Apex Bldg Cleaning, Docket No.992

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 922
APEX BUILDING CLEANING CORP.,
Respondent.

On March 21, 1973, Judge Ditore issued his decision to vacate a citation for serious violation of the standard prescribed by 29 C.F.R. 1910.66(c)(22)(ix) and of section 5(a)(2) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter ‘the Act’). Thereafter, in accordance with the provisions of section 12(j) of the Act of the Judge’s decision was directed for review.

We have reviewed the record including the decision of the Judge and we take note that Complainant has declined to file a brief on review. Based on such review we find no prejudicial error in the Judge’s decision.

Accordingly, it is ORDERED that the Judge’s decision be and the same is hereby affirmed in all respects.

This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 631, et seq., hereinafter called the Act), contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of the Act.

The Citation alleges that as the result of the inspection of a workplace under the ownership, operation or control of the Respondent, located at 1515 Broadway, New York, New York, and described as follows: ‘Exterior window washing using a Spider Staging suspended scaffold,’ the Respondent has violated Section 5(a)(2) of the Act by failing to comply with a certain occupational safety and health standard promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on May 4, 1972, alleged that the violation resulted from Respondent’s failure to comply with a standard promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The Citation, which was issued on May 4, 1972, alleged that the violation resulted from Respondent’s failure to comply with a standard promulgated by the Secretary by publication in the Federal Register on April 27, 1971 (36 F.R. 10499 (1971)), and codified in 29 C.F.R. 1910.66(c)(22)(ix). The description of the alleged violation set forth in the Citation states:

For failure to have electric contacts on the roof carriage so connected that the operating devices for the working platform shall be operative only when the roof carriage is located and mechanically retained at an established operating point.

Where the installation includes a roof car, electric contact(s) shall be provided and so connected that the operating devices for the working platform shall be operative only when the roof car is located and mechanically retained at an established operating point.

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated May 4, 1972, from Nicholas DiArchangel, Area Director of the New York City Area, that the Occupational Safety and Health Administration, U.S. Department of Labor, proposed to assess a penalty for the violation alleged in the amount of $700.

After Respondent contested this enforcement action, and a Complaint and an Answer had been filed by the parties, the case came on for a hearing at New York, New York, on August 28, 1972.

(1) Whether Complainant’s interpretation of 29 C.F.R. 1910.66(c)(22)(ix) as applied in this case, is correct.

If Respondent is found in violation of the standard, there is no issue as to the assessed penalty (T. 12; 109).

Respondent, the Apex Building Cleaning Corp., in the business of cleaning building exteriors, was engaged on March 23, 1972, in cleaning windows of a building located at 1515 Broadway, New York, New York (Complaint and Answer).

For this purpose, Respondent operated with a crew of three employees, a specially designed and built power driven roof carriage which supported a power driven scaffold or working platform (T. 18, 19, 30, 132, 136–137, 266, 279).

This special equipment was described as a Spider Staging Suspended Scaffold Assembly. It consisted for purposes relevant here, of the following:

A Spider trackless electro-hydraulic propelled rubber tired roof carriage, constructed of structural aluminum shapes and an aluminum truss-type scaffold assembly suspended by four electric Spider hoists. The scaffold assembly is suspended from and supported by four sheaves contained within a cross beam unit that forms a part of the hydraulic powered telescoping outrigger assembly on the roof carriage.

[t]he roof carriage is mounted on steel automotive type steering axles and linkage with four wheels containing rubber tires. The roof carriage contains a raised, enclosed platform with an automatic closing gate to provide an access to the work platform. The superstructure of the roof carriage contains telescoping outrigger beams;

. . . The suspended scaffold and roof carriage are provided with electrical interlocks intended to prevent the misuse of the installation; and

. . . The roof carriage tie-down device is electrically interlocked to prevent use of the suspended scaffold unless the roof carriage is properly tied down to an anchor.

It is the above described roof carriage or car which forms the subject matter upon which safety standard 29 C.F.R. 1910.66(c)(22)(ix) is applied by Complainant (Citation, complaint, answer to Instructions). This equipment was on the roof of 1515 Broadway in November 1971, was inspected by the New York State Board of Standards and Appeals on March 13, 1972, and went into operation on March 14, 1972 (T. 23, 166, 280).

On March 23, 1972, at about 9:00 A.M., one of Respondent’s employees assigned with two other employees, to, and working with, this equipment on the roof (53rd floor) of the building at 1515 Broadway, was found dead on the 10th floor of that building. The working platform or scaffold was also found at that location. This fatal accident gave rise to an inspection of Respondent’s equipment and work site by compliance officers of the Occupational Safety and Health Administration. The inspection began about 2:30 P.M. on March 23, 1972, and continued intermittently for two weeks thereafter (T. 112, 113, 118, 264, 265, 307).

Mr. Ole E. Leiveston, Chief Engineer for the Spider Staging Sales Company, which designed and custom built this equipment, testified that the machine (roof car) was designed and built in accordance with Federal and State safety standards (T. 27, 28, 38). The roof car was specially designed and built to meet certain peculiarities of the building at 1515 Broadway. The peculiarities arose from the position of four columns which supported the building’s superstructure. In order for the roof car to move to a working position at one of these columns, or to pass clear of a column to another working position, it was necessary to horizontally move the attached scaffold in a direction away from the face of the column. To accomplish this, the roof car was designed and built with hydraulically operated outriggers to which the scaffold was attached. These outriggers when extended would provide the necessary clearance

to permit the roof car with its attached scaffold to move to a working position behind a column or to pass a column to another working position (T. 19, 21, 30). The scaffold could be extended horizontally or ‘boomed out’ without the roof car being anchored or tied down (T. 19, 20, 21, 46).

Because of the added feature of ‘booming out’ the outriggers without anchoring the roof car, certain safety factors were incorporated into the roof carriage to maintain its stability and prevent it from tipping (T. 32, 34). The working platform or scaffold could not be operated in a vertical direction whether ‘boomed’ in or out unless the roof car was located and mechanically retained by an interlock tie-down device at an established operating point (T. 37–38, 41–43, 54). The outriggers of the roof car could not be extended or ‘boomed out’ if the four wheels of the roof car were at a 90° angle to the roof parapet (T. 56).

It was Mr. Leiveston’s opinion that the roof car as designed and built could be operated and driven on the roof of 1515 Broadway with no detrimental consequences to anyone on the roof car (T. 34).

On the afternoon of the day of the fatal accident, two compliance officers of the Occupational Safety and Health Administration, Kenneth McCade and Edward J. Scott, made an inspection of Respondent’s roof car and its equipment (T. 109, 112, 262–263).

Officer McCabe on that day, observed that: the roof car on the 53rd floor of 1515 Broadway, was tipped over at a column drop; the tie-down interlock device of the roof car appeared to be over an anchor recess hole; the anchor recess hole was clogged and filled with a hard mixture of sand and concrete; a rubber protective cap was over the anchor recess hole; the counterweight enclosures of the roof car had broken loose; the outriggers of the roof car were in an extended or ‘boomed out’ position; two interlocks on the two front wheels of the roof car were out of electrical circuit; the four wheels of the roof car were at a 90° angle to the roof parapet; and the power cord of the roof car was in a position near an electrical outlet (T. 112–116).

Officer McCabe further observed five electrical contacts on the roof car. One was on the bar which held the tie-down device

and one was on each of the four wheels of the roof car. Two of these electric wheel contacts were out of circuit. Although McCabe did not test any of the five circuits, he stated that three of the electrical contacts were operational and two were not (T. 123–125, 182, 193–195).

On the day after the accident, March 24, 1972, and at other times during their inspections, Officers McCabe and Scott spoke with a Mr. Torres and a Mr. Oringo.

These two men along with the deceased, Clement Allen, comprised the three man team that operated the roof car and scaffold for Respondent (T. 135, 264, 265). From their conversations with the compliance officers, it was revealed that the roof car and its equipment went into service at 1515 Broadway on March 14, 1972. From that day to the day of the accident, March 23, 1972, this work crew used the machine approximately four times exclusive of its use at the time of the accident (T. 153, 280). On one of the four occasions a ‘drop’ or lowering of the scaffold was made at another column of the building (T. 133, 139, 281). On two of the four occasions this work crew moved the roof car to a point on the roof near a water supply where they proceeded to ‘boom out’ and lower the scaffold to reach a water supply without anchoring or tying down the roof car (T. 164, 167, 170, 265–266).

On the day of the accident, March 23, 1972, this work crew having finished work at one ‘drop,’ moved the roof car to a position on the roof at a column where the accident allegedly occurred, Arriving at this position but not close enough to the anchor recess hole for insertion of the tie-down device, the deceased, Allen, and his crewmate Torres, turned the wheels of the roof car 90° to the roof parapet. This was done to position the roof car closer to the anchor recess hole so that the tie-down anchor device could be inserted in the anchor hole (T. 134–135, 216, 223, 224). The insertion could not be made because the anchor recess hole was clogged

(T. 135). Torres, with Allen’s help, attempted to unclog the recess hole but was unsuccessful. Allen directed Torres to look for something else to scrape out the hole. Torres departed leaving Allen on the roof car. When he returned to the roof car, he found it tipped over and inferentially Allen missing (T. 133–134). Oringo, the other crew member, during this time was away getting coffee (T. 264–265, 277). Oringo stated to the compliance officers that, although he had the least experience as a window washer platform worker of the three man crew, all of them were unfamiliar with this new roof car and scaffold (T. 278–279, 282).

The evidence of record indicates that this crew was trained by the Spider Staging Sales Company on March 13, 1972, in the operation of the new roof car and scaffold. The extent of the training was about three hours (T. 154).

Mr. Timken, one of Respondent’s managers in charge of all window cleaners operating scaffolds for Respondent, stated to Officer McCabe that Allen, Torres and Oringo were the men assigned to the new roof car and scaffold; and that it was a new job for them in that they were using a new and differently designed machine (T. 136–137). Timken also told McCabe that a John Oliver was the working supervisor for Respondent who was in charge of the three man work crew on this new machine (T. 136–137).

Oliver told McCabe that on March 23, 1972, prior to the accident as he passed the roof car after it was positioned by Allen and Torres, he noticed that the tie-down anchor device was above the anchor recess hole but not inserted therein. He instructed Torres ‘to get this thing to insert’ (T. 137–38).

Officer McCabe conceded that the function of a roof car is to move about to position the scaffold at an established operating point; and that a roof car cannot be tied down if it has to be positioned (T. 163). McCabe also stated that it was necessary to extend or ‘boom out’ the scaffold by the use of the outriggers of the roof car in order to position the roof car at a column or to pass a column, but this violated 29 C.F.R. 1910.66(c)(22)(ix) in that the scaffold was moved horizontally without the roof car being mechanically retained at an established operating point (T. 128–129, 140, 239–240, 268–269).

The violation was serious because of the likely probability that an unanchored roof car would overturn and cause anyone working on it to be thrown to his death or be seriously injured (T. 125, 130, 141, 142).

Officer McCabe’s opinion was supported by Mr. Lawrence Carvey of the Occupational Safety and Health Administration, among whose duties is the rendering of technical support to compliance officers as to the meaning and interpretation of occupational safety and health standards (T. 66, 95). Mr. Carvey stated that standard 29 C.F.R. 1910.66(c)(22)(ix) means there must be electro-mechanical devices on the roof car to prevent the vertical and horizontal motion of the working platform or scaffold unless the roof car is anchored at an established operating point (T. 71, 91) (emphasis supplied).

Mr. Carvey gave as his opinion that the standard in question is violated if a working platform or scaffold could be ‘boomed out’ when the roof car is not mechanically retained at an established operating point (T. 76). He stated that the purpose of the standard is to prevent any operation of the scaffold either vertically or horizontally unless the roof car is tied down (T. 105–106).

Neither Respondent nor the Affected Employees’ Representative presented any evidence or called any witness on their respective behalf. They rested at the end of the Complainant’s case (T. 319).

Respondent relied upon its own cross-examination of Complainant’s witnesses and upon its closing legal arguments that Complainant’s evidence was insufficient; and that Complainant’s interpretation of the standard was erroneous (T. 319–332).

Where the installation includes a roof car, electric contact(s) shall be provided and so connected that the operating devices for the working platform shall be operative only when the roof car is located and mechanically retained at an established operating point (Emphasis supplied).

Complainant interprets this standard to mean that the working platform must not be capable of moving in any direction, vertical or horizontal, unless the roof car is mechanically retained at an established operating point (T. 71, 91; Proposed findings, No. 6, p. 2).

Based on this interpretation, Complainant claims that the horizontal or ‘booming out’ movement of the roof car’s outriggers and working platform without the roof car being properly anchored was a horizontal operation of the working platform prescribed by, and in violation of, the standard. If this interpretation is correct, the evidence of record is more than sufficient to establish that Respondent violated the standard. If it is incorrect, the complaint must be dismissed, and the citation and proposed penalties vacated.

A roof car is defined as ‘[a] structure for the suspension of a working platform, providing for its [the working platform] horizontal movement to working positions’ (29 C.F.R. 1910.66(a)(20). A roof car is required whenever it is necessary to move a working platform horizontally to working or storage positions (29 C.F.R. 1910.66(c)(1)). To effectuate this purpose various standards have been incorporated and promulgated in 29 C.F.R. 1910.66 including ANSI A120.1–1970. (29 C.F.R. 1910.66(b)(5)(ii).

[r]oof cars shall be provided with members from which the working platform is suspended. Such suspension means, in combination with other roof car provisions or operations, shall provide proper alignment of the work platform with the exterior building or structure.

[r]oof car positioning devices shall be provided to insure that the working platform is placed and retained in proper position for vertical travel and during storage.

These standards, among others, make it clear that the purpose of the roof car is to horizontally move the working platform to its proper position for vertical travel. The outriggers of Respondent’s roof car were proper positioning devices of the roof car. Due to the peculiarities of the building at 1515 Broadway, these outriggers were an integral part of the roof car’s operation to horizontally move the work platform to its proper working position at a column or to pass a column. Whether the roof car moves horizontally in the traversing direction of its wheels or whether the horizontal movement is occasioned by other operations of its component parts, i.e., the outriggers, the roof car is performing its stated function of moving the working platform horizontally to a working location. Complainant concedes that a roof car must move horizontally to position a working platform (T. 73, 163).

This Judge has found no standard which distinguishes one type of horizontal movement of the working platform by the roof car as permissible from another type not permissible unless the roof car is tied down.

The standards leave no doubt that a working platform can be moved horizontally as required, by a roof car for proper positioning purposes.

The horizontal movement of Respondent’s working platform by the outriggers of the roof car without the roof car being anchored, was a proper positioning function and operation of the roof car, and not an operation prohibited by 29 C.F.R. 1910.66(c)(22)(ix).

This would be sufficient to put Complainant’s interpretation to rest. However, Complainant urges that the horizontal movement of the working platform by the operations of the roof car is not a roof car operation, but an operation of the working platform and its operating devices (T. 36, 76; see also Complainant’s proposed findings No. 5, p. 2). Therefore, the horizontal movement of Respondent’s working platform by the roof car’s outriggers is an operation of the operating devices of the working platform which is prohibited by, and in violation of, the standard unless the roof car is tied down.

Respondent’s working platform is a self powered platform which can only be operated from operating devices on the working platform (T. 37–38, 41–43, 106, 198).

‘Self powered platform’ is defined as ‘[a] powered platform having the raising and lowering mechanism located on the working platform’ (29 C.F.R. 1910.66(a)(22)). A ‘working platform’ is defined as ‘[t]he suspended structure arranged for vertical travel which provides access to the exterior of the building or structure’ (29 C.F.R. 1910.66(a)(25)). ‘Operating device’ is defined as ‘a pushbutton lever or other manual devices used to activate a control’ (29 C.F.R. 1910.66(a)(15)).

Standard 29 C.F.R. 1910.66(c)(14) entitled ‘Operating device for vertical movement of the working platform,’ provides at subparagraph (ii) that:

[t]he operating device [of the working platform] shall be operable only when all electrical protective devices and interlocks are in position for normal service, and the roof car, if provided, is at an established operating point.

From these definitions, it is obvious that the operation of a working platform and its operating devices provide only for vertical movement or travel of the working platform. Its operating devices are activated for vertical travel only when the roof car is mechanically retained and its operating devices are deactivated.

The operation of the working platform is separate and distinct from the operation of the roof car. The operating devices of the working platform are for its vertical movement only. These devices cannot operate or horizontally move the roof car or any of its parts, including the outriggers. The horizontal movement of the working platform is a roof car operation, not an operation of the working platform.

It follows logically that the standard at issue is concerned only with the installation of protective electric contacts on a roof car which control the operation and the operating devices of the working platform for vertical travel in relation to the operation and devices of the roof car for horizontal travel (See also 29 C.F.R. 1910.66(c)(22)(x)).

Complainant’s error stems from its attempt to characterize a roof car operation as a working platform operation. Complainant’s interpretation, if permitted to stand, would distort the relative functions and purposes of a roof car and a working platform, and would render the standards cited herein and others in Subpart F of 29 C.F.R. meaningless, inconsistent or of dubious value.

Complainant’s interpretation of the standard as applied in this case, is erroneous. Respondent’s roof car was equipped with properly connected electric contacts which, if not misused, rendered inoperative the operating devices of the working platform unless the roof car was mechanically retained at an established operating point. Complainant failed in its burden of establishing that Respondent violated 29 C.F.R. 1910.66(c)(22)(ix).

Normally, this Judge’s opinion would conclude here. However, evidence in the record and certain representations made in argument by Respondent’s counsel during trial, indicate a serious misconception by Respondent of its responsibility to its employees under the Occupational Safety and Health Act.

Respondent with reference to the new machine, took the position that it was under no duty to repair, maintain, ‘or anything else’; such duty and responsibility belonged to the building owners (T. 119).

Whatever responsibility by agreement or otherwise belonged to another, it was Respondent’s unassignable and undiminishable responsibility under the Act to see that its work site was safe for its employees. Neither the approval and inspection of the machine by the New York State Board of Standards and Appeals, nor the owner’s agreement to maintain the machine, relieved Respondent of its duty to assure that this machine was safe and that its employees were properly trained to operate it (T. 330).

An unsafe work place is created by lack of proper training of employees and supervisory personnel, and by a lack of proper and knowledgeable supervision.

Respondent seems to believe that it bears no more than a mere scintilla of responsibility for the safety of its employees because it did not design or create the work place, had no knowledge of the operations of, and protective devices at, the work place, and was not possessed of engineering or mechanical expertise (T. 331–332).

Under the rationale of the Act, such arguments fall on deaf ears. Respondent’s responsibility is to assure each of its employees a safe place to work. How this responsibility is to be executed is Respondent’s burden.

The evidence and reasonable inferences from the evidence in this case, indicate that a proper, knowledgeable and diligent supervision of the operation of the new machine would have alerted Respondent to the fact that this machine was being misused and that the work site was unsafe (See: statement of evidence, supra; see also: 29 C.F.R. 1910.66(e)(9)).

The obvious misuse of the machine; the almost negligible training and experience of Respondent’s employees with the machine; and the failure to have the roof track tie-down or anchor hole system in proper working order, should have, and with reasonable diligence would have, informed Respondent that its work site was unsafe and that it was exposing its employees to unnecessary hazards (See also: 29 C.F.R. 1910.66(e)(11)).

Respondent cannot shirk its duty under the Act by placing responsibility for these conditions on other parties, or by pleading a lack of sufficient knowledge of the operations at its work site.

The credible evidence and the record as a whole establishes substantial proof of the following specific findings:

1. Respondent, Apex Building Cleaning Corp., is a corporation organized under the laws of the State of New York, and maintains an office and place of business at 1430 Broadway, New York, New York (Complaint and Answer).

2. At all times material herein, Respondent was engaged in the business of cleaning windows of a building at 1515 Broadway, New York, New York (Complaint and Answer).

3. Respondent had employees at its work site at 1515 Broadway. These employees were members of Window Cleaners Union Local No. 2, S.E.I.U., AFLCIO (Complaint and Answer).

4. Materials and supplies used by Respondent at its work site at 1515 Broadway, were manufactured outside the State of New York (Complaint and Answer).

5. At all times material herein, Respondent controlled and operated at its work site a Spider Staging Suspended Scaffold Assembly. This equipment was operated by three of Respondent’s employees (T. 18, 19, 132, 136–137, 266, 279–280).

6. The equipment was specially designed and custom built to meet the peculiarities of construction of the building at 1515 Broadway (T. 19–21, 30).

7. The peculiarities of the building arose out of the location of four columns which supported the building’s superstructure (T. 19, 30).

8. The equipment, for purposes relevant herein, consisted of a power driven roof carriage or car which supported a power driven scaffold. This equipment was located and installed on the 53rd floor level of the building at 1515 Broadway (T. 18, 113).

9. The superstructure of the roof carriage contained telescoping outriggers to which the scaffold or working platform was attached (T. 21; see statement of the evidence, supra, p. 4).

10. This equipment went into operation on March 14, 1972, and was used approximately four times from that date to the morning of March 23, 1972 (T. 153, 280).

11. The function of the roof car and its component parts was to horizontally move the working platform to a work position for proper vertical travel (T. 163; see also 29 C.F.R. 1910.66(a)(20)).

12. In performing its function, the roof car was equipped with outriggers which when ‘boomed out’, extended the working platform horizontally in order to position the work platform at a column of the building, or to pass a column to another work position (T. 19, 21, 30).

13. These outriggers were positioning devices of the roof carriage. (See 29 C.F.R. 1910.66(c)(2)(iii), and ANSI A120.1–1970 Section 12.3(3)).

14. To maintain the stability of the roof car when the outriggers were extended and the roof car not tied down, safety factors were built into the roof car (T. 32, 34).

15. The horizontal movement of the roof car and its component parts was an operation of the roof car and its operating devices (See, Opinion, supra).

16. The roof carriage or car was provided with electrical interlocks which prevented the operation of the scaffold and its operating devices unless the roof car was mechanically retained at an established operating point (T. 37–38, 123–124).

17. On March 23, 1972, as a result of a fatal accident to one of Respondent’s employees operating this equipment, an inspection of Respondent’s work site was made by two compliance officers of the Occupational Safety and Health Administration (T. 112, 113, 118, 264, 265, 307).

18. As a result of this and subsequent inspections, Complainant on May 4, 1972, issued, against Respondent, a citation for a serious violation, and a notification of proposed penalties of $700 (Citation and Notification).

19. The citation alleged a serious violation of 29 C.F.R. 1910.66(c)(22)(ix) in that Respondent on March 23, 1972, failed to equip and have properly connected electrical contacts on its roof carriage, which would prevent the operation of the scaffold and its operating devices unless the roof car was located and mechanically retained at an established operating point (Citation).

20. Specifically, Complainant alleged that the horizontal ‘booming out’ or extension of the scaffold by the outriggers of the roof car when the roof car was not anchored, was an operation of the scaffold and its operating devices, prohibited by 29 C.F.R. 1910.66(c)(22)(ix). (Complainant’s answer to instructions p. 2; Complainant’s proposed finding No. 5; T. 36, 71, 91).

21. The scaffold and outriggers of the roof car had been ‘boomed out’ several times from March 14, 1972, to March 23, 1972, in horizontally moving the working platform to a work position when the roof car was not anchored (T. 164, 167, 169–170, 265–266).

22. The operation of the scaffold and its operating devices provide only for vertical movement or travel when the roof car is properly anchored (T. 36–38, 41–44, 54. See Opinion, Supra; also 29 C.F.R. 1910.66(a)(22) and (25)).

23. The horizontal movement of the scaffold by the roof car and its positioning devices is not an operation of the scaffold or its operating devices. (See Opinion, supra).

24. Standard 29 C.F.R. 1910.66(c)(22)(ix) requires a roof car to have electric contacts which will render inoperative the operating devices of a working platform until the roof car is located and mechanically retained at an established operating point.

25. Respondent’s roof car in compliance with 29 C.F.R. 1910.66(c)(22)(ix), was equipped with an electrical and mechanical tie-down device which rendered inoperable the operating devices of the scaffold unless the roof car was retained at an established operating point (T. 37–38, 123–124).

1. The Respondent is, and at all times relevant herein was, engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970.

2. The Occupational Safety and Health Review Commission has jurisdiction over the subject matter of, and parties to, this action.

3. Standard 29 C.F.R. 1910.66(c)(22)(ix) as interpreted and applied by Complainant in this action is erroneous.

4. Respondent was not in violation of 29 C.F.R. 1910.66(c)(22)(ix) on March 23, 1972.

ORDERED that the Citation for a serious violation issued May 4, 1972, by the Complainant against Respondent is vacated; it is further

ORDERED that the notification of proposed penalties of $700 issued on May 4, 1972, by Complainant against Respondent is vacated.

3 There is other evidence in the record which indicates that the outriggers could be extended a