Docket No. 190

GEROSA, INC.

OSHRC Docket No. 190

Occupational Safety and Health Review Commission

February 1, 1973

Before MORAN, Chairman; VAN NAMEE and BURCH, Commissioners.

OPINIONBY: BURCH

OPINION:

BURCH, COMMISSIONER: On July 28, 1972, Judge Joseph L. Chalk issued his recommended decision and order in the instant case affirming the Secretary's citation and the penalty proposed for the alleged nonserious violation.

On August 10, 1972, I directed that the proposed decision and order be reviewed by the Commission pursuant to section 12(j) of the Occupational Safety and Health Act of 1970 (29 U.S.C.A. 651 et seq., 84 Stat. 1590, hereinafter referred to as "the Act").

The Commission has reviewed the briefs filed by the parties and has considered the entire record. We adopt the Judge's recommended decision and order only to the extent that it is consistent with the following.

The crane in question, a P and H model 660, was hired to raise steel columns into place during the construction of a power plant. On October 6, 1971, it was transported to the worksite by the operator and oiler, both employees of respondent where, after assembling the boom and reeving the cables, a test run was undertaken prior to the raising of any columns. At this time the boom fell. A mechanic from the crane rental service was called and by the time he arrived the operator and/or oiler had made adjustments to the crane which appeared to them and to the mechanic to have remedied the problem. The crane was then used to lift and place one steel column which was soon removed by the crane because of high winds. There is no dispute that during both the lifting and removal of this column the crane functioned properly. On the following day (October 7) the oiler, following usual procedure, started the motor of the crane and tested the crane by raising, lowering, and swinging the boom around prior to attempting to lift anything. At that time the crane performed properly. Immediately thereafter the operator, while lifting the first steel column for that day, had the boom "run away," falling out of control. The column struck a concrete pole and fell free landing on an unidentified worker who died from his injuries.

The standard with which respondent allegedly failed to comply, 29 CFR 1518.550(a)(5), requires that:

The employer shall designate a competent person who shall inspect all machinery and equipment prior to each use, and during use to make sure it is in safe operating condition. Any deficiencies shall be repaired, or defective parts replaced before continued use.

The Judge correctly concludes that "Respondent assumed full responsibility under the standard for designating a competent person to inspect the crane, for it was the workplace to which respondent assigned its employees."

As to the issue of designation, it is undisputed that both the operator and oiler were competent. The Judge bases his conclusion that respondent failed to designate someone to inspect on a literal and narrow reading of the testimony. It is not known whether the respondent specifically instructed either the operator or the oiler to inspect. However, it is equally apparent that respondent as well as the operator and oiler knew of and accepted the standard practice of an oiler starting, lubricating, and checking the equipment prior to its use. Testimony from witnesses familiar with crane operations leads to the conclusion that assigning an operator and oiler to a crane is, in effect, designating competent persons to inspect the equipment prior to and during its use.

The facts that the operator and/or oiler ran the crane and tested it prior to its use on both days in question and that when difficulty was encountered during testing on October 6 adjustments were made show that they performed their designated duties and inspected the equipment prior to and during each use. Accordingly, we find that the knowledge of the parties of standard industry practice and the actions of the operator and oiler demonstrate that respondent's employment of the operator and oiler and its assigning them to operate the equipment was, albeit not specifically stated, a designation of competent persons to inspect the machinery prior to and during each use.

It is implicit in the standard that the inspection must be a reasonable one and that the deficiencies to be repaired and defective parts to be replaced must be of such a nature as to be discernible by a reasonable inspection. To hold otherwise would be to impose absolute liability upon the employer.

The record is replete with opinion, conjecture, and speculation as to whether a missing clevis pin or greasy boom brake bands or a combination of both caused the boom to fall. Such a determination is irrelevant to the issue of whether such defects could have been discovered by the type of inspection contemplated under the cited standard, supra. In this case the sequence of events demonstrates that when the crane was first tested on October 6 difficulty was encountered. The operator and/or oiler telephoned for a mechanic and while waiting for his arrival they made adjustments. After these adjustments the crane was tested and performed to the satisfaction of the operator, oiler, and mechanic. On the following day, the usual pre-use testing was accomplished with no indication of any problem. It was only after this procedure that the crane was put to use and the accident occurred. The same test which the crane "failed" on October 6 (which resulted in adjustment, the calling of a mechanic, and subsequent proper performance) was "passed" by the crane on October 7.

We find that the operational testing and pre-start up inspection of the crane on the 6th and 7th constituted "inspection[s] prior to each use." We further find that the operator and/or oiler took corrective measures where the tests indicated they were necessary. We cannot conclude, as does the Judge, that the fact that there was an accident is sufficient to prove that the testing and inspection of the crane was insufficient under the cited standard.

In light of these findings we conclude that respondent designated competent personnel to inspect the machinery prior to and during its use and that deficiencies and defects discoverable by a reasonable inspection were remedied.

Accordingly, IT IS ORDERED, That the Judge's decision and order be set aside and that the Secretary's citation and the penalty proposed therefor be vacated.

[The Judge's decision referred to herein follows]

CHALK, JUDGE, OSAHRC: The Complaint, which amends the wording of the Citation, charges Gerosa, Incorporated, Respondent in this case, with a nonserious violation of 29 CFR 1518.550(a)(5) in the following terms:

. . . respondent corporation failed to thoroughly inspect a P & H model 660 crane, Georsa No. 40 prior to its use and during its use to make sure it was in safe operating condition. Therefore, the crane operator did not have full complete control of the boom hoist and brake mechanism during operation of the crane creating a danger of employee injury (Record Exs. 1 and 6).

The standard in question, which applies to cranes and derricks, imposes the following requirements:

The relationship, if any, between Gerosa, Incorporated, and the Gerosa Crane Service Company, Incorporated, was not established on this record. n1 The crane involved in the case was owned by the latter, a rental service, whereas the operator and oiler of the crane were employees of Respondent (Tr 20, 22, 208, 209). At all times in question, the crane was manned by these two employees at a worksite at Glenwood Landing, New York, ". . . for the purposes of the service of T.D. McCormick Contracting Company, Incorporated" (Tr 22).

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n1 Respondent's attorney could not shed any light on this question (Tr 19).

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The crane operator testified that he took the crane to the worksite on the morning of October 6, 1971. n2 He started operating it; but when he raised the boom in the air and then attempted to lower it, the boom fell to the ground (Tr 27, 28, 29, 36). A mechanic from Gerosa Crane Service Company, Incorporated, was then summoned; but before he arrived, the oiler adjusted the hoist or boom brake band and they thought the difficulty was corrected (Tr 29, 30, 36, 37, 38). When the mechanic arrived, he was informed of what had been done (Tr 30, 38). The mechanic then examined the crane, could not find anything wrong with it, said, "That's fine," and then departed soon after he observed the crane in operation (Tr 30, 39). Thereafter, the crane appeared to function properly; but operations were terminated as the day was too windy to lift steel columns (Tr 30, 39, 40). The following day, October 7, 1971, operations were resumed. The oiler, following usual procedure, started the motor of the crane and tested the crane by raising, lowering, and swinging the boom around (Tr 31, 42, 43, 44, 45). Thereafter, the operator lifted a steel column. When he got the column in the air and attempted to "boom down," the boom "ran away," a term meaning that it was not under control, and the column struck a concrete pier. At this point, the choker broke and the column fell to the ground (Tr 31, 32, 33, 90, 115). It fell on an individual, unidentified at the hearing but apparently not one of Respondent's employees, who died from his injuries (Tr 47, 48).

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n2 Although the operator did not so specify, it is clear that he acquired the crane from Gerosa Crane Service Company, Incorporated, and took it from there to the worksite (Tr 27, 211).

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The operator testified that neither he nor the oiler was charged with the responsibility of inspecting the crane or "the engine" before or during its operation. Neither of them was required to "visually inspect the engine" or the "motor mechanism" before operation. Primarily, the oiler's duties are limited to checking the oil in the engine, greasing all fittings, and test-operating the boom without a load on it (Tr 30, 31, 42, 43, 44, 45).

A police detective and a Department of Labor compliance officer, among others, arrived on the scene on the day of, but after the accident (Tr 47, 48, 59, 96, 98, 99, 109). Pictures were taken, and then the crane was locked and placed under guard until such time as a representative of the manufacturer of the crane could examine it "to determine the cause of this accident if possible" (Tr 48, 99; Exs. C1, C2, C3, RB). They returned the next day, October 8, 1971, and the manufacturer's representative, who was then present, entered the cab of the crane and immediately discovered a clevis disconnected and hanging loose that connects the lever assembly to the planetary or safety pawl (Tr 73, 74, 76, 77, 99, 100, 131, 142; Ex C2). This pawl serves as a backup safety device to the boom brakes; and if the pawl is disconnected or not operable, and the brakes fail, the boom will fall (Tr 79, 80, 91). The disconnected clevis was easily discernible from the cab door and the clevis pin that connects it to the pawl could not be found (Tr 80, 87, 201; Ex C-2). Later on, the boom brake bands were removed and the linings were found to be "impregnated" with what appeared to be "dark, heavy grease" (Tr 53, 62, 63, 101, 142, 143; Ex C3). According to the Manufacturer's representative, brake bands should be clean to function properly; and grease could cause them to malfunction, although a small amount possibly would not cause any problem (Tr 81, 82, 84, 89).

The sole witness for Respondent was the general manager of Gerosa Crane Service Company, Incorporated, the rental service company (Tr 199). The crane in question had been made available to Respondent, based upon an agreement between Respondent and "T. D. McCormick" (Tr 200). Having been informed of the accident, he went to the worksite on the morning of October 8, 1972, taking the manufacturer's representative with him (Tr 201). He was shown the disconnected clevis and helped search for the missing pin (Tr 201). When the pin was not found, a temporary pin was installed and the boom was then operated vertically and horizontally, without any difficulty, although without a load (Tr 202, 203, 204, 211, 212, 213, 214, 216). After the test, he observed a light film of oil on the brake drum; so he bought some vinegar and was preparing to "[wash] this out" when the compliance officer directed that the brake bands be removed and inspected (Tr 205). He did not believe that grease on the brake bands would cause a malfunction (Tr 205, 206, 221). All operators and oilers are responsible for checking the entire crane and the two in question were, according to his understanding, competent (Tr 206, 208, 209, 210, 222, 223). Before the crane was dispatched on the job, it was prepared with a hundred foot boom and a thirty foot jib, with the boom "folded up" so that it could be transported (Tr 210, 211). It was also checked for fuel, oil and proper inflation of its tires. When asked on cross-examination if it had been inspected "for the pin," he responded:

You don't inspect for that one pin. If the operation of the boom has . . . if you fold up a 100 foot boom in a 30 foot jib, and from a horizontal to a verticle, and if the boom wants to run, she'd run right there. There would be no indication to go and look for this specific pin. And as many men got in and out of that crane with the door open, then if it was out of position, you would notice it (Tr. 222).

He further testified that the clevis pin was not on the "inspection check-off list" and that probably nobody looked for it (Tr 222). Finally, he was informed that when his mechanic was called to the worksite on October 6, 1971, the oiler and operator told him that the crane was operating properly and they only permitted him to "take a look at [it] . . ." (Tr 231, 232).

The evidence in support of the Secretary's case against Respondent is so clear and compelling as to require but little discussion. Such evidence shows that the crane was seriously defective because of a combination of greasy brakebands and a disconnected backup safety device to the brake system, and that these defects directly produced the fatal and tragic accident, thereby subjecting Respondent's employees on the scene to a highly dangerous condition. Moreover, I am satisfied that when Respondent rented the crane and assigned its employees to man it, Respondent assumed full responsibility under the standard for designating a competent person to inspect the crane, for it was the workplace to which Respondent assigned its employees. Further, I am satisfied that this burden remained with Respondent, notwithstanding the fact that the crane was utilized on behalf of another contractor or other contractors. In this regard, I have had occasion to observe, in another case, that the Act would be meaningless if an employer's responsibilities to his employees under the Act were allowed to be diluted or dissipated simply because other contractors or individuals were involved in the overall transaction (see Secretary of Labor v. Thorlief Larsen and Son, Inc., Docket Number 370, May 19, 1972).

Respondent apparently recognizes and concedes its inspection responsibility in its post-hearing brief, for it postulates therein that the crane operator and oiler were designated to inspect the crane in accordance with the standard and that they were competent individuals.

Respondent's argument is not only unsupported by any evidence in the record, but it directly conflicts with the crane operator's testimony that neither he nor the oiler was detailed to conduct any inspection of the crane. n3 Thus, I find this argument not only lacking persuasiveness, but incredible, for it seems to urge in effect that Respondent complied with the standard even though it neglected to inform the individuals of their appointment and of their duties attending such appointment.

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n3 The operator, a witness for Complainant, was the only employee of Respondent to appear as a witness at the hearing.

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Even to a person, such as myself, who is unfamiliar with such equipment, a crane is at best an inherently dangerous instrumentality; hence, the standard must have been designed to create effective inspection measures calculated to diminish if not completely avoid the likelihood of accidents. This objective obviously can be attained only by requiring specific and positive action on the part of the employer; nothing short thereof will suffice. And this record serves as an example of what can happen when such specific and positive action is not undertaken. I therefore reject Respondent's argument and find that Respondent failed to comply with the standard.

The real tragedy in this case is the strong possibility that the crane defects would have been easily detected had a competent person been designated to inspect, and that for the lack of compliance with the standard, an individual lost his life.

I have carefully reviewed Respondent's other contentions raised during and after the hearing and find them equally unpersuasive.

Upon consideration of the entire record, and the proposed findings of fact, conclusions of law, and briefs submitted by the parties, I reach the following:

FINDINGS OF FACT

1. That Respondent is and was at all times in question an employer engaged in a business affecting the commerce of the United States.

2. That Respondent, on the dates in question, rented a crane from the Gerosa Crane Service Company, Incorporated, staffed it with its own employees, an operator and an oiler, and dispatched the crane and crew to the worksite in question to perform work for the T.D. McCormick Contracting Company, Incorporated.

3. That the crane was defective in that the boom brakebands were coated with a greasy substance and the backup safety device to the brake system, otherwise called the planetary pawl, was disconnected and inoperative, thereby causing the boom to "run away" or be uncontrollable on two occasions, once on October 6, 1971, and once again on October 7, 1971.

4. That as a result of the said defects, the boom fell to the ground on October 6, 1971, and "ran away" on October 7, 1971, when lifting a steel column, thereby causing the column to hit a concrete pier, break the choker, and fall to the ground.

5. That when the steel column fell to the ground on October 7, 1971, an unidentified individual was struck and killed.

6. That the malfunctions of the crane on October 6, 1971, and October 7, 1971, as a result of the defects, endangered the lives and safety of Respondent's two employees on the scene.

7. That Respondent failed to designate any person, competent or otherwise, to inspect the crane before and during its operation to make sure it was in safe operating condition and to correct deficiencies before continued use, as required by the standard.

8. That if Respondent had complied with the standard, it is likely that the defects would have been detected and corrected and the accidents avoided.

9. That as a result of the accident on October 7, 1971, a Citation and Notification of Proposed Penalty was issued against Respondent by the Secretary of Labor.

10. That Respondent timely filed a Notice of Contest.

CONCLUSIONS OF LAW

1. That this Commission has jurisdiction over the cause.

2. That Respondent's responsibility under the Act to its employees was not affected either by the fact that it did not own the crane or the fact that it provided the crane and crew for the use of a third party; hence, Respondent was required to comply with the standard.

3. That the violation alleged in the Citation, as amended by the Complaint, is supported by substantial evidence in the record.

4. That the proposed penalty for the violation is appropriate under the circumstances, considering the nature and gravity of the violation, as well as the size of Respondent's business and Respondent's good faith and history of previous violations.

The Citation, as amended by the Complaint, and proposed penalty are affirmed.

It is so ORDERED.