Thomas Lindstrom Company, Inc. (ALJ decision, January 14, 1994)

Plain-English summary

Thomas Lindstrom was the structural-steel-erection subcontractor for a new Philadelphia medical examiner building. OSHA alleged that the company failed to use tag lines to control steel loads, and the judge held that the standard normally makes tag-line use mandatory. Lindstrom proved that using the lines in the conditions at this site would require ground workers to cross uneven metal decking while watching overhead loads and could cause lines to snag on upright columns and connection plates, producing dangerous load movement. The judge found that no feasible alternative remained beyond control by the crane operator and the connectors receiving the steel. He credited the company's experienced safety officer over OSHA witnesses who had less direct steel-erection experience and accepted the infeasibility defense. The tag-line item was vacated; another citation item had been settled at the hearing, but the decision does not state its terms.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1926.751(d).
• Outcome: Vacated. The tag-line item was vacated because compliance was infeasible under the site conditions.
• Key point: A mandatory work-practice standard may be defeated by proof that compliance is impractical and that no other feasible protective measure is available.

Full text (OSHRC public release)

OCCUPATIONAL SAF~N~~~E~~~~~c~EVIEW
COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

.
PHONE: zi (202) 6oGSxo
COM (202) 6064100
Frs (202) 606-6050
Frs (202) 606-51~

SECRETARY
OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-3815
THOMAS LINDSTROM & COMPANY
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on December 15, 1993. The decision of the Judge will become a final order of the Commission on January 14, 1994 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before January 4, 1994 in order to ermit su2 icient time for its review. See Comrmssion Rule 91, 29 C. Ep.R. 2200.91.
All further pleadings or communications
regarding this case shall be
addressed to:

Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party havmg questions about review rights may contact the Commission’s Executive Secretary or call (202) 606-5400.
.
FOR THE COMMISSION

Date: December 15, 1993
Executive Secretary
DOCKET NO. 92-3815
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So%l citor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Btreet
Philadelphia, PA 19104

James F. Sassaman, Director of
Safety
GBCA
P.O. Box 15959
36 South 18th Street
Philadelphia, PA 19103

Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00018253112:03
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

FAX:
PHONE:
COM (202) 6Q&w50
COM (202) 6a%loo
~(~2)6o6-5050
RS (202) 606400

.

    SECRETARY              OF LABOR,                       ..

Complainant,

v. OSHRC Docket No. 92-3815
.

    THOMAS LINDSTROM               COMPANY, INC.,          I

Respondent.

Appearances:
Howard K Agran, Esq.
James F. Sassaman
Office of the Solicitor
General Building Contractors
U.S. Department of Labor
Association
For Complainant
Philadelphia, Pennsylvania
For Respondent

Before: Administrative Law Judge Michael H. Schoenfeld

Background and Procedural Historv

This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. 6 6 651 - 678 (1970) (“the Act”).
On October 7, 1992, an inspection by two Compliance Officers (“CO”) of the
Occupational Safety and Health Administration (‘IOWA”) was conducted of the site of the construction of a new building for the City of Philadelphia Medical Examiner where a
general contractor had hired Thomas Lindstrom & Company (“Respondent”) as the
structural steel erection sub-contractor. As a result of that inspection a citation alleging two serious violations of the Act were issued to Respondent. Civil penalties of $3,000 for each violation were proposed.
Respondent timely contested the citations. Following the filing of a complaint and answer and pursuant to a notice of hearing, the case came on to be heard on August 26, 1993. No affected employees sought to assert party status. Both parties have filed post- hearing briefs.

Jurisdiction
Complainant alleges and Respondent does not deny that it is an employer engaged
in structural steel erection. It is undisputed that Respondent uses tools, equipment and supplies which have moved in interstate commerce. I find that Respondent is engaged in a business affecting interstate commerce.
Based on the above finding, I conclude that Respondent is an employer within the meaning of 5 3(5) of the Act.’ Accordingly, the Commission has jurisdiction
over the subject matter and the parties.

Discussion2

Citation 1, item 1 alleges a violation of the construction safety standard at 29 C.F.R.
8 1926.751(d), which provides that “[t]ag lines shall be used for controlling loads.” According to Respondent’s post-hearing brief:
The dispute could not be more clear. Complainant’s position is that the wording of the standard amounts to a mandatory requirement that all loads carried to people be used with a tag line (Complainant’s opening statement at 6). Respondent, on

.
1 Title 29 U.S.C. 8 652(S).

2 Citation 1, item 1 was settled by the parties at the hearing and thus is not in issue. The agreement reached by the parties as to that item is part of the record in this case (Tr. 5-6).

2 the other hand, argues that he standard reads that the use of tag lines is predicated upon a need for controlling loads (Respondent’s opening statement at 7).
If this were the sole issue in the case at bar, this decision would begin and end with this Judge’s agreement with Judge Schwartz’s holding in Swain& Sons, 15 BNA OSHC 1062 (No.90-0355-S, 1991) (ALJ) (Digest) and disagreement with that of Judge O’Connell in East RutherfordSteel Erectors, Inc., 9 BNA OSHC 1876 (No. 79-2658, 1981) (ALJ) (Digest). The term “shall” is not advisory or precatory -- it is mandatory. The cited standard requires the use of tag lines. A failure to use tag lines during the final placing of solid web structural steel members is a violation of the requirements of the standard3. Unless an affirmative defense is pled and proven as it has in this case.
The Commission, in Seibel h4odem Manufacturing& Welding Corp., 15 BNA OSHC 1219 (No 88-821, 1991) (“SeibeZ”)reviewed the history of the infeasibility defense including Dun-Par Engineered Form Co., 12 BNA OSHC 1949 (No. 79-2553, 1986), rev’d in pati, sub nom, Secretaryv. Dun-Par Engineered Fomz Co., 843 F.2d 1135 (8th Cir. 1988), (“Dun-Pad”)

and Dun-Par Engineered Form Co., 12 BNA OSHC 1962 (No. 82@?28,1986) (“Dun-ParIF). In order to prevail on this defense, a Respondent must demonstrate that 1) compliance with the standard’s requirements would “not be practical or reasonable in the circumstances.” Dun-Par IJ supra, 12 BNA OSHC at p. 1966, and 2) “that an alternative protective measure was used or that there was no feasible alternative measure.++ Seibe, supra, 15 BNA OSHC at 1228. See ako, Kunz Constution Co., 15 BNA OSHC 1331,1333 (No. 90-2369-S, 1991)

(ALJ). Infeasibility, said the Commission, in Dun-Par II, 12 BNA OSHC at p. 1996, includes “considerations of reasonableness, common sense, and practicality.” Id. Moreover, where an employer cannot fully comply with the literal requirements of a standard, it must nevertheless comply to the extent that compliance is feasible. BrattonFurniture Manufactur- ing Co., 11 BNA OSHC 1433, 1434 (No. 81-799-S, 1983).

3 Assuming, of course that the other elements of a violation of 3 5(a)(2) of the Act, the applicability of the standard, employee exposure and knowledge by Respondent of the violative condition, are also established.

3
 In Dun-Par 11, Respondent’s impracticality argument (that additional employees and additional time would have been needed to erect guradrails) was considered by the Commission as an argument that the installation of guardrails was not economically feasible. The Commission indicated that such argument was within the framework of the affirmative defense of infeasibility. In Seibel; supra, at p. 1227, the Commission interpreted Dun-Par II as allowing an employer to demonstrate that “the costs [of compliance] would be ‘unreasonable’ or that [compliance] would be ‘unreasonable or senseless.’ ” In Falcon Steel Co., 16 BNA OSHC 1179, 1186-87 (Nos. 89-2883 and 89-3444, 1993) the Commission examined a defense of infeasibility in terms of “physical impossibility” and “interference with operations” while mentioning the element of alternative protective measures in a footnote. Id., at 1187, n.10.
In this case, Respondent has shown that the use of tag lines on the steel being placed into position at the cited worksite at the time of the inspection was infeasible in that their 1

h use would have created more problems than those solved by the use of the lines.
Their interference with the operations as they were being conducted was so great as to warrant their not being used.
First raised in its amended answer, Respondent throughout the course of the hearing
and in its post-hearing brief presented argument and evidence to the effect that the use of tag lines was infeasible. A review of the evidence presented by Respondent shows significant problems in the use. of tag lines, under the circumstances present at the inspected site. First, “ground men” who control the lines from the ground would have had to cross uneven metal decking consisting of four inch cells divided by three inch gaps while concentrating on what was happening above them thus limiting their ability to watch their footing in this potentially dangerous area (Tr. 103.04,115). Second, the circumstances at the site would have required that the tag. lines taken through a “forest” of upright steel columns (with protruding connection plates attached) which could result in the fouling or snagging of the tag lines. In this event, ironworkers would have to go up the 40’ to 50’ high vertical columns to free the tag lines and the snagging would result in unwieldy movement of the suspended steel beams (Tr. 102-03, Ex. R-2, R-3).

4
 Respondent presented no specific evidence that there were no feasible alternative measures to afford protection to the ironworker connectors who received the steel. It argues, instead, that the control of the suspended steel by the crane itself, without the use of tag lines, was “an alternative protective measure, a primary measure, really. . .” (Resp. Brief, p. 14). The evidence as a whole, however, establishes that there were no feasible alternatives to the use of tag lines. The Secretary recognizes that “there only three means available for the controlling of loads” (Sec. Brief, p. 6). One, control by the crane. Two, hands on control by the connectors once they have hold of the steel. Three, tag lines. Respondent has established that tag lines are infeasible. The Commission, in numerous cases has held that ironworker connectors cannot be required to use safety belts while moving about (as they must do to receive steel being hoisted to them). Thus, Respondent is correct, the only manner and means of controlling hoisted steel under these circumstances, rests with the crane operator’s control of the load.
In reaching the assessment of the infeasibility of the use of tag lines greater weight
has been accorded the opinion testimony of Respondent’s Safety Officer than that of the Compliance Officer and the OSHA Assistant Area Director. All of these witnesses were honest and forthright. The Safety Director, however, was highly experienced in the field of steel erection. While the OSHA officials could and did testify that tag lines were used during most of their construction site inspections, they did not have a sufficient degree and breadth of personal experience to offer reliable testimony as to the effects on this particular site of using tag lines. See, Fed. Rule Evid. 701. (The opinion testimony of a lay witness may be based on that witness’s personal experience.) Thus their opinions, while admissl%le, are accorded significantly less weight than that of the person with many years of experience in - the hoisting of steel and the use of tag lines.
In sum, for the above reasons, I find that Respondent has, by a preponderance of the
reliable evidence in this case, established the affirmative defense of infeasibility. Accordingly, the item is VACATED. All findings of fact necessary for a determination of all relevant issues have been made above. Fed, R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are hereby denied.

CONCLUSIONS OF MW

1. Respondent was, at all times pertinent hereto, an employer within the meaning of 5 3(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. 8 8 651 - 678 (1970).

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter.

3. Respondent was not in violation of the standard at 29 C.F.R. 5 1926.751(d) as alleged in item 2 of the citation.

ORDER
.

Item 2 of the Citation issued to Respondent on December 1, 1992, is VACATED.

/
MICHAEL H. SCHOENFELD
Judge, OSHRC
Dated: OEC 14 1993
Washington, D.C.
OCCUPATIONAL SAF~N~~~E~~~~~c~EVIEW
COMMISSION
One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

.
PHONE: zi (202) 6oGSxo
COM (202) 6064100
Frs (202) 606-6050
Frs (202) 606-51~

SECRETARY
OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-3815
THOMAS LINDSTROM & COMPANY
Respondent.

NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was docketed with the Commission on December 15, 1993. The decision of the Judge will become a final order of the Commission on January 14, 1994 unless a Commission member directs review of the decision on or before that date. ANY PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such petition should be received b the Executive Secretary on or before January 4, 1994 in order to ermit su2 icient time for its review. See Comrmssion Rule 91, 29 C. Ep.R. 2200.91.
All further pleadings or communications
regarding this case shall be
addressed to:

Executive Secretary
Occupational Safety and Health
Revrew Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:

Daniel J. Mick, Esq.
Counsel for Regional Trial Liti ation
Office of the Solicitor, U.S. DOgL
Room S4004
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for Regional Trial Litigation will represent the Department of Labor. Any party having questions about review rights may contact the Commission’s Executive Secretary or call (202) 6065400.
.
FOR THE COMMISSION

Date: December 15, 1993
Executive Secretary
DOCKET NO. 92-3815
NOTICE IS GIVEN TO THE FOLLOWING:

Daniel J. Mick, Esq.
Counsel for Re ‘onal Trial Liti ation
Office of the So%l citor, U.S. DOgL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210

Marshall H. Harris, Esq.
Re ional Solicitor
Of&e of the Solicitor U.S. DOL
14480 Gatewa Build&g
3535 Market Btreet
Philadelphia, PA 19104

James F. Sassaman, Director of
Safety
GBCA
P.O. Box 15959
36 South 18th Street
Philadelphia, PA 19103

Michael H. Schoenfeld
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
One Lafayette Centre
1120 20th St. N.W., Suite 990
Washington, DC 20036 3419

00018253112:03
 UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION One Lafayette Centre
1120 20th Street, N.W. - 9th Floor
Washington, DC 20036-3419

FAX:
PHONE:
COM (202) 6Q&w50
COM (202) 6a%loo
~(~2)6o6-5050
RS (202) 606400

.

    SECRETARY              OF LABOR,                       ..

Complainant,

v. OSHRC Docket No. 92-3815
.

    THOMAS LINDSTROM               COMPANY, INC.,          I

Respondent.

Appearances:
Howard K Agran, Esq.
James F. Sassaman
Office of the Solicitor
General Building Contractors
U.S. Department of Labor
Association
For Complainant
Philadelphia, Pennsylvania
For Respondent

Before: Administrative Law Judge Michael H. Schoenfeld

Background and Procedural Historv

This case arises under the Occupational Safety and Health Act of 1970,29 U.S.C. 6 6 651 - 678 (1970) (“the Act”).
On October 7, 1992, an inspection by two Compliance Officers (“CO”) of the
Occupational Safety and Health Administration (“OSHA”) was conducted of the site of the construction of a new building for the City of Philadelphia Medical Examiner where a
general contractor had hired Thomas Lindstrom & Company (“Respondent”) as the
structural steel erection sub-contractor. As a result of that inspection a citation alleging two serious violations of the Act were issued to Respondent. Civil penalties of $3,000 for each violation were proposed.
Respondent timely contested the citations. Following the filing of a complaint and answer and pursuant to a notice of hearing, the case came on to be heard on August 26, 1993. No affected employees sought to assert party status. Both parties have filed post- hearing briefs.

Jurisdiction
Complainant alleges and Respondent does not deny that it is an employer engaged
in structural steel erection. It is undisputed that Respondent uses tools, equipment and supplies which have moved in interstate commerce. I find that Respondent is engaged in a business affecting interstate commerce.
Based on the above finding, I conclude that Respondent is an employer within the meaning of 5 3(5) of the Act.’ Accordingly, the Commission has jurisdiction
over the subject matter and the parties.

Discussion2

Citation 1, item 1 alleges a violation of the construction safety standard at 29 C.F.R.
8 1926.751(d), which provides that “[tlag lines shall be used for controlling loads.” According to Respondent’s post-hearing brief:
The dispute could not be more clear. Complainant’s position is that the wording of the standard amounts to a mandatory requirement that all loads carried to people be used with a tag line (Complainant’s opening statement at 6). Respondent, on

.
1 Title 29 U.S.C. 8 652(5).

2 Citation 1, item 1 was settled by the parties at the hearing and thus is not in issue. The agreement reached by the parties as to that item is part of the record in this case (Tr. 5-6).

2 the other hand, argues that he standard reads that the use of tag lines is predicated upon a need for controlling loads (Respondent’s opening statement at 7).
If this were the sole issue in the case at bar, this decision would begin and end with this Judge’s agreement with Judge Schwartz’s holding in Swain& Sons, 15 BNA OSHC 1062 (No.90-0355-S, 1991) (ALJ) (Digest) and disagreement with that of Judge O’Connell in East RutherfordSteel Erectors, Inc., 9 BNA OSHC 1876 (No. 79-2658, 1981) (ALJ) (Digest). The term “shall” is not advisory or precatory -- it is mandatory. The cited standard requires the use of tag lines. A failure to use tag lines during the final placing of solid web structural steel members is a violation of the requirements of the standard3. Unless an affirmative defense is pled and proven as it has in this case.
The Commission, in Seibel h4odem Manufacturing& Welding Corp., 15 BNA OSHC 1219 (No 88-821, 1991) (“SeibeZ”)reviewed the history of the infeasibility defense including Dun-Par Engineered Form Co., 12 BNA OSHC 1949 (No. 79-2553, 1986), rev’d in pati, sub nom, Secretaryv. Dun-Par Engineered Fomz Co., 843 F.2d 1135 (8th Cir. 1988), (“Dun-Parr’)

and Dun-Par Engineered Form Co., 12 BNA OSHC 1962 (No. 82.0928,1986) (“Dun-ParIl”). In order to prevail on this defense, a Respondent must demonstrate that 1) compliance with the standard’s requirements would “not be practical or reasonable in the circumstances.” Dun-Par IJ supra, 12 BNA OSHC at p. 1966, and 2) “that an alternative protective measure was used or that there was no feasible alternative measure.+’ Seibe, supra, 15 BNA OSHC at 1228. See ako, Kunz Constution Co., 15 BNA OSHC 1331,1333 (No. 90-2369-S, 1991)

(ALJ). Infeasibility, said the Commission, in Dun-Par II, 12 BNA OSHC at p. 1996, includes “considerations of reasonableness, common sense, and practicality.” Id. Moreover, where an employer cannot fully comply with the literal requirements of a standard, it must nevertheless comply to the extent that compliance is feasible. BrattonFurniture Manufactur- ing Co., 11 BNA OSHC 1433, 1434 (No. 81-799-S, 1983).

3 Assuming, of course that the other elements of a violation of 3 5(a)(2) of the Act, the applicability of the standard, employee exposure and knowledge by Respondent of the violative condition, are also established.

3
 In Dun-Par 11, Respondent’s impracticality argument (that additional employees and additional time would have been needed to erect guradrails) was considered by the Commission as an argument that the installation of guardrails was not economically feasible. The Commission indicated that such argument was within the framework of the affirmative defense of infeasibility. In Seibel; supra, at p. 1227, the Commission interpreted Dun-Par II as allowing an employer to demonstrate that “the costs [of compliance] would be ‘unreasonable’ or that [compliance] would be ‘unreasonable or senseless.’ ” In Falcon Steel Co., 16 BNA OSHC 1179, 1186-87 (Nos. 89-2883 and 89-3444, 1993) the Commission examined a defense of infeasibility in terms of “physical impossibility” and “interference with operations” while mentioning the element of alternative protective measures in a footnote. Id., at 1187, n.10.
In this case, Respondent has shown that the use of tag lines on the steel being placed into position at the cited worksite at the time of the inspection was infeasible in that their 1

h use would have created more problems than those solved by the use of the lines.
Their interference with the operations as they were being conducted was so great as to warrant their not being used.
First raised in its amended answer, Respondent throughout the course of the hearing
and in its post-hearing brief presented argument and evidence to the effect that the use of tag lines was infeasible. A review of the evidence presented by Respondent shows significant problems in the use. of tag lines, under the circumstances present at the inspected site. First, “ground men” who control the lines from the ground would have had to cross uneven metal decking consisting of four inch cells divided by three inch gaps while concentrating on what was happening above them thus limiting their ability to watch their footing in this potentially dangerous area (Tr. 103.04,115). Second, the circumstances at the site would have required that the tag. lines taken through a “forest” of upright steel columns (with protruding connection plates attached) which could result in the fouling or snagging of the tag lines. In this event, ironworkers would have to go up the 40’ to 50’ high vertical columns to free the tag lines and the snagging would result in unwieldy movement of the suspended steel beams (Tr. 102-03, Ex. R-2, R-3).

4
 Respondent presented no specific evidence that there were no feasible alternative measures to afford protection to the ironworker connectors who received the steel. It argues, instead, that the control of the suspended steel by the crane itself, without the use of tag lines, was “an alternative protective measure, a primary measure, really. . .” (Resp. Brief, p. 14). The evidence as a whole, however, establishes that there were no feasible alternatives to the use of tag lines. The Secretary recognizes that “there only three means available for the controlling of loads” (Sec. Brief, p. 6). One, control by the crane. Two, hands on control by the connectors once they have hold of the steel. Three, tag lines. Respondent has established that tag lines are infeasible. The Commission, in numerous cases has held that ironworker connectors cannot be required to use safety belts while moving about (as they must do to receive steel being hoisted to them). Thus, Respondent is correct, the only manner and means of controlling hoisted steel under these circumstances, rests with the crane operator’s control of the load.
In reaching the assessment of the infeasibility of the use of tag lines greater weight
has been accorded the opinion testimony of Respondent’s Safety Officer than that of the Compliance Officer and the OSHA Assistant Area Director. All of these witnesses were honest and forthright. The Safety Director, however, was highly experienced in the field of steel erection. While the OSHA officials could and did testify that tag lines were used during most of their construction site inspections, they did not have a sufficient degree and breadth of personal experience to offer reliable testimony as to the effects on this particular site of using tag lines. See, Fed. Rule Evid. 701. (The opinion testimony of a lay witness may be based on that witness’s personal experience.) Thus their opinions, while admissl%le, are accorded significantly less weight than that of the person with many years of experience in - the hoisting of steel and the use of tag lines.
In sum, for the above reasons, I find that Respondent has, by a preponderance of the
reliable evidence in this case, established the affirmative defense of infeasibility. Accordingly, the item is VACATED. All findings of fact necessary for a determination of all relevant issues have been made above. Fed, R. Civ. P. 52(a). All proposed findings of fact and conclusions of law inconsistent with this decision are hereby denied.

CONCLUSIONS OF MW

1. Respondent was, at all times pertinent hereto, an employer within the meaning of 5 3(5) of the Occupational Safety and Health Act of 1970, 29 U. S. C. 8 8 651 - 678 (1970).

2. The Occupational Safety and Health Review Commission has jurisdiction over the parties and the subject matter.

3. Respondent was not in violation of the standard at 29 C.F.R. 5 1926.751(d) as alleged in item 2 of the citation.

ORDER
.

Item 2 of the Citation issued to Respondent on December 1, 1992, is VACATED.

/
MICHAEL H. SCHOENFELD
Judge, OSHRC
Dated: OEC 14 1993
Washington, D.C.