Bailey Construction Company (Commission decision, September 29, 1978)

Plain-English summary

A compliance officer inspected a small general contractor working inside the laundry building at a New York State correctional facility in Coxsackie, breaking out a hole in the concrete floor to set a scale frame. Two employees were on site, a foreman named Feeley and a laborer named Willingham. A Rockwell hand saw belonging to the company lay on the floor with its grounding prong snapped off, and there was water on the concrete. Nobody was using the saw. When the officer pointed out the hazard, Feeley walked to the truck and came back with a properly grounded replacement.

Judge Foster Furcolo vacated that item. He found everything the Secretary needed except use: he found the foreman intended to use a saw at the jobsite, and he found that a concrete floor plus water plus a broken grounding plug would produce a shock hazard if an ungrounded saw were used. But he held the Secretary had not proved the saw had been used or would be, reasoning that an employee needing a saw would be as likely to fetch the good one as to pick up the bad one.

The Commission reverses, Commissioner Barnako writing. The rule is that under the grounding standard the Secretary need only show a defective tool was available for use. That is drawn from Palmer Christiansen Co., No. 3108, decided in 1976, with Gilles and Cotting, Inc., No. 504, also 1976, cited alongside. Availability was undisputed here, so the burden was met.

The Commission then answers the judge's probability reasoning on its own terms, and this is the part worth reading. It says it is more likely than not that an employee needing a saw would use the one immediately at hand rather than go somewhere else to get another. So the judge's assumption was not merely unproved, it was backwards. The Commission adds a second sentence that does real work: because Bailey had not shown it took any specific steps to prevent its employee from using the ungrounded tool, the violation stood. Availability establishes the case; what rebuts it is evidence of preventive measures, not speculation about which tool a worker would have reached for. The compliance officer had testified that the common practice is to tag equipment set aside for repair and that this saw was not tagged, which is exactly the kind of step that was missing. The $50 penalty the Secretary proposed is assessed.

The scope of the decision is narrow and the reason is procedural. Footnote 2 explains that the Secretary petitioned for review of the grounding item alone, review was directed on that item by Chairman Cleary, and although former Commissioner Moran also issued a for-error direction for review, neither party took exception to the judge's disposition of anything else. So the other three items were not before the Commission, on the authority of Water Works Installation Corp., No. 4136, 1976. Judge Furcolo's rulings on those items stand as his, not as Commission precedent.

That procedural point has a consequence worth spelling out, because it is the most interesting thing in the appended decision. Bailey had moved to dismiss on the ground that the inspection was conducted without a search warrant. The judge found the officer had no warrant, had not applied for one, and had not told the company's representative he could object or consult counsel. He rejected the challenge anyway, on the ground that the jobsite was not Bailey's premises at all but a third party's property, the State of New York, whose agent had let the officer in, and that Bailey's own superintendent had permitted the inspection. He ruled the inspection proper and legal. He issued that ruling on January 24, 1977. The Supreme Court held in Marshall v. Barlow's, Inc., 436 U.S. 307, that warrantless OSHA inspections of an employer's premises require consent or a warrant; that decision came down on May 23, 1978, sixteen months after the judge ruled and four months before this Commission decision issued. Because Bailey never excepted to the warrant ruling, the Commission never reached it, and nothing here should be read as the Commission passing on the warrant question before or after Barlow's. A reader should treat the judge's warrant analysis as a snapshot of pre-Barlow's practice rather than as law.

Two other pieces of the judge's decision are worth knowing about even though they were not reviewed. He allowed the Secretary to amend the eye protection citation at hearing to change pavement clipper to pavement chipper or hammer, finding the misnomer an inadvertent typographical error that prejudiced nobody. And on the eye protection item he took a position on a question he acknowledged had authority running both ways, holding that a standard requiring an employer to provide equipment obliges it not merely to supply the equipment but to take adequate positive steps to see the equipment is used, and finding additionally that goggles sitting in a truck outside the building were not provided at the jobsite at all. He also found Bailey affected interstate commerce only infinitesimally as a practical matter but did so in the technical legal sense, and he assessed $100 against a proposed $500 after crediting the owner's good faith.

A note on the docket number. This corpus files the case as 76-0154; the released document heads itself Docket No. 76-154, without the padding zero. Same case.

This release is badly damaged at the character level and it is the worst example I have handled. Every apostrophe and every quotation mark in the file has been replaced by a substitution artifact, without exception, along with the en dashes inside citation year spans and the section symbols. The words are intact and the substance is fully readable, but no possessive and no quoted phrase survives as typed. Nothing below has been corrected.

Beyond the character damage there are genuine textual defects, and these are named rather than repaired. The judge's finding on the inspection contains a garbled clause stating the officer had as much right to the where he was, where the sense requires to be where he was. His poster finding cites the standard as section 1903(2)(a) rather than 1903.2(a). Finding of fact 6 refers to the conditions described in Item 3 of Citation #1 while describing missing first-aid materials, which are the subject of Item 2. The eye protection narrative reads that Feeley said that were protective glasses in the truck, dropping a word. And the judge's recital of the grounding standard abridges it to portable and/or plug-connected equipment shall be grounded, which drops the phrase noncurrent-carrying metal parts of that opens the actual text; footnote 1 of the Commission decision quotes the standard in full, so the document contains both the abridged and the complete version.

How this document is arranged: the Commission decision by Commissioner Barnako comes first and is short, ending with the executive secretary block signed by Ray H. Darling, Jr., dated September 29, 1978. Judge Furcolo's decision and order of January 24, 1977 follows in full, beginning with a fresh caption and the appearances, and runs through his motions rulings, evidence, findings of fact, conclusions of law and order. The Commission's two footnotes sit at the very end, after the judge's signature, and belong to the Commission decision at the top rather than to the judge's decision they follow.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.401(a)(1), requiring noncurrent-carrying metal parts of portable and plug-connected equipment to be grounded. The appended judge's decision also disposed of 29 C.F.R. § 1926.102(a)(1) on eye protection, § 1926.50(d)(2) on first-aid kits, and § 1903.2(a) on posting, none of which were before the Commission
• Outcome: Affirmed. The judge's vacation of the grounding item is reversed, the citation for nonserious violation is affirmed, and a penalty of $50 is assessed
• Key point: To prove a grounding violation the Secretary need only show the defective tool was available for use. Actual use, or proof that use was likely, is not an element. A judge who demands it has added a requirement the standard does not contain
• Also decided: The Commission rejects as unconvincing the inference that a worker needing a saw is as likely to fetch a good one as to use the defective one at hand, holding the opposite more probable. What answers an availability showing is evidence of specific preventive steps, and Bailey offered none; the defective saw was not even tagged, though tagging equipment set aside for repair is common practice. Items the parties did not except to are not before the Commission on review
• Related: Palmer Christiansen Co., Docket 3108, the source of the availability rule; Gilles and Cotting, Inc., Docket 504, cited with it; Water Works Installation Corp., Docket 4136, on the scope of review

Full text (OSHRC public release)

false
false
false

EN-US
X-NONE
X-NONE

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

�������������������������������������������� Complainant,

������������������������ v.

OSHRC
DOCKET NO. 76-154

BAILEY CONSTRUCTION COMPANY,

��������������������������������������������� Respondent.

September 29, 1978

DECISION

Before: CLEARY, Chairman; BARNAKO and COTTINE,
Commissioners.

BARNAKO, Commissioner:

����������� Administrative Law Judge Foster Furcolo vacated that item of a citation alleging Bailey Construction Company�s failure to comply with the standard at 29 C.F.R. 1926.401(a)(1) [1] on the ground that the Secretary did not prove that a defective saw had actually been used or would be used by Bailey�s employee. We conclude the judge erred. [2]

����������� The citation was issued to Bailey after an OSHA compliance officer inspected its worksite, a correctional facility in New York State, where two of Bailey�s employees, a foreman and a laborer, were engaged in alteration and repair at the laundry building. Specifically, they were preparing a hole in the concrete floor for the installation of a scale frame.

����������� A Rockwell hand saw belonging to Bailey was lying on the floor with the grounding prong snapped off. When the compliance officer informed the foreman that an electrical hazard existed if the saw were used, the foreman went to Bailey�s truck and obtained a replacement saw with a proper grounding plug.

����������� The defective saw was not used during the inspection. The compliance officer testified the laborer, who was 15 feet from the saw, would have no occasion to use it. However, Bailey�s President testified that the foreman was a carpenter who possibly might use the saw to cut wood formwork for the hole after the concrete had been broken out.

����������� In vacating the citation Judge Furcolo stated that the Secretary failed to show that Bailey�s employee used or would be likely to use the defective saw. Although he specifically found that the foreman intended to use a saw at the jobsite and that the hazard of electric shock existed if an ungrounded saw were used, he reasoned that an employee who needed such a saw would be �as likely� to replace it with the other saw as to use one with a defective plug.

����������� We conclude that the Judge erred in vacating the citation. In Palmer Christiansen Co., 76 OSAHRC 39/D10, 4 BNA OSHC 1020, 1975�76 CCH OSHD para. 20,517 (No. 3108, 1976), we held that, in order to prove a violation of 29 C.F.R. 1926.401(a)(1), the Secretary need only show that a defective tool was available for use. That burden has been satisfied here. See also Gilles and Cotting, Inc. 76 OSAHRC 30/D9, 3 BNA OSHC 2002, 1975�76 CCH OSHD para. 20,448 (No. 504, 1976).

����������� The Judge�s reasoning as to why the foreman would not be likely to use the defective saw is unconvincing. We think it is more likely than not that an employee having need of a saw would use one immediately available at the worksite than go to some other location to obtain one. Since Bailey has not shown that it took any specific steps to prevent its employee from using the ungrounded tool, we conclude it violated the cited standard. Gilles
& Cotting, Inc., supra, 3 BNA OSHC at 2004, 1975�76 CCH OSHD at p. 24,425. We also conclude that the penalty of $50 proposed by the Secretary is appropriate.

����������� The citation for nonserious violation of 29 C.F.R. 1926.401(a)(1) is affirmed, and a penalty of $50 is assessed.

�

FOR THE COMMISSION:

�

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: September 29, 1978

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY
OF LABOR,

�������������������������������������������� Complainant,

������������������������ v.

OSHRC
DOCKET NO. 76-154

BAILEY CONSTRUCTION COMPANY,

��������������������������������������������� Respondent.

January 24, 1977

APPEARANCES

Rudolph E. DeMeo,
Esq. For Complainant

John Perez, Jr.,
Esq. For Respondent

�

DECISION
AND ORDER

Furcolo, Judge:

����������� This is a proceeding pursuant to the Occupational Safety and Health Act of 1970, as amended (29 U.S.C. � 651 et seq.), hereinafter called the Act. The Complainant alleges that the Respondent has violated � 5(a)(2) of the Act (� 654) by not complying with occupational safety and health standards.

����������� The Respondent is a corporation engaged in the business of general construction, and its business affects the commerce of the United States.

����������� The Respondent�s worksite at the New York State Correctional Facility, Coxsackie, New York, was inspected by the Occupational Safety and Health Administration (hereinafter called OSHA) on December 24, 1975.

����������� On December 30, 1975, the following citations, together with notice of proposed penalty, were issued against the Respondent:

����������� Citation #1

����������� Item #1, the nonserious violation of standard 29 C.F.R. � 1903.2(a)..... $0

����������� Item #2, the nonserious violation of standard 29 C.F.R. � 1926.50(d)(2)..... $0

�

����������� Item #3, the nonserious violation of standard � 1926.401(a)(1)..... $50

����������� Citation #2

����������� Item #1, the serious violation of standard 29 C.F.R. � 1926.102(a)(1)..... $500

����������� On January 13, 1976, the Respondent filed notice of contest to the citations and the penalties proposed therefor.

����������� On January 29, 1976, the Respondent filed with the OSHA Regional Director a request for an informal conference.

����������� The pertinent words of the standards involved are:

� 1903.2(a):
Employer shall post an OSHA poster �to be furnished by the Occupational Safety and Health Administration . ...�

�

� 1926.50(d)(2):
�The first-aid kit shall consist of materials approved by the consulting physician . . . checked by the employer . . . to ensure that the expended items are replaced.�

�

� 1926.401(a)(1):
�. . . portable and/or plug-connected equipment shall be grounded.�

�

� 1926.102(a)(1):
�Employees shall be provided with eye and face protection equipment . . ..�

�

� 1903.19: �At the
request of an affected employer . . . the Assistant Regional Director may hold an informal conference for the purpose of discussing any issues raised by an inspection, citation . . ..�

MOTIONS

����������� I. Respondent�s Motion to Dismiss

����������� At the beginning of the hearing, the Respondent moved to dismiss the citation on three grounds:

����������� 1. Its business did not affect interstate commerce,

����������� 2. The Complainant had violated his own internal procedure by not affording the Respondent an informal conference,

����������� 3. The inspection was improper and illegal because it was conducted without having first obtained a search warrant.

����������� The motion was taken under advisement pending the presentation of evidence . . . Tr. 3�9.

����������� Concerning the interstate commerce, the Respondent stipulated that it had done Federally-funded work within the last three years; and it deals generally in its business in interstate commerce but not at this particular jobsite . . . Tr. 19, 22, 60.

����������� I find that, although practically and factually the Respondent�s business affects interstate commerce only infinitesimally at most, it does affect interstate commerce in the technical legal sense.

����������� As concerns the Secretary�s failure to grant the Respondent an informal conference: The Respondent�s letter requesting an informal conference was sent on January 29 whereas its notice of contest had already been filed on January 13. However, even if the Secretary had failed to grant any timely request, I find that such failure did not invalidate the citation or prejudice the Respondent in its defense.

����������� As concerns the inspection: Compliance Officer Sullivan testified that he was admitted to the correctional facility by a guard who conducted him to the jobsite in its laundry building where the Respondent was doing a repair and alteration job. He presented his credentials to Feeley, who told him he was in charge and represented the Respondent, and Feeley accompanied him on the walk-around . . . Tr. 26, 27, 48. He did not have a search warrant and had not applied for one. He did not tell Feeley he had a right to counsel or to object to the inspection. He told Feeley that he had a right to accompany him on the inspection . . . Tr. 35, 36. The Respondent�s President, Bailey, testified that Feeley was in charge of the jobsite in question . . . Tr. 12.

����������� I find that the compliance officer did not have a search warrant, had not applied for one, and did not tell the Respondent�s representative that he had a right to counsel or to object to the inspection. I find that the jobsite was not on the Respondent�s premises but was an alteration and repair project being conducted by Respondent at the New York State Correctional Facility, the property of a third person (New York State); the compliance officer had been given permission to enter by the property owner�s agent, a guard, and had as much right to the where he was as the Respondent; there was no search and seizure of any kind; and the Respondent�s superintendent permitted the compliance officer to make the inspection. I find the inspection was proper and legal.

����������� II. Complainant�s Motion to Amend

����������� In the early stages of the hearing, just after the compliance officer had testified to his qualifications, the Complainant�s attorney stated that, when the Complainant�s case was completed, he was going to move to amend the citation and complaint to conform to the evidence . . . Tr. 21. At the conclusion of the Complainant�s presentation of evidence, the Complainant moved to amend Item #1 of Citation #2, and paragraph V(a) of the complaint to change the words �pavement clipper� to �pavement chipper or hammer� . . . Tr. 51.

����������� The motion was allowed because the Respondent�s superintendent was present during the inspection, there had never been any question about the implement that was the subject of the citation, the misnomer was apparently an inadvertent typographical error, and the Respondent was not prejudiced in any way by the allowance of the motion to amend.

����������� III. The Respondent�s Motion to Dismiss

����������� After the Complainant had rested, the Respondent moved to dismiss the citations on the ground that interstate commerce was not affected. The Respondent also moved to dismiss paragraph V, section a-d, of the complaint on the ground that there was no evidence to substantiate those allegations.

����������� Those motions will be treated as denied for the reasons stated herein.

EVIDENCE

����������� The Respondent is a very small corporation that, for all practical purposes, is owned and operated by Mr. and Mrs. George E. Bailey, who are respectively its President and Secretary-Treasurer. It has a general superintendent and, directly below him in the organizational chart, various trade foremen who are temporary employees during particular jobs. Feeley was in charge of the jobsite in question. There was no evidence of any prior violations by the Respondent . . . Tr. 11, 12, 49.

����������� The Complainant�s case was presented primarily by Arthur J. Sullivan, who testified that he has been an OSHA compliance officer for 15 months and before that was for over 20 years a construction safety inspector and supervisor for the State of New York. He has conducted about 4,000 inspections in construction. (The Respondent agreed that he was fully qualified as an expert in construction matters . . . Tr. 24, 25.)

����������� Concerning Item #1 of Citation #1, Compliance Officer Sullivan testified that there was no OSHA poster at the jobsite. Feeley said he did not have a poster so he gave him one and he put it up . . . Tr. 27, 28. The Respondent�s President, Bailey, testified he had not received a poster from OSHA for the job . . . Tr. 56.

����������� In the absence of evidence that the Respondent had been furnished with an OSHA poster, I find that the Complainant has not sustained the burden of proving noncompliance with standard � 1903(2)(a).

����������� Concerning Item #2 of Citation #1, Compliance Officer Sullivan testified that several articles were missing from the first-aid kit; and Feeley said he would take care of it . . . Tr. 28, 33, 36. The Respondent�s President, Bailey, testified that the practice was to have a first-aid kit in every vehicle. He inspects from time to time but does not know about the one in question here . . . Tr. 62.

����������� I find that the first-aid kit was substandard and that required articles were missing from it.

����������� Concerning Item #3 of Citation #1, Compliance Officer Sullivan testified that the grounding plug of the electric saw was snapped off; the saw could not be grounded. There was water on the concrete floor at the jobsite. He did not see the saw being used and it was not connected, but it was in the immediate work area laying on the floor . . . Tr. 28, 38. The employee, Willingham, who was chipping, was 15 feet away from the saw, but he would not have any use for that implement because he was a laborer. The saw might have been there for Feeley�s use . . . Tr. 31, 40. Feeley said he would replace the saw with another; and he did with another one with a grounding plug . . . Tr. 28, 40. It is common practice to tag something that is to be removed for repair, but the saw was not tagged . . . Tr. 47. The hazard was the possibility of an electric shock to an employee using the saw . . . Tr. 28, 31. The Respondent�s President, Bailey, testified that the only two employees at the jobsite were Feeley and Willingham. It was possible that Feeley might need to use the saw . . . Tr. 49, 50.

����������� I find that the Respondent�s employee, Feeley, intended to use an electric saw at the jobsite. If it had not been intended to use such a saw, why would it have been brought there? And (when the defect was pointed out) replaced by another? I also find that the combination of concrete floor, water, and defective plug created the hazard of electrical shock to one of Respondent�s employees if an ungrounded saw were used. However, I find that the saw had not been used, and there was no proof that it would be used. An employee who needed such a saw would be as likely to replace it with the other saw as to use one with a defective plug. A saw in good working order was readily available and was brought in by Feeley as soon as the defective plug was called to his attention. In that state of the evidence, I find that the Complainant has not sustained the burden of proving noncompliance with standard � 1926.401(a)(1).

����������� Concerning Citation #2, Compliance Officer Sullivan testified that Joseph Willingham was chipping the concrete floor in an area 4�1/2 x 4�1/2 and 5 �� deep. He was chipping with a Bosch electric chipper, the concrete chips were flying, and he was not wearing glasses or any protective eye equipment. Both Willingham and Feeley told him that Willingham was the Respondent�s employee, and Feeley said that were protective glasses in the truck outside... Tr. 29, 30. That was not in the area of the jobsite . . . Tr.

41. It was a pavement chipper or hammer, and he was chipping down directly into
    the floor to make a hole for a steel frame to be installed . . . Tr. 37, 38. The hazard was that the flying chips could injure an employee or cause the loss of sight. The Respondent�s President, Bailey, testified that the Respondent supplies employees at the worksite with protective masks. The vehicles carry goggles . . . Tr. 31, 57.

����������� Is the Respondent required to do more than merely �provide� the protective equipment? There is authority both ways on the various standards that have such words as �supply� or �provide�. My own opinion is that the standard here requires the Respondent not only to �provide� the equipment but also to take adequate positive steps to see that the equipment is used. I find that the Respondent did not take such steps. In addition, I find that the protective equipment was not provided at the jobsite but was in a truck some slight distance outside the building in which the jobsite was located.

����������� I find that the Respondent�s employee, Willingham, was chipping concrete with an electric pavement chipper or hammer; concrete particles were flying, and he was not wearing any protective eye equipment; and there was a substantial probability that the employee could sustain serious injury or loss of sight from a particle striking him.

����������� Bailey also testified that he and his wife constitute the Respondent. He does his best to supervise and see that the Respondent complies with all OSHA regulations. The Respondent supplies first-aid kits and protective eye equipment and inspects from time to time to see if replacements are needed . . . Tr. 11, 54�57.

����������� I was very favorably impressed with both Mr. Bailey and Compliance Officer Sullivan; both were candid and direct in their testimony and, in my opinion, were honest and did not embellish the facts. Although the Respondent had constructive knowledge of the violations, I believe that the Respondent�s President had tried to have proper equipment available and comply with OSHA regulations. Having in mind the size of the Respondent, its good faith, and the other circumstances developed by the evidence, it does not seem to me that a large civil penalty is necessary.

FINDINGS
OF FACT

����������� Having heard the testimony, observed the witnesses, and examined the exhibits, the following Findings of Fact are made, in addition to those made under various paragraphs above:

����������� 1. At all times concerned, the Respondent regularly received, handled or worked with goods which had moved across state lines;

����������� 2. As concerns Item 1 of Citation #1, there was no OSHA poster at the jobsite, but the Respondent had not been furnished with one;

����������� 3. As concerns Item 2 of Citation #1, the first-aid kit did not contain all the essential items;

����������� 4. As concerns Item 3 of Citation #1, the electric saw was a plug-connected piece of equipment that was not grounded, but it had not been used and there was no proof that it was going to be used;

����������� 5. As concerns Item 1 of Citation #2, the Respondent�s employee was chipping concrete with an electric pavement chipper or hammer, and the Respondent had not provided him with eye protection equipment at the jobsite for that task. The Respondent had provided eye protection equipment but had not taken adequate steps to require said employee to use such equipment;

����������� 6. The conditions described in Item 3 of Citation #1 exposed the Respondent�s employees to sustaining harm because of the hazard of an injury that required first-aid materials that were missing;

����������� 7. The conditions described in Item 1 of Citation #2 exposed the Respondent�s employees to sustaining serious harm because of the hazard of concrete chips striking the face or eye;

����������� 8. One or more officers or supervisory personnel of the Respondent knew of the hazardous conditions described herein and knew the employees were exposed to such hazards;

����������� 9. The �informal conference� requested by the Respondent under Standard � 1903.19 was never granted, but the failure was not prejudicial to the Respondent�s defense.

CONCLUSIONS
OF LAW

����������� 1. At all times concerned, the Respondent was an employer engaged in a business affecting commerce within the meaning of the Act, and the Occupational Safety and Health Review Commission has jurisdiction over the subject matter and the parties;

����������� 2. At all times concerned, the Respondent knew, or with the exercise of due diligence should have known, of the alleged violations;

����������� 3. On the date in question, the Respondent was not in compliance with standards 29 C.F.R. � 1926.50(d)(2) and � 1926.102(a)(1), and the Complainant has sustained the burden of proving the Respondent violated � 5(a)(2) of the Act (� 654);

����������� 4. The Complainant has not sustained the burden of proving the Respondent violated 29 C.F.R. � 1903.2(a) and � 1926.401(a)(1);

����������� 5. The inspection conducted by the compliance officer was proper and legal;

����������� 6. The failure to grant the Respondent an �informal conference� under standard � 1903.19 did not invalidate the citation or give cause to dismiss the complaint.

ORDER

����������� The whole record having been considered and due consideration having been given to 29 U.S.C. � 666(j), it is ORDERED:

����������� 1. Item 2 of Citation #1 is affirmed;

����������� 2. Item 1 of Citation #2 is affirmed and a penalty of
$100 is assessed therefor;

����������� 3. Items 1 and 3 of Citation #1, and the penalties proposed therefor, are vacated

SO ORDERED.

�

FOSTER FURCOLO

Judge, OSHRC

Dated: January 24, 1977

Boston, Massachusetts

[1] 29 C.F.R.
1926.401(a)(1) provides:

(a) Portable and/or cord and plug
connected equipment.

(1) The noncurrent-carrying metal
parts of portable and/or plug connected equipment shall be grounded.

[2] The Judge also
vacated a citation item alleging a violation of 29 C.F.R. 1903.2(a) and affirmed items alleging violations of 1926.50(d)(2) and 1926.102(a)(1). He assessed a $100 penalty for the latter violation.

The
Secretary petitioned for review with respect to the Judge�s vacation of the citation for violation of 29 C.F.R. 1926.401(a)(1), and review was directed on that item by Chairman Cleary. Although former Commissioner Moran also issued a �for error� Direction for Review, the parties have only addressed the Judge�s disposition of the 29 C.F.R. 1926.401(a)(1) item. Inasmuch as neither party has taken exception to the Judge�s disposition of the other items, they are not before us for review. Water Works Installation Corp., 76 OSAHRC 61/B8, 4 BNA OSHC 1339 1976�77 CCH OSHD para. 20,780 (No. 4136, 1976).