Docket No. 82-0284

SECRETARY OF LABOR,
Complainant,

ALL PURPOSE CRANE, INC.,
Respondent.

OSHRC Docket No. 82-0284

DECISION

Before: BUCKLEY, Chairman, and WALL, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission under 29 U.S.C. ї 661(j), section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("the Act"). The Commission is an adjudicatory agency, independent of the Department of Labor and the Occupational Safety and Health Administration ("OSHA"). It was established to resolve disputes arising out of enforcement actions brought by the Secretary of Labor under the Act and has no regulatory functions. See section 10(c) of the Act, 29 U.S.C. ї 659(c).

All Purpose Crane, Inc., was operating a crane on a construction site in Vero Beach, Florida, on Tuesday, December 29, 1981. The wire boom rope on the crane broke and the boom of the crane collapsed. OSHA investigated the accident the following day, December 30, 1981, and the Secretary of Labor issued a citation alleging that All Purpose Crane had violated a number of OSHA construction safety standards. The citation was subsequently amended; item 3 of the amended citation alleged a violation of 29 C.F.R. ї 1926.550(a)(7)(1), which provides: "Wire rope shall be taken out of service when any of the following conditions exist: (i) In running ropes, six randomly distributed broken wires in one lay or three broken wires on one strand in one lay. . . ." [[1]] A hearing was held before an administrative law judge, who found that the standard had been violated and affirmed item 3. We conclude that the Secretary did not prove the standard was violated and vacate the item.

Although the Secretary's citation alleged that the violation occurred on December 30th, the day of the OSHA investigation, he attempted at the hearing to prove that the violation occurred at some point before December 29th, the day of the accident. He focused primarily on December 24, when the crane operator inspected the rope and would have been required by the standard to take it out of service if the wires were broken. There is no dispute that, when OSHA inspected the crane on the day after the accident, there were a number of locations in the rope where there were six broken wires in one lay or three broken wires in one strand. All Purpose Crane claims, however, that the wires must have been broken in the accident due to the whipping of the broken rope through the sheaves. If this was so, then there is no basis to conclude that the crane operator should have found broken wires when he inspected the rope on December 24, and thus no reason to hold the company in violation of the standard. The issue litigated by the parties, then, is whether the Secretary has established by a preponderance of the evidence that these wires were broken when the crane operator inspected the rope on December 24.

The only witness who saw the rope before the accident occurred was the crane operator, Donald Hamilton. He testified that he had lowered the boom of the crane and inspected the wire rope on December 24, the last day the crane was used before the accident. On that date, he lightly wiped the entire rope with an oily workglove and visually inspected it for wear and for broken wires. He did not find enough broken wires to require that the rope be removed from use.

The record suggests, however, that Hamilton's inspection would not have disclosed breaks that may have existed in the wires. The Secretary presented three expert witnesses who all testified that the proper way to inspect a wire rope is to remove all tension from it and to bend or "flex" it to reveal concealed breaks. One of these witnesses explained that, because of the way a wire rope is manufactured, the wires would lie flat even if they were broken, and that, with a preformed woven rope like this one, it is necessary to flex the rope to cause the ends of broken wires to "pop up." Since Hamilton did not remove the weight from the boom rope and flex it, we accord limited weight to his testimony that the wires were not broken before the accident. We must therefore look to the testimony of other witnesses who addressed this question.

The other witnesses all saw the wire rope for the first time after the accident. Three witnesses offered expert testimony on behalf of the Secretary that, in their opinion, some instances of six broken wires in one lay of the rope and three broken wires in one strand in one lay existed before the accident. The first of these, Frances L. Silverberg, was a safety specialist employed as a compliance officer by OSHA. He worked for ten years in the heavy construction industry, both using and supervising the use of cranes. He then served as a safety inspector for the state of Florida, inspecting cranes, before he joined OSHA. Mr. Silverberg had inspected about 300 cranes and 100 crane accidents, of which 8 or 10 involved a wire rope failure. He was accepted as an expert in crane inspection.

The day after the accident, Mr. Silverberg went to the construction site and inspected the wire rope that had broken. He also inspected it three weeks later, on January 21, at All Purpose Crane's yard. His inspections disclosed that, on either side of the separation, there were "many short pieces of broken wire." He concluded from his observations that there were "a large number of broken wires" in the rope before the accident, with several locations having either six broken wires in a lay or three broken wires in one strand in a lay, or both.

Another witness was Robert DeBenedictis, a crane and rigging safety consultant, who had also inspected the rope on behalf of Wireco, the company that apparently manufactured the wire rope. Mr. DeBenedictis had inspected over 1000 cranes in his career and had supervised a group of inspectors who had inspected over 40,000 cranes. He was accepted as an expert on cranes. Mr. DeBenedictis explained that there are two different reasons why wires break: fatigue, and excessive tension caused by overloading. He testified that the ends of wires that break as a result of fatigue look different from those that break from excessive tension. Mr. DeBenedictis described the differences in the appearance of each kind of break and introduced documents to illustrate and amplify his explanation. He testified that, although a state court injunction prohibited him from flexing this rope[[2]] when he inspected it, he found numerous breaks that were caused by fatigue. Mr. DeBenedictis gave his opinion that, based on the number and the kind of breaks, he was reasonably certain that the breaks existed before the rope parted on December 29 and that they were of the number and location that would require the rope to be removed from service.

The Secretary also called Larry D. Means as a witness. He is an engineer employed by Wireco. One of his duties is to investigate all accidents or failures involving ropes manufactured by Wireco; and he has examined "hundreds, or maybe thousands" of wire ropes. Mr. Means has his bachelor's degree in metallurgical engineering and has completed the course requirements for a master's degree in that field. Like Mr. Silverberg, he examined the rope on the day after the accident and again on January 21. As a result of his examination, he concluded that the rope was "worn out" before it broke. He testified that the rope failed because the load on it was too great for its remaining strength. He found numerous broken wires in the rope, especially in the area near where the rope parted. He said that he could tell whether a break was caused by fatigue or by excessive tension, and he stated that he found both kinds of breaks in the rope. Mr. Means expressed the opinion that many of the wires had already been broken before the accident.

All Purpose Crane presented Robert Hochman, who holds a Ph.D. in metallurgical engineering and is professor of metallurgy at the Georgia Institute of Technology. Professor Hochman testified that, in addition to his duties with the college, he had also acted as an independent consultant for several years. He had investigated between 400 and 500 metallurgical failures, including a number of crane collapses and six or eight wire rope failures. When he inspected the wire rope, the injunction was in effect, so he could not perform the extensive examination and testing that he believed was necessary to determine the cause of the broken wires.

Professor Hochman agreed with Mr. DeBenedictis that it is possible to determine with some degree of accuracy the cause of a break by closely examining the broken end. In illustrating this point, he mentioned several causes of breaking not mentioned by either Mr. DeBenedictis or Mr. Means. He testified that he had recently presented a report to a meeting in Paris dealing with the hydrogen embrittlement of metal and that some of the wires he examined could have broken because they had become embrittled. Professor Hochman had been able to photograph a few of the broken ends under high magnification, and he testified that the photographs showed a broad range in the types of fractures. He testified that one difficulty is that the wires might have been broken when the rope snapped.

Professor Hochman testified that it is possible, through an in-depth spectrographic analysis, to pinpoint the nature and cause of many of the fractures. He testified, however, that it was not possible to determine when or why the breaks occurred without a more detailed analysis of the rope than he or any of the other witnesses was permitted to perform. It was his recommendation that a spectrographic analysis of the wires be done in order to disclose the cause of the broken wires and thereby help to determine whether they broke before the accident or during it.

Both Mr. DeBenedictis and one of the OSHA compliance officers took measurements and noted the locations where the number of broken wires exceeded the limits permitted by the standard. Their measurements showed that nearly all the breaks were found within one thirty-foot length of the rope near the point of failure. In one of the two pieces of the rope, the broken wires were concentrated within eight feet of the break; in the adjoining piece, the broken wires were concentrated within about 21 feet of the break. The other witnesses generally concurred in this description. Based on this concentration of broken wires in one part of the rope, Professor Hochman emphasized that there were a number of possible explanations for this condition, no one of which could be clearly established as the right one without additional testing. When the rope parted, the ends were "whipped" through the crane's sheaves; and Professor Hochman suggested that the wires may have broken when they banged against the crane's metal framework or flexed around the sheaves at high speed. He also pointed out the possibility that the portion of the rope in which the break occurred might have been weakened or embrittled, either during the manufacturing process or as a result of something that was done to it subsequently, such as exposure to a chemical or to the elements. Because of these uncertainties, Professor Hochman advocated spectrographic analysis of the wire rope.

The administrative law judge who heard the case decided that Dr. Hochman's "opinion is entitled to considerable weight"; nevertheless, he further decided that the opinion testimony of the Secretary's three experts about breaks before the rope snapped is of "greater value." All Purpose Crane challenges this evaluation of the relative weight of the expert testimony. All Purpose Crane argues that, as its expert testified, without further analysis of the rope, one cannot find that the broken wires observed after the accident were not broken as a result of the accident. All Purpose Crane relies on the fact that the breaks were concentrated in the area of the separation to support its claim that the breaks were caused by the whipping action through the sheaves when the rope snapped.

The Secretary, on the other hand, argues that the administrative law judge correctly found that the wires were broken before the accident. He points to the opinion testimony of his witnesses and recites their credentials as experts. The Secretary asserts that the judge's decision involved his findings as to the relative credibility of the witnesses and that these findings should not be disturbed.

III

The Secretary has the burden of proving each element of his case by a preponderance of the evidence. Astra Pharmaceutical Products, Inc., 9 BNA OSHC 2126, 2129, 1981 CCH OSHD І 25,578, pp. 31,899-900 (No. 78-6247, 1981), aff'd in pertinent part, 681 F.2d 69 (1st Cir. 1982). We find, on this record, that the Secretary has not carried that burden. After a careful review of the record, we simply cannot say that it is more likely than not that, before the accident, there were six broken wires in one lay of the rope or three broken wires in one strand in one lay

The standard establishes specific numerical criteria for when a wire rope must be removed from service. Conversely, the rope need not be removed from service if there are fewer breaks than the number specified. Thus, a wire rope can have a large number of broken wires and not be removed from service if the number of broken wires in any lay is less than six and the number in one strand in a lay is less than three.

The rope had a number of areas where there were more broken wires than permitted, but they were found only after an accident in which the rope broke and the broken ends were whipped through the sheaves at high speed. The concentration of broken wires in the vicinity of the break suggests that the whipping action may have caused a number of the breaks. The problem before us is to determine whether the numerical limits of the standard were exceeded before the accident.

To resolve this problem, it would be necessary to examine carefully one or more areas of the rope where the limits were exceeded after the accident, to attempt to identify the cause of the various breaks, to determine how many were caused by the accident, and thereby to infer how many were present before the accident. The Secretary's experts attempted to do this, but their task was made more difficult by the state court injunction that prohibited any examination that would alter the state of the rope. Nevertheless, they testified that they could tell that many of the breaks were caused by fatigue rather than by overloading, and would have been there before the accident. The expert presented by All Purpose Crane, Professor Hochman, testified that such a cursory examination could not determine the cause of a break. He stated that many factors, such as chemical embrittlement, could be a factor in the breaks and that the cause of the breaks could not be determined without further testing.

We find Hochman's testimony persuasive in light of his extensive expertise in metallurgy. Moreover, an exhibit introduced by the Secretary indicates that the matter of determining the cause of breaks in wires is considerably more complex than the Secretary's experts intimated. Ex. C-32 is a publication of the American Iron and Steel Institute entitled "Wire Rope Users Manual." On page 59 of that publication, table 14, entitled "Diagnostic Guide to Common Wire Rope Abuses," lists nine types of abuse that can lead to broken wires: fatigue; tension; abrasion; cut, gouged or rough wire; torsion or twisting; mashing; corrosion; abrasion plus fatigue; and abrasion plus tension. For each type of abuse it lists the physical appearance of the broken wire. The Secretary's experts considered only two of these possible sources of abuse: fatigue and tension. Any breaks caused by the rope's whipping through the sheaves would apparently be the result of one or more of the other types of abuse, which the Secretary's experts did not consider. This detracts considerably from their testimony that they could differentiate from breaks caused by the accident and breaks existing before the accident.

The Secretary characterizes the judge's evaluation of the weight of the testimony as a credibility finding and argues that we should accept that determination. It is true that, because the judge who tried the case has had the opportunity to observe the demeanor of the witnesses and to evaluate their credibility, the Commission will give deference to findings that are based on credibility determinations. Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD І 20,441 (No. 3395, 1976). Here, however the judge did not purport to base his decision on factors uniquely observable by him, such as demeanor. He did not state that he was making credibility findings; rather, he referred to the relative weight and "greater value" of the testimony of the Secretary's experts. Here, we are in as good a position as the judge to evaluate the qualifications of the experts and weigh their testimony in light of the other evidence of record. Moreover, the judge's decision did not come to grips with the most vital point of Professor Hochman's testimony--that without the necessary in-depth analysis neither he nor anybody else could determine what caused the wires to break. The Secretary's witnesses purported to be able to tell by merely looking at the broken ends whether they broke before or after the accident, a claim which Professor Hochman described as "presumptuous." Such testimony from an expert of Professor Hochman's stature causes us to question how much weight can be accorded to the opinion testimony of the Secretary's witnesses. It may be that they are correct; Professor Hochman did not rule out that possibility. But we cannot say with any confidence either that the breaks in the wire rope occurred before the accident or that they occurred during the accident. Because we are at a loss to say which is the more likely course of events, we must conclude that the party who had the burden of proof has not carried it.

We would comment that this was a difficult case, which we have decided solely on the preponderance of the evidence test. Weighing and reconciling conflicting opinion testimony from expert witnesses is never a simple task. Here, we were impressed by the candor of Professor Hochman, who did not attempt to convince us that the wires could not possibly have been broken before the accident. Instead, he explained that, because of the court's injunction, he was not able to perform the necessary examination in order to make that determination. He explained how, without such an examination, one kind of break may be mistaken for another. His testimony leads us to find that the other witnesses' opinions were formed without adequate empirical data to draw definitive conclusions.

Whether the examination suggested by Dr. Hochman was subsequently performed for the civil litigation, we do not know. If it was performed, we have no information as to the results. The parties have informed us that the litigation has been concluded in the civil suit, but neither party has either proffered information as to the outcome of that case or asked to reopen the record to submit more complete evidence. Under the circumstances, we can only adjudicate this case on the record compiled by the parties, however many questions we may have.

After considering the evidence, we are not able to find that it is more likely than not that the wires were broken before the accident; nor can we say with any confidence that they were not. Accordingly, we must hold that the party bearing the burden of proof, the Secretary, has failed to carry that burden. The judge's decision is therefore reversed as to item 3 of the amended citation: the item is vacated. In all other respects the judge's decision is affirmed.[[3]]

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED: April 14, 1987

SECRETARY OF LABOR,
Complainant,

ALL PURPOSE CRANE, INC.,
Respondent.

OSHRC Docket No. 82-0284

APPEARANCES:

Stephen Alan Clark, Esquire, Office of the Solicitor, U. S. Department
of Labor, Ft. Lauderdale, Florida, on behalf of complainant.

Edward R. Nicklaus, Esquire, Dixon, Dixon, Hurst and Nicklaus, Miami,
Florida, on behalf of respondent.

DECISION AND ORDER

SPARKS, Judge: Three workers died in an accident at the construction site of the Sea Cove Condominiums, Vero Beach, Florida, on December 29, 1981. The accident occurred with the breaking of the wire boom rope and the collapse of the crane boom which was being used to lift buckets of concrete to a fourth-floor pouring site.

Following an inspection by OSHA, serious and other than serious citations were issued charging respondent with violating safety regulations by overloading the crane, by failing to discard a defective wire rope and using a defective sling, failing to use "U" clamps, failing to keep proper inspection records, and failing to have a properly charged fire extinguisher.

Respondent disputes the factual allegations and legal conclusions urged by the Secretary and adamantly contends the complainant failed to carry his burden of proof.

Respondent argues that all observations, measurements and photos were made after the accident which greatly altered the condition of the wire rope and other circumstances.

To prove a violation of section 5(a)(2) of the Act, the Secretary must show by a preponderance of the evidence that (1) the cited standard applies, (2) there was a failure to comply with the cited standard, (3) employees had access to the violative conditions, and (4) the cited employer either knew or could with the exercise of reasonable diligence have known of the condition. Daniel International Corp., 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 1981 CCH OSHD І 25,813 (No. 76-181, 1981); Union Boiler Co., __OSAHRC BNA OSHC __, 1980 CCH OSHD І 24,178 (No. 79-232, Feb. 28, 1983).

OVERLOADING OF THE CRANE

Item two of the amended serious citation alleged that respondent violated 29 C.F.R. ї 1926.550(a)(1)[[1/]] by lifting loads which exceeded the manufacturer's specifications by as much as 1,305 pounds. A metal plate attached to the vehicle captioned "Rated Crane Loads In LBS" listed the maximum loads to be lifted by the crane in various configurations (Ex. C-12).

Measurements made by the OSHA compliance officers at the area showed that pourings of concrete up to 121 feet had been made before the accident (Ex. C-4, C-6, C-19; Tr. 26, 54, 64-65, 84-85, 121-125, 206-207). Assuming the concrete bucket held one cubic yard filled with regular concrete thereby weighing approximately 4,305 pounds, the load capacity, as shown by the manufacturer's chart, was exceeded by 1,305 pounds (Ex. C-25; Tr. 154, 159, 205-207). Calculations were made based upon differing assumptions regarding the weight of the load and the distance to be carried (Ex. C-23, C-26; Tr. 140-141). On cross-examination, Compliance Officer Bermudez acknowledged there had been no evidence the bucket was filled and, if the concrete was as much as one foot from the top, would weigh approximately 2,000 pounds. At that distance, the crane will support a load of 2,636-1/2 pounds and would not be overloaded (Tr. 210-212).

The compliance officers apparently did not measure the weight or volume of concrete in the bucket on the last load but estimated the volume by examining photographs of the concrete bucket. At the hearing, Roger Jeeves, the project superintendent, estimated it was filled to within about four inches of the top (Ex. C-4; Tr. 27). He did not believe there was any over reaching of the crane's capacity on the day of the accident (Tr. 29). The owner of the GRF Masonry Company, which was handling the concrete on the job, estimated the concrete was five to six inches from the bottom of the crossbar on the last pour (Ex. C-8; Tr. 51-52). He testified it was customary for the buckets to be about three-quarters full (Tr. 53, 56).

Billy Law, Jr., who was employed by the general contractor as the assistant superintendent on the project, was responsible for determining the moisture content of the concrete and was actively involved in the concrete operations. He testified the buckets of concrete could not have been filled as about 50 buckets had already been poured and they were working from the third or fourth truckload of concrete, each of which holds ten cubic yards (Tr. 72). The operating radius of the boom crane was measured at 105 feet and the maximum distance to the last pour was 121 feet (Tr. 83-84, 121-123, 156, 239).

Respondent strongly argues that the information produced by complainant was incompetent and inadequate to establish that the crane had been overloaded (Resp. brief pp. 10-19). It points out that the compliance officer did not measure the weight of the concrete in the actual bucket being used but measured a similar bucket at the jobsite. (Tr. 134) and from Florida Bucket Company obtained the weight of the headache ball, sting, shackles and other assembly which he found to total 375 pounds (Tr. 136-137). The weight of the concrete was obtained from Rinker Materials which supplied the concrete on the day of the accident (Tr. 148). It was found to weigh 3,775 pounds per cubic yard (Tr. 147-149). Pearock concrete was found to weigh 3,698 pounds according to information from Rinker Materials (Tr. 150).

The Review Commission considered the gravity and quality of proof necessary to establish a violation in Ultimate Distribution Systems, Inc., 82 OSAHRC 22/B12, 10 BNA OSHC 1568, 1982 CCH OSHD І 26,011 (No. 79-1269, 1982), where it stated as follows:

To prove a violation of section 5(a)(2) of the Act, 29 U.S.C. ї 654(a)(2), the Secretary must show by a preponderance of the evidence that, among other things, the cited employer failed to comply with a standard at its workplace. Olin Construction Co. v. OSHRC, 525 F.2d 464 (2d Cir. 1975). Under Astra Pharmaceutical Products, Inc., 81 OSAHRC 79/D10, 9 BNA OSHC 2126, 2131 n. 17, 1981 CCH OSHD І 25,578 at p. 31,901 N. 17 (No. 78-6247, 1981), appeal filed, No. 81-1672 (1st Cir. Sept. 23, 1981), a "preponderance of the evidence" is "that quantum of evidence which is sufficient to convince the trier of the fact that the facts asserted by a proponent are more probably true than false."

The Secretary satisfies his burden of proof if the record, when considered as a whole, contains preponderating evidence in support of his allegations. See Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). In addition to direct evidence, circumstantial and hearsay evidence are admissible in Commission proceedings and this evidence may he probative. E.g., Chicago Bridge & Iron Co., 74 OSAHRC 92/A2, 2 BNA OSHC 1413, 1973-74 CCH OSHD І 15,416 (No. 224, 1974), aff'd, 535 F.2d 371 (7th Cir. 1974) (circumstantial evidence admissible); Hurlock Roofing Co., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHD І 24,006 (No. 14907, 1979) (hearsay evidence admissible). For example, in Okland Construction Co., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD І 20,441 (No. 3395, 1976), the Commission concluded that a judge properly entered findings that the Secretary established a violation based on inferences drawn by the judge from circumstantial evidence: noneyewitness testimony creating the reasonable inference that an employee fell from an unguarded beam. See generally 1 Jones on Evidence ї 1.3 at 4 (6th ed. 1972) (drawing reasonable inferences from circumstantial evidence).

It is noted that the hearsay evidence of the Secretary was not rebutted by specific contradictory evidence. The evidence of the Secretary was sufficient to convince the undersigned that the facts asserted are "more probably true than false."

The preponderance of the evidence shows the concrete bucket was usually filled about three-quarters full or about six inches below the crossbar (Tr. 27, 41, 51, 53, 56).

Calculations prepared by Compliance Officer Bermudez show that the weight of the bucket filled within six inches of the top with pearock concrete is 3,424 pounds including bucket and attachments. At that level, the bucket is slightly less than three-quarters filled (Ex. C-26; Tr. 136-138, 150). As the maximum load recommended by the manufacturer at an operating radius of 110 feet is 3,000 pounds, the recommended maximum weight was consistently exceeded by more than 400 pounds (Ex. C-12, C-26; Tr. 206-207, 209). There is creditable evidence of record that the bucket was filled within four inches of the crossbar on the last lift which would yield a total weight of 3,760 or 760 pounds above the maximum permitted by the manufacturer's load chart if the boom was at the 110-foot mark and an overload of more than 1,000 pounds at the 120-foot distance (Ex. C-8, C-26; Tr. 27, 51-52).

Respondent's crane operator had many years' experience as a crane operator. He claimed he always checked the manufacturer's chart before booming out and never overloaded the crane (Tr. 418-419, 425). He testified the buckets of concrete were from one-half to three-quarters full during operations (Tr. 424). He could not recall any of the readings on the rating chart but insisted he stayed within the limits of the chart (Tr. 245). The tack of specific recall the operations on the day of the accident detracts from the weight to be given his testimony.

The weight of the probative evidence establishes that respondent exceeded the manufacturer's rated capacity of the crane during operations of December 29, 1981, and thereby violated 29 C.F.R. ї 1926.550(a). As death or serious injury could result, a serious violation has been established.

Item 2(b) of the amended citation alleges that "...'U' clamp pins as specified by the manufacturer or equivalent locking pins were not installed in order to prevent all four floats from sliding out from under the outrigger beams." Photographs taken the day after the accident show that "U" clamps or other locking devices were not in place (Ex. C-13, C-14; Tr. 103). Respondent does not claim they were in place on that date but points out the crane was not in operation at that time (Resp. brief p. 20). Mr. Bermudez acknowledged that respondent's owner had told him the pins had to be removed so the crane could be moved (Tr. 107-109). The crane operator testified the pins were removed only to move the crane (Tr. 426-427). Complainant made no attempt to refute the contention that the pins had been taken out to move the crane. Complainant has not established by a preponderance of the evidence that the "U" clamps were missing while it was in operation and employees were exposed to the hazard. The allegations must be vacated.

DEFECTIVE WIRE ROPE SLING

Item one of the amended citation alleged a serious violation of 29 C.F.R. ї 1926.251(c)(4)(iv)[[2/]] in that the wire rope sling showed signs of excessive wear, corrosion, or defect.

Compliance Officer Bermudez acknowledged he did not inspect the wire sling on December 30, 1981, and does not know the condition of the rope on that date (Tr. 178). The sling which was attached to the bucket of concrete was not examined until January 21, 1982 (Tr. 179). On the later date, he noticed 17 broken wires and corrosion, but he also acknowledged the sling was in the respondent's yard at the time he examined it and he is not aware of the possible damage or corrosion which may have occurred subsequent to the accident (Tr. 182). In view of the interval between the accident and the examination of the rope more than three weeks later, during which time the rope had been exposed to the weather, it is concluded that the complainant has failed to establish that the rope sling was in the defective condition alleged while it was in use (Tr. 414).

DEFECTIVE WIRE RUNNING ROPES

Item three of the amended citation alleges that respondent violated 29 C.F.R. ї 1926.550(a)(7)(i)[[3/]] in that the boom hoist cable had seven areas which had six or more randomly distributed broken wires in one lay in both dead and live ends, and had four areas containing three or more broken wires in one strand in one lay.

The running rope used on the crane boom was 371 feet long, 1/2-inch, six by twenty-five Right Regular Lay IWRC Wire Construction with a rated capacity of 23,000 pounds (Tr. 184, 223, 265). The evidence clearly shows that following the accident, wire rope used on the crane was separated with many broken wires including six or more randomly distributed broken wires in one lay and three broken wires, in one strand in one lay (Ex. C-15; C-16; Tr. 86, 90-91, 112-113). Compliance Officer Silverberg, who testified for complainant as an expert witness, described the condition of the rope as follows (Tr. 240-241):

... I found there was extreme deterioration of the wire rope in the break area and adjacent to it. There was a lot of rust in the valleys between the strands in the rope; . . . there were dog legs in the rope and broken wire for ... a length of about twenty-five feet from the break ... and there were many short pieces of broken wire . . . . These wires were broken on both ends, the short pieces, and I did flex the rope in a couple of places, one relatively near the break area, and upon flexing the rope, many wires popped up out of the rope.

* * *

Q. Did the manner in which you flexed the wire rope break -- does that type of testing break the wires?

A. No. I am nowhere near strong enough to break those wires.

Most of the broken and frayed wires were found within a 30-foot length located on each side of the break point (Tr. 192-194, 362, 364). The break point was approximately 84 feet from the "dead" end (Tr. 188).

Mr. Robert De Benedictis, a crane consultant who was a well-qualified expert witness, agreed that the proper way to inspect a wire rope is by flexing it thereby causing the broken ends to pop up (Tr. 269). During an inspection of the rope, he also noted many broken wires, fatigue breaks and other defects (Ex. C-33 through C-60; Tr. 270, 283-284, 292-309, 336-337). In his opinion, the defects were so serious the rope should have been removed from service (Tr. 294, 308-309). Further, he was of the opinion that had a competent inspection been performed prior to the accident, the rope would have been removed from service (Tr. 310, 335).

Mr. Larry Means, an employee of the rope manufacturer, testified his inspection disclosed many broken ends caused by fatigue. In his opinion, the rope broke because it was overloaded for its remaining strength (Tr. 341-343). He agreed a competent inspection prior to the accident would have revealed these conditions (Tr. 344-346).

Respondent does not seriously dispute the findings concerning the condition of the rope after the accident but contends the evidence is insufficient to show the defects were present or were observable prior to the accident.

Dr. Robert F. Hochman, Professor of Metallurgy at Georgia Tech, agreed there were a number of brittle fractures, some shear fractures and some tensile overload but was of the opinion that a definitive answer regarding the cause of the rope failure could be given only after further testing (Tr. 354-357). He raised the possibility of possible defects arising from the manufacturing process (Tr. 356-357) and considered the opinion that the break was caused by fatigue as "presumptuous" but did not rule out metal fatigue as the cause (Tr. 355-356, 362). He acknowledged that fatigue is the highest potential cause of failure and also noted the presence of rust on the rope (Tr. 364). In one important aspect, Dr. Hochman's opinion varied from those of complainant's experts. He testified there would be no "surety" as to when the breaks in the wires occurred, especially in view of the extensive action of going through the sheaves at the time of the accident (Tr. 354-355).

Dr. Hochman's opinion is entitled to considerable weight concerning the metallurgical properties of the rope and particularly concerning possible manufacturing defects. He had not performed the extensive testing, however, which he felt was necessary to form firm conclusions regarding the causes of the failure.

The opinions of Mr. DeBenedictis and Compliance Officer Silverberg are of greater value concerning the issues in this case because of their extensive experience involving cranes and wire rope. Based upon their knowledge and experience, they were of the opinion that the defects in the rope were present prior to the accident and could have been discovered by a competent inspection (Tr. 243-244, 250-251, 310, 335). Accordingly, it is concluded that respondent knew or should have known or the conditions which required the wire rope to be removed from service pursuant to 29 C.F.R. ї 1926.550(a)(7)(i).

In Union Boiler Co., supra, the Review Commission stated as follows:

In determining whether an employer should have known of a hazardous condition, the Commission has inquired as to whether the employer exercised reasonable diligence to detect the condition. In exercising reasonable diligence an employer is required to inspect and perform tests to discover safety-related defects in material and equipment. Prestressed Systems, Inc., 81 OSAHRC, 43/D5, 9 BNA OSHC 1864, 1981 CCH OSHD І 25,358 (No. 16147, 1981).

The testimony of the operator that he performed an inspection only three or four days prior to the accident at which time no broken wires or defects were found is not convincing. Any inspection which failed to show the extensive defects was performed inadequately in that he failed to remove tension from the rope while inspecting it and did not flex or closely observe the rope. The violation is serious as an accident resulting from such hazard would likely result in death or serious bodily injury.

FAILURE TO MAINTAIN RECORDS OF MONTHLY INSPECTIONS OF CRANE AND ROPES

Items 4(a) and 4(c) of the amended citation allege violations of 29 C.F.R. ї 1926.550(b)(2)[[4/]] which, among other things, requires inspections, testing and maintenance of all crawler, truck, or locomotive cranes as prescribed in ANSI B30.5-1968. The latter requires monthly inspection reports which are written, dated and signed are readily available.

Respondent's records were requested by Compliance Officer Bermudez at the time of the inspection but were produced only shortly before the hearing (Ex. C-1). The record appears to be clean, neat and orderly. The crane operator testified he performed the required inspections and sent in the information to respondent's office where it was transcribed onto a permanent record (Ex. C-1; Tr. 415). The records are not signed or dated nor were they readily available for inspection. A violation of the cited regulation is established. M & O Steel Erection, Inc., 79 OSAHRC 85/F1, 7 BNA OSHC 2136, 1979 CCH OSHD І 23,915 (No. 78-5571).

Although a serious violation was alleged, the evidence does not show that the failure to maintain records as required would result in death or serious bodily injury. If complainant had sought to establish that inspections were not performed, the weight of the evidence fails to sustain such contention. Items 4(a) and 4(b) are affirmed as other than serious violations without penalty.

FAILURE TO HAVE PROPERLY CHARGED FIRE EXTINGUISHER

The other than serious citation charged a violation of 29 C.F.R. ї 1926.150(a)(4)[[5/]] as the fire extinguisher in the cab of the crane was not charged. During his inspection, Compliance Officer Bermudez observed the fire extinguisher which indicated a discharged condition and was told it had been in that condition for some time (Ex. 14; Tr. 166-171). The reasonable inference to be drawn from the established facts is the fire extinguisher was not in a charged condition while the crane was in operation. The allegation is affirmed without penalty.

Compliance Officer Bermudez also observed the swing radius of the crane was not barricaded as required by 29 C.F.R. ї 1926.550(a)(9) (Tr. 92). In the amended citation, it is alleged to be a de minimis violation without penalty. There is no evidence that the condition existed while the crane was in operation or that employees were exposed to any hazard as a result of the condition. The allegation is vacated.

PENALTY

In determining the penalty, section 17(j) of the Act requires that consideration be given to the gravity of the violation and the employer's size, good faith and history of previous violations.

Serious violations by respondent have been found by the overloading of the rated capacity of the crane and the use of defective running ropes. The gravity of the violations is very high and would likely result in death or very serious injury should a collapse of the boom or fall of the load occur.

The size, good faith and past history are mitigating factors.

The Secretary proposes a penalty of $360 for each of the violations which is reasonable under the circumstances.

FINDINGS OF FACT

1. Respondent has a place of business and does business in Palm Bay, Florida, and at the times hereinafter mentioned, maintained a workplace at 1700 South Ocean Drive, Vero Beach, Florida.

2. Respondent engaged in the operation of a crane service, and used materials, supplies and equipment produced outside the State of Florida.

3. Respondent was contracted by Proctor Construction Company to provide crane services at the construction site of Sea View Condominium in Vero Beach, Florida. One of the cranes respondent provided was a truck crane, a P & H model 430 TC, serial number 29603.

4. On or about December 24, 1981, the crane operator lowered the boom of the aforesaid crane and inspected the crane and the boom hoist cable. At the time of the inspection, the boom hoist cable was still under tension as it supported the bale and sheave assembly and it was not possible to flex the cable to check for broken wires.

5. The accepted method for proper and competent inspection of a wire rope, such as the boom hoist cable, requires that all tension be removed from the rope, and that the rope cleaned, flexed, and closely inspected for broken wires and other defects on all surfaces, including the crowns and valleys.

6. On December 24, 1981, the boom hoist cable was fatigued, and contained numerous instances of six or more randomly distributed broken wires in one lay of the rope, three or more broken wires in one strand in one lay of the rope and other defects.

7. A complete and adequate inspection of the boom hoist cable on December 24, 1981, would have revealed the defects mentioned above, and would have caused the rope to be removed from service.

8. The crane operator, who had found no defects in the boom hoist cable, continued to use the crane with the defective wire rope.

9. On December 29, 1981, respondent's crane operator failed to operate the crane within the specifications and limitations of the manufacturer's load chart for the crane, in that he lifted loads substantially exceeding the manufacturer's recommendations.

10. At the time of the inspection, the crane was sitting without connecting the floats to the outriggers with "U" clamps to prevent their coming off of the outriggers, but it was not established that the crane had been operated in that condition.

11. The fire extinguisher located in the cab of the crane was in a discharged condition.

12. Respondent failed to date, sign and have available records of the inspection and maintenance of the crane, and the records of the inspection of each of the ropes used on the crane.

13. Although respondent did not have in place on December 30, 1981, a barricade to prevent workers from being crushed or struck within the swing radius of the crane, it was not established that the conditions existed while the crane was in operation.

14. The 5/8-inch wire rope sling showed signs of excessive wear, corrosion or defects during its inspection several weeks following the accident, but the sling had been exposed to the weather and the evidence does not establish that it was defective while in use.

15. The conditions found in paragraphs six and nine above would likely result in death or serious injury.

16. Penalties of $720 are reasonable and warranted.

CONCLUSIONS OF LAW

1. Respondent violated the safety standard set forth at 29 C.F.R. ї 1926.550(a)(1) failing to comply with the manufacturer's specifications and limitations applicable to the operation of cranes.

2. Respondent violated the safety standard set forth at 29 C.F.R. ї 1926.550(a)(7)(i) by failing to remove from service a wire rope with six or more randomly distributed broken wires in one lay or three or more broken wires in one strand in one lay.

3. Respondent violated the safety standard set forth at 29 C.F.R. ї 1926.550(b)(2) by failing to date, sign and have available proper inspection and maintenance records of the crane and its wire ropes in service.

4. Respondent did not violate the safety standard set forth at 29 C.F.R. ї 1926.251(c)(4)(iv).

5. Respondent violated the safety standard set forth at 29 C.F.R. ї 1926.550(a)(4) in that it failed to maintain the crane's firefighting equipment in operating condition.

6. Respondent did not violate the safety standard set forth at 29 C.F.R. ї 1926.550(a)(9).

7. The violations referred to in paragraphs one and two are serious violations within the meaning of section 17(k) of the Act, but those described in paragraphs three and five are other than serious.

8. Penalties of $720 are appropriate.

ORDER

1. Serious violations of 29 C.F.R. ї 1926.550(a)(1) and 29 C.F.R. ї 1926.550(a)(7)(i) are affirmed.

2. Other than serious violations of 29 C.F.R. ї 1926.550(b)(2) and C.F.R. ї 1926.550(a)(4) are affirmed.

3. Alleged violations of 29 C.F.R. ї 1926.251(c)(4)(iv) and 29 C.F.R. ї 1926.550(a)(9) are vacated.

4. Penalties of $720 are assessed.

Dated this 21st day of April, 1983.
JOE D. SPARKS
Judge

FOOTNOTES:

[[1]] A lay is the distance along the rope that one strand takes to make a complete spiral around the core of the rope.

[[2]] There was litigation in a state court relating to the accident. That court had entered an injunction prohibiting any inspection or testing that would alter the state of the rope.

[[3]] Whether to review a judge's decision is a matter solely within the discretion of the Commissioners. 29 C.F.R. ї 2200.91(a). When a judge's decision is directed for review, the entire decision is before the Commission. Hamilton Die Cast, Inc., 86 OSAHRC, 12 BNA OSHC 1797, 1986 CCH OSHD І 27,576 (No. 83-308). The Commission has the power, however, to exercise its discretion and review only certain issues or items. Although All Purpose Crane raised several issues in its petition for review, the Commissioner who directed this case for review exercised his discretion, specifying that the Commission would review only the issue addressed here. All Purpose Crane nevertheless presented arguments in its brief on other issues. Although we have the power to address these issues, we again exercise our discretion and review only the issue specified in the direction for review.

[[1/]] Section 1926.550(a)(1) of 29 C.F.R. provides:

(a) General requirements. (1) The employer shall comply with the manufacturer's specifications and limitations applicable to the operation of any and all cranes and derricks. Where manufacturer's specifications are not available, the limitations assigned to the equipment shall be based on the determinations of a qualified engineer competent in this field and such determinations will be appropriately documented and recorded. Attachments used with cranes shall not exceed the capacity, rating, or scope recommended by the manufacturer.

[[2/]] Section 1926.251(c)(4)(iv) of 29 C.F.R. states:

Wire rope shall not be used if, in any length of eight diameters, the total number of visible broken wires exceeds 10 percent of the total number of wires, or if the rope shows other signs of excessive wear, corrosion, or defect.

[[3/]] Section 1926.550(a)(7)(i) of 29 C.F.R. provides:

(7) Wire rope shall be taken out of service when any of the following conditions exist:

(i) In running ropes, six randomly distributed broken wires in one lay or three broken wires in one strand in one lay;

[[4/]] Section 1926.550(b)(2) of 29 C.F.R. states:

All crawler, truck, or locomotive cranes in use shall meet the applicable requirements for design, inspection, construction, testing, maintenance and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler, Locomotive and Truck Cranes.

[[5/]] Section 1926.150(a)(4) of 29 C.F.R. provides:

All firefighting equipment shall be periodically inspected and maintained in operating condition. Defective equipment shall be immediately replaced.