” Apex Bldg Cleaning, Docket No.992var gAgent = navigator.userAgent.toLowerCase()var gWindows = ( (gAgent.indexOf( \”win\” ) != -1 ) || ( gAgent.indexOf( \”16bit\” ) != -1 ) )var gIE = ( gAgent.indexOf( \”msie\” ) != -1 )var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) )var floatwnd = 0var WPFootnote1 = ‘\u00a0Reference Key: T refers to Transcript of the minutes of the trail.\\’var WPFootnote2 = ‘\u00a0Description taken from a copy of New York State\u2019s Board of Standards and Appeals approval of the equipment, p.\\2, 3, attached to Respondent\u2019s answer to Judge\u2019s Instructions and served on all parties, item J\u201313 of case file; see\\also T. 146\u2013147, 330, 334.\\’var WPFootnote3 = ‘\u00a0For reasons best known to the parties, neither of these two employees was subpoenaed as a witness at this trial,\\although there is much discussion and testimony, all of it hearsay, in the record as to what they said or didn\u2019t say at\\various times after the accident. Other non-hearsay independent evidence set forth above corroborates or renders\\credible and trustworthy much of this hearsay; see also concession of Respondent (Brief p. 2).\\’var WPFootnote4 = ‘\u00a0This device has been described as a mechanical retaining device connected to an extension rod which by a vertical\\motion activates a micro-switch which, in turn, activates the scaffold mechanism (T. 143); when properly activated,\\this device also deactivates the roof car mechanism (T. 185, 187).\\’var WPFootnote5 = ‘\u00a0For reasons best known to the parties, neither of these two employees was subpoenaed as a witness at this trial, although\\there is much discussion and testimony, all of it hearsay, in the record as to what they said or didn\u2019t say at various times\\after the accident. Other non-hearsay independent evidence set forth above corroborates or renders credible and\\trustworthy much of this hearsay; see also concession of Respondent (Brief p. 2).\\’var WPFootnote6 = ‘\u00a0Two other anchor recess holes not as yet reached by the roof car were also clogged (T. 269).\\’var WPFootnote7 = ‘\u00a0This statement is made in the context and understanding that the roof car is not being misused and that all other\\relevant safety factors and safety standards are complied with.\\’function WPShow( WPid, WPtext ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘visible’\” ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( \”\”, \”comment\”, \”toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1\” ); floatwnd.document.open( \”text\/html\”, \”replace\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( \” p { margin-top:0px; margin-bottom:1px; } \\\” ); floatwnd.document.write( \”\\\” ); floatwnd.document.write( WPtext ); floatwnd.document.write( ‘Close’); floatwnd.document.write( \”\” ); floatwnd.document.close(); floatwnd.focus(); }}function WPHide( WPid ){ if( bInlineFloats ) eval( \”document.all.\” + WPid + \”.style.visibility = ‘hidden’\” );}p{\tmargin-top: 0px;\tmargin-bottom: 1px}table{\tborder-collapse: collapse;\tborder-spacing: 0pt;\tborder-color: black;\tempty-cells: show;\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\tfont-weight: normal;\tfont-style: normal}td{\tborder-color: black}td.table1column1{\tpadding-left: 0.075in;\tpadding-right: 0.0816667in}td.table1column2{\tpadding-left: 0.075in;\tpadding-right: 0.075in}span.WPFloatStyle{\tvisibility: hidden;\tposition: absolute;\tleft: 10px;\tright: 10px;\tbackground-color: rgb(255, 255, 225);\tborder-width: 1px;\tborder-style: solid;\tborder-color: black;\tmargin-top: 25px;\tpadding: 6px;\tline-height: normal}span.WPNormal{\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\tfont-weight: normal;\tfont-style: normal;\tfont-variant: normal;\ttext-align: left;\ttext-decoration: none;\tcolor: black;\tvertical-align: middle;\ttext-indent: 0in}body{\tfont-family: \”Times New Roman\”, serif;\tfont-size: 12pt;\tfont-weight: normal;\tfont-style: normal;\tmargin-left: 0.075in;\tpadding-left: 0.1in}UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSIONSECRETARY OF LABOR,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Complainant,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0v. OSHRC DOCKET NO. 922APEX BUILDING CLEANING CORP.,\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Respondent.\u00a0Before MORAN, Chairman; VAN NAMEE, CommissionerVAN NAMEE, COMMISSIONER:On March 21, 1973, Judge Ditore issued his decision to vacate a citation for seriousviolation of the standard prescribed by 29 C.F.R. 1910.66(c)(22)(ix) and of section 5(a)(2) of theOccupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., hereinafter \u2018the Act\u2019).Thereafter, in accordance with the provisions of section 12(j) of the Act of the Judge\u2019s decisionwas directed for review.We have reviewed the record including the decision of the Judge and we take note thatComplainant has declined to file a brief on review. Based on such review we find no prejudicialerror in the Judge\u2019s decision.Accordingly, it is ORDERED that the Judge\u2019s decision be and the same is herebyaffirmed in all respects.[The Judge\u2019s decision referred to herein follows]DITORE, JUDGE, OSAHRC:This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of1970 (29 U.S.C. 631, et seq., hereinafter called the Act), contesting a Citation issued by theComplainant 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 theownership, operation or control of the Respondent, located at 1515 Broadway, New York, NewYork, and described as follows: \u2018Exterior window washing using a Spider Staging suspendedscaffold,\u2019 the Respondent has violated Section 5(a)(2) of the Act by failing to comply with acertain occupational safety and health standard promulgated by the Secretary of Labor pursuantto Section 6 thereof.The Citation, which was issued on May 4, 1972, alleged that the violation resulted fromRespondent\u2019s failure to comply with a standard promulgated by the Secretary of Labor pursuantto Section 6 thereof.The Citation, which was issued on May 4, 1972, alleged that the violation resulted fromRespondent\u2019s failure to comply with a standard promulgated by the Secretary by publication inthe 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 devicesfor the working platform shall be operative only when the roof carriage is located andmechanically retained at an established operating point.The standard as promulgated by the Secretary is as follows:Where the installation includes a roof car, electric contact(s) shall be providedand so connected that the operating devices for the working platform shall beoperative only when the roof car is located and mechanically retained at anestablished operating point.\u00a0Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, theRespondent was notified by letter dated May 4, 1972, from Nicholas DiArchangel, Area Directorof 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 hadbeen filed by the parties, the case came on for a hearing at New York, New York, on August 28,1972.ISSUES(1) Whether Complainant\u2019s interpretation of 29 C.F.R. 1910.66(c)(22)(ix) as applied inthis case, is correct.(2) If correct, whether Respondent violated the Standard.(3) If Respondent violated the Standard, whether the violation was serious.If Respondent is found in violation of the standard, there is no issue as to the assessedpenalty (T. 12; 109). if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote1 ); document.write( ‘Close’ ); document.write( ” ); }STATEMENT OF THE EVIDENCEComplainant\u2019s CaseRespondent, the Apex Building Cleaning Corp., in the business of cleaning buildingexteriors, was engaged on March 23, 1972, in cleaning windows of a building located at 1515Broadway, New York, New York (Complaint and Answer).For this purpose, Respondent operated with a crew of three employees, a speciallydesigned and built power driven roof carriage which supported a power driven scaffold orworking platform (T. 18, 19, 30, 132, 136\u2013137, 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 scaffoldassembly suspended by four electric Spider hoists. The scaffold assembly issuspended from and supported by four sheaves contained within a cross beam unitthat forms a part of the hydraulic powered telescoping outrigger assembly on theroof carriage. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote2 ); document.write( ‘Close’ ); document.write( ” ); }\u00a0The description further stated that:[t]he roof carriage is mounted on steel automotive type steering axles and linkagewith four wheels containing rubber tires. The roof carriage contains a raised,enclosed platform with an automatic closing gate to provide an access to the workplatform. The superstructure of the roof carriage contains telescoping outriggerbeams;\u00a0. . . The suspended scaffold and roof carriage are provided with electricalinterlocks intended to prevent the misuse of the installation; and\u00a0. . . The roof carriage tie-down device is electrically interlocked to prevent use ofthe suspended scaffold unless the roof carriage is properly tied down to an anchor.\u00a0It is the above described roof carriage or car which forms the subject matter upon whichsafety 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, andwent into operation on March 14, 1972 (T. 23, 166, 280).On March 23, 1972, at about 9:00 A.M., one of Respondent\u2019s employees assigned withtwo other employees, to, and working with, this equipment on the roof (53rd floor) of thebuilding at 1515 Broadway, was found dead on the 10th floor of that building. The workingplatform or scaffold was also found at that location. This fatal accident gave rise to an inspectionof Respondent\u2019s equipment and work site by compliance officers of the Occupational Safety andHealth Administration. The inspection began about 2:30 P.M. on March 23, 1972, and continuedintermittently for two weeks thereafter (T. 112, 113, 118, 264, 265, 307).Mr. Ole E. Leiveston, Chief Engineer for the Spider Staging Sales Company, whichdesigned and custom built this equipment, testified that the machine (roof car) was designed andbuilt in accordance with Federal and State safety standards (T. 27, 28, 38). The roof car wasspecially designed and built to meet certain peculiarities of the building at 1515 Broadway. Thepeculiarities arose from the position of four columns which supported the building\u2019ssuperstructure. 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 movethe attached scaffold in a direction away from the face of the column. To accomplish this, theroof car was designed and built with hydraulically operated outriggers to which the scaffold wasattached. These outriggers when extended would provide the necessary clearance if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote3 ); document.write( ‘Close’ ); document.write( ” ); } to permit theroof car with its attached scaffold to move to a working position behind a column or to pass acolumn to another working position (T. 19, 21, 30). The scaffold could be extended horizontallyor \u2018boomed out\u2019 without the roof car being anchored or tied down (T. 19, 20, 21, 46).Because of the added feature of \u2018booming out\u2019 the outriggers without anchoring the roofcar, certain safety factors were incorporated into the roof carriage to maintain its stability andprevent it from tipping (T. 32, 34). The working platform or scaffold could not be operated in avertical direction whether \u2018boomed\u2019 in or out unless the roof car was located and mechanicallyretained by an interlock tie-down device at an established operating point (T. 37\u201338, 41\u201343, 54).The outriggers of the roof car could not be extended or \u2018boomed out\u2019 if the four wheels of theroof car were at a 90\u00b0 angle to the roof parapet (T. 56).It was Mr. Leiveston\u2019s opinion that the roof car as designed and built could be operatedand driven on the roof of 1515 Broadway with no detrimental consequences to anyone on theroof car (T. 34).On the afternoon of the day of the fatal accident, two compliance officers of theOccupational Safety and Health Administration, Kenneth McCade and Edward J. Scott, made aninspection of Respondent\u2019s roof car and its equipment (T. 109, 112, 262\u2013263).Officer McCabe on that day, observed that: the roof car on the 53rd floor of 1515Broadway, was tipped over at a column drop; the tie-down interlock device of the roof carappeared to be over an anchor recess hole; the anchor recess hole was clogged and filled with ahard mixture of sand and concrete; a rubber protective cap was over the anchor recess hole; thecounterweight enclosures of the roof car had broken loose; the outriggers of the roof car were inan extended or \u2018boomed out\u2019 position; two interlocks on the two front wheels of the roof carwere out of electrical circuit; the four wheels of the roof car were at a 90\u00b0 angle to the roofparapet; and the power cord of the roof car was in a position near an electrical outlet (T.112\u2013116).Officer McCabe further observed five electrical contacts on the roof car. One was on thebar which held the tie-down device if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote4 ); document.write( ‘Close’ ); document.write( ” ); } and one was on each of the four wheels of the roof car. Twoof these electric wheel contacts were out of circuit. Although McCabe did not test any of the fivecircuits, he stated that three of the electrical contacts were operational and two were not (T.123\u2013125, 182, 193\u2013195).On the day after the accident, March 24, 1972, and at other times during theirinspections, Officers McCabe and Scott spoke with a Mr. Torres and a Mr. Oringo. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote5 ); document.write( ‘Close’ ); document.write( ” ); } These twomen along with the deceased, Clement Allen, comprised the three man team that operated theroof car and scaffold for Respondent (T. 135, 264, 265). From their conversations with thecompliance officers, it was revealed that the roof car and its equipment went into service at 1515Broadway on March 14, 1972. From that day to the day of the accident, March 23, 1972, thiswork crew used the machine approximately four times exclusive of its use at the time of theaccident (T. 153, 280). On one of the four occasions a \u2018drop\u2019 or lowering of the scaffold wasmade at another column of the building (T. 133, 139, 281). On two of the four occasions thiswork crew moved the roof car to a point on the roof near a water supply where they proceeded to\u2018boom out\u2019 and lower the scaffold to reach a water supply without anchoring or tying down theroof car (T. 164, 167, 170, 265\u2013266).On the day of the accident, March 23, 1972, this work crew having finished work at one\u2018drop,\u2019 moved the roof car to a position on the roof at a column where the accident allegedlyoccurred, Arriving at this position but not close enough to the anchor recess hole for insertion ofthe tie-down device, the deceased, Allen, and his crewmate Torres, turned the wheels of the roofcar 90\u00b0 to the roof parapet. This was done to position the roof car closer to the anchor recess holeso that the tie-down anchor device could be inserted in the anchor hole (T. 134\u2013135, 216, 223,224). The insertion could not be made because the anchor recess hole was clogged if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote6 ); document.write( ‘Close’ ); document.write( ” ); } (T. 135).Torres, with Allen\u2019s help, attempted to unclog the recess hole but was unsuccessful. Allendirected Torres to look for something else to scrape out the hole. Torres departed leaving Allenon the roof car. When he returned to the roof car, he found it tipped over and inferentially Allenmissing (T. 133\u2013134). Oringo, the other crew member, during this time was away getting coffee(T. 264\u2013265, 277). Oringo stated to the compliance officers that, although he had the leastexperience as a window washer platform worker of the three man crew, all of them wereunfamiliar with this new roof car and scaffold (T. 278\u2013279, 282).The evidence of record indicates that this crew was trained by the Spider Staging SalesCompany on March 13, 1972, in the operation of the new roof car and scaffold. The extent of thetraining was about three hours (T. 154).Mr. Timken, one of Respondent\u2019s managers in charge of all window cleaners operatingscaffolds for Respondent, stated to Officer McCabe that Allen, Torres and Oringo were the menassigned to the new roof car and scaffold; and that it was a new job for them in that they wereusing a new and differently designed machine (T. 136\u2013137). Timken also told McCabe that aJohn Oliver was the working supervisor for Respondent who was in charge of the three manwork crew on this new machine (T. 136\u2013137).Oliver told McCabe that on March 23, 1972, prior to the accident as he passed the roofcar after it was positioned by Allen and Torres, he noticed that the tie-down anchor device wasabove the anchor recess hole but not inserted therein. He instructed Torres \u2018to get this thing toinsert\u2019 (T. 137\u201338).Officer McCabe conceded that the function of a roof car is to move about to position thescaffold at an established operating point; and that a roof car cannot be tied down if it has to bepositioned (T. 163). McCabe also stated that it was necessary to extend or \u2018boom out\u2019 thescaffold by the use of the outriggers of the roof car in order to position the roof car at a columnor to pass a column, but this violated 29 C.F.R. 1910.66(c)(22)(ix) in that the scaffold wasmoved horizontally without the roof car being mechanically retained at an established operatingpoint (T. 128\u2013129, 140, 239\u2013240, 268\u2013269).The violation was serious because of the likely probability that an unanchored roof carwould overturn and cause anyone working on it to be thrown to his death or be seriously injured(T. 125, 130, 141, 142).Officer McCabe\u2019s opinion was supported by Mr. Lawrence Carvey of the OccupationalSafety and Health Administration, among whose duties is the rendering of technical support tocompliance officers as to the meaning and interpretation of occupational safety and healthstandards (T. 66, 95). Mr. Carvey stated that standard 29 C.F.R. 1910.66(c)(22)(ix) means theremust be electro-mechanical devices on the roof car to prevent the vertical and horizontal motionof the working platform or scaffold unless the roof car is anchored at an established operatingpoint (T. 71, 91) (emphasis supplied).Mr. Carvey gave as his opinion that the standard in question is violated if a workingplatform or scaffold could be \u2018boomed out\u2019 when the roof car is not mechanically retained at anestablished operating point (T. 76). He stated that the purpose of the standard is to prevent anyoperation of the scaffold either vertically or horizontally unless the roof car is tied down (T.105\u2013106).Neither Respondent nor the Affected Employees\u2019 Representative presented any evidenceor called any witness on their respective behalf. They rested at the end of the Complainant\u2019s case(T. 319).Respondent relied upon its own cross-examination of Complainant\u2019s witnesses and uponits closing legal arguments that Complainant\u2019s evidence was insufficient; and that Complainant\u2019sinterpretation of the standard was erroneous (T. 319\u2013332).OPINIONStandard 29 C.F.R. 1910.66(c)(22)(ix) for powered platform states:Where the installation includes a roof car, electric contact(s) shall be providedand so connected that the operating devices for the working platform shall beoperative only when the roof car is located and mechanically retained at anestablished operating point (Emphasis supplied).\u00a0\u00a0Complainant interprets this standard to mean that the working platform must not be capable ofmoving in any direction, vertical or horizontal, unless the roof car is mechanically retained at anestablished operating point (T. 71, 91; Proposed findings, No. 6, p. 2).Based on this interpretation, Complainant claims that the horizontal or \u2018booming out\u2019movement of the roof car\u2019s outriggers and working platform without the roof car being properlyanchored 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 toestablish that Respondent violated the standard. If it is incorrect, the complaint must bedismissed, and the citation and proposed penalties vacated.Roof CarA roof car is defined as \u2018[a] structure for the suspension of a working platform, providingfor its [the working platform] horizontal movement to working positions\u2019 (29 C.F.R.1910.66(a)(20). A roof car is required whenever it is necessary to move a working platformhorizontally to working or storage positions (29 C.F.R. 1910.66(c)(1)). To effectuate thispurpose various standards have been incorporated and promulgated in 29 C.F.R. 1910.66including ANSI A120.1\u20131970. (29 C.F.R. 1910.66(b)(5)(ii).Section 12.3(3) of ANSI A120.1\u20131970 requires that[r]oof cars shall be provided with members from which the working platform issuspended. Such suspension means, in combination with other roof car provisionsor operations, shall provide proper alignment of the work platform with theexterior building or structure.\u00a0Section 1910.66(c)(2)(iii) requires that:[r]oof car positioning devices shall be provided to insure that the workingplatform is placed and retained in proper position for vertical travel and duringstorage.\u00a0These standards, among others, make it clear that the purpose of the roof car is tohorizontally move the working platform to its proper position for vertical travel. The outriggersof Respondent\u2019s roof car were proper positioning devices of the roof car. Due to the peculiaritiesof the building at 1515 Broadway, these outriggers were an integral part of the roof car\u2019soperation to horizontally move the work platform to its proper working position at a column orto pass a column. Whether the roof car moves horizontally in the traversing direction of itswheels or whether the horizontal movement is occasioned by other operations of its componentparts, i.e., the outriggers, the roof car is performing its stated function of moving the workingplatform horizontally to a working location. Complainant concedes that a roof car must movehorizontally to position a working platform (T. 73, 163).This Judge has found no standard which distinguishes one type of horizontal movementof the working platform by the roof car as permissible from another type not permissible unlessthe roof car is tied down. if( bInlineFloats ) { document.write( ” ); document.write( WPFootnote7 ); document.write( ‘Close’ ); document.write( ” ); }The standards leave no doubt that a working platform can be moved horizontally asrequired, by a roof car for proper positioning purposes.The horizontal movement of Respondent\u2019s working platform by the outriggers of the roofcar without the roof car being anchored, was a proper positioning function and operation of theroof car, and not an operation prohibited by 29 C.F.R. 1910.66(c)(22)(ix).This would be sufficient to put Complainant\u2019s interpretation to rest. However,Complainant urges that the horizontal movement of the working platform by the operations ofthe roof car is not a roof car operation, but an operation of the working platform and its operatingdevices (T. 36, 76; see also Complainant\u2019s proposed findings No. 5, p. 2). Therefore, thehorizontal movement of Respondent\u2019s working platform by the roof car\u2019s outriggers is anoperation of the operating devices of the working platform which is prohibited by, and inviolation of, the standard unless the roof car is tied down.Working PlatformRespondent\u2019s working platform is a self powered platform which can only be operatedfrom operating devices on the working platform (T. 37\u201338, 41\u201343, 106, 198).\u2018Self powered platform\u2019 is defined as \u2018[a] powered platform having the raising andlowering mechanism located on the working platform\u2019 (29 C.F.R. 1910.66(a)(22)). A \u2018workingplatform\u2019 is defined as \u2018[t]he suspended structure arranged for vertical travel which providesaccess to the exterior of the building or structure\u2019 (29 C.F.R. 1910.66(a)(25)). \u2018Operating device\u2019is defined as \u2018a pushbutton lever or other manual devices used to activate a control\u2019 (29 C.F.R.1910.66(a)(15)).Standard 29 C.F.R. 1910.66(c)(14) entitled \u2018Operating device for vertical movement ofthe working platform,\u2019 provides at subparagraph (ii) that:[t]he operating device [of the working platform] shall be operable only when all electricalprotective 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 itsoperating devices provide only for vertical movement or travel of the working platform. Itsoperating devices are activated for vertical travel only when the roof car is mechanically retainedand its operating devices are deactivated.The operation of the working platform is separate and distinct from the operation of theroof 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 theoutriggers. The horizontal movement of the working platform is a roof car operation, not anoperation of the working platform.It follows logically that the standard at issue is concerned only with the installation ofprotective electric contacts on a roof car which control the operation and the operating devices ofthe working platform for vertical travel in relation to the operation and devices of the roof car forhorizontal travel (See also 29 C.F.R. 1910.66(c)(22)(x)).Complainant\u2019s error stems from its attempt to characterize a roof car operation as aworking platform operation. Complainant\u2019s interpretation, if permitted to stand, would distortthe relative functions and purposes of a roof car and a working platform, and would render thestandards cited herein and others in Subpart F of 29 C.F.R. meaningless, inconsistent or ofdubious value.Complainant\u2019s interpretation of the standard as applied in this case, is erroneous.Respondent\u2019s roof car was equipped with properly connected electric contacts which, if notmisused, rendered inoperative the operating devices of the working platform unless the roof carwas mechanically retained at an established operating point. Complainant failed in its burden ofestablishing that Respondent violated 29 C.F.R. 1910.66(c)(22)(ix).Normally, this Judge\u2019s opinion would conclude here. However, evidence in the recordand certain representations made in argument by Respondent\u2019s counsel during trial, indicate aserious misconception by Respondent of its responsibility to its employees under theOccupational Safety and Health Act.Respondent with reference to the new machine, took the position that it was under noduty to repair, maintain, \u2018or anything else\u2019; such duty and responsibility belonged to the buildingowners (T. 119).Whatever responsibility by agreement or otherwise belonged to another, it wasRespondent\u2019s unassignable and undiminishable responsibility under the Act to see that its worksite was safe for its employees. Neither the approval and inspection of the machine by the NewYork State Board of Standards and Appeals, nor the owner\u2019s agreement to maintain the machine,relieved Respondent of its duty to assure that this machine was safe and that its employees wereproperly trained to operate it (T. 330).An unsafe work place is created by lack of proper training of employees and supervisorypersonnel, and by a lack of proper and knowledgeable supervision.Respondent seems to believe that it bears no more than a mere scintilla of responsibilityfor the safety of its employees because it did not design or create the work place, had noknowledge of the operations of, and protective devices at, the work place, and was not possessedof engineering or mechanical expertise (T. 331\u2013332).Under the rationale of the Act, such arguments fall on deaf ears. Respondent\u2019sresponsibility is to assure each of its employees a safe place to work. How this responsibility isto be executed is Respondent\u2019s burden.The evidence and reasonable inferences from the evidence in this case, indicate that aproper, knowledgeable and diligent supervision of the operation of the new machine would havealerted Respondent to the fact that this machine was being misused and that the work site wasunsafe (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 ofRespondent\u2019s employees with the machine; and the failure to have the roof track tie-down oranchor hole system in proper working order, should have, and with reasonable diligence wouldhave, informed Respondent that its work site was unsafe and that it was exposing its employeesto unnecessary hazards (See also: 29 C.F.R. 1910.66(e)(11)).Respondent cannot shirk its duty under the Act by placing responsibility for theseconditions on other parties, or by pleading a lack of sufficient knowledge of the operations at itswork site.FINDINGS OF FACTThe credible evidence and the record as a whole establishes substantial proof of thefollowing specific findings:1. Respondent, Apex Building Cleaning Corp., is a corporation organized under the lawsof the State of New York, and maintains an office and place of business at 1430 Broadway, NewYork, New York (Complaint and Answer).2. At all times material herein, Respondent was engaged in the business of cleaningwindows 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 weremembers 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, weremanufactured outside the State of New York (Complaint and Answer).5. At all times material herein, Respondent controlled and operated at its work site aSpider Staging Suspended Scaffold Assembly. This equipment was operated by three ofRespondent\u2019s employees (T. 18, 19, 132, 136\u2013137, 266, 279\u2013280).6. The equipment was specially designed and custom built to meet the peculiarities ofconstruction of the building at 1515 Broadway (T. 19\u201321, 30).7. The peculiarities of the building arose out of the location of four columns whichsupported the building\u2019s superstructure (T. 19, 30).8. The equipment, for purposes relevant herein, consisted of a power driven roof carriageor car which supported a power driven scaffold. This equipment was located and installed on the53rd floor level of the building at 1515 Broadway (T. 18, 113).9. The superstructure of the roof carriage contained telescoping outriggers to which thescaffold 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 approximatelyfour 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 theworking 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\u2018boomed out\u2019, extended the working platform horizontally in order to position the work platformat 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\u20131970 Section 12.3(3)).14. To maintain the stability of the roof car when the outriggers were extended and theroof 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 ofthe roof car and its operating devices (See, Opinion, supra).16. The roof carriage or car was provided with electrical interlocks which prevented theoperation of the scaffold and its operating devices unless the roof car was mechanically retainedat an established operating point (T. 37\u201338, 123\u2013124).17. On March 23, 1972, as a result of a fatal accident to one of Respondent\u2019s employeesoperating this equipment, an inspection of Respondent\u2019s work site was made by two complianceofficers 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 thatRespondent on March 23, 1972, failed to equip and have properly connected electrical contactson its roof carriage, which would prevent the operation of the scaffold and its operating devicesunless the roof car was located and mechanically retained at an established operating point(Citation).20. Specifically, Complainant alleged that the horizontal \u2018booming out\u2019 or extension ofthe scaffold by the outriggers of the roof car when the roof car was not anchored, was anoperation of the scaffold and its operating devices, prohibited by 29 C.F.R. 1910.66(c)(22)(ix).(Complainant\u2019s answer to instructions p. 2; Complainant\u2019s proposed finding No. 5; T. 36, 71,91).21. The scaffold and outriggers of the roof car had been \u2018boomed out\u2019 several times fromMarch 14, 1972, to March 23, 1972, in horizontally moving the working platform to a workposition when the roof car was not anchored (T. 164, 167, 169\u2013170, 265\u2013266).22. The operation of the scaffold and its operating devices provide only for verticalmovement or travel when the roof car is properly anchored (T. 36\u201338, 41\u201344, 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 isnot 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 contactswhich will render inoperative the operating devices of a working platform until the roof car islocated and mechanically retained at an established operating point.25. Respondent\u2019s roof car in compliance with 29 C.F.R. 1910.66(c)(22)(ix), wasequipped with an electrical and mechanical tie-down device which rendered inoperable theoperating devices of the scaffold unless the roof car was retained at an established operatingpoint (T. 37\u201338, 123\u2013124).CONCLUSIONS OF LAW1. The Respondent is, and at all times relevant herein was, engaged in a businessaffecting commerce within the meaning of Section 3(5) of the Occupational Safety and HealthAct of 1970.2. The Occupational Safety and Health Review Commission has jurisdiction over thesubject matter of, and parties to, this action.3. Standard 29 C.F.R. 1910.66(c)(22)(ix) as interpreted and applied by Complainant inthis action is erroneous.4. Respondent was not in violation of 29 C.F.R. 1910.66(c)(22)(ix) on March 23, 1972.ORDER\u00a0Due deliberation having been had on the whole record, it is herebyORDERED that the Complaint is dismissed; it is furtherORDERED that the Citation for a serious violation issued May 4, 1972, by the Complainantagainst Respondent is vacated; it is furtherORDERED that the notification of proposed penalties of $700 issued on May 4, 1972, byComplainant against Respondent is vacated.\u00a03 There is other evidence in the record which indicates that the outriggers could be extended a “