, extending along the entire opening, consisting of No. 18 gauge U.S. Standard wire 1/2-inch mesh, or the equivalent.

The Secretary of Labor's Complaint and the Respondent's Answer were filed on July 5, 1973 and July 14, 1973, respectively.

The Respondent, Anchorage Plastering Co., is identified as a corporation in the pleadings. At the hearing the parties stipulated that the Respondent is not a corporation but is owned by Richard Moore and Hans Bucher, doing business under the name of Anchorage Plastering Company. The parties also stipulated that the Complaint be amended accordingly. In this regard it is noted that the Respondent's Answer denies paragraph I of the Complaint, which alleges that the Respondent is a corporation, but admits that the Respondent is a subcontractor doing plastering work on the Lake Otis Medical Center, Anchorage, Alaska.

The Respondent's Answer denies the allegations of the Complaint including the allegation that it is engaged in a business affecting commerce within the meaning of section 3(5) of the Act. The Respondent also denies the allegation of the Complaint that jurisdiction is conferred upon the Commission by section 10(c) of the [*20] Act and as a "First Affirmative Defense" in the Answer, the Respondent asserts the Commission is without jurisdiction in the matter because the Respondent only works intrastate and the business does not affect interstate commerce.

The Answer contains 4 additional affirmative defenses, which in substance, challenge the constitutionality of the Act. At the hearing a ruling was made by the Judge on an objection by the Respondent, which in effect, rejected the Respondent's challenge to the constitutionality of the Act.

Subsequent to the close of the hearing, the Reporter informed the Judge by letter that the last recording tape of the hearing had been lost. In response to a suggestion of a possible solution to the problem of the lost tape, the parties agreed and stipulated that Mr. Richard Moore, in testifying as a witness for the Secretary at the hearing, testified to at least the facts as set forth in the stipulation. These facts have been entered in the record of the proceeding, in place of the lost portion of the transcript. (Judge's Order of December 11, 1973).

The transcript does not reflect that the Respondent did not submit evidence at the close of the Complainant's [*21] case because that part of the hearing was recorded on the "lost tape."

No affected employees or persons representing affected employees have appeared in this proceeding or have sought to participate in the hearing.

The parties have elected not to submit briefs and proposed findings of fact and conclusions of law in this case.

DISCUSSION, FINDINGS OF FACT AND CONCLUSIONS OF LAW

The first matter than must be considered and resolved is the threshold issue of whether the Commission has jurisdiction in this case. n1 This is placed in issue by the Respondent's pleadings and contention that it is only engaged in intrastate business which does not affect interstate commerce.

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n1 Secretary of Labor v. Cable Car Advertisers, Inc., OSAHRC, Docket No. 354 & 480 (December 7, 1973).

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The purpose and policy of the Congress in enacting the Act and how this purpose and policy is to be pursued is set forth in Section 2 of the Act. The Act specifically states in Section 2(b)(3) that one of the means the Congress provides [*22] for achieving its purpose and policy is --

by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act; (Emphasis supplied)

Section 3(5) n2 of the Act defines an "employer" as a person engaged in a business affecting commerce who has employees. Section 3(3) n3 defines "commerce."

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n2 "Sec. 3. For the purpose of this Act --

(5) The term "employer" means a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivison of a State."

n3 "Sec. 3. For the purposes of this Act --

(3) The term "commerce" means trade, traffic, commerce, transportation, or communication among the several States, or between a State and any place outside thereof, or within the District of Columbia, or a possession of the United States (other than the Trust Territory of the Pacific Islands), or between points in the same State but through a point outside thereof."

[*23]

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When the Respondent denies it is an "employer" within the meaning of the Act, the Complainant has the burden of presenting credible and substantial evidence to support a finding that the Respondent, at the time of the alleged violation was an "employer" engaged in a business affecting interstate commerce.

At the time of the alleged violations, the Respondent employed 5 men at the Lake Otis Medical Center worksite in Anchorage, Alaska. Stucco was being applied to the outside surface of a two-story wood frame building. The testimony of the Compliance Officer as to the origin of the materials used by the Respondent is at best conclusionary and cannot be accepted as credible or probative for the purpose of making a finding as to the Respondent having been engaged in a business affecting interstate commerce.

Mr. Richard Moore, one of the owners of the Anchorage Plastering Company testified as a witness for the Complainant. His testimony was recorded on the "lost tape." The facts as to his lost testimony, agreed to and stipulated by the parties, when considered as credible evidence, do not together [*24] with the other evidence of record satisfy the Complainant's burden of proof as to this essential and basic element of the Complainant's case.

It must be found that in this case the Complainant has failed to establish by substantial credible evidence that the Respondent was engaged in a business affecting interstate commerce and thereby has failed to carry his burden of proving the contested jurisdiction of the Commission. Consequently, the Citations and "Notice of Proposed Penalties" must be vacated.

ORDER

It is ORDERED:

1. That the "Citation For Serious Violation" Number 1 and the Citation Number 1 for non-serious violations (4 items) issued to the Respondent on May 29, 1973 be, and the same are hereby vacated.

2. That the "Notification of Proposed Penalty" issued to the Respondent on May 29, 1973 for a total monetary penalty of $645 be, and the same is hereby vacated.