Cody-Zeigler, Inc.

Plain-English summary

Cody-Zeigler faced citations arising from five programmed inspections at construction projects in Ohio. Although company representatives consented when OSHA arrived, the contractor later argued that the frequency of inspections showed a lack of administrative probable cause. The Commission held that consent barred the contractor's Fourth Amendment challenge and extinguished any separate challenge under the Act to OSHA's selection of the worksites. It therefore affirmed the judges' mixed merits rulings, which upheld electrical, roof-fall, hole-cover, and related items while vacating an unprotected-edge item and a housekeeping item. The affirmed items carried total penalties of $2,025.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.404(b)(1)(i), 1926.501(b)(11), 1926.501(b)(1), 1926.502(i)(3), 1926.403(i)(2)(i), 1926.405(b)(2), and 1926.25(a)
• Outcome: Six citation items affirmed, two vacated, and total penalties of $2,025 assessed across five consolidated dockets
• Key point: An employer that freely consents to an OSHA inspection cannot later demand a probable-cause inquiry into why its worksite was selected.

Full text (OSHRC public release)

SECRETARY OF LABOR,
Complainant,
v. OSHRC Docket Nos. 99-912, 99-913, 99-
914; 00-40, 00-222
CODY-ZEIGLER, INC.,
Respondent.

                                    DECISION

Before: ROGERS, Chairman, and EISENBREY, Commissioner.
BY THE COMMISSION:
Cody-Zeigler, Inc., is a family-owned construction contractor that performs work
primarily for public entities in Central Ohio. The company’s president, Francis Zeigler,
testified that it has annual sales of ten to twelve million dollars, “which in today’s market is
a very small contractor.” Cody-Zeigler consented to the inspections by the Secretary of
Labor’s Occupational Safety and Health Administration (“OSHA”) in each of these five
cases. It now argues, however, that the inspections were too frequent to have been based on
probable cause, and thus the Commission should vacate the OSHA citations for alleged
violations in each case. For the reasons that follow, we affirm the decisions by the
administrative law judges in these cases, which rejected Cody-Zeigler’s arguments.1

   1
    We hereby consolidate these five cases, because they involve the same parties and

the same questions of law. Commission Rule 9, 29 C.F.R. 2200.9. Cody-Zeigler has moved
for oral argument in these cases, and the Secretary opposes that motion. Oral argument is
unnecessary to the disposition of these cases. The motion, therefore, is denied. See, e.g.,
Propellex Corp., 18 BNA OSHC 1677, 1678 n.2, 1999 CCH OSHD ¶ 31,792, p. 46,585 n.2
(No. 96-265, 1999).

                                                                     2001 OSHRC NO. 9

2

   From 1998 through January 2000, OSHA conducted inspections of approximately

eleven Ohio worksites on which Cody-Zeigler served as a general trades contractor. The five
programmed inspections that led to the citations in these cases included three that began in
April 1999: Evans Park Aquatic Center in Grove City, Ohio; Stillman Hall Addition on the
Ohio State University Campus in Columbus, Ohio; and Marysville Hospital in Marysville,
Ohio. The other two inspections were in December 1999: a Science Department building for
Ohio State University in Columbus, Ohio (inspected on December 21), and a new high
school for the Lakewood Board of Education in Hebron, Ohio (inspected on December 30).
It is undisputed that Cody’s worksite representatives consented to each of those five
inspections when OSHA’s compliance officers arrived to inspect.2
After contesting the citations arising from each inspection, Cody-Zeigler sought
discovery in order to determine whether there was a violation of section 8(a) of the Act based
on lack of administrative probable cause for the inspections. Review Commission
Administrative Law Judges Ann Z. Cook, who decided the first three cases, and Ken S.
Welsch, who decided the other two, denied the motions. Judge Cook stated: “Respondent has

   2
     According to the affidavit of the Secretary’s counsel in the first three cases, “[e]ach

of the three work sites was inspected based upon a listing in a report generated and provided
by the University of Tennessee’s Construction Resources Analysis Department.” The
University provides computer-generated inspection lists to OSHA’s area offices, on which
they are to base their programmed inspections. Those inspection lists are based on
information provided to the University monthly by the F. W. Dodge Co. OSHA Instruction
CPL 2.25I, Scheduling System for Programmed Inspections (Jan. 4, 1995) (superseding
OSHA Instruction CPL 2.45B, Field Operations Manual (“FOM”), CH-3, Chap.II.F.2.b.(2)).
See OSHA Instruction CPL 2.103, Field Inspection Reference Manual (“FIRM”), Section 5,
Chapter I.D.1. (“Programmed inspections shall be scheduled in accordance with Chapter II,
F.2. of OSHA Instruction CPL 2.45B or a superseding directive.”)

An OSHA compliance officer receives a Dodge Report for a particular construction project
when first assigned to inspect that project. The Secretary’s counsel provided Cody-Zeigler
a copy of the Dodge Report for each of the three work sites inspected in April 1999.
 3

not articulated a defense or otherwise put forth a colorable claim which could entitle it to
discovery” of the material it sought.
DISCUSSION
Fourth Amendment
In holding that an employer has a constitutional right under the Fourth Amendment3
to refuse entry to an OSHA inspector and insist on a warrant, the Supreme Court explained
that one of the ways in which OSHA may obtain a warrant is to demonstrate administrative
probable cause for the inspection. Marshall v. Barlow’s, Inc., 436 U.S. 307, 320-21 (1978).
That is, OSHA may base an inspection on a “general administrative plan for the enforcement
of the Act derived from neutral sources.” Id. If the Secretary inspects pursuant to a warrant
and issues a citation based on that inspection, the Commission has authority to “undertake
a de novo inquiry to ascertain whether the Secretary’s inspection conformed with the fourth
amendment standards of probable cause and reasonableness.” Sarasota Concrete Co., 9 BNA
OSHC 1608, 1611, 1981 CCH OSHD ¶ 25,360, p. 31,530 (No. 78-5264, 1981), aff’d, 693
F.2d 1061 (11th Cir. 1982).
If the employer consents to an OSHA inspection, however, the decisions are uniform
that the employer may not later challenge the inspection on Fourth Amendment grounds, if
it is within the scope of that consent. E.g., L. R. Willson and Sons, Inc., 17 BNA OSHC
2059, 2061, 1995-97 CCH OSHD ¶ 31,262, p. 43,888 (employer waives “any protection

   3
    The Fourth Amendment to the United States Constitution provides:
          The right of the people to be secure in their persons, houses, papers,
   and effects, against unreasonable searches and seizures, shall not be violated;
   and no Warrants shall issue but upon probable cause, supported by Oath or
   affirmation, and particularly describing the place to be searched, and the
   persons or things to be seized.

“[E]xcept in certain carefully defined classes of cases, a search of private property without
proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.”
Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978) (quoting Camara v. Municipal Court,
387 U.S. 523, 528-29 (1967)). Barlow’s held that OSHA cases are not among the exceptions.
 4

under the Fourth Amendment” when it “has consented to a compliance officer’s entry”),
rev’d in part on other grounds, 134 F.3d 1235, 1240 (4th Cir. 1998), cert. denied, 525 U.S.
962 (1998); Hamilton Fixture, 16 BNA OSHC 1073, 1077 n.8, 1993-95 CCH OSHD
¶ 30,034, p. 41,173 n.8 (No. 88-1720, 1993) aff’d without published opinion, 28 F.3d 1213
(6th Cir. 1994); Concrete Construction Co., 15 BNA OSHC 1614, 1617, 1991-93 CCH
OSHD ¶ 29,681, p. 40,240 (No. 89-2019, 1992) (“waiver of Fourth Amendment rights occurs
when an employer ‘freely and voluntarily’ consents to an inspection”) (citing Simplex Time
Recorder Co. v. Secretary of Labor, 766 F.2d 575, 582 (D.C. Cir. 1985) (lack of objection
to inspection after consulting with counsel indicates consent); Lake Butler Apparel v.
Secretary, 519 F.2d 84, 88 (5th Cir. 1975). Thus, under Commission and court precedent,
Cody-Zeigler is precluded from a probable cause challenge under the Fourth Amendment
regarding an OSHA inspection to which it has consented.4

   4
    Cody-Zeigler argues that a recent Recommended Order by a Labor Department

administrative law judge in U. S. Dep’t of Labor v. Bank of America, N.A., 1997-OFC-16
(August 25, 2000) (ALJ) requires a different result. That Recommended Order, however,
deals with a different issue: the effect of the bank’s contractual consent to Government
inspections of its books and records, as a federal contractor. Courts have permitted post-
inspection probable cause challenges under the Fourth Amendment regarding inspections that
are based on advance contractual consent. See, e.g., U.S. v. Harris Methodist of Fort Worth,
970 F.2d 94 (5th Cir. 1992); First Alabama Bank of Montgomery v. Donovan, 692 F.2d 714
(11th Cir. 1982).

By contrast where, as here, an inspection is based on consent given freely and voluntarily
at the time and place of the inspection, the courts do not permit post-inspection probable
cause challenges. In those situations, “[i]f a valid consent is obtained, then clearly there is
no additional requirement of probable cause for the search. Indeed there is no requirement
of reasonable suspicion as a prerequisite to seeking consent.” 3 Wayne R. LaFave, Search
and Seizure § 8.1 n.8 (3d ed. 1996) (collecting cases). See, e.g., Florida v. Jimeno, 500 U.S.
248, 250-51 (1991) (“we have long approved consensual searches because it is no doubt
reasonable for the police to conduct a search once they have been permitted to do so”)
(citation omitted); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (it is “well-settled
that one of the specifically established exceptions to the requirements of both a warrant and
probable cause is a search that is conducted pursuant to consent”) (emphasis added); United
(continued...)
 5

   Cody-Zeigler does not allege that any of the inspections here exceeded the scope of

its consent. Cf., e.g., Florida v. Jimeno, 500 U.S. 248, 252 (1991) (subject of search “may
of course delimit as he chooses the scope of the search to which he consents”). Because
Cody-Zeigler consented to each of the inspections here based on OSHA’s request at the time
and place of those inspections, it has no Fourth Amendment right to challenge them now.
Section 8(a) of the Act
Section 8(a) of the Act, 29 U.S.C. § 657(a), authorizes the Secretary of Labor to enter
and inspect any “area, workplace or environment where work is performed.”5 Unlike the
Fourth Amendment, section 8(a) is principally a grant of authority, though it does constrain
the Secretary to conduct inspections at “reasonable times, and within reasonable limits and
in a reasonable manner . . . .” Cody-Zeigler argues that a challenge to OSHA’s selection of
a particular worksite for inspection is cognizable under section 8(a), but its consent to the
inspections in each of these cases makes it unnecessary to address that issue here. For as the

   4
    (...continued)

States v. Jenkins, 92 F.3d 430, 436 (6th Cir. 1996) (“[a]n officer with consent needs neither
a warrant nor probable cause to conduct a constitutional search”), cert. denied, 520 U.S.
1170 (1997).
5
Section 8(a) provides:
In order to carry out the purposes of this Act, the Secretary, upon
presenting appropriate credentials to the owner, operator, or agent in charge,
is authorized --

          (1) to enter without delay and at reasonable times any factory, plant,
          establishment, construction site, or other area, workplace or
          environment where work is performed by an employee of an employer;
          and
          (2) to inspect and investigate during regular working hours and at other
          reasonable times, and within reasonable limits and in a reasonable
          manner, any such place of employment and all pertinent conditions,
          structures, machines, apparatus, devices, equipment, and materials
          therein, and to question privately any such employer, owner, operator,
          agent or employee.

6

Commission held in Adams Steel Erection, Inc., 13 BNA OSHC 1073, 1079, 1986-87 CCH
OSHD ¶ 27,815, p. 36,403 (No. 77-3804, 1987), “section 8(a) of the Act does not require
the Secretary to obtain evidence of any particular sort to support his decision to seek a
consensual inspection.” Cody-Zeigler’s consent extinguishes any challenge it might
otherwise have been able to make here.
It follows that the judges’ denials of Cody-Zeigler’s motions to engage in discovery
were proper. Because Cody-Zeigler has failed to raise a challenge to the inspections upon
which relief could be granted, discovery would serve no purpose. Cody-Zeigler does not
allege vindictive prosecution or challenge the inspection on Fifth Amendment grounds.6

   6
    Cody-Zeigler originally asserted that it was the subject of vindictive prosecution, but

it subsequently made clear to the judges and to us that it has abandoned any such claim.
 7

   The judges affirmed some of the citation items and vacated others. Those rulings on

the merits are not in dispute. Therefore, we affirm the judges’ decisions in these cases.7
SO ORDERED.

                                                     /s/
                                                     Thomasina V. Rogers
                                                     Chairman


                                                     /s/
                                                     Ross Eisenbrey
                                                     Commissioner

Dated: May 9, 2001

   7
    Due to a clerical error, Judge Cook’s decision initially stated that a penalty of $150

would be assessed for the violation she found of 29 C.F.R. § 1926.404(b)(1)(i). Her
conclusions of law and order make clear, however, that the amount she assessed for that item
is $100.
 United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3419

SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NOS. 99-0912, 99-0913,
and 99-0914
CODY-ZEIGLER, INC.,
Respondent.

APPEARANCES:

      For the Complainant:
             Elizabeth R. Ashley, Esquire, U.S. Department of Labor, Office of the Solicitor,
             Cleveland, Ohio

      For the Respondent:
             Roger L. Sabo, Esquire, Isaac, Schottenstein, Zox & Dunn, Columbus, Ohio

Before: Administrative Law Judge Ann Z. Cook

                                 DECISION AND ORDER

      This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10(c) of the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (“the Act”). Respondent, Cody-Zeigler, Inc. (“Cody”), was the general
contractor on three construction projects: Evans Park Aquatic Center in Grove City, Ohio; Stillman
Hall Addition on the Ohio State University Campus; and Marysville Hospital in Marysville, Ohio. The
Occupational Safety and Health Administration (“OSHA”) inspected these work sites in April and
May 1999, which resulted in the citations here at issue. Cody filed timely notices of contest, the cases
were consolidated, and a hearing was held in Columbus, Ohio on February 22, 2000.
The Secretary alleges and Cody does not deny that it is an employer engaged in construction
work and related activities. It is undisputed that at the time of these inspections, Cody was engaged
in construction activities. Cody also does not deny that it uses tools, equipment and supplies which
 9

have moved in interstate commerce. I conclude that Cody is engaged in a business affecting interstate
commerce. I further conclude that Cody is an employer within the meaning of section 3(5) of the Act.
Accordingly, the Commission has jurisdiction over the subject matter and the parties.
PROCEDURAL BACKGROUND
Cody’s principal argument on brief is that it was denied a fair hearing by the arbitrary
exclusion of evidence relevant to its section 8(a) affirmative defense. (R. Brief, pp. 1, 15-16).
Consideration of this argument requires a review of the procedural history.
Initially, the three dockets were assigned for E-Z Trial proceedings. On July 6, 1999, Cody
moved to consolidate the proceedings and to discontinue E-Z Trial so that it could conduct discovery
to establish its affirmative defenses. Cody argued that the close time proximity of the three inspections
necessitated an inquiry into “the inspection procedures of OSHA and whether Cody was targeted for
inspection and harassment by OSHA, rather than randomly selected.” (R. Motion, p. 3). On July 16,
1999, the judge assigned to the case consolidated the proceedings, denied the motion to discontinue
E-Z-Trial, and allowed Cody “to file discovery with regard to its affirmative defense of vindictive
prosecution.” Following a conference call with the parties, the judge noticed an October 18, 1999
hearing and ordered that discovery on the affirmative defense of vindictive prosecution be completed
by September 20, 1999. See Notice of Hearing dated July 27, 1999.
On August 31, 1999, the Secretary moved for a protective order denying discovery regarding
vindictive prosecution until Cody presented some evidence tending to show the existence of the
essential elements of a vindictive prosecution defense. Cody responded that it needed the discovery
to prove the defense and that such discovery was expressly allowed by the judge’s orders. On
September 22, 1999, the judge granted the protective order after finding that case law required Cody
to offer some evidence tending to show the existence of the essential elements of a claim of vindictive
prosecution before it was entitled to discovery on the issue. She determined that Cody had not
established one of the required showings, i.e., that it was being punished for exercising a
constitutional right. The judge then removed the case from E-Z Trial to facilitate discovery. The trial
was continued first to February 1, and then to February 22, 2000, and discovery was extended to
December 14, 1999. On January 11, 2000, the undersigned judge was assigned to these cases.
 10

   On January 10, 2000, Cody moved to compel answers to certain interrogatories and requests

for production. Specifically, Cody requested OSHA construction inspection schedules, logs and
reports from February to May 1999 which, Cody maintained, were relevant to its sixth, seventh and
eighth affirmative defenses and would show how it came to be inspected so frequently. Cody’s
Answer lumps together discussion of the three affirmative defenses and leaves much about them in
question. The relevant section of the Answer describes how OSHA, using the Dodge Reports
provided by the University of Tennessee, schedules construction projects for inspections. The Answer
also describes how Cody was inspected three times in one month, when the Dodge Reports on
average show 2600 construction projects monthly in the Central Ohio region, and concludes that:
20. The use of such Dodge Reports in the manner utilized by the agency is violative
of law and in disregard of the rights of Cody Zeigler in activities that include the
following:
a. Violation of the requirements of the OSH Act for a neutral and
unbiased inspection process.
b. An unlawful delegation of the Act’s requirements to private agency.
c. An improper and unlawful selection process form the list as
generated thereby allowing arbitrary and capricious selection
processes by each area office.
d. An arbitrary and capricious selection of Cody Zeigler for the
inspection.
e. An unlawful, improper, and vindictive prosecution of Cody Zeigler.
(R. Answer, pp. 3-5).
Cody cited a single authority, Marshall v. Barlow’s, 436 U.S. 307 (1978), to support its right
to discovery based on these affirmative defenses. That case held that the Fourth Amendment applied
to places of business and, absent employer consent, required OSHA to obtain a warrant before
conducting an inspection. To obtain a warrant, OSHA did not need to show probable cause in the
criminal law sense, but needed only to establish administrative probable cause, that is, that the site
was selected for inspection on the basis of an administrative plan for the enforcement of the Act
derived from neutral sources. Id. at 320-21. The case discusses neither discovery nor affirmative
defenses, and Cody did not explain how it understood the ruling to apply to its discovery request.
Cody consented to the three inspections, and, thus, no warrants were obtained. In her response, the
Secretary addressed only Cody’s failure to make the threshold showing for vindictive prosecution.
The Secretary had earlier provided Cody with the Dodge Reports for each of the sites inspected and
 11

an affidavit of counsel stating that they were inspected based upon their being listed in a report
generated by the University of Tennessee for OSHA’s use in scheduling inspections. See
Complainant’s Motion For Protective Order, Attachment A. By order issued January 31, 2000,
Cody’s motion was denied because it was untimely and because Cody had failed to provide some
evidence to show vindictive prosecution or another affirmative defense entitling it to the discovery.8
On February 11, 2000, Cody moved for reconsideration and for postponement of the February
22 hearing. It argued that discovery was sought not only for vindicative prosecution, but for its other
defenses; simply put, its defense was “that it [had] been improperly selected for inspection on these
and on numerous occasions.” (R. Motion, pp. 3-4). It added no further explanation of its other
affirmative defenses and no additional legal authority or argument. On February 16, 2000, the motion
was denied for failure to raise any argument or legal authority not previously considered.
Cody next served subpoenas for the documents it had sought unsuccessfully in discovery and
for the testimony of the area director and the custodian of records of the OSHA office that had issued
the citations. The Secretary moved to quash, arguing that Cody should not be given through
subpoena what had been properly denied in discovery. Cody responded that the subpoenas were not
aimed at establishing vindictive prosecution and discussed the criteria in Barlow’s for OSHA warrants
without relating them to the circumstances at hand. The motion to quash was granted, and this matter
went to hearing on February 22, 2000. At the hearing, Cody did not move to suppress the evidence
obtained during the inspection and did not object to its acceptance into evidence.
CODY’S SECTION 8(a) DEFENSE
The affirmative defense Cody presented at hearing and on brief is that the inspections were
unreasonable under section 8(a) of the Act, requiring suppression of the evidence obtained during
those inspections. (Tr. 121-22; R. Brief, pp. 14-16). Cody asserts that it raised this defense in its
sixth, seventh and eighth affirmative defenses, although these defenses do not specifically reference
section 8(a). It has abandoned the vindictive prosecution defense which occasioned removal of the
case from E-ZTrial procedures. (Tr. 100).

    8
        The Secretary’s response to the discovery requests was served on December 10,

2000.
 12

    Cody asserts the inspection was unreasonable because its selection for inspection was not

based on neutral criteria as required by the Barlow’s case. As noted above, Barlow’s held that the
Fourth Amendment applied to OSHA inspections and required OSHA to obtain a warrant before
conducting a nonconsensual inspection. It further held that OSHA may establish administrative
probable cause for a warrant by showing it selected the employer for inspection based on a general
administrative plan for the enforcement of the Act derived from neutral sources. Barlow’s at 321-22.
In challenging a warrant, the employer is limited to contesting whether the material presented to the
magistrate in the warrant application was sufficient to establish probable cause, unless there is an
indication that false evidence was either intentionally or recklessly presented to the magistrate. Franks
v. Delaware, 438 U.S. 154 (1978); Donovan v. Trinity Indus., Inc., 524 F.2d 634 (8th Cir. 1987);
Donovan v. Hackney, Inc., 769 F.2d 650, 652-53 (10th Cir. 1985); Tri-State Steel Constr., Inc., 15
BNA OSHC 1903, 1917-20 (Nos. 89-2611 & 89-2705, 1992).
An employer may still contest the reasonableness of the inspection under section 8(a) even
though it consented to the inspection, as Cody did, thereby waiving its Fourth Amendment rights.
L.R. Willson and Sons, Inc., 17 BNA OSHC 2059 (No. 94-1546, 1997); GEM Indus., Inc., 17 BNA
OSHC 1184 (No. 93-1122, 1995); Hamilton Fixture, 16 BNA OSHC 1073 (Docket No. 88-1720,
1993). By its language, section 8(a) applies to the manner in which physical inspections are carried
out on the work site. Section 8(a) provides as follows:
(a) In order to carry out the purposes of this Act, the Secretary, upon presenting
appropriate credentials to the owner, operator, or agent in charge, is authorized --
(1) to enter without delay and at reasonable times any factory, plant,
establishment, construction site, or other area, workplace or
environment where work is performed by an employee or an
employer; and
(2) to inspect and investigate during regular working hours and at
other reasonable times, and within reasonable limits and in a
reasonable manner, any such place of employment and all pertinent
conditions, structures, machines, apparatus, devices, equipment, and
materials therein, and to question privately any such employer, owner,
operator, agent or employee.
Section 8(a) and the Fourth Amendment obviously are not coextensive. Section 8(a) is
narrower in the sense that it applies only to the actual on-site inspection. In considering the section
8(a) defense, the Commission has restricted it to matters arising on site during the inspection. Thus,
 13

it has held that extended off-site observation and videotaping, which could violate the Fourth
Amendment, could not violate section 8(a). L.R. Willson at 2061. Cody’s defense of improper
selection for inspection is not about the reasonableness of the manner in which the inspection was
conducted. Accordingly, Cody’s defense is not cognizable under section 8(a).
Cody objects that it was prevented from developing a record to support its section 8(a)
defense. Its objections are not specific, but appear to relate primarily to denial of its pretrial motions.
I decline to reconsider those rulings, particularly in light of Cody’s unwillingness or inability to define
its affirmative defense, cite its legal basis, and present evidence to make a threshold showing of its
defense. Courts have imposed a rigorous standard for discovery in aid of claims, such as selective
prosecution, which intrude into executive decision making, and consequently require at least some
evidence tending to show the existence of the essential elements of the defense. U.S. v. Armstrong,
517 U.S. 456, 468 (1996). There is also no point in hypothesizing about what trial rulings Cody might
find objectionable. The burden is on Cody to identify any such rulings and to explain why they were
erroneous. Cody has not done so, and, based on the record and the case law set out above, its section
8(a) defense is rejected.9
THE SECRETARY’S BURDEN OF PROOF
To establish a violation of a standard, the Secretary has the burden of proving, by a
preponderance of the evidence:
(a) the applicability of the cited standard, (b) the employer’s noncompliance with the
standard’s terms, (c) employee access to the violative conditions, and (d) the
employer’s actual or constructive knowledge of the violation (i.e., the employer either
knew, or with the exercise of reasonable diligence could have known, of the violative
conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

    9
    I have noted that the evidence presented at trial established a relatively frequent rate

of inspection, given Cody’s size and construction activity. I have also noted that, having
waived its Fourth Amendment rights by consenting to the inspections, it is not clear how in
these proceedings Cody could have protested its selection for inspection. Regardless, I am
constrained by the circumstances of this case and by the foregoing case law to reject the
section 8(a) defense.
 14

                                 DOCKET NO. 99-0912
         ALLEGED SERIOUS VIOLATION OF 29 C.F.R. 1926.404(b)(1)(i)
   On April 8, 1999, Compliance Officer (“CO”) Charles Sampsel inspected the Evans Park

Aquatic Center, where Cody was the general contractor on the construction of a pool and several
buildings. The CO observed a Cody employee using a circular power saw to cut lumber. The saw was
plugged into an extension cord which was plugged into a permanent power source, and all three were
grounded. The saw was double insulated, and both cord and saw were in good condition. Upon
testing the equipment, the CO found no ground fault circuit interrupter (“GFCI”). Cody’s job
superintendent told the CO a portable GFCI was usually on site and used. Had the saw been plugged
into the permanent power source directly, the CO testified, no GFCI would be required, but, because
it was plugged into an extension cord, a GFCI was required. (Tr. 14-19, 77-85; CX-1, RX-15).
To protect employees on construction sites, section 1926.404(b)(1)(i) requires the employer
to use either GFCIs as specified in paragraph (b)(1)(ii) or an assured grounding conductor program
(“AGCP”) as specified in paragraph (b)(1)(iii). There is no evidence that Cody fulfilled the
requirements of an AGCP. In regard to GFCIs, paragraph (b)(1)(ii) provides, in relevant part, that:
All 120-volt, single-phase 15- and 20-ampere receptacle outlets on construction sites,
which are not a part of the permanent wiring of the building or structure and which
are in use by employees, shall have approved ground-fault circuit interrupters for
personnel protection.
Although Cody contends that the standard is inapplicable because the extension cord was part
of the permanent power source, the Commission ruled directly to the contrary in Otis Elevator Co.,
17 BNA OSHC 1167 (No. 90-2046, 1995). I therefore find that the standard applies.10 I also find that
the Secretary has established the other necessary elements to prove a violation.The supervisor’s
statement that a portable GFCI was usually used indicates that the lack of a GFCI could have been
discovered through reasonable diligence. In addition, the employee operating the saw was exposed
to an electrical shock hazard. However, I conclude that the hazard was slight. The weather was dry,

   10
      The Secretary did not present direct evidence that the receptable outlet was a 120-

volt, single-phase 15 or 20 ampere outlet. However, Cody has not objected in this regard, and
it is general industry knowledge that hand-held electric power tools operate on 120 volts at
15 or 20 amperes.
 15

the saw was double insulated, and the cord and saw were grounded and in good condition. Moreover,
the CO himself conceded that the likelihood and severity of any injury were low. This citation item
is accordingly affirmed as an other-than-serious violation.11
ALLEGED SERIOUS VIOLATION OF 29 C.F.R. 1926.501(b)(11)
CO Sampsel testified that before entering the work site, he observed and photographed two
Cody employees without fall protection laying moisture barrier on the roof of a building. He took two
additional photos showing the roof’s configuration and the moisture barrier on the lower part of the
roof. Cody’s superintendent told the CO that the pitch of the roof was 5 to 12 and that the lower part
of the roof was 11 feet above the ground and the dormer was 18 feet above the ground. He also told
the CO that the employees had begun laying the barrier that morning and that there was no fall
protection because it was not required in residential construction. (Tr. 21-30, 87-89; CX-2-4).
Section 1926.501(b)(11) requires that employees on a steep roof with unprotected sides and
edges 6 feet or more above lower levels be protected by guardrails, safety nets or personal fall arrest
systems. A steep roof is one having a slope greater than 4 inches vertical to 12 inches horizontal. See
1926.500(b). The CO’s unrefuted testimony and photographs establish the standard’s applicability,
the exposure of two employees, and the supervisor’s knowledge, which is attributable to Cody. In
addition, the concrete block building was to house the pool and was not residential construction. I
find that the cited standard applies and that it was violated. Because a fall from 11 feet can cause
serious injuries, the violation was serious. This item is therefore affirmed as a serious violation.
DOCKET NO. 99-0913
ALLEGED SERIOUS VIOLATION OF 29 C.F.R. 1926.501(b)(1)12
On April 21, 1999, CO Sampsel inspected the construction of an addition to Stillman Hall on
the Ohio State University campus where Cody was the general contractor. The CO testified that in

   11
        The penalties for the affirmed items in this case are set out infra.
   12
     The Secretary initially alleged a violation of 29 C.F.R. 1926.500(d)(1). At the end

of the hearing it became clear that the standard had been renumbered, and the Secretary has
moved to amend the citation to allege a violation of 1926.501(b)(1). Because the standard’s
language was unchanged and the parties tried the item as if correctly cited, the motion is
granted.
 16

front of the south wall of the third floor, there was a gap 13 inches wide and 60 inches long between
the outer wall and the floor. The side of the floor was unguarded and the drop to the floor below was
12 feet. A Cody employee had plugged an extension cord into an electrical outlet on the wall above
the gap, requiring him to reach over the gap, and the CO’s opinion was that the employee was
exposed to a trip-fall hazard. (Tr. 31-37, 89-92; CX-5).
The cited standard provides as follows:
Each employee on a walking/working surface ... with an unprotected side or edge
which is 6 feet (1.8m) or more above a lower level shall be protected from falling by
the use of guardrail systems, safety net systems, or personal fall arrest systems.
As I read it, the purpose of the standard is to guard against the hazard of falling over an
unprotected edge, not falling on a walking/working surface. Because the gap in this case was only
13 inches deep and directly against the wall, it would not have been possible for an employee to fall
over the unguarded edge. The only relevant evidence of a fall hazard offered by the Secretary was
the CO’s opinion that the lack of guarding presented a trip-fall hazard that could have caused
contusions, bruises or sprains. (Tr. 36-37). By contrast, a fall of 6 or more feet could cause more
serious injuries, such as broken bones. I find that the Secretary has not established that the standard
applies to the circumstances in this case. This citation item is accordingly vacated.
ALLEGED SERIOUS VIOLATION OF 29 C.F.R. 1926.502(i)(3)
During his inspection, CO Sampsel also noticed that a steam vent maintenance hole was only
partially covered by a piece of plywood. The hole, which measured 26 by 37 inches, was 12 feet in
front of the main entrance to the construction site. A photograph taken by the CO shows
deteriorating concrete and steel rods in the part of the hole not covered by the plywood. The CO
concluded that the condition violated the cited standard and that the violation was serious because
it presented a trip-fall hazard that could result in sprains, strains and contusions. (Tr. 39-45, CX 6-8).
Section 1926.502(i)(3), which pertains to covers over holes in floors, roofs, and other
walking/working surfaces, requires that “all covers be secured when installed so as to prevent
accidental displacement by the wind, equipment, or employees.” The plywood cover did not fully
cover the hole and could easily be displaced. Employees walked over or by the hole when they
 17

entered and exited the work site, and the cover and hole were in plain view and easily observable by
the Cody supervisor. I find that the Secretary has established a violation of the cited standard.13
Although the Secretary has characterized this item as a serious violation, I conclude she has
not demonstrated a substantial probability that the condition could have led to death or serious injury.
See section 17(k) of the Act. Rather, the Secretary’s evidence shows that the violation could have
resulted in sprains, strains and contusions. This item is affirmed as an other-than-serious violation.
DOCKET NO. 99-0914
ALLEGED SERIOUS VIOLATION OF 29 C.F.R. 1926.403(i)(2)(i)
On April 9, 1999, CO Richard Burns inspected a construction and renovation project at
Marysville Hospital, where Cody was the general contractor. On a wall just left of a staircase on the
second floor, Burns observed two electrical panels without face covers. The panels had been installed
by the electrical contractor, not Cody. The exposed panels were live and operating at 120 volts.
Burns interviewed two Cody employees, who acknowledged that they walked by the panels several
times a day to access the work area on the second floor and that in doing so they came within 2 feet
of the panels. The CO testified that the unguarded panels posed an electrocution hazard because an
employee passing by could stumble and fall against them. (Tr. 139, 142-47, 154-59; CX-9).
Section 1926.403(i)(2)(i) requires that live parts of electrical equipment operating at 50 volts
or more be guarded against accidental contact by cabinets or other protective means. The Secretary
has shown that to get to and from their work area, two Cody employees were exposed to two
unguarded and otherwise unprotected 120-volt panels. While Cody did not create or control the
hazard, its employees were exposed to the violative conditions. Because the exposed panels were in
plain view where Cody’s job supervisor could easily have discovered them, Cody is charged with
knowledge of the hazard. The Secretary has established the alleged violation, which was serious as
it could have led to serious injury or death. This item is affirmed as a serious violation.
PENALTIES

    13
      Cody’s argument that the cited standard does not apply to cast iron manhole covers

or steel grates used on streets or roadways is irrelevant as there is no evidence that the hole
was in a roadway.
 18

    In accordance with section 17(j) of the Act, the Commission is to give due consideration to

the gravity of the violation and the employer’s size, history and good faith when determining
penalties. The gravity of the violation, generally the most significant factor, depends upon such
matters as the number of employees exposed, the duration of the exposure, the precautions taken
against injury, and the likelihood that an injury would result. J.A. Jones Constr. Co., 15 BNA OSHC
2201, 2214 (No. 87-2059, 1993).
In Docket No. 99-0912, Citation 1, Item 1, the Secretary proposed a penalty of $675.00 for
the failure to use a GFCI. This violation has been found to be other-than-serious rather than serious
as alleged. The CO rated both the severity and probability as lesser and gave credit for size and good
faith, but not for history because Cody had been cited within the last three years. (Tr. 19). In view
of one employee having been exposed for an undetermined period of time to a very slight hazard, I
find that a penalty of $100.00 is appropriate for this item. For Item 2 of Citation 1, the fall protection
violation, the CO recommended a penalty of $1,125.00, rating the severity as higher and the
probability as lesser because of the dry conditions. (Tr. 29-30). Although the duration of the two
employees’ exposure was at most a few hours, I conclude that the hazard of falling 11 or more feet
from the roof to the ground renders appropriate the proposed penalty of $1,125.00.
In Docket No. 99-0913, a penalty of $675.00 was proposed for Citation 1, Item 2. This item,
involving the unsecured cover, has been found to be an other-than-serious violation. The CO rated
both the severity and probability as lesser and gave credit for size and good faith, but not for history.
I conclude that an injury was unlikely and that the severity of any injury would have been slight. I also
note that Cody initiated abatement immediately. (Tr. 45-46). However, in view of the number of
employees exposed to the hazard, I find that a penalty of $300.00 is appropriate.
In Docket No. 99-0914, Citation 1, Item 1, the CO proposed a penalty of $1,000.00 for the
two unguarded electrical panels. The CO determined the severity to be higher and the probability to
be lesser, and no credit was given for either history or good faith. The CO testified that Cody’s
superintendent was uncooperative, but he offered no specifics in this regard. (Tr. 147-50). Cody, on
the other hand, offered evidence that both its safety program and toolbox talks at the site had covered
electrical hazards. (RX-1-2). Only two employees were exposed briefly as they entered and exited
the second floor. In addition, while Cody was the general contractor, it had no direct authority over,
 19

and no contractual relationship with, the electrical contractor that created and controlled the hazard.
However, there is no evidence that Cody made any attempt to have the electrical contractor cover
the panels or took any steps to protect its employees. Based upon all of these factors, I conclude that
a penalty of $400.00 is appropriate.
FINDINGS OF FACT
The foregoing constitutes my findings of fact in accordance with Federal Rule of Civil
Procedure 52(a). Any proposed findings of fact inconsistent with this decision are hereby denied.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction of this matter pursuant to section 10(c) of the Act.
2. Cody was not in violation of 29 C.F.R. § 1926.501(b)(1).
3. Cody was in other-than-serious violation of 29 C.F.R. §§ 1926.404(b)(1)(i) and
1926.502(i)(3), and penalties of $100.00 and $300.00, respectively, are appropriate.
4. Cody was in serious violation of 29 C.F.R. §§ 1926.403(i)(2)(i) and 1926.501(b)(11), and
penalties of $400.00 and $1,125.00, respectively, are appropriate.
ORDER
On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ordered that:
1. In Docket No. 99-0912, Item 1 of Citation 1 is affirmed as an other-than-serious violation,
and Item 2 of Citation 1 is affirmed as a serious violation. Penalties totaling $1,225 are imposed.
2. In Docket No. 99-0913, Item 1 of Citation 1 is vacated and Item 2 of Citation 1 is affirmed
as a serious violation. A penalty of $300.00 is assessed for Item 2.
3. In Docket No. 99-0914, Item 1 of Citation 1 is affirmed as a serious violation, and a penalty
of $400.00 is assessed.

                                                           /s/
                                                   Ann Z. Cook
                                                   Judge, OSHRC

Dated: 22 MAY 2000
Washington, D.C.
 20

Secretary of Labor,
Complainant, OSHRC Docket Nos.
v.
00-0040 & 00-0222

                                                      (Consolidated)

APPEARANCES

           Heather A. Joys, Esq.                          Roger L. Sabo, Esq.
           Office of the Solicitor                        Schottenstein, Zox & Dunn
           U. S. Department of Labor                      Columbus, Ohio
           Cleveland, Ohio                                        For Respondent
                    For Complainant

Before: Administrative Law Judge Ken S. Welsch

                                DECISION AND ORDER
   Cody Zeigler, Inc. (Cody) is a general trades construction contractor in central and

southeastern Ohio. Cody employs approximately 80 employees, usually has 10 to 15 projects a year,
and makes 12 to 15 million dollars per year (Tr. 8, 115). In December, 1999, Cody was the general
contractor for two construction projects: (1) construction of a new office building for Ohio State
University Science Department in Columbus, Ohio, and (2) construction of a new high school for the
Lakewood Board of Education in Hebron, Ohio.
On December 21,1999, the Occupational Safety and Health Administration (OSHA) inspected
Cody’s Ohio State University project in Columbus, Ohio, under its planned inspection program.
Cody permitted the inspection without a warrant (Tr. 74, 75). As a result of the inspection, OSHA
issued a serious citation (Docket No. 00-0040). The citation alleges that Cody did not comply with
29 C. F. R. § 1926.405(b)(2) by failing to have a faceplate on an electrical outlet box. The citation
proposes a penalty of $675. Cody denies that the uncovered electrical outlet box was a shock hazard.
On December 30, 1999, OSHA inspected Cody’s high school project in Hebron, Ohio, also
under its planned inspection program. Cody again permitted the inspection without a warrant
(Tr. 17). As a result of this inspection, OSHA issued a serious citation (Docket No. 00-0222). The
 21

citation alleges that Cody did not comply with 29 C. F. R. § 1926.25(a) by failing to keep the ramp
area of Building B clear of forming pins protruding from the ground. The citation proposes a penalty
of $525. Cody denies that the forming pins were debris.
A hearing on the consolidated cases was held in Columbus, Ohio, on May 22, 2000.
Jurisdiction and coverage are stipulated (Tr. 4-5). Cody contests both citations. Nonetheless, Cody’s
primary dispute is OSHA’s repeated number of inspections of its worksites. Since February, 1998,
Cody has been inspected eleven times by OSHA (Tr. 11). Cody claims § 8(a) of the Occupational
Safety and Health Act (Act) as an affirmative defense.
For the reasons discussed, Cody’s § 8(a) defense is rejected. The violation of
§ 1926.405(b)(2) (University project) is affirmed and the violation of § 1926.25(a) (high school
project) is vacated.

                            PROCEDURAL BACKGROUND
      Initially the consolidated cases were assigned for E-Z Trial proceedings. On February 28,

2000, Cody moved to remove the cases from E-Z Trial because of the complex nature of its § 8(a)
defense and the need to conduct discovery to support its defense. Over the objections of the
Secretary, the cases were removed from E-Z Trial by Order dated March 10, 2000. The hearing was
scheduled for May 22, 2000.
On May 10, 2000, Cody moved to compel discovery as to certain of its interrogatories and
requests for production of documents. On May 16, 2000, Cody sought a continuance of the hearing
in order to take additional discovery on its affirmative defense. Cody requested documents and
information used by the Columbus, Ohio OSHA Area Office in its inspection selection process,
including the programmed inspection criteria. The Secretary objected as not relevant to any issue
before the court. The court agreed and denied the motion to compel on May 17, 2000. Since no
additional responses or documents were required, the motion for continuance of the hearing was also
denied.
On May 18, 2000, the Secretary moved to quash a subpoena duces tecum issued to Deborah
Zubaty, OSHA Area Director of the Columbus, Ohio, office. The subpoena duces tecum sought the
same documents as rejected by the court in Cody’s motion to compel. Also, Cody in its prehearing
 22

exchange described Zubaty’s expected testimony to involve “the manner by which companies are
selected for planned or focused inspections in the construction industry and the criteria utilized by the
Columbus Area Office for the assignment of planned inspections in the construction industry.” The
court by order dated May 19, 2000, granted the motion to quash.
During the hearing on May 22, 2000, Cody offered copies of computer printouts of
inspections conducted by OSHA in central Ohio (Exhibit R-5) and Dodge Reports received by Cody
during February, 2000 (Exhibit R-6). The court rejected both exhibits.

                                SECTION 8(a) DEFENSE
    Cody argues that OSHA’s planned inspections of its worksites were unrealistically numerous

and therefore not reasonable under § 8(a) of the Act. Cody asserts that it could not establish its
defense because it was precluded from obtaining information which may show OSHA’s unreasonable
conduct (Respondent’s Brief, pp. 8-12).
Section 8(a) provides:
(a) In order to carry out the purposes of this Act, the Secretary, upon presenting
appropriate credentials to the owner, operator, or agent in charge, is authorized –
(1) to enter without delay and at reasonable times any factory, plant,
establishment, construction site, or other area, workplace or
environment where work is performed by an employee of an
employer; and
(2) to inspect and investigate during regular working hours and at
other reasonable times, and within reasonable limits and in a
reasonable manner, any such place of employment and all pertinent
conditions, structures, machines, apparatus, devices, equipment, and
materials therein, and to question privately any such employer, owner,
operator, agent or employee.

                                     Warrant Inspection
    The Supreme Court has held that the Fourth Amendment requires OSHA to obtain a warrant

in order to conduct a nonconsensual inspection. Marshall v. Barlow’s, Inc., 436 U. S. 307 (1978).
A warrant showing that a specific business has been chosen for an OSHA search on the basis of a
 23

general administrative plan for the enforcement of the Act derived from neutral sources . . . would
protect an employer’s Fourth Amendment rights. Id. at 320-321. A finding of administrative
probable cause by a magistrate for a programmed inspection is based on a determination that the
Secretary’s administrative inspection plan is neutral and that the selection of an employer for
inspection is pursuant to an application of the plan’s neutral criteria. In re Trinity, 876 F.2d 1485,
1490 (11th Cir. 1989). In challenging a warrant, the employer is limited to contesting whether the
material in the warrant application presented to the magistrate was sufficient to establish probable
cause unless there is a substantial preliminary showing that false evidence was either knowingly and
intentionally or recklessly presented to the magistrate. Franks v. Delaware, 438 U. S. 154, 171-172
(1978); Tri-State Steel Construction, Inc., 15 BNA OSHC 1903, 1917 (Nos. 89-2611 and 89-2705,
1992). Courts have denied employers access to the underlying documents upon which an OSHA
inspection plan is based unless the employer can prove that the agency did not follow the plan or that
fraud was involved. Donovan v. Trinity Industries, Inc., 824 F.2d 634, 637 (8th Cir. 1987) and
Donovan v. Hackney, Inc., 769 F.2d 650 (10th Cir. 1985), cert. denied 475 U. S. 1081 (1986).
The OSHA inspections in this case were conducted according to a scheduled programmed
inspection plan. Cody claims that OSHA’s scheduled inspection plan is unreasonable. The
appropriate procedure for challenging the criteria used in selecting an employer for a scheduled
programmed inspection is in the context of challenging the warrant application. Cody did not assert
its rights at the proper time – the time of the inspection. Stephenson Enterprises, Inc. v. Marshall,
578 F.2d 1021, 1024 (5th Cir. 1978). Cody consented to both inspections; therefore, no warrants
were obtained. By consenting to both inspections, Cody waived its Fourth Amendment right to
review the probable cause basis for inspection.

                                  Consensual Inspection
   Even though Cody waived its Fourth Amendment rights by not requesting a warrant for

inspection in both cases, it is not precluded from claiming that the inspections were unreasonable
under § 8(a) of the Act. Hamilton Fixtures, 16 BNA OSHC 1073, 1078 (No. 88-1720, 1993),
aff’d. 28 F.3d 1213 (6th Cir. 1995). Cody does assert its claim under § 8(a).
 24

    To establish the § 8(a) affirmative defense of unreasonable inspection, the employer must

prove unreasonable conduct by OSHA. Hamilton at 1078. Additionally, the employer must show
that OSHA substantially failed to comply with the provisions of § 8(a) and such noncompliance
substantially prejudiced the employer. Gem Industrial, Inc., 17 BNA OSHC 1184, 1187 (No. 93-
1122, 1995). However, the language of § 8(a) applies only to the actual on-site inspection by OSHA.
L. R. Willson and Sons, Inc., 17 BNA OSHC 2059, 2061 (No. 94-1546, 1997).
In this case Cody did not allege and did not seek to prove any misconduct on the part of either
of the OSHA compliance officers or misconduct in the manner of their on-site inspections. Cody has
not established a violation of § 8(a) of the Act. Therefore, its unreasonable inspection defense fails.

    Cody’s § 8(a) defense in this case is similar to the consolidated cases involving Cody, decided

May 12, 2000, by Administrative Law Judge Cook. Cody’s argument in that case was that it was
denied a fair hearing by the exclusion of evidence relevant to its § 8(a) affirmative defense. In
rejecting Cody’s § 8(a) defense, Judge Cook noted that Cody had consistently been unwilling or
unable to define its affirmative defense, cite any legal basis, and present evidence to make a threshold
showing of its defense. The burden is on Cody to identify the basis of its defense, not merely
speculate and seek discovery. Secretary of Labor v. Cody-Zeigler, Inc., OSHRC Docket Nos. 99-
0912, 99-0913, and 99-0914 (Decision of ALJ Cook, May 12, 2000), directed for review by Review
Commission (June 20, 2000).

                                ALLEGED VIOLATIONS
    The Secretary has the burden of proving, by a preponderance of the evidence, a violation of

a standard.
In order to establish a violation of an occupational safety or health standard, the
Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the
employer’s noncompliance with the standard’s terms, (c) employee access to the
violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation (i.e., the employer either knew, or with the exercise of reasonable diligence
could have known, of the violative conditions).

Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
 25

                              DOCKET NO. 00-0040
                        ALLEGED § 1926.405(b)(2) VIOLATION
    OSHA Compliance Officer (CO) John Sahayda was assigned to inspect Cody’s building

construction site at Ohio State University in Columbus, Ohio. On December 21, 1999, CO Sahayda
held an opening conference with the Cody job superintendent, Mark Shaner, at the site (Tr. 74).
Shaner accompanied CO Sahayda on the walk-around inspection. Three Cody employees were on
site. The worksite was in the initial stage of construction. CO Sahayda observed digging and grading
for foundation work (Tr. 75).
After the inspection CO Sahayda held a closing conference with Shaner in the Cody job trailer
(Tr. 76). He pointed out to Shaner an electrical outlet box in the trailer that did not have a faceplate
or cover. The outlet was 110 volts. A heater was plugged into the outlet and was running. The
electrical outlet box was about five feet above the floor on a partition in the trailer. Shaner said that
he was aware of it and had mentioned it to the electricians but they had not returned to install a
faceplate (Exh. R-4; Tr. 77, 96, 102).
A citation was issued for violation of § 1926.405(b)(2) alleging that the electrical outlet box
in the job trailer did not have a faceplate or cover. Section 1926.405(b)(2) provides in pertinent part:
Covers and canopies. All pull boxes, junction boxes, and fittings shall be provided
with covers.

                                          Discussion
    The electrical outlet box did not have a faceplate as required by § 1926.405(b)(2). This

condition exposed employees to an electric shock hazard. The lack of a faceplate was in plain view.
The employees entered the job trailer to warm up, eat lunch, and meet at break time (Tr. 78). Also,
Shaner, who was aware of the missing faceplate, regularly used the trailer as his office.
Accordingly, the violation of § 1926.405(b)(2) is affirmed as serious. The nature of the injury
from electrical shock could be serious. Based on the size of the company, history of violations and
gravity of the violation, a penalty of $100 is assessed.

                               DOCKET NO. 00-0222
                          ALLEGED § 1926.25(a) VIOLATION

26

   OSHA Compliance Officer Charles Sampsel inspected Cody’s construction site at Lakewood

high school in Hebron, Ohio. On December 30, 1999, when CO Sampsel entered the job site, he met
Cody’s superintendent, Mark Robinson, and conducted an opening conference (Tr. 16). CO Sampsel
was asked to wait to begin his inspection until Cody’s consultant, John Ogle, could arrive (Tr. 16).
CO Sampsel conducted the walk-around inspection with Mr. Robinson and Mr. Ogle. Approximately
15 employees were on site (Tr. 18). The project was approximately fifty percent complete (Tr. 17).
During the inspection CO Sampsel observed approximately 6 forming pins sticking out of the
ground in the ramp area of Building B (Exh. C-1; Tr. 19, 20). Forming pins were approximately 18
– 19 inches long, one-half inch wide, weigh two pounds, and have holes through them (Tr. 44, 111-
113). The pins were driven into the ground in order for formwork (wood) to be nailed in place
through holes in the forming pin (Tr. 111). Concrete is then poured into the form (Tr. 45, 111).
When the concrete is cured, the form and forming pins are removed. The forming pins are used over
and over again (Tr. 112).
Robinson told CO Sampsel that the forming pins were sticking up in the ground because a
vehicle had hit the forms and the lumber had to be discarded (Tr. 22, 64). The accident occurred the
day before the inspection (Tr. 64). The forming pins had been left exposed for a day and were in
place for other forms to be placed at those pins so that concrete could be poured to complete the
ramp (Tr. 64).
A citation was issued for violation of § 1926.25(a) in that Cody did not keep the ramp area
of Building B clear of forming pins protruding from the ground. Section 1926.25(a) states:
(a) During the course of construction, alteration, or repairs, form and scrap lumber
with protruding nails, and all other debris, shall be kept cleared from work areas,
passageways, and stairs, in and around buildings or other structures.

                                        Discussion
   A forming pin is a piece of construction equipment that will be used again and again. The

compliance officer admitted it was equipment (Tr. 45). The forming pins were not laying around but
were protruding from the ground because forms were going to be reinstalled and concrete poured.
Equipment is not considered “debris” within § 1926.25(a). Gallo Mechanical Contractors, Inc., 9
 27

BNA OSHC 1178, 1180 (No. 76-4371, 1980). In this case, the forming pins were not debris under
the standard. Therefore, § 1926.25(a) does not apply.
Also, the Secretary failed to show exposure. The testimony indicates that one employee was
seen in the area and employees used the ramp to access the building (Tr. 23, 50). However, this
evidence fails to establish that the employees were in a zone of danger sufficient to be exposed to a
tripping hazard posed by the protruding forming pins, especially in light of the fact that the pins were
up for purposes of a concrete pour.
The violation of § 1926.25(a) is vacated.

                FINDINGS OF FACT AND CONCLUSIONS OF LAW
    The preceding decision constitutes the findings of fact and conclusions of law in accordance

with Rule 52(a) of the Federal Rules of Civil Procedure.

                                           ORDER
    Based upon the preceding decision, it is hereby ORDERED that:

Docket No. 00-0040:
Item 1, alleged serious violation of § 1926.405(b)(2), is affirmed as serious and a penalty of
$100.00 is assessed.
Docket No. 00-0222:
Item 1, alleged serious violation of § 1926.25(a), is vacated and no penalty is assessed.

                                                   /s/

                                           KEN S. WELSCH
                                           Judge

Date: October 30, 2000