Atlanta Forming Co., Inc.

Plain-English summary

Atlanta Forming challenged only whether it was an employer engaged in a business affecting interstate commerce. The Commission held that construction of a multistory commercial building belongs to a class of activity affecting commerce and that construction materials and services have an interstate market. Independently, the company's use of Skil power tools manufactured outside Georgia established coverage. The judge's mixed disposition of four floor-opening and perimeter-guarding items therefore remained in place.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.500(b)(1) and 1926.500(d)(1).
• Outcome: Judge's decision affirmed: two citation items affirmed and two vacated.
• Key point: Construction activity affects interstate commerce as a class, and an employer's use of out-of-state goods supplies an additional basis for coverage under the Act.

Full text (OSHRC public release)

Docket No. 80-6925

SECRETARY OF LABOR,

Complainant,

v.

ATLANTA FORMING CO., INC.,

Respondent.

OSHRC Docket No. 80-6925

DECISION

Before: ROWLAND, Chairman; CLEARY, Commissioner.

BY THE COMMISSION:

The issue in this case is whether Atlanta Forming Company is engaged in a business
affecting commerce within the meaning of 29 U.S.C. � 652(5), section 3(5) of the
Occupational Safety and Health Act of 1970, 29 U.S.C. �� 651-678. [[1/]] This case had
been remanded to an administrative law judge for further consideration in light of
Avalotis Painting Co., 81 OSAHRC 7/B1, 9 BNA OSHC 1226, 1981 CCH OSHD (P) 25,157 (No.
76-4774, 1981), which held that an employer's use of goods produced out of state affects
interstate commerce. The judge, however, misinterpreted our remand order as a finding that
commerce coverage had been shown. We granted the employer's petition for discretionary
review to decide the commerce issue.

After review was granted, we issued Clarence M. Jones, 83 OSAHRC 23/A2, 11 BNA OSHC 1529,
1983 CCH OSHD (P) 26,516 (No. 77-3676, 1983), in which we held that construction work
affects interstate commerce because it is in a class of activity that as a whole affects
commerce. We also observed that there is an interstate market in construction materials
and services. It is undisputed that Atlanta Forming was engaged in the construction of a
multiple-story commercial building. Under Clarence Jones, therefore, Atlanta Forming's
activities affected interstate commerce. See also Usery v.- Franklin R. Lacy, 628 F.2d
1226 (9th Cir. 1980).

There is another reason why we find commerce coverage. Atlanta forming owns and uses
"Skil" brand power tools. At the Secretary's request, we take official notice
that the Skil Corporation--a division of Emerson Electric Company--does not have any
manufacturing plants in Georgia. See 2 Moody's Industrial Manual 4173-74 (1978). Under
Avalotis Painting, an employer's use of goods produced out of state affects interstate
commerce. Accordingly, the judge's disposition

is affirmed.[[2/]]

FOR THE COMMISSION

Ray D Darling, Jr.

Executive Secretary

Dated: AUG 22 1983

The Administrative Law Judge decision in this matter is unavailable in this format. To
obtain a copy of this document, please request one from our Public Information Office By
e-mail ( [email protected] ), telephone (202-606-5398), fax (202-606-5050), or TTY
(202-606-5386).

FOOTNOTES:

[[1/]] Section 3(5) provides: "The term 'employer' means a person engaged in a
business affecting commerce. . . . " Section 3(3) defines commerce" in part as
"trade, traffic, commerce, transportation, or communication among the several states,
or between a state and any place outside thereof . . . ." 29 U.S.C. � 652(3).
Congress, in passing the Act, intended to exercise its full powers under the Commerce
Clause of the Constitution, Art. 1, sec. 8. See, E.g., Godwin v. OSAHRC, 540 F.2d 1013
(9th Cir. 1976).

[[2/]] The Judge's decision affirmed two citation items alleging violations of 29 C.F.R.
�� 1926.500(b)(1) and (d)(1) and vacated two citation items alleging separate violations
of the same standards. Because Atlanta Forming took exception only to the judge's finding
that commerce coverage had been established, and the direction for review was limited to
the commerce issue, we do not otherwise pass on the correctness of the judge's decision.
See Commission Rule 92(c).