Docket No. 87-1067

SECRETARY OF LABOR,

Complainant,

ARCHER-WESTERN CONTRACTORS, LTD,
and GILBERT CORP of DELAWARE,
a JOINT VENTURE,

Respondent.

OSHRC Docket No. 87-1067

DECISION

Before: FOULKE, Chairman, and WISEMAN, Commissioner.

BY THE COMMISSION:

This case involves the collapse of a Manitowac 4000-W tower crane at a construction site in West Palm Beach, Florida on April 28, 1987. As a result of that collapse and a subsequent inspection by the Occupational Safety and Health Administration ("OSHA"), the Joint Venture of Archer-Western Contractors, Ltd. and Gilbert Corporation of Delaware (hereinafter "the Joint Venture" or "Respondent") was issued two citations, each of which alleged several violations of the Occupational Safety and Health Act, 29 U.S.C. її 651-678 ("the Act") . Two items are before the Commission on review: citation 2, item 2 alleging a willful violation of 29 CFR ї 1926.550(a)(1) for exceeding the lifting capacity of the crane; and Citation 1, item 1 alleging a serious violation of 29 C.F.R. ї 1926.21(b)(2) for failing to instruct employees in the recognition and avoidance of unsafe conditions.[[1/]]

Administrative Law Judge Joseph D. Sparks affirmed both violations and assessed the penalties proposed by the Secretary. Respondent filed a Petition for Discretionary Review that was granted by the Commission. For reasons that follow, we affirm the willful violation of ї 1926.550(a)(1) and vacate the item alleging noncompliance with ї 1926.21(b)(2).

A. The Crane Collapse--29 CFR ї 1926.550(a)(1)

The Joint Venture was engaged in the construction of a terminal at the Palm Beach International Airport, and had contracted with Construction Equipment International (CEI) to provide the necessary cranes and operators. The contract did not require CEI to provide any other personnel or equipment, such as signalmen or rigging.

On April 28, 1987, the Joint Venture decided to lift a Burke core form from stairwell number four. Cement is poured into a core form to construct a stairwell. The Burke form at stairwell four measured 15 by 27 feet and was from 9-14 feet high. CEI operator James Earl Dickey was operating the Manitowac 4000-W crane that was to make the lift. The crane had a tower attachment of 133 feet, 160 feet of working boom and a 40-foot jib. Dickey was concerned that the form exceeded the capacity of the crane. He told one of Respondent's foremen, David Stuart, that the crane's capacity was 14,800-14,900 pounds and asked for the weight of the form. Stuart estimated the form to weigh 16-17,000 pounds. Because the form exceeded the capacity of the crane, Dickey refused to make the lift. Stuart then went to CEI lead operator Rodney Walters to inform him of Dickey's refusal. He also informed Walters that CEI had made the lift before. Walters told Stuart that they were not going to make any more questionable lifts. Stuart then reported the situation to Respondent's project manager Paul Payne and engineer Joseph Appleton. Payne and Appleton were under the impression that the Manitowac 4000 had lifted the Burke form before and questioned why the lift could not be made again. Payne told Stuart that it was important to make the lift. He ordered Stuart to get the form ready and stand by. Payne called Michael Lothian, a general manager at CEI headquarters in Tampa, and asked him to explain why CEI was refusing to make the lift.

Lothian explained that, based on their operator's previous experience in lifting the form, CEI believed that the form's weight exceeded the capacity of the crane. Payne ended the telephone conversation and recalculated the weight to be 15-16,000 pounds. He then telephoned Lothian and told him of this new calculation, that the form weighed 15,300 pounds. Lothian pointed out that, according to the load chart, the weight was well in excess of the crane's capacity. Payne replied that it was only 1300 pounds over the capacity and asked what was wrong with making the lift. Lothian pointed out that to the weight of the form must be added the 1000-pound ball, and the weight of the wire rope and other rigging. Lothian told Payne that if the weight of 15,300 pounds did not include those items, the lift could exceed the capacity of the crane by as much as 20%.

Lothian testified that he told Payne that the discussion was not necessary because there was another crane at the site, a Manitowac 3900, capable of handling the load. Lothian stated that after he explained that the other crane would have to be rerigged to make the lift, Payne complained that it was a lot of work "for one lousy pick," but he finally agreed to it.

Payne's version of the conversation varies from Lothian's in important respects. Payne testified that Lothian told him that the jib capacity was not high enough to make the lift and that it would have to be rerigged to make the lift. Thus, while Lothian testified that he told Payne that the Manitowac 4000 was incapable of making the lift under any circumstance, Payne apparently believed that the crane could make the lift if it were properly rerigged.

Payne testified that immediately after this conversation with Lothian, he told his foreman, Thomas Link, not to make the lift with the Manitowac 4000 until it was rerigged. Link agreed not to make the lift. However, Stuart, a foreman who worked for Link, testified that Link ordered him to have the crane readied for the the lift. Link did not order the crane rerigged. When CEI head operator Walters learned that the lift was to be made, he told Link that he thought the form weighed over 18,000 pounds and that he would not allow the lift until he had authority from his superiors in Tampa. After calling Tampa, Walters suggested to Link that there was an "out." Walters said that Tampa agreed to allow the lift if Link or another member of Respondent's management would certify that the form weighed 12-14,000 lbs. and provide a release of liability. [[2/]] Link took out a piece of note paper, wrote "STAIR #4 12,000 PDS T. Link" and handed it to Walters. Link then ordered foreman Stuart to get things ready and to tell the operator to make the lift. Crane operator Dickey continued to protest that the lift was unsafe. Finally, Dickey agreed to make the lift, although he continued to maintain he was being forced into it. Respondent's safety manager Ford, after talking to Stuart and Dickey, instructed employees not to ride the form during the lift.

Respondent's employees loosened the jacks holding the form. Stuart then signaled Dickey to make the lift. The form rose for 10-15 seconds, then dropped back on the jacks. The lifting beam struck the top of the form. Metal and debris began to fall as the jib and boom of the crane collapsed. Employees ducked and ran into the building to avoid the falling debris.

Payne testified that, after the accident, he asked Link why he authorized the lift. According to Payne, Link admitted his error. He told Payne that because they had previously made a similar lift, he believed they could make this lift. Payne testified that because he authorized the lift, Link was terminated for insubordination on May 12, 1987, two weeks after the lift.

Judge Sparks found that the evidence was undisputed that the maximum lifting capacity of the crane was 14,000 pounds and that the weight of the load was at least 20,000 pounds. He affirmed a willful violation of 29 C.F.R. ї1926.550(a)(1) [[3/]] and assessed the $10,000 proposed penalty. The judge specifically rejected Respondent's contention that it was not responsible for the violation because it was only the lessor of the crane. He noted that contractors were absolved of responsibility for crane related violations only when the lessor relied on the expertise of the crane operator. Here, the judge found, Respondent did not rely on the operator's expertise. Rather, contrary to the advice of the operator and with full knowledge that the lift exceeded the capacity of the crane, Respondent insisted that the overweight lift be made. He concluded that Respondent was directly responsible for the violation.

Judge Sparks also discredited Payne's testimony that Link authorized the lift in direct violation of his specific orders. The judge found it highly unlikely that foreman Link would have ordered the lift against Project Manager Payne's orders and against the advice of all crane operators. He further noted that other supervisory personnel were aware that the load exceeded the crane's capacity, yet allowed the lift to be made.

Respondent first argues that the evidence did not establish the lifting capacity of the crane.[[4/]] It claims that the only evidence cited by the judge in support of his finding that the lift capacity of the crane was 14,000 pounds was a Manitowac chart for tower cranes with tower attachments between 163-213 feet in height. However, the actual height of the tower used in the lift was 133 feet. There is no evidence, Respondent continues, which suggests that the chart applies to the 133 foot tower. Respondent concludes that the Secretary's failure to establish the manufacturer's rated load capacity for the tower crane requires that the citation be vacated. This argument is rejected.

As Respondent properly notes, the load charts introduced into evidence do not directly address the particular configuration of the crane at the time it made the ill-fated lift. The chart covers cranes with towers of 163 to 213 feet, and boom lengths of 150 feet. The crane in use, however, had a 133-foot tower and a 160-foot boom. For those dimensions, the chart does list the maximum lift capacity with a 40-foot jib to be 14,000 pounds. The maximum lift capacity listed for the crane is 20,000 pounds with a 30-foot jib. The load chart also states that when determining the load all blocks, hooks, weight balls, slings, hoist lines, etc. are to be considered part of the load.

A load chart cannot always be relied on to set limits for every possible configuration of a crane. Therefore, when no specifically applicable limits are included on a load chart, the employer is expected to make a reasonable estimate of the limits of the crane from the capacities set forth in the load chart. See Towne Construction Co. v.OSHRC, 847 F.2d 1087 (6th Cir. 1988).

The standard requires that when no load specifications are available, the limitations shall be determined by a competent engineer. [[5/]] Although not qualified at the hearing as "competent engineers," the CEI operators who were most familiar with the crane repeatedly warned that the load exceeded the crane's capacity. These warnings put Respondent on notice that, if it were going to make the lift, it had to take effective steps to determine with certainty if the weight was within the crane's capacity.

Although the evidence does not establish the precise capacity of the crane, we find that the evidence overwhelmingly establishes that the load exceeded the manufacturer's specifications and limitations in violation of ї 1926.550(a)(1). The evidence established that: the maximum listed capacity for the crane with a 40-foot jib is 14,000 pounds; all reasonable estimates of the weight of the load were substantially in excess of 14,000 pounds; no competent engineers were assigned to determine whether the crane was capable of lifting a load in excess of 14,000 pounds; CEI operators repeatedly warned that the load exceeded the capacity of the crane; the Secretary's crane expert testified that the load exceeded the crane's capacity; and when the lift was made, the crane collapsed.

Respondent next argues that the citation should be dismissed because the lift was the result of unpreventable supervisory misconduct on the part of its foreman, Tom Link. Respondent contends that the evidence demonstrates that CEI's Lothian told Payne that the Manitowac 4000 crane could make the lift if it was rerigged and that Payne subsequently ordered Link not to make the lift until the crane could be rerigged. In authorizing the lift, Respondent contends that Link directly disobeyed Project Manager Payne's order not to make the lift until the crane was rerigged, for which he was terminated. Respondent contends that, by discrediting Payne's account on the basis that he found it "highly unlikely that Link would have ordered the lift in contravention of instructions from Payne and against the advice of all crane operators," the judge substituted his own subjective belief for the undisputed record evidence that Link was insubordinate. Respondent also argues that the judge's conclusion that other Joint Venture supervisors were aware that the lift was being made, yet did nothing to stop it, is not supported by the record.

The Commission is normally reluctant to disturb a judge's credibility finding. Kent Nowlin Construction Company, Inc., 8 BNA OSHC 1286, 1980 CCH OSHD І 24,459 (No. 76-191 and 76-192, 1980); Otis Elevator Co., 8 BNA OSHC 1019, 1980 CCH OSHD І 24,236 (No. 14899, 1980), appeal withdrawn, No. 80-470 (2d Cir. May 15, 1980); C. Kaufman, Inc., 6 BNA OSHC 1295, 1977-78 CCH OSHD І 22,481 (No. 14281, 1977), This deference is granted because it is the judge who has had heard the witnesses and observed their demeanor. C. Kaufman, Inc., 6 BNA OSHC at 1297, 1977-78 CCH OSHD at pp. 27,099. Here, however, the judge did not make the type of credibility finding to which we ordinarily defer. It was not based on the traditional weighing of conflicting testimony, but rather on his subjective assessment of the probability of events. Indeed, there was no evidence to contradict Payne's testimony that he ordered Link not to make the lift.

However, even accepting at face value Payne's testimony regarding his orders to Link, the overwhelming weight of the evidence still supports the testimony of CEI's manager in Tampa, Lothian, that he told Payne that the crane could not make the lift and that the Manitowac 3900 should be used. The evidence is also clear that Payne was anxious to make the lift and did not want to take the time to move the Manitowac 3900 crane and prepare it for the lift. According to Lothian, Payne was very agitated when he spoke to him about the unwillingness of CEI's operators to pick up the stairwell form. Even after Lothian explained that the weight of the stairwell was above the limit of the crane, Payne argued for the lift on the grounds that the stairwell was "only" 1300 pounds above the limit. When told that there was a crane at the worksite capable of handling the load, Payne told Lothian that getting the other crane ready was a lot of work "for one lousy pick." We therefore find that the evidence establishes that Payne knew that his decision to make the lift with a rerigged Manitowac 4000 crane was contrary to the express warnings conveyed to him and his supervisors by Lothian and the CEI operators.

Moreover, even though Payne instructed Link not to make the lift until the crane was rerigged, the evidence established that the load would still have exceeded the capacity of the crane, even if the crane were rerigged. Although rerigging the crane might have increased the capacity of the crane, Respondent was amply informed by the CEI operators of their concern that, even after being rerigged, the crane was not capable of making the lift and that another crane was available at the site that could safely make the lift. An unpreventable misconduct defense will not be established where the employer's instructions were insufficient to eliminate the hazard even if the employee had complied with those instructions. Brown and Root, Inc., 8 BNA OSHC 1055, 1060, 1980 CCH OSHD І 24,275 at p. 29,570 (No.76-3942, 1980); See also Eddy's Bakeries Company, 9 BNA 2147, 2151, 1981 BNA OSHC І 25,604 at pp. 31,940 (No. 77-1084, 1981) (Workrule that fails to abate hazard, even when adequately implemented, does not fulfill employer's duty under section 5(a) (1)). Here, Link disobeyed a direct order, but the order itself required a violation of the standard.

Even if Payne had believed that the Manitowac 4000 crane could successfully make the lift, Link's disobedience would still not relieve the Joint Venture of responsibility for the overweight lift. When an employer raises the affirmative defense of unpreventable employee misconduct, the employer must demonstrate that the actions of the employee were a departure from a uniformly and effectively communicated and enforced workrule. When the alleged misconduct is that of a supervisory employee, the employer must also establish that it took all feasible steps to prevent the accident, including adequate instruction and supervision of its employee. Daniel International Co. v. OSHRC, 683 F.2d 361, 364 (11th Cir., 1982); Daniel Construction Co., 10 BNA OSHC 1549, 1552, 1982 CCH OSHD І 26,027 at pp. 32,672 (No. 16265, 1982). Where a supervisory employee is involved, the proof of unpreventable employee misconduct is more rigorous and the defense is more difficult to establish since it is the supervisor's duty to protect the safety of employees under his supervision. Id. A supervisor's involvement in the misconduct is strong evidence that the employer's safety program was lax. Id Here, Link's involvement in the lift was consistent with Payne's strong interest in having the lift made.

In addition, we agree with the judge's finding that other supervisory personnel allowed the lift to be made despite their knowledge that the load exceeded the crane's capacity. The evidence establishes that the lift was made in full view of Respondent's Safety Director Ford. Ford was not involved in the decision regarding the use of the crane, but he had previously been informed by CEI crane operator Shurtleff that the Burke form was too heavy a load for the crane. Moreover, assuming, arguendo, that Ford was not aware of the dispute over the lift, the failure of the safety official on the site to be informed and consulted about the dispute over the safety of the lift strongly suggests that the Joint Venture failed to implement a safety program that emphasized the importance and priority of safety. We therefore conclude that Respondent failed to establish the affirmative defense of unpreventable employee misconduct.

The Joint Venture next argues that it should not be held liable for any violation involving the operation of the crane because it was entitled to rely on the expertise of CEI when deciding whether to make the lift. It claims that under the rental agreement, CEI was to provide a "qualified operator," "operate the equipment in a professional and safe manner" and "be the sole operator of this equipment." The Joint-Venture contends that it was the responsibility of the crane operator to operate the crane in a safe manner and to ensure that the crane was not overloaded. Respondent claims that the judge erred by not considering the lease agreement, the history of negotiation it had with CEI and CEI's own policy of holding its operators responsible for crane safety. Respondent further submits that CEI lead operator Walters authorized the lift after operator Dickey refused to make the lift and other CEI operators agreed that it should not be made. Finally, Respondent argues that the judge erred by excluding proffered testimony establishing that the lift was authorized by a CEI supervisor in Tampa.

Respondent's arguments are without merit. When an employer contracts with a specialist, the employer is justified in relying upon the specialist to protect against hazards related to the specialist's expertise, as long as the reliance is reasonable and the employer has no reason to foresee that the work will be performed unsafely. Sasser Electric & Manufacturing Co., 11 BNA OSHC 2133, 1984-85 CCH OSHD І 26,982 (No. 82-178, 1984), aff'd, No. 84-1961 (4th Cir. 1985).

Sasser does not support Respondent's contention that it should not be held liable for the unsafe lift. Having hired CEI to operate the cranes, the Joint Venture could have properly relied upon the CEI operators to determine when a load exceeded the capacity of the crane and not to exceed those limits. Here, however, the Joint Venture obviously exerted pressure on the operators to ignore their judgment and raise a load that they had warned exceeded the crane's limits. Respondent did not rely on the expertise of the crane operator. Instead, it ignored and tried to countermand it. Rather than showing that it could not have foreseen that the work would be performed in an unsafe manner, the evidence establishes that the Joint Venture was fully aware that the lift was unsafe and that it actually insisted that the lift be made despite the hazard. Given these facts, the allocation of responsibility under the contract has no real relevance. Regardless of CEI's contractual responsibilities, the critical fact is that the Joint Venture prevailed upon the operator to ignore his best judgment and proceed with the lift.[[6/]]

Having found no merit in any of Respondent's defenses to the alleged violation, we find that the Secretary established that the Joint Venture violated 29 C.F.R. ї1926.550(a)(1).

Finally, the Joint Venture argues that the Judge erred by affirming the violation as willful. According to Respondent, orders given to Link not to authorize the lift until the crane was rerigged establishes that the Joint Venture was concerned with employee safety.

To establish that a violation was willful, the Secretary must prove that the violation was committed with intentional disregard of the Act's requirements or plain indifference to worker's safety. R.D. Anderson Construction Co., 12 BNA OSHC 1665, 1669, 1986-87 CCH OSHD І 27,500 at pp. 35,641 (No. 81-1469, 1986); D.A.L. Caruso, Inc., 11 BNA OSHC 2138, 1984 CCH OSHD І 26,985 (No. 79-5676, 1984).

We find that the record supports the ALJ's conclusion that the Joint Venture intentionally disregarded the requirement that lifts not exceed a crane's capacity and that it was indifferent to employee safety. Both Payne and Link expressed considerable displeasure and frustration over the operator's refusal to make the lift. Despite numerous warnings by the operator that the load exceeded the capacity of the crane, Payne and Link made repeated demands on the CEI operators to make the lift. Even when informed by CEI manager Lothian that the lift could be made safely by another crane elsewhere on the site, Payne's concern was that preparing a new crane was a lot of effort for "one lousy lift." The lift was finally made when Link, contrary to what he plainly knew to be the facts, wrote and signed a "release" falsely attesting that the weight of the form was within the crane's capacity.

Respondent would have us view Payne's order to Link not to make the lift until the crane was rerigged as a good faith effort at compliance. In certain cases, we found that a willful charge is not justified if an employer has made such efforts to comply with a standard or to eliminate a hazard even though the employer's efforts are not entirely effective or complete. Keco Industries, Inc.,13 BNA OSHC 1161, 1169, 1986-87 CCH OSHD І 27,860 at pp. 36,478 (No. 81-263, 1987). Here, however, we find that Payne's directive to Link did not constitute a good faith effort to comply with the Act. Payne had been repeatedly warned that the crane was not capable of lifting the form, and was specifically told by Lothian that, even after rerigging, the crane could not handle the load. Accordingly, we affirm the judge's finding that the violation was willful.[[7/]]

At the hearing Respondent stipulated that if a violation were found, the penalty proposed by the Secretary was appropriate. Accordingly, we affirm the judge's assessment of the $10,000 proposed penalty.

Adequacy of Respondent's Safety Program-29 C.F.R. ї 1926.21(b)(2)[[8/]]

Respondent was issued a citation alleging a serious violation of 29 C.F.R. ї 1926.21(b)(2) on the grounds that it failed to provide safety training or instruction to its West Palm Beach employees in several areas of crane safety. The citation alleged that Respondent failed to instruct employees in:

a. Proper hand, flag and radio signaling of cranes;
b. How to properly rig a crane, including calculation of weight, types and components of rigging, and designation of a competent person to be in charge of critical lifts; and
c. Understanding manufacturer's specifications for proper use of cranes including maximum loads at various configurations.

The judge affirmed the violation and assessed a $1,000 penalty. We reverse the judge and vacate the item.

The evidence establishes that the Joint Venture held safety meetings approximately once a week. The meetings were not held on any regular schedule. Rather, safety director Ford would contact the foreman who would set up a time, usually during a break. The meetings would last approximately 15 minutes. At these meetings, which were usually led by safety director Ford, the employees would discuss various problems. Crane safety was among the subjects discussed, and included such topics as flying loads over people's heads, use of the horn, and signaling. Weekly safety meeting reports for the period between October 10, 1986 and the collapse on April 28, 1987 show that aspects of crane safety were frequently discussed. Although he conducted the majority of the safety meetings, Ford admitted that he was not involved with either crane operations or the rigging on the cranes. In addition, Ford testified that, before becoming the safety official for the Joint Venture, his safety training had consisted of a correspondence course and on the job training. Another significant component of Ford's safety training was his reading of the OSHA Handbook and brochures.

OSHA compliance officer Corey Neale was qualified by the judge as an expert on cranes. Based on employee interviews and observations during the walkaround, Neale concluded that the Joint Venture's employees were not properly trained in crane safety. Among those interviewed was foreman David Stuart, who was fired after the accident. Stuart told Neale that he never had any training in rigging and that the Joint Venture never held any classes explaining signaling, flagging, working loads or which types of chokers to use. Employees who worked on the day of the collapse also told Neale that they never received any training in rigging or hand signals. Regarding rigging, Neale testified that the employees told him that "You just watch somebody and you go out and you do it." In addition, the employees told him that they tried to get a foreman to give the signals when one was available.

Foreman Stuart testified that Ford occasionally passed out safety sheets for employees to read, sign and return, but he could not recall attending safety meetings. Although Stuart testified that he did not attend any safety meetings in April of 1987, he could not explain why his signature appeared on the safety meeting minutes of April 17 and 24.

Jerry Freeman, a crane operator with 31 years experience, who worked for CEI at the Palm Beach Airport Project from December 1986 to April 1987, testified that Archer-Western employees provided the hooking or rigging on the loads and that they did a good job. According to Freeman, the employees followed directions well. He testified that he was very particular about his rigging, and that the Joint Venture employees were able to rig his crane the way he wanted. In addition, Freeman testified that the Joint Venture provided very good signalmen and that he never had any problems in that regard. CEI crane operator Shurtleff also testified that he was supplied with adequate signalmen.

Although the judge found that the Joint Venture held regular safety meetings, he concluded that the evidence established that the training was inadequate. The judge found the safety training in rigging and crane operation inadequate based on the "ample" record of safety violations committed by the Joint Venture's employees. Of particular importance was "the ease with which the supervisory personnel committed or condoned the violations; they participated in the lift knowing the weight was excessive, and they were aware that their employees were riding the loads." He concluded that the benefit of any safety training given by Respondent was nullified by the failure of supervisory personnel to either enforce it, or follow it themselves.

Respondent argues that the judge ignored testimony that established that its safety sessions provided employees with extensive training on crane safety, signaling and rigging. It also claims that the judge's finding was contrary to the testimony of CEI's crane operator's that the rigging and signaling were adequate.

The Secretary contends that Respondent's lack of safety training regarding rigging and crane operations establishes the violation. The Secretary notes that even though Respondent had five large cranes at the worksite, it could not produce any employees at the hearing who were knowledgeable in the rigging and operation of cranes. Interviews with employees confirmed that they knew little or nothing about rigging and crane procedures.

The duties imposed by 29 C.F.R. ї 1926.21(b)(2) are satisfied when the employer instructs its employees about the hazards they may encounter on the job and about the regulations applicable to those hazards. Dravo Engineers and Constructors, 11 BNA 2010, 2011-2, 1984-85 CCH OSHD І 26,930 (No. 81-748, 1984); Sawnee Electric Membership Corporation, 5 BNA 1059, 1977-78 CCH OSHD І 21,560 (No. 10277, 1977). The evidence establishes that the Joint-Venture held regular safety meetings and that at those meetings some aspects of crane safety were discussed. Most of the discussions of crane safety, however, were concerned with the hazards of swinging loads over the heads of employees. According to these minutes, only minimal attention was paid to rigging, signaling, or the importance of observing manufacturer's specifications. Moreover, the meetings were conducted by safety director Ford, who had minimal safety qualifications in general and virtually none regarding cranes.

While the minutes did not establish that employees were adequately trained in all phases of crane operations, the uncontested testimony of CEI operators Freeman and Shurtleff established that Respondent's employees were, in fact, adequately trained in signaling and rigging. The most damaging evidence against Respondent was given by former foreman Stuart. However, because Stuart's employment was terminated by Respondent and he could not remember attending safety meetings for which he signed the minutes, the weight of his testimony must be considered diminished. Therefore, although the meeting minutes did not show that Respondent's employees received significant training, the performance of those employees establishes that they were trained in rigging and signaling.

The Secretary also alleged that the employees were not trained in understanding manufacturer's specifications for proper use of cranes including the lifting of maximum loads at various configurations. The record establishes, however, that Respondent relied on the crane operators, employees of CEI, to determine the load capacities of the cranes. Although Respondent has a duty to its own employees, even when it relies on a specialist such as CEI, see Sasser Electric & Manufacturing Co., 11 BNA at 2136, 1984-85 CCH OSHD at p. 34,684, we cannot fault Respondent for failing to instruct its employees in matters that fall within the expertise of CEI's crane operators, when it reasonably relies on that expertise. Id.

Contrary to the judge's finding, the insistence by Respondent's supervisory personnel that the stairway form be lifted, while indicative of a general disregard for employee safety, was not the result of a lack of training in the determination of crane capacities. Respondent's supervisors were adequately warned that the crane lacked the proper capacity by the CEI operators, whose job it was to make such determinations. We therefore conclude that the Secretary failed to establish that Respondent violated 29 C.F.R. ї 1926.21(b)(2).

Accordingly, the judge's finding of a willful violation of 29 C.F.R. ї 1926.550(a)(1) is affirmed and a $10,000 penalty is assessed. The judge's finding of a serious violation of 29 C.F.R. ї 1926.21(b)(2) is reversed and the item is vacated.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Dated: April 30, 1991

SECRETARY OF LABOR,

Complainant,

ARCHER-WESTERN CONTRACTORS,
LTD., and GILBERT
CORPORATION OF DELAWARE,
INC., A Joint Venture,

Respondent.

OSHRC Docket No. 87-1067

APPEARANCES:

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

James E. Moye, Esquire, Hansell and Post, Atlanta, Georgia, and John O'Rourke, Esquire, O'Brien, O'Rourke, Hogan and McNulty, Chicago, Illinois, on behalf of
respondent.

DECISION AND ORDER

SPARKS, Judge: Respondent, Archer-Western Contractors, Limited, and Gilbert Corporation of Delaware, Incorporated, a Joint Venture, ("Joint Venture") is the prime contractor for the construction of the new airport terminal at West Palm Beach, Florida. It contests two citations issued to it by the Secretary of Labor on June 25, 1987, under the Occupational Safety and Health Act of 1970 ("Act"), following a crane accident at the project. Citation Number One is a two-item serious citation for the violation of 29 C.F.R. ї 1926.21(b)(2) for failure to instruct employees in the recognition and avoidance of unsafe conditions, and 29 C.F.R. ї 1926.550(a)(9) for failure to barricade the swing radii of various cranes' rotating superstructures. [[1]] Citation Number Two is a three-item willful citation for the violation of 29 C.F.R. ї 1926.251(c)(1) for using inadequate rigging, 29 C.F.R. ї 1926.550(a) for exceeding the lift capacity of a crane, and 29 C.F.R. ї 1926.550(b)(2) for allowing employees to ride the loads of cranes.

The parties stipulated at the hearing that, if Joint Venture were found to be in violation of any of the items of the serious citation, the penalty for each item would be in the amount proposed in the Secretary's citation. The parties further stipulated that, if Joint Venture were found in violation of any of the items of the willful citation, the penalty for each item would be $10,000. If a willful violation were reduced to a serious violation, the penalty would be $1,000 for each item (Tr. 566-567).

At the beginning of the hearing, the Secretary offered into evidence the depositions of Michael Lothian (Ex. C-1; Tr. 43), Roger Weir (Ex. C-2; Tr. 44), Rodney Walters (Ex. C-3; Tr. 45), and John McDonald, Jr. (Ex. C-4; Tr. 47). It was ruled that evidence relating to events occurring after April 28, 1987, (other than observations made by the OSHA Compliance Officer during his May inspection) would be inadmissible (Tr. 37). Accordingly, the parties were permitted to withdraw the depositions and delete that testimony pertaining to events occurring subsequent to April 28. After the hearing, the parties submitted each deposition in two volumes: the first volume containing the testimony to be received into evidence and the second volume containing proffered testimony relating to post-April 28 events. The parties also submitted portions of the depositions that were objected to on other grounds. Those portions are hereby admitted into evidence.

FACTS

Joint Venture is a partnership formed by Archer-Western Contractors, Limited, and Gilbert Corporation of Delaware, Incorporated, for the airport terminal project. Archer-Western owns a 60 percent controlling interest in the partnership and is the managing partner (Ex. C-9, deposition pp. 12, 43; C-9 Exhibit 1).

The instant case arises from Joint Venture's contract to construct a terminal at the international airport in West Palm Beach, Florida. The work site was on 30 to 40 acres of land. The buildings would cover approximately 1,500,000 square feet.

The plans called for a three-story terminal with four levels of parking above it, and three concourses (Tr. 845).

For the project, Joint Venture decided against using its own cranes and employees as crane operators. Instead, Joint Venture contracted with Construction Equipment International, Inc., ("CEI") to provide cranes and crane operators (Tr. 396-398). On January 20, 1987, a written agreement encompassing the equipment lease between Joint Venture and CEI was signed. The lease provides in pertinent part: "Lessor and its employee/operator will be sole operator of this equipment, and all such operations are under Lessee's exclusive jurisdiction, supervision, and control" (Ex. R-13). Under the agreement, CEI supplied Joint Venture with five cranes: two Manitowoc 4000-W cranes, a Manitowoc 3900 conventional crane, and two Tadano hydraulic cranes. CEI did not provide rigging, riggers or signalmen (Tr. 396-398, 371).

On April 28, 1987, Joint Venture instructed CEI that it needed the Burke form lifted from stairwell number four (Tr. 304). The Burke form is a core form used for the stairwell. It measures 15 by 27 feet and can reach a maximum height of 14 feet (Tr. 53). The Burke form at stairwell four was nine feet high (Tr. 66).

CEI operator James Earl Dickey was operating a Manitowoc 4000-W crane, which is a 150-ton crane with a 133-foot tower, 160 feet of working boom, and a 40-foot jib (Tr. 132, 660). A lifting beam was hooked to the crane and the beam was then hooked to the Burke form. Laborers worked with crowbars and a sledgehammer to loosen the form from the stairwell (Tr. 319). As Dickey applied pressure to lift the form, the boom of the crane collapsed (Tr. 324).

OSHA Compliance Officer Corey Neale arrived at the work site on May 5, 1987, to conduct an investigation of the collapse (Tr. 488). When he arrived, the collapsed tower crane had been removed (Tr. 492). As a result of Neale's investigation, Joint Venture was cited for several safety violations.

I
WILLFUL CITATION TWO, ITEM ONE
EXCEEDING THE RIGGING CAPACITY

Item One, Willful Citation Two,[[2]] charges respondent with violating 29 C.F.R. ї 1926.251(c)(1) which provides as follows:

Tables H-3 through H-14 shall be used to determine the safe working loads of various sizes and classifications of improved plow steel wire rope and wire rope slings with various types of terminals. For sizes, classifications, and grades not included in these tables, the safe working load recommended by the manufacturer for specific, identifiable products shall be followed, provided that a safety factor of not less than 5 is maintained.

The Secretary's witness, Dennis O'Rourke of National Crane Services, was qualified as an expert in safety with specialization in cranes and rigging (Tr. 169, 172). O'Rourke stated that the upper slings used to connect the crane hook to the lifting beam should have been one inch in diameter in order to comply with the standard (Tr. 190). Joint Venture's expert, Don Markwardt, calculated that a 7/8-inch diameter wire rope sling would comply with the standard (Tr. 760-769). The Secretary contends Joint Venture violated ї 1926.251(c)(1) by using a sling that was 5/8-inch in diameter. The Secretary failed to prove this fact at the hearing.

Of the witnesses who testified regarding the rigging, none of them could say with certainty what the diameter of the sling rope was. CEI operator Shurtleff testified he had no idea what size rope was used for the lift (Tr. 161). Joint Venture foreman David Stuart testified he was uncertain of the diameter of the spreaders used to make the lift (Tr. 311).

The only witness who actually measured the spreaders, Corey Neale, gave contradictory testimony. At the hearing, Neale stated the spreader was fiber core, not wire core. In his deposition, he stated it was independent wire rope (IWRC) (Tr. 598). The citation stated it was IWRC (Tr. 599). At the hearing, Neale stated the spreader was swaged (Tr. 500). In his deposition, he stated it was manufacture spliced (Tr. 600) Neale initially stated in his deposition that the spreader above the beam was 7/8 inch in diameter (Tr. 595). At the hearing, he was certain that the spreader was 5/8-inch diameter (Tr. 593).

Neale stated he only measured one of the three spreaders and that one spreader measured 5/8 inch in diameter. Because they "all looked the same," he did not measure the other spreaders (Tr. 593-594). It is undisputed that 7/8-inch slings were available on the work site (Tr. 160). In sum, the Secretary failed to prove by a preponderance of the evidence that Joint Venture was using inadequate rigging.

WILLFUL CITATION TWO, ITEM TWO
EXCEEDING THE BOOM CAPACITY

Item Two, Willful Citation Two, [[3]] charges respondent with violating 29 C.F.R. ї 1926.550(a)(1) which provides as follows:

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 determination 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.

It is undisputed that the maximum lifting capacity of the Manitowac boom was 14,000 pounds (Ex. C-1, Lothian deposition Vol. II, p. 40; C-3, Walters deposition p. 95; Tr. 178, 179-182). The evidence clearly establishes that the weight of the load lifted was at least 20,000 pounds. Henry Siegel, the district manager of Burke Company, calculated the weight of the Burke form to be approximately 20,000 pounds (Tr. 55). CEI operator Walter Shurtleff lifted the form after the collapse with his Tadano 45-ton crane, which was equipped with a load cell that enabled it to weigh loads. He and Michael Lothian, CEI's regional manager, calculated the form to weigh 20,000 pounds (Tr. 84-85).

Although the events leading up to the boom collapse are in some dispute, the most credible testimony established the following:

Ed Payne was the project manager for Joint Venture at the West Palm Beach work site (Tr. 361). Prior to April 28, Payne had understood the weight of the Burke form to be between 12,000 and 14,000 pounds (Tr. 375).

David Stuart was the carpenter foreman for Joint Venture at the time of the collapse (Tr. 294). He testified that on April 28, Joint Venture superintendent Tom Link instructed him to raise the form on stairwell four.[[4]] Stuart asked CEI operator Dickey to make the lift (Tr. 306). Dickey initially refused to make the lift because he thought the form exceeded his crane's capacity. Stuart informed CEI's lead operator Rodney Walters that Dickey refused to make the lift (Tr. 307). Stuart also informed Payne and Joint Venture engineer Joseph Appleton that Dickey would not make the lift. Appleton then calculated the weight of the Burke form to be 17,000 pounds. Payne than stated, "They've made that lift before, and we have to have that form lifted today. It's important that we get it done" (Tr. 309).

Payne called CEI's Michael Lothian in Tampa and asked, "What the hell is the matter with your guys? What is this shit about your guys not picking this form?" (Ex. C-1, deposition Vol. II, pp. 182-183). Lothian told Payne that the form was in excess of the crane's capacity. Lothian pointed out that there was another crane on the work site capable of handling the pick (Ex. C-1, deposition Vol. II, pp. 39-40).

About 2:00 that afternoon, Stuart accompanied Tom Link to see Rodney Walters about the lift. Stuart testified regarding the meeting (Tr. 315-317):

The head operator (Walters) explained that he wasn't going to make the lift or tell that man (Dickey) to make the lift until he had authority from his supervisors. He suggested, however, that there was an out. That's exactly what he said--that there was an "out"--if Archer chose to exercise it. . . . He said if Archer would sign a waiver or a release of liability, that they would go ahead and make the lift. . . . Tom Link said, "Is that all I have to do?" Then, he grabbed a three by five notepad out of my pocket and my pen, and he wrote on it, "This form weighs," something or other, but it was well under the limit. I think he wrote "12,000 pounds" on it is what I saw. Then, I saw him sign it, and he handed it and he said, "Here is your release. Go ahead and make the lift."

In fact, what Link wrote was (Ex. C-3, Exhibit B):

STAIR #4
12,000 pds.
T. Link

Joint Venture's safety official, Burt Ford, was told by Dickey that no one should ride the form while he was making the lift (Tr. 905). (Laborers working to loosen the form from the stairwell walls would sometimes stand on the form while doing so [Tr. 302]). Ford instructed Stuart not to let anyone ride the form (Tr. 407). Two Joint Venture carpenters refused to work on the form while the lift was being made (Tr. 284, 318). As Dickey attempted to lift the form, the boom collapsed.

Regarding the duty of the general contractor on a multi employer work site, the Review Commission in Grossman Steel & Aluminum Corp., 76 OSAHRC 54/D9, 4 BNA OSHC 1185, 1188, 1975-1976 CCH OSHD І 20,691 (No. 12775, 1975), held as follows:

. . .the general contractor normally has responsibility to assure that the other contractors fulfill their obligations with respect to employee safety which affect the entire site. The general contractor is well situated to obtain abatement of hazards, either through its own resources or through its supervisory role with respect to other contractors. It is therefore reasonable to expect the general contractor to assure compliance with the standards insofar as all employees on the site are affected. Thus, we will hold the general contractor responsible for violations it could reasonably have been expected to prevent or abate by reason of its supervisory capacity.

Therefore, respondent as general contractor may be held responsible for the hazardous conditions due to its "supervisory capacity." Moreover, in this case, based upon the findings of creditable evidence, Joint Venture is responsible because it created and controlled the hazard found in violation of the Act. Red Lobster Inns of America, Inc, 80 OSAHRC 73/A14, 8 BNA OSHC 1762, 1980 CCH OSHD І 24,635 (No. 76-4754, 1980).

Joint Venture's overriding argument is that all of the alleged violations are crane-related, it relied upon the expertise of the crane operator, and thus CEI, and not Joint Venture, bears the responsibility for any violation. Respondent relies upon Sasser Service, Division of Sasser Electric Co., 84 OSAHRC 37/C6, 11 BNA OSHC 2133, 1984-1985 CCH OSHD І 26,982 (No. 82-178, 1984) Current Builders, Inc., 84 OSAHRC 15/C7, 11 BNA OSHC 1949, 1984-1985 CCH OSHD І 26,888 (No. 83-994, 1984), and other similar cases (respondent's brief pp. 19-22) which absolve the contractor of responsibility for the violative conditions caused by a leased crane and operator when the lessor has relied upon the expertise of the crane operator. The cases are inapposite to the instant case, however, because Joint venture did not rely on the expertise of CEI and the crane operator; but, contrary to their advice, insisted that the overweight lift be made. Joint Venture's managers supervised the lift knowing that the weight of the Burke form exceeded the capacity of the crane. Respondent, therefore, created and controlled and was directly responsible for the violation.[[5]] Red Lobster Inns of America, Inc., supra. In making this argument, Joint Venture ignores the degree to which it controlled and supervised the operation of the cranes. The contract between the companies gave Joint Venture "exclusive jurisdiction, supervision, and control" of the crane operations, and the record demonstrates that Joint Venture fully exercised its contractual rights.

Dickey was a reluctant operator ordered against his better judgment to make a lift he and everyone else knew was unsafe. When Lothian informed Payne that the form exceeded the crane's capacity, Joint Venture's project manager retorted that the form was "only" 1,300 pounds over its capacity (Ex. C-1 deposition Vol. II, p. 40).

Joint Venture also claims unpreventable supervisory misconduct on the part of Superintendent Tom Link in authorizing the lift, but the creditable evidence of record does not establish that defense. Moreover, while it is true Link gave written authorization for the lift, other Joint venture supervisors were aware the lift was being made, and did nothing to stop it. Foreman Stuart, who witnessed the "out" offered by Walters, actually signaled Dickey to bring the form up as it was pried loose from the stairwell walls (Tr. 324). Ford, who was in charge of safety for Joint Venture, was told by Dickey that the lift was not safe. Ford's only action was to agree to tell his employees not to ride the form during the lift. Project Manager Payne, when told the lift exceeded the crane's capacity, did not halt the lift but instead insisted the lift had to be made that day and placed an angry phone call to Lothian.[[6]]

The record supports the conclusion that there was a concerted effort on the part of Joint Venture's supervisory personnel to get the lift made on April 28 despite their specific knowledge that the form exceeded the crane's capacity in violation of 29 C.F.R. ї 1926.550(a)(1).

The Secretary alleges that the violation was willful. "A violation is willful if it was committed voluntarily with either an intentional disregard for the requirements of the Act or with plain indifference to employee safety." A. C. Dellovade. Inc., ___OSAHRC___, 13 BNA OSHC 1017, 1987 CCH OSHD І 27,786, p. 36,341 (No. 83-1189, 1987).

As further evidence of the willful nature of the violation alleged in Citation Number Two, Item Two, the Secretary offered evidence of Archer-Western's previous experience with cranes. In 1986 and 1987, Archer-Western had several projects underway in south Florida (Ex. C-9, deposition p. 17). Among these projects was the Sunny Isles Bascule Bridge in North Miami Beach. Archer-Western was hired to remove an existing bridge and to construct a pair of bascule bridges over the intercostal waterway (Tr. 822). At the start of the project, Archer-Western owned two small hydraulic cranes and purchased three more cranes. Archer-Western hired its own crane operators (Tr. 823-824).

On December 2, 1986, Daniel Newburn, an employee of Archer-Western, was helping a crane operator to unload machinery from a truck. Newburn was on the around unhitching the crane cables when the operator moved too close to an energized power line. Electricity arced from the power line to the crane cable, and down the crane cable to the crane hook that Newburn was holding. Newburn died by electrocution (Ex. C-9, deposition p. 23; C-9 exhibits 5, 10). The fatality prompted an OSHA investigation by Compliance Officer John McDonald, Jr., that resulted in three citations (Ex. C-4; Tr. 7).

Joint Venture manifested an intentional disregard for the requirements of the Act in this instance. As previously stated above, after being specifically informed several times the load was in excess of the manufacturer's specifications, Joint Venture insisted that the lift be made that day. The facts were clearly presented to management and it intentionally and voluntarily chose to disregard the obvious hazard to its employees. From its previous experience on the Sunny Isles Project, Archer-Western was well aware of the hazards presented by crane operations. As managing partner of the joint venture, such knowledge is imputed to respondent; but, even without the previous experience at Sunny Isles, the record shows that the management of Joint Venture intentionally, voluntarily, and with full knowledge that the weight of the Burke form exceeded the capacity of the crane, insisted that the lift be made. Accordingly, Joint Venture subjugated employee safety in the interests of expediency. Joint Venture was in willful violation of 29 C.F.R. ї 1926.550(a)(1). Georgia Electric Co. v. Marshall, 595 F.2d 309 (5th Cir. 1979).

WILLFUL CITATION TWO, ITEM THREE
TRANSPORTING PERSONNEL ON CRANES

Item Three, Willful Citation Two,[[7]] charges respondent with violating 29 C.F.R. ї 1926.550(b)(2) which provides as follows:

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.

ANSI B30.5-1968, ї 5-3.2.3-e states that, "the operator shall not hoist, lower, swing, or travel while anyone is on the load or hook."

The cranes at the work site were used to lift concrete buckets for pouring columns. It is undisputed that one of the buckets was modified with a platform attachment which enabled a worker to ride with the bucket (Tr. 340-341). Payne and Ford were both aware of the bucket's use (Tr. 45, 700). The bucket had been modified by Rodney Walters, the CEI foreman (Tr. 152-153, 451).

Neale testified that, based on employee interviews, he determined that employees sometimes rode the Burke forms (Tr. 559-562). Stuart testified that, while workers were prying loose the forms from the walls, they would stand on the forms. When the form would break loose, the form would rise four to six feet due to the cable tension, then settle back down. The worker would ride the form as it rose and lowered (Tr. 302).

Joint Venture argues that the ANSI standard is directed at the crane operator and not at the employees riding the loads. In support of this argument, Joint Venture cites Havens Steel Co., 78 OSAHRC 53/C11, 6 BNA OSHC 1740, 1978 CCH OSHD І 20,775 (No. 15538, 1978). In Havens, two construction workers rode "on a headache ball at the end of a hoisting rope of a Link- Belt crane used and controlled by Havens. Inasmuch as Havens clearly controlled the crane, however, it was under a duty to operate the crane in conformity with the standards even if such compliance would have protected only employees of the contractor at this multiple-employee construction worksite." (Id. at 1741). This case does not help Joint Venture. Like Havens, Joint Venture used and controlled the CEI cranes.

Joint Venture also advances an infeasibility defense with regard to men riding the concrete bucket. Joint Venture bases this defense on Payne's testimony that the concrete columns could not be poured unless an employee was allowed to ride with the bucket because "you have to be opening the bucket and closing it so that the concrete doesn't come back up in elephant trunk and close up and then you get buried in the concrete and you can't get it out" (Tr. 703). Payne's testimony is not sufficient to establish infeasibility. Payne testified that he never watched the operation of the crane. He generally performed his duties in his office in the trailer compound (Tr. 367-369). His testimony standing alone is insufficient to support Joint Venture's claim of infeasibility. Employees could have possibly used ladders to reach the work site or a concrete pump could be used. Joint Venture showed plain indifference to the requirements of the Act with regard to its employees riding the concrete bucket and the Burke forms. In this instance, it is noted that the concrete buckets were modified by an employee of CEI to permit employees to ride on it. There were representations by CEI personnel that the work could be performed in that manner. Although Joint Venture knew or should have known of the hazardous conditions which constituted a serious violation of 29 C.F.R. ї 1926.550(b)(2), the evidence does not show the violation was intentional and without regard for employee safety so as to constitute a willful violation within the meaning of the Act.

II
SERIOUS CITATION ONE, ITEM TWO
BARRICADING THE CRANES

Item Two, Serious Citation One, [[8]] charges respondent with violating 29 C.F.R. ї 1926.550(a)(9) which provides as follows:

Accessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.

Neale stated that "Every day I was on the site, I observed cranes working without any barricade of any kind. . ." (Tr. 549).

Neale also testified that this violation was easily observable by Joint Venture's management personnel: "With the size of the cranes out there and the number of them on that site, the only way you couldn't be aware of it is if you were totally blind" (Tr. 550).

Joint Venture argues once again that it was CEI's responsibility to comply with the applicable standard. Once again, Joint Venture ignores its degree of control over the work site. It was Joint Venture who exercised control over the work site and it was Joint Venture's responsibility to protect the employees by barricading the cranes' superstructures. Grossman Steel & Aluminum Corp., supra.

Joint Venture also argues that Neale failed to show that employees were exposed to any danger from the rotating superstructure. This argument is without merit.

[T]he likelihood of an employee moving into the swing radius of the crane, when viewed at the time of the violation, is not diminished by the post hoc observation that no one did enter the area of danger. Such after-the-fact analysis would impede, rather than further the congressional goal of accident prevention embedded in the Act.

Williams Enterprises, Inc., 79 OSAHRC 4/B5, 7 BNA OSHC 1015, 1979 CCH OSHD І 23,279, pp. 28,155-28,156 (No. 14748, 1978).

Joint Venture was in serious violation of 29 C.F.R. ї 1926.550(b)(2).

SERIOUS CITATION ONE, ITEM ONE
SAFETY TRAINING

Item One, Serious Citation One,[[9]] which charges respondent with violating 29 C.F.R. ї 1926.21(b)(2) which provides as follows:

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.

Joint Venture presented evidence of regular safety meetings (Ex. R-4). This evidence is overshadowed, however, by the ample record of safety violations committed by Joint Venture's employees. Particularly telling is the ease with which the supervisory personnel committed or condoned the violations; they participated in the lift knowing the weight was excessive, and they were aware that their employees were riding the loads.

Because the behavior of supervisory personnel sets an example at the workplace, an employer has--if anything--a heightened duty to ensure the proper conduct of such personnel. Second, the fact that a foreman would feel free to breach a company safety policy is strong evidence that implementation of the policy was lax. (Emphasis in original.)

National Realty & Construction Co. v. OSHRC, 489 F.2d 1257, 1267, fn. 38 (D. C. Cir. 1973).

Especially significant was the lack of safety training regarding rigging and the operations involving cranes.

Any safety training Joint Venture's employees were given was counteracted by the failure of the supervisory personnel to enforce it, or to follow it themselves. Joint Venture was in serious violation of ї 1926.21(b)(2).

The foregoing decision constitutes findings of fact within the meaning of the Federal Rules of Civil Procedure.

ADDITIONAL FINDINGS OF FACT

1. Archer-Western Contractors, Limited, and Gilbert Corporation of Delaware formed a partnership known as Archer-Western Contractors, Limited, and Gilbert Corporation of Delaware, a Joint Venture. Joint Venture, in which Archer-Western is the managing partner with a 60 percent share of the partnership, contracted to build the new terminal at the Palm Beach International Airport in Palm Beach County, Florida.

2. The airport project is a 30-40 acre site with buildings encompassing about 1,500,000 square feet including a three-story terminal with four levels of parking above the terminal and three concourses (two 2-level concourses and one single-level concourse).

3. Joint Venture did not own any of the cranes used at the airport project.

4. Joint Venture did not employ any of the crane operators at the airport project.

5. Joint Venture rented cranes with operators from Construction Equipment International ("CEI"), one of the largest crane companies with over 100 available cranes in Florida alone.

6. CEI is a wholly-owned subsidiary of Combustion Engineering, Inc., and specializes in supplying manned and maintained cranes.

7. Under this arrangement, CEI supplied Joint Venture with five cranes, two Manitowoc 4000-W tower cranes, a Manitowoc 3900 conventional crane and two Tadano hydraulic cranes.

8. Stairwell No. 4 was being built with a Burke form, which was approximately 15 feet by 27 feet by 9 feet. It consisted of outer portions, which are not relevant to this action, and the inner four-sided form. This four-sided Burke form weighed approximately 20,000 pounds.

9. The Burke forms used at the airport project had two walkway platforms, one three feet from the top and the other three feet from the bottom.

10. The walkway platforms had guardrails.

11. The customary method of removing the Burke forms was to remove the taper ties out of the concrete while the form was still connected to the wall by jacks.

12. The form would then be stripped away from the wall, a method during which employees physically rode the load for a short amount of time as the form dropped one to two inches.

13. On April 28, 1987, respondent's management, knowing that the Burke form exceeded the capacity of the Manitowoc 4000-W tower crane, ordered the crane company to lift the Burke form.

14. Crane Operator Dickey initially refused to make the lift, stating that the load exceeded the lifting capacity of his crane.

15. Lead Crane Operator Walters suggested that superintendent Link had a "way out" to get the lift if Link would state in writing that the form weighed only 12,000 pounds.

16. Superintendent Link made a written note that the form-weighed 12,000 pounds and authorized the lift through the jib of Dickey's Manitowoc 4000-W tower crane.

17. Joint Venture did not use the Manitowoc 4000-W tower crane to make the lift which had adequate capacity and was available at the site.

18. Link and Walters instructed Dickey to make the lift.

19. Joint Venture's management, including Foreman Dave Stuart, Project Superintendent Tom Link and Safety Official Burt Ford were aware of the hazardous situation at Stairwell No. 4 on April 28, 1987.

20. As a direct result of the actions by Joint Venture's management personnel, the Manitowoc 4000-W tower crane collapsed, dropping metal beams and parts near Joint Venture's employees working in the area.

21. On May 8, 1987, none of the cranes operating at the workplace had the swing radius of the superstructure guarded or barricaded in any way to prevent Joint Venture's employees from being struck or crushed.

22. The lifting beam used by the Manitowoc 4000-W tower crane which collapsed on April 28, 1987, was supplied to Joint Venture by the Burke Company.

23. Henry Siegel, a Burke Company representative, provided a Burke Company diagram of the lifting beam which showed 7/8-inch slings or spreaders above the beam.

24. Frederick Popovic, a structural engineer with the consulting firm of Wiss, Janney, Elstner, Associates, Inc., in Northbrook, Illinois, inspected the airport site after the boom collapsed. Mr. Popovic inspected the lifting beam, measured the dimensions of all the plates to the beams and measured the distance between the lift points on the beam.

25. The distance between the lift points on the beam was 11 feet.

26. OSHA Inspector Neale did not measure the distance between the lift points on the beam.

27. OSHA Inspector Neale did not weigh the lifting beam.

28. OSHA Inspector Neale based his calculations for the total weight of the lift on the weight of the lifting beam provided on the general Burke Company diagram.

29. OSHA Inspector Neale did not measure the angle from the spreader to the lifting beam but rather used a "rule of thumb" of a 45 degree angle.

30. Joint Venture's crane expert, Donald Markwardt, calculated the angle between the lifting beam and the spreaders based on 11 feet between the lift points on the beam as measured by Mr. Popovic and 20 feet as the length of each spreader.

31. The vertical spreader angle on the spreader above the lifting beam was 16 degrees.

32. The spreader used by the Manitowoc 4000-W tower crane which collapsed on April 28, 1987, was independent wire rope core.

33. OSHA Inspector Neale did not measure the rigging length used by the Manitowoc 4000-W tower crane which collapsed on April 28, 1987.

34. OSHA Inspector Neale did not record the length of the spreaders used by the Manitowoc 4000-W tower crane on April 28, 1987.

35. OSHA Inspector Neale measured the diameter of only one of the spreaders used by the Manitowoc 4000-W tower crane which collapsed on April 28, 1987.

36. Seven-eighths inch diameter spreaders were regularly used on the Manitowoc 4000-W tower cranes at the airport project.

37. A special mancage-type platform was attached to the concrete bucket used while pouring concrete columns.

38. This platform attachment had guardrails.

39. The platform attachment was used to lift personnel attached to the platform with safety lines and lanyard lines.

40. CEI Lead Operator Walters made the platform attachment used on the concrete bucket.

41. CEI Lead Operator Walters told Project manager Payne that he had used similar attachments on other jobs and that this was the best way to pour the concrete columns.

42. The height of the columns was 21 feet and the concrete bucket had to be raised 18 feet above the column.

43. Death or serious injury would likely result from the violative conditions described above.

44. Archer-Western Contractors, Ltd. ("Archer-Western") is the general contractor for the Sunny Isles project.

45. Archer-Western purchased the cranes used at the Sunny isles project.

46. The Sunny Isles project is located on Sunny Isles Boulevard and intercostal waterway, Route 826 in North Miami Beach.

47. The project is approximately a mile long and runs from the west side of the intercostal waterway to the east side over the intercostal and up to Route 81A or Collins Avenue at the ocean.

48. The project involves the construction of two bridges, each approximately 1300 feet long, and the removal of the existing bridge and roadwork.

49. At the Sunny Isles project, Archer-Western owned two small Grove rough terrain cranes, one 150-ton crawler crane and two 60-ton crawlers.

50. On December 3, 1986, an Archer-Western employee was electrocuted when a crane got too close to electrical wires while it was unloading from a truck.

51. The employee's death resulted in a citation from OSHA.

52. In an attempt to abate the citation, Archer-Western requested a safety presentation by the OSHA office.

53. The presentation was held on December 11, 1986.

54. Archer-Western also requested the State of Florida to conduct a mock inspection of the Sunny Isles project.

55. On February 10, 1986, the OSHA inspector returned for a follow-up inspection and noted that the problems at Sunny Isles were "fully abated."

CONCLUSIONS OF LAW

1. Respondent, at all times material to this proceeding, was engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970 ("Act").

2. Respondent, at all times material to this proceeding, was subject to the requirements of the Act and the standards promulgated thereunder. The Commission has jurisdiction of the parties and of the subject matter.

3. Respondent was in willful violation of 29 C.F.R. ї 1926.550(a)(1) for exceeding the lift capacity of a crane's boom, resulting in the boom's collapse. Respondent was aware of the load's excessive weight yet ordered the lift to go forward.

4. Respondent was not in willful. violation of 29 C.F.R. ї 1926.251(c)(1) for exceeding the lift capacity of a crane's rigging. The Secretary failed to prove that inadequate rigging was used.

5. Respondent was in serious violation of 29 C.F.R. ї 1926.550(b)(2) for allowing employees to ride the loads of cranes. Respondent was aware that employees were riding Burke forms and in a modified concrete bucket.

6. Respondent was in serious violation of 29 C.F.R. ї 1926.550(a)(9) for failing to barricade the swing radius of a crane's rotating superstructure.

7. Respondent was in serious violation of 29 C.F.R. ї1926.21(b)(2) for failing to instruct its employees in the recognition and avoidance of unsafe conditions.

ORDER
It is ORDERED:

1. That Citation Number Two, Item one, which alleges a willful violation of 29 C.F.R. ї 1926.251(c)(1), is vacated.

2. That Citation Number Two, Item Two, which alleges a willful violation of 29 C.F.R. ї 1926.550(a)(1), is affirmed and a penalty of $10,000 is assessed.

3. That Citation Number Two, Item Three, which a willful violation of 29 C.F.R. ї 1926.550(b)(2), is affirmed as a serious violation and a penalty of $1,000 is assessed.

4. That Citation Number One, Item One, which alleges a serious violation of 29 C.F.R. ї 1926.21(b)(2), is affirmed and a penalty of $1,000 is assessed.

5. That Citation Number One, Item Two, which alleges a serious violation of 29 C.F.R. ї 1926.550(a)(9), is affirmed and a penalty of $1,000 is assessed.

6. That Citation Number One, Item Three, which alleges a serious violation of 29 C.F.R. ї 1926.550(b)(2), is vacated.

Dated this 3rd day of November, 1988

JOE D. SPARKS
Judge

FOOTNOTES:

[[1/]]Neither party took exception to the judge's disposition of the other items and they are not before us on review.

[[2/]]The record does not indicate whether CEI was trying to ensure that the form did not exceed the lift capacity of the crane or merely to protect itself from liability.

[[3/]] The standard states:

ї1926.550 Cranes and derrick.

(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.

[[4/]]The Secretary argues that under Commission rule 92(c), 29 C.F.R. ї 2200.92(c) the Commission is precluded from considering the issue because it was not raised before the judge. The argument is without merit. The matter was clearly raised in Respondent's post-hearing brief before the judge. It is, therefore, properly before the Commission.

[[5/]] Respondent argues that, under the cited standard, only when an applicable load chart is unavailable may the Secretary adduce the testimony of "competent engineers" to establish the capacity of the crane. Because the Secretary failed to prove the unavailability of an applicable load chart, Respondent claims that she could not present expert testimony on the crane's capacity.

This argument is rejected. The cited standard imposes a duty on an employer to comply with the crane manufacturer's specifications and limitations. When a load chart is unavailable, the employee is obliged to use a competent engineer to determine the capacity of the crane. However, the duties imposed on the employer by the standard do not limit the methods the Secretary relies on to establish that the employer failed to comply with this obligation.

[[6/]] Respondent's culpability does not necessarily excuse CEI for its responsibility in this matter. Under pressure from the Joint Venture, CEI's operator made the lift with full knowledge that the form exceeded the lift capacity of the crane. However, the record does not reveal whether CEI was cited for any possible violation.

[[7/]]Respondent also argues that the judge erred by relying in part upon another crane accident for his finding that the violation was willful. In that incident, an Archer-Western employee was electrocuted when a crane hit an overhead power line. Even though Gilbert was not part of that project, the judge found Archer-Western's previous experience to be imputable to the Joint Venture because Archer-Western was the Joint-Venture's managing partner. Given our finding that events at the site of the accident were sufficient to establish that the violation was willful, it is unnecessary for us to decide whether the judge properly relied, in part, on the Sunny Isles Project incident.

[[8/]] The standard states:

ї1926.21 Safety training and education.

(b) Employer responsibility.

(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.

[[1]] A third item, 29 C.F.R. ї1926.550(b)(2) for failure to provide signal men for moving cranes carrying loads, was the subject of a motion to dismiss made by Joint Venture at the close of the Secretary's case. The motion was taken under advisement (Tr. 630-631). Subsequently, the Secretary withdrew the item in her posthearing brief (Secretary's brief, pp. 2-3). Accordingly, the third item of Citation Number One is dismissed and will not be considered in this decision.

[[2]] Willful Citation Two, Item One, alleges the following violation:

29 CFR 1926.251(c)(1): Single leg and two (2) leg bridle slings were used in excess of safe walking loads as determined by Tables H-3 through H-14:

(a) On or before April 28, 1987, at the West Palm Beach International Airport Project, stairwell #4. A lifting beam used to raise "Burke Forms" weighing approximately 20,000 lbs. was attached to the crane hook by a 5/8" diameter I.W.R.C. two (2) legged bridle sling, with a S.W.L. of 9600 # (by table H-8). The lifting beam was then attached to the "Burke Form" by four (4) 5/8" diameter. I.W.R.C. single leg slings with a S.W.L. of approximately 8800#. (Table H-3). (S.W.L. limited to 2 leg sling maximum.

[[3]] Willful Citation Two, Item Two, alleges the following violation:

29 CFR 1926.550(a)(1): The employer did not comply with the manufacturer's specifications and limitations applicable to the operation of cranes or derricks:

(a) On or before April 28, 1987, at the West Palm Beach International Airport Project, stairwell #4. A Manitowoc 4000-W tower crane was loaded in excess of the manufacturers rated capacity for the 40-0' jib.

[[4]] Foreman Stuart's testimony was unequivocal as follows (Tr. 304-305):

BY MR. CLARK:
Q. Were you at the airport workplace on April 28, 1987?
A. Yes, sir.
Q. What were your duties on that date?
A. I was foreman at the time.
Q. And, what specific assignments were you given for that date?
A. To raise the form at Stairwell Number 4.
Q. When were you given that assignment?
A. That morning.
Q. Who told you that you should raise the form in Stairwell Number 4?
A. The superintendent, Tom Link.
Q. About what time was that?
A. The first thing that morning; about between 7:00 and 7:30.

[[5]] No attempt is made to determine whether CEI also violated the standard as it was not charged by the citation at issue.

[[6]] Payne testified that, after speaking with Lothian, he instructed Link not to make the lift using Dickey's crane (Tr. 379). In view of the serious concerns discussed previously, this testimony is not deemed credible as it is highly unlikely that Link would have ordered the lift in contravention of instructions from Payne and against the advice of all crane operators.

[[7]] Willful Citation Two, Item Three, alleges the following violation:

29 C.F.R 1926.550(b)(2): Section 5-3.2.3.e. American National Standards Institute, B30.5-1968, Safety code for Crawler Locomotive and truck cranes, as adopted by 29 CFR 1926.550(b)(2):

(a) Crane operators were permitted to Hoist lower swing, or travel, while employees were on the load or hook: On a before April 18, 1987, at the West Palm Beach International Airport Project, employees were permitted to ride "Burke forms" and "Concrete Buckets" while they were raised to working locations, 20- 0 to 50-0' height, by mobile cranes.

[[8]] Serious Citation One, Item Two, alleges the following violation:

29 CFR 1926.550(a)(9): Accessible areas within the swing radius of the rear of the rotating superstructure of cranes were not barricaded in such a manner as to prevent employees from being struck or crushed by the crane:

(a) On or about May 5, 1987, at the terminal building north and south sides, a Manitowoc 4000-W Tower Crane, did not have the area between the counter-weight swing radius and scaffolding, Porti-Potti, form work and other building material protected.

[[9]] Serious Citation One, Item One, alleges the following violation:

29 CFR 1926.21(b)(2): The employer did not 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:

(a) On or about May 5, 1987, at the West Palm Beach International Airport, employees were not given safety training or instructions, including but not limited to the following:

I.
A. Hand and radio signaling of the Cranes. 1. Proper signals, and radio procedures.
B. Flagging cranes when they are relocating or travelling.
1. Proper signals and precautions.

II.
A. Proper and accepted industry practices rigging material to be hoisted by a crane.
1. How to properly calculate or determine material weights.
2. What size and type rigging hardware, and components to use for various lifts.
3. How to find S.W.L. of components: 4. Who is designated competent person charge of critical lifts, and has authority to abort improperly rigged lifts:

III.
A. Accepted manufacturers specifications recommendations for proper use of crane and their components.
1. Maximum loads allowed at various radiuses with different crane configurations, such as:
a.towers
b.jibs
c.conventional booms
d. Hydro-cranes.