Docket Nos. 2684; 2716 (consolidated)

JOSEPH BUCHEIT AND SONS COMPANY; A.P. O'HORO COMPANY, INC.

OSHRC Docket Nos. 2684; 2716 (consolidated)

Occupational Safety and Health Review Commission

May 31, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: CLEARY

OPINION:

CLEARY, COMMISSIONER: On February 4, 1974, Judge George W. Otto issued his decision and order in these consolidated cases, inter alia, vacating the citations alleging violations of 219 C.F.R. 1926.651(a).

On March 6, 1974, I directed that the decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ).

Review was directed in order to determine whether violations of 29 C.F.R. 1926.651(a) had occurred, and if so, whether such violations were willful.

Complainant has filed a memorandum in support of the Judge's decision and order. That memorandum and respondents' briefs demonstrate the parties' concurrence that the cited standard is inapplicable to the circumstances of these cases.

On the basis of the parties' submissions and our review of the entire record it is ORDERED that the Judge's decision and order be affirmed.

[The Judge's decision referred to herein follows]

OTTO, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. [*2] hereafter called the Act). Due to common questions of fact or law, the above three cases were consolidated on motion of the Complainant, and hearings were held at Youngstown, Ohio, before the undersigned Judge on July 25, 26, 27, 1973. For conciseness hereafter Joseph Bucheit and Sons Company, #2684, will be referred to as "Bucheit," A.P. O'Horo Company, Inc., § 2716, as "O'Horo" and Ohio Contracting Company, #2665, [Became final 3-6-74 without review, see 7 OSAHRC 119, ed ], as "Ohio Contracting."

Following investigation of an explosion occurring on December 20, 1972, causing the death of two workmen and injury to others, Citations and Notifications of Proposed Penalties were issued to each of the above Respondents on March 30, 1973, by authority of Section 9(a) of the Act.

The following general statement of facts applies to and is made a part of the decision in each of the three cases.

GENERAL STATEMENT OF FACTS

O'Horo, the general contractor for State of Ohio Highway Project No. 505-I.R.680, entered into a subcontract with Bucheit under which Bucheit contracted to build all the bridges in the Youngstown area over the Boardman Expressway including one at Shirley [*3] Road.

Ohio Contracting was a subcontractor engaged in the demolition phase of the project. As properties were released by the State of Ohio, structures were demolished (Tr. 303).

East Ohio Gas Company had installed a high pressure gas line parallel to Shirley Road which was relocated at the bridge site prior to the accident (Tr. 134), and the line was activated while Bucheit was engaged in constructing the bridge abutments (Tr. 117, 208, 209, 210). The line generally was installed in a trench excavated about five feet below the surface (Tr. 111, 289) and passed about three feet outside of the perimeter of the area in which the excavating for the Shirley Road bridge abutment was to take place (Tr. 196, 197, 202, 205, Bucheit Exhibits 4 and 5). However, at the specific point of the episode resulting in an explosion on December 20, 1972, the gas line was approximately eighteen inches to two feet below ground level (Tr. 289, 290).

On December 20, 1972, heavy rock was encountered which the equipment at the site could not remove. Bucheit Superintendent John Tucciarone asked Robert Knodle, Ohio Contracting assistant superintendent and dirt foreman, if he could rent a D-9 [*4] bulldozer and operator to excavate the north abutment. Mr. Knodle told Mr. Tucciarone he would have to pay the operator eight hours because that was guaranteed and a rental time on the machine, which was a common arrangement between Bucheit and O'Horo. The arrangement was approved by O'Horo president (Tr. 277), and after some delay the usual O'Horo D-9 bulldozer operator, Russell Allen, was contacted, picked up the bulldozer and went to the excavation site, and while engaged in the Shirley Road abutment excavation operation on December 20, 1972, the explosion occurred when a gas line was ruptured.

Present at the Shirley Road site on December 20, 1972, were the following workmen: Bucheit employees -- John Tucciarone, superintendent, Clellan Smith, machine operator, Dominic Muto, layout engineer and Charles Tacy, heavy equipment operator; O'Horo employees -- George Chepke, project superintendent and Robert Knodle, assistant superintendent and dirt foreman. Also present were Russell Allen, bulldozer operator, usually employed by O'Horo but allegedly an employee of Bucheit and Peter Roman, usually employed by Ohio Contracting as a heavy equipment operator and allegedly an [*5] employee of Bucheit. Russell Allen and John Tucciarone suffered fatal injury.

The testimony where relevant relates to and is a part of the record in each of the above three proceedings.

THE ISSUES

1. Whether Respondents Bucheit and O'Horo are entitled to dismissal of the proceedings, with prejudice, due to the alleged failure of Complainant to comply with orders issued prior to trial and to comply with requests made by Respondent before and at the time of hearing.

2. Whether Respondent was an employer within the meaning of Section 3(5) of the Act (O'Horo, Ohio Contracting).

3. Whether the Respondent failed to comply with Section 5(a)(2) of the Act by violation of occupational safety and health standard 29 C.F.R. 1926.651(a) and if so, whether such violation was willful (Bucheit Citation No. 2, O'Horo Citation No. 1).

4. Whether Respondent failed to comply with Section 5(a)(2) of the Act by violation of occupational safety and health standard 29 C.F.R. 1926.21(b)(2) and if so, whether such violation was serious (Bucheit Citation No. 3, O'Horo Citation No. 2, Ohio Contracting Citation No. 1).

5. Whether Respondent failed to comply with Section 5(a)(2) of the Act by violation [*6] of occupational safety and health standard 29 C.F.R. 1904.4 (O'Horo citation No. 4, item 1).

6. Whether Respondent Ohio Contracting was misled or prejudiced by failure of the Complainant to charge Respondent with serious violation of 29 C.F.R. 1926.21(b)(2) instead of the Complainant allegation of willful violation of 29 C.F.R. 1926.651(a).

7. Whether the respective violations were properly categorized, and whether the proposed penalties were proper and adequate.

OPINION

Issue no. 1

Both the Complainant and the Respondents raising this issue rely upon Frazee Construction Company, On July 25, 1973, Complainant stated that any statements made by witnesses called by the Secretary of Labor would be made available at that time to Respondents' counsel for purposes of cross-examination (Tr. 19). It was and remains Respondents' position that this was not enough, that Respondents prior to and at time of hearing are entitled to examination of any material in Complainant's file relating to the issues of the case, whether used or created by a potential witness or not. The Frazee case does not appear to establish that after [*7] issue is joined, a Respondent is entitled to perusal of the Complainant's complete file. Respondents were not precluded from access to all notes and material prepared by or referred to a Complainant witness on July 25, 26, 27, 1973. In the Frazee case Complainant refused access to material used by its witness, to the extent of refusal of in camera inspection by the presiding Judge.

Respondents did not lack investigative opportunity. The accident happened December 20, 1972, and the Citation issued March 30, 1973. It may be confidently assumed Respondents investigated as soon as possible following the episode. Pictures were taken "after the accident and the flames and smoke have blown away" (Exhibit nos. 7 through 13)(Tr. 171, 172). Where individuals may have refused to supply statements on advice of counsel retained by them in legal actions unrelated to this proceeding, Respondents had recourse and Respondent Bucheit exercised such recourse by authorized discovery depositions under Rule 53.

Perhaps the persistent attempts to peruse Complainant's file resulted primarily from the alleged violation of 1926.651(a). Respondents lacked any information tending to support [*8] a finding of uncovering an underground installation, which event if contemplated would have required exact location of the gas line, notice to the East Ohio Gas Company and proper supports. No investigation could have elicited such "information" because it did not exist.

Motions for dismissal claiming the Act unconstitutional and for jury trial were properly denied. Aire-Lite Industries, Inc., Docket No. 1278; Beall Construction Co., Docket No. 557.

Issue no. 2

Neither Respondent O'Horo nor Ohio Contracting has pursued this issue. Without question, each was engaged in a business affecting commerce for purposes of the Act, C and J Forming Contractors, Mitchell v. Stewart Brothers Construction Company, 184 F.Supp. 886 (D. Neb., 1960). The Courts have repeatedly held that construction of a superhighway, where it will be connected with existing highways, constitutes engagement in interstate commerce.

Issue no. 3

29 C.F.R. 1926.651(a), Citation No. 2:

Prior to opening an excavation effort shall be made to determine whether underground installations; i.e., sewer, telephone, water, fuel, electric lines, etc., will be [*9] encountered, and if so, where such underground installations are located. When the excavation approaches the estimated location of such an installation, the exact location shall be determined and when it is uncovered, proper supports shall be provided for the existing installation. Utility companies shall be contacted and advised of proposed work prior to the start of actual excavation.

This standard relates only to one specific work situation: exact location and excavation of an earth area containing an underground installation, with uncovering and providing proper support. Such installation implies a prior excavation and requires notice to the utility. The installation itself presupposes an excavation of the space it displaces. It is immaterial whether the prior excavation was made in a closed operation, i.e., by drilling, or as in this case by digging an open trench, laying the pipe and covering with sand and backfill. If Complainant's interpretation is correct, that any penetration of the earth constitutes excavation, as here defined, then the use of the phrase "opening an excavation" in the first sentence is redundant. It would have been sufficient to have phrased [*10] the first clause "prior to excavation . . . ." "Opening an excavation" appears in no other subpart of 1926.651. It is observed that subpart (n) begins "Except in hard rock excavations below the level of the base of any foundation . . . ." Why not "opening excavations" in (n)? Simply because no prior excavation is contemplated in (n). Excavation: act of excavating, American College Dictionary, 1970, p. 419.

It appears clear this standard contemplates a planned and intended uncovering of an underground installation. When, note if, the excavation approaches the estimated location of such an installation, the exact location shall be determined and when, not if, it is uncovered, proper support shall be provided for the existing installation. (emphasis supplied)

There is no contention by Respondents that they complied with this standard. There is no argument about it. They correctly contend that the excavation work performed on December 20, 1972, did not involve opening any part of the excavation containing the underground gas line. The excavation work performed on December 20, 1972, if carried to completion, would not have involved uncovering the gas [*11] line.

Respondents did not notify the East Ohio Gas Company of the proposed December 20 excavation work and did not request the exact location of the line; the line was not specifically staked, and the line was uncovered only by the force of the explosion itself. Of course the Respondents did not comply with occupational safety and health standard 29 C.F.R. 1926.651(a). The cited standard did not apply to the working conditions involved in the excavation work related to the Shirley bridge construction on that date. There was no violation of this standard since the working conditions related to the excavation activity on December 20, 1972, did not create a hazard, actual or potential, within the scope of this standard. There must be proof that what caused an accident was a violation of the standard cited. The fact that an accident occurred is not itself proof of a violation, Secretary of Labor v. Koppers Company, Secretary of Labor v. Gerosa, Inc., Even if uncovering the gas line had been contemplated and done and proper supports provided as required by the above standard (and there is nothing whatsoever to support [*12] or infer this supposition), the explosion still would have occurred. There was no violation by either Respondent, Bucheit or O'Horo, willful or otherwise.

Issue no. 4

29 C.F.R. 1926.21(b)(2):

The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

The record is replete with reference to the general location of the gas line and establishes that every identified individual at this worksite on December 20, 1972, knew the gas line was there, and although it was not exactly staked out, all workmen associated with the excavation activity were warned the gas line was in the vicinity of the excavation work of that date. The operator of the bulldozer involved in the accident was instructed in the gas line location, including an admonition as to the effects of penetration in no uncertain terms (Tr. 299). The employees of all three Respondents were well aware of the gas line location. Grade stakes marked the extremes of excavation with relationship to the gas line (Tr. 168), the gas line was outside the excavation [*13] area (Tr. 183), and equipment including earth-movers (heavier than bulldozers) moved across and up and down the gas line (Tr. 146). This appeared to be a routine procedure and violated no cited standard. Until the moment of explosion, it appeared that the work was being performed by experienced individuals operating equipment routinely. There was no need to use a bulldozer ripper on that date except to break up or dislodge rock. There was not rock between the earth's surface and the gas line, nothing but sand and backfill. There was no need to, or expectation that, a machine operator would activate a ripper while crossing the gas line underground installation. There is nothing in this record to conclude or infer that he did. The excavation equipment operators on December 20, 1972, did not need instructions on the operation of the excavating equipment. Clellan Smith, Russell Allen and Peter Roman were experienced bulldozer and heavy equipment operators. Charles Tacy was also a heavy equipment operator although on December 20 he did not actually have a work assignment in the area involved but was present at the time of the explosion having just reported for orders [*14] for the next day.

Complainant does not suggest instructions that would have prevented this episode.

Disregarding the explosion, the record fails to establish that any of the Respondents failed to instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment, and Complainant has the burden of proof in that regard.

In the absence of violation of any cited standard, questions of employer-employee relationship and exposure to working conditions become mot. However, some comment may be indicated although it is emphasized that any finding made or conclusion declared in this decision shall not affect any workmen's compensation law application or any rights, duties or liabilities in any area other than that established under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et seq. ). Section 4(4) of the Act provides:

Nothing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, [*15] diseases, or death of employees arising out of or in the course of employment.

In determining whether or not a workman is a loaned employee requires consideration of factors in addition to the usual cardinal criteria including right of direction and control and the question of which employers' interests are being furthered by the individual's work activity. The Court in Nepstad v. Lambert, 255 Minn 1, 50 NW (2) 615 (1951) considered the test of which employer's business was being done or furthered as practically valueless where by doing the job the workers were necessarily furthering and doing the business of both employers. This case emphasizes the right of direction and control and points out that the control possessed by the general employer may be more remote than that of the special employer but nevertheless has real force behind it in that among other things the general employer selects the equipment operator, could discharge him, pays his wages and administers such matters as social security, workmen's compensation premium and income tax withholding, together with the exclusive right to direct how the equipment should be cared for. However, it generally [*16] follows that the workman is considered to be the employee of the individual engaged at the time of injury, considering factors of right of direction and control, whether his usual employer is interested in the end result of his work activity rather than in the immediate details thereof, whether the employee consents to the arrangement and whether the usual employer is engaged in the machine-renting business and the activity of the injured workman was primarily concerned with protection and maintenance rather than the use of the equipment. In Rhinelander Paper Company v. Industrial Commission, 206 Wis 215, 239 NW 412, the Court stated, "it is quite generally agreed that in order to transfer liability from the general employer to the one to whom the employee is loaned, there must be some consensual relationship between the loaned employee and the employer whose service he enters, sufficient to create a new employer-employee relationship." "Consent cannot be inferred merely from the fact that the employee obeyed the commands of his employer in entering the services of another." The record establishes that this machine and operator arrangement had been entered into many times [*17] in he past between Bucheit and O'Horo; an operator was assigned by his usual employer to a specific machine and if another company desired the use of that machine it followed that the specific operator went along with in on the job, and the rental charge included the machine and operator. It would be overreaching the record to conclude that because this arrangement was entered into many times that the company owning the machine was in the business of machine rental, see Boeack Equipment Company v. Industrial Commission, 246 Wis 178; 16 NW (2d) 298; Restatement 1 Agency, page 500, sec. 227.

The leading Ohio case on the subject of loaned employee appears to be Halkias v. Wilkoff Company, 141 Ohio St. 139, 29 00 57 (1943) in which the Court stated, "when one party loans his servant to another for a particular employment in the business and under the direction of the latter, the servant for anything done in that employment, must be regarded as the servant of the party to whom he is loaned, although he remains the general servant of the party who loaned him."

Applying these considerations and criteria to this record, it appears that Russell Allen was an employee [*18] of Bucheit on December 20, 1972, instead of an employee of O'Horo and that Peter Roman, usually employed by Ohio Contracting, was an employee of Bucheit on December 20, 1972.

The only reference to Jim Shook appears on transcript page 159. Peter Roman testified that Jim Shook was his oiler and worked for Ohio Contracting. He also testified that "most of the time we were there by ourselves and the superintendent, John Tucciarone, would come occasionally and check us out for Bucheit." It might be inferred that Jim Shook as performing wage-earning services for Bucheit, but the record is inconclusive and a determination is not necessary on this point.

Robert Knodle, O'Horo assistant superintendent, and George Chepke, superintendent, were on the worksite and within the orbit of the working conditions related to excavation of the Shirley Road bridge abutment on December 20, 1972. As far as the record discloses, the fact that at the moment of explosion they were fortunate enough to be beyond the area of injury does not remove them from the worksite. When Robert Knodle went down in the excavation and stood within six inches of the gas line location and told Mr. Allen where [*19] it was (Tr. 279), he was performing service incidental to his employment with Respondent O'Horo and had not deviated from such employment.

Issue no. 5

29 C.F.R. 1904.4

In addition to the log of occupational injuries and illnesses provided for under § 1904.2, each employer shall have available for inspection at each establishment within 6 working days after receiving information that a recordable case has occurred, a supplementary record for each occupational injury or illness for the establishment. The record shall be completed in the detail prescribed in the instructions accompanying Occupational Safety and Health Administration Form OSHA No. 101. Workmen's compensation, insurance, or other reports are acceptable alternative records if they contain the information required by Form OSHA No. 101. If no acceptable alternative record is maintained for other purposes, Form OSHA No. 101 shall be used or the necessary information shall be otherwise maintained.

The Citation originally issued charged Respondent with violation of 1904.2, but in the Complaint and thereafter Complainant has maintained a violation of 1904.4. There in fact has been no injury record violation in that the [*20] Respondent did not have an employee injured. For the purpose of disposition of this issue, it is concluded that Russell Allen was a loaned employee on December 20, 1972, that he was the employee of Bucheit rather than O'Horo since he was subject to the direction and control of Bucheit, primarily furthering the interests of Bucheit in the immediate excavation work which was the contractual responsibility of Bucheit, that Bucheit agreed to pay for the services of Allen with eight hours guaranteed (Tr. 276), that it is reasonable to conclude the operator Allen consented to the arrangement and that he was engaged primarily to use rather than merely maintain the bulldozer rented by Bucheit.

Issue No. 6

The Citation charging Ohio Contracting with violation of 29 C.F.R. 1926.21(b)(2) was omitted from the Complaint which in paragraph 3 contains the allegation that Respondent willfully violated the standard set forth in 29 C.F.R. 1926.651(a). Paragraph 3 of the Complaint was in error and the Complainant did not intend to amend the Citation, made no reference to amendment or to Rule 33(a)(3). The error was corrected at time of hearing, and the Respondent was not precluded from [*21] the adequate presentation of testimony on the true issue of alleged violation of 29 C.F.R. 1926.21(b)(2).

Issue no. 7

In the absence of violation of the standards in issue, there remains no question of classification of violation or of proposed penalty.

The following findings of fact, conclusions of law and order relate only to Joseph Bucheit and Sons Company, Docket No. 2684.

FINDINGS OF FACT

1. Respondent was engaged in a business affecting commerce among and between States.

2. On December 20, 1972, Respondent workmen were engaged in excavation of an abutment area at the location of Shirley Road bridge and Boardman Expressway, Youngstown, Ohio.

3. On December 20, 1972, an explosion occurred when the ripper on the rear of a bulldozer penetrated an underground gas line installation.

4. The bulldozer involved in the explosion was owned by A.P. O'Horo Company, Inc., and was rented by Respondent for the excavation work of December 20, 1972. Russell Allen, the machine operator, was subject to the direction and control of Respondent, was guaranteed eight hours pay, was engaged in the operation rather than merely the maintenance of the bulldozer, consented to the [*22] arrangement, a contract of hire resulted and at time of explosion he was the employee of Respondent.

5. The gas line ran within a few feet of the area where the abutment excavation began and such excavation limit was marked by stakes.

6. The underground gas line installation was not uncovered prior to the explosion; there was no intention to uncover, cross or contact the gas line or uncover the excavation previously made for the purpose of the gas line installation.

7. Until the moment of explosion the excavation work was performed in a routine and expected manner.

8. On December 20, 1972, prior to the explosion Respondent did not permit its employees to work under unsafe conditions or exposure to hazards within its contemplation.

9. Respondent did not fail to instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

CONCLUSIONS OF LAW

1. Respondent did not fail to comply with Section 5(a)(2) by non-compliance with occupational safety and health standard 29 C.F.R. 1926.651(a).

2. Respondent did not fail to comply [*23] with Section 5(a)(2) of the Act or with occupational safety and health standard 29 C.F.R. 1926.21(b)(2).

ORDER

1. It is ordered that the Complaint be dismissed and Citation no. 2 alleging violation of standard 29 C.F.R. 1926.651(a) be and the same is hereby vacated.

2. It is ordered that the Complaint be dismissed and Citation no. 3 alleging violation of standard 29 C.F.R. 1926.21(b)(2) be and the same is hereby vacated.

The following findings of fact, conclusions of law and order relate only to A.P. O'Horo Company, Inc., Docket No. 2716.

FINDINGS OF FACT

1. Respondent was engaged in a business affecting commerce among and between States.

2. On December 20, 1972, Respondent rented a D-9 bulldozer, with operator Russell Allen to the Joseph Bucheit and Sons Company for use in excavation of the north abutment area of Shirley Road bridge Youngstown, Ohio.

3. On December 20, 1972, an explosion occurred when the bulldozer ripper penetrated an underground gas line installation.

4. The machine operator, Russell Allen, was subject to the direction and control of Joseph Bucheit and Sons Company, was guaranteed eight hours pay by that company, was engaged in the operation rather [*24] than merely the maintenance of the bulldozer, consented to the arrangement, a contract of hire resulted and at time of explosion Russell Allen was an employee of Joseph Bucheit and Sons Company.

5. The gas line ran within a few feet of the area where the abutment excavation began, and such excavation limit was marketed by stakes.

6. The underground installation, the gas line, was not uncovered prior to the explosion; there was no intention to uncover the gas line or to uncover the excavation previously made for the purpose of the gas line installation.

7. Until the moment of explosion, the excavation work was performed in a routine and expected manner.

8. On December 20, 1972, prior to the explosion Respondent did not permit its employees to work under unsafe conditions or exposure to hazards within its contemplation.

10. Although Respondent named Russell Allen as its employee in first reporting the fatal injury to that workman, [*25] he in fact and law was not the employee of Respondent, and there was no failure to maintain OSHA Form 101, Supplemental Record of Occupational Injury or Illness, since Respondent's employee was not injured.

CONCLUSIONS OF LAW

1. Respondent was an employer within the meaning of Section 3(5) of the Act.

2. Respondent did not fail to comply with Section 5(a)(2) by non-compliance with occupational safety and health standard 29 C.F.R. 1926.651(a).

3. Respondent did not fail to comply with Section 5(a)(2) of the Act or with occupational safety and health standard 29 C.F.R. 1926.21(b)(2).

4. Respondent did not fail to comply with Section 5(a)(2) of the Act by non-compliance with occupational safety and health standard or regulation 29 C.F.R. 1904.4.

ORDER

1. It is ordered that the Complaint be dismissed and Citation no. 1 alleging violation of standard 29 C.F.R. 1926.651(a) be and the same is hereby vacated.

2. It is ordered that the Complaint be dismissed and Citation no. 2 alleging violation of standard 29 C.F.R. 1926.21(b)(2) be and the same is hereby vacated.

3. It is ordered that the Complaint be dismissed and Citation no. 4, item 1, alleging violation of standard [*26] or regulation 29 C.F.R. 1904.4 be and the same is hereby vacated.

The following findings of fact, conclusions of law and order relate only to Ohio Contracting Company, Inc., Docket No. 2665.

FINDINGS OF FACT

1. Respondent was engaged in a business affecting commerce among and between States.

2. On or about December 20, 1972, Respondent rented a machine with operator Peter Roman to Joseph Bucheit and Sons Company for use in excavation of the north abutment area of Shirley Road bridge, Youngstown, Ohio.

3. On December 20, 1972, an explosion occurred when a bulldozer ripper penetrated an underground gas line installation.

4. Peter Roman, machine operator, on December 20, 1972, was subject to the direction and control of Joseph Bucheit and Sons Company, was engaged in the operation rather than merely the maintenance of Respondent's machine, consented to the arrangement, a contract of hire resulted and at time of explosion Peter Roman was an employee of Joseph Bucheit and Sons Company.

5. Respondent did not permit its employees to work under unsafe conditions or exposure to hazards within its contemplation.

6. Respondent did not fail to instruct each employee in [*27] the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

CONCLUSIONS OF LAW

1. Respondent was an employer within the meaning of Section 3(5) of the Act.

2. Respondent did not fail to comply with Section 5(a)(2) of the Act or with occupational safety and health standard 29 C.F.R. 1926.21(b)(2).

ORDER

It is ordered that the Complaint be dismissed and Citation No. 1 alleging violation of standard 29 C.F.R. 1926.21(b)(2) be and the same is hereby vacated.