SYRACUSE RIGGING CO., INC.
OSHRC Docket No. 13511
Occupational Safety and Health Review Commission
May 6, 1977
[*1]
Before: BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
COUNSEL:
Baruch A. Fellner, Office of the Solicitor, USDOL
F. V. LaRuffa, Reg. Sol., USDOL
Brian M. Cole, for the employer
OPINIONBY: MORAN
OPINION:
DECISION
MORAN, Commissioner: A December 31, 1975, decision of Review Commission Judge Richard DeBenedetto, attached hereto as Appendix A, n1 is before this Commission for review pursuant to 29 U.S.C. § 661(i). In that decision Judge DeBenedetto amended the pleadings on his own motion to find respondent in violation of 29 U.S.C. § 654(a)(2) for failing to comply with the occupational safety standard codified at 29 C.F.R. § 1926.544(a)(6). For the reasons set forth below, we reverse.
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n1 Chairman Barnako does not agree to this attachment.
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The citation alleged that respondent had violated 29 U.S.C. § 654(a)(1), the so-called general duty clause, in that it had operated a hoist designed for manual operation by using a hand held power device and by operating the hoist in a manner that prevented the hoist operators from standing clear [*2] of the overhead load at all times. In his complaint, the complainant moved to amend the citation to allege in the alternative that respondent had failed to comply with 29 C.F.R. § 1926.554(a)(4). That standard provides that:
"The hoist shall be installed only in locations that will permit the operator to stand clear of the load at all times."
Judge DeBenedetto properly concluded, on the basis of Secretary v. Sun Shipbuilding and Drydock Company, 4 OSAHRC 1020 (1973), that the citation to the Act's general duty clause was inappropriate where a specific safety standard, 29 C.F.R. § 1926.554(a)(6), was applicable to the alleged hazardous conditions created by the power operation of the hoist. He also correctly determined that the record failed to establish that the hoist had been operated with insufficient clearance and, therefore, that respondent was not in noncompliance with § 1926.554(a)(4). n2 He decided sua sponte, however, that respondent had failed to comply with 29 C.F.R. § 1926.554(a)(6), which provides that:
"All overhead hoists in use shall meet the applicable requirements for construction, design, installation, testing, inspection, maintenance, and operation, as [*3] prescribed by the manufacturer."
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n2 Chairman Barnako considers it unnecessary to address the propriety of this holding as the correctness thereof is not an issue before the Commission on review.
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Amendments of the pleadings to allege new charges have been permitted by this Commission pursuant to Rule 15(b), Federal Rules of Civil Procedure, only when the new charges were tried by the express or implied consent of the parties and undue prejudice would not result therefrom. Secretary v. Old Forge Construction Co., Inc., OSAHRC Docket No. 3491, March 26, 1976; Secretary v. Marquette Cement Manufacturing Company, OSAHRC Docket No. 4725, January 27, 1976. There can be no implied consent when respondent was not put on notice at the hearing that the new charge was in issue n3 and was, therefore, unable to present its defended to the new charge.
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n3 Secretary v. P & M Sales, Inc., OSAHRC Docket No. 3443, May 3, 1976.
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In the instant case, respondent did not expressly consent to trial on issues relating to a § 1926.554(a)(6) charge. The Judge based his finding of a § 1926.554(a)(6) violation on evidence that the operating and maintenance instruction bulletin issued by the manufacturer of respondent's hoist prohibited "operation of the hoist under power," which was introduced without objection by respondent. This evidence was introduced, however, for the purpose of establishing that power operation of the hoist was a recognized hazard, an essential element of a violation of the general duty clause. It was not introduced for the purpose of proving that respondent had not complied with § 1926.554(a)(6). Therefore, respondent's failure to object to its admission cannot be construed as consent to trial on the issue of a § 1926.554(a)(6) violation. Bettes v. Stonewall Insurance Company, 480 F.2d 92, 95 (5th Cir. 1973); Secretary v. Marquette Cement Manufacturing Company, supra.
Accordingly, the Judge's decision is reversed, and the citation and penalty assessed therefor are vacated.
DISSENTBY: CLEARY
DISSENT:
CLEARY, Commissioner, [*5] DISSENTING:
I dissent from the reversal of Judge DeBenedetto's action concluding that the elements of a violation under 29 CFR § 1926.554(a)(6) were tried and that respondent had violated the Act by failing to comply with the standard.
The elements of an action for a failure to comply with 29 CFR § 1926.554(a)(6) are plainly that: (1) the manufacturer of the particular overhead hoist proscribed the use of the hoist for other than manual operation, and (2) respondent used the hoist under power. The two elements present essentially factual issues.
The majority concludes that there was no consent to try a violation of § 1926.554(a)(6) because the evidence establishing the two crucial facts was introduced for the purpose of showing that power operation of the hoist was a breach of the general duty clause in 29 U.S.C. § 654(a)(1) rather than noncompliance with the standard. The majority errs. The evidence that: (1) the manufacturer of the hoists instructed that the hoists be operated only manually, and; (2) respondent operated the hoists by power, was introduced for the purpose of proving the existence of the two facts. Since the facts form the elements of a violation of a specific [*6] standard, the Judge correctly applied Brisk Waterproofing Co., 1 BNA OSHC 1263, 1971-73 CCH OSHD para. 16,345 (No. 1046, 1973). The Judge was equally correct in recognizing his duty to amend the pleadings pursuant to Rule 15(b) of the Federal Rules of Civil Procedure as applied by Commission rule 2(b), 29 CFR § 2200.2(b). See, e.g., Carr Erectors, Inc., 4 BNA OSHC 2009, 1978-77 CCH OSHD para. 21,471 (No. 7247, 1977); Kaiser Aluminum and Chemical Corp., 4 BNA OSHC 1162, 1975-76 CCH OSHD para. 20,675 (No. 3685, 1976).
Respondent had every opportunity to challenge the existence of the essential facts at the hearing. The citation and complaint both alleged that respondent used "chair 'porta-hoists' designed to be operated manually but being operated by a hand held power device." The allegation was denied by respondent's answer. At the hearing, respondent offered neither objections nor rebuttal to the evidence which unequivocally established both elements. On review, respondent does not assert that the facts were otherwise. Instead of challenging the facts, respondent chose to dispute the inference that a recognized hazard existed.
Respondent is, however, entitled [*7] to an opportunity to assert all defenses to the conclusion that 29 CFR § 1926.554(a)(6) was not complied with based on the proved facts. Merely affirming the Judge's finding of a violation could operate to the prejudice of respondent. In this respect, I note that respondent raises an issue of constitutional vagueness. I would therefore remand the case in order to allow respondent to assert defenses against the amended pleadings and to develop a record to support its defenses. Carr Erectors, Inc., supra, and Kaiser Aluminum and Chemical Corp., supra.
Appendix A
DECISION AND ORDER
Francis V. LaRuffa, Regional Solicitor, U.S. Department of Labor and Ian P. Spier, for Complainant
Brian M. Cole, for the employer
DeBenedetto, Judge:
This is a proceeding pursuant to section 10 of the Occupational Safety and Health Act of 1970 (29 USC et seq., hereinafter called the Act) stemming from a citation issued by complainant against respondent under authority provided by section 9(a) of the Act.
The citation, issued on May 6, 1975, alleges that as a result of inspection made on "April 25-28, 1975," of a place of employment located at Miller Brewery in Volney, [*8] New York, respondent committed serious violation of section 5(a)(1) of the Act n1 for which a penalty of $600.00 is proposed.
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n1 Section 5(a)(1) of the Act (29 USC 654(a)(1)) provides that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
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The alleged violation is described in the citation as follows:
"The employer failed to provide employees employment and a place of employment which were free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees in that an aging tank measuring 74 feet 10 inches long X 12 feet in diameter and weighing approximately 68,800 lbs. being lowered to its landing pads located in the aging room (now under construction) from a height of approximately 20 ft. by (4) - 4 part chain "porta-Hoists" designed to be operated manually but were being operated by a hand held power [*9] device. The "porta-Hoist" with a rated load capacity of 10 ton each were attached to trolleys running on "I" beams located above and parallel with the load, the "I" beams were approximately 12 ft. apart allowing the operating chains of the hoist to come in close proximity to each side of the tank and preventing the hoist operators from standing clear of the overhead load at all times."
The respondent timely filed a notice of contest, a complaint and answer were filed by the parties, and the case came on for hearing in Syracuse, New York, on August 19, 1975. No affected employee or authorized employee representative elected to participate as a party in this case.
MOTIONS
On August 11, 1975, complainant filed a motion to amend the citation and complaint to include, as an alternative to the "general duty" requirement of section 5(a)(1) of the Act, the charge that respondent violated the safety standard 29 CFR § 1926.554(a)(4) which provides the following safeguard for overhead hoists:
"The hoist shall be installed only in locations that will permit the operator to stand clear of the load at all times."
The complainant's motion also included as an addendum to said standard [*10] the following sentence:
"Specifically respondent's employees were not standing clear of the load at all times."
The respondent did not object to complainant's motion to amend the citation and complaint to plead in the alternative (Tr. 9); however, it opposed the addendum to the standard. A ruling on the motion was reserved.
Rule 8(e)(2) of the Federal Rules of Civil Procedure permit statements of a claim in the alternative. n2 The description of the alleged violation which appears in the original citation contains language similar to the standard of § 1926.554(a)(4). Where a citation for violation of section 5(a)(1) of the Act alleges events closely related to the conduct prescribed by a safety standard, respondent would not be prejudiced by amending the citation to alternatively charge a breach of the standard. While administrative pleadings are not to be narrowly constrained by technicalities, especially where the objecting party is not prejudiced by allowing the pleadings to be amended, allowing an addendum to the standard as proposed by complainant would be tantamount to modifying the promulgated standard. This of course, may not be permitted. The complainant's motion to [*11] amend the citation and complaint is allowed to include alleged violation of § 1926.554(a)(4) as an alternative with the charge of violating the general duty requirements of section 5(a)(1) of the Act; the proposed addendum to the standard is deleted.
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n2 There are no applicable pleading requirements set forth in the Rules of Procedure of the Commission. Rule 2(b) of the Commission's procedural rules states:
"In the absence of a specific provision, procedure shall be in accordance with the Federal Rules of Civil Procedure."
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ADMISSIONS
The respondent admitted that it is a New York corporation, does business as a rigger, and utilizes materials and supplies manufactured outside the State of New York (Answer and Complaint).
Testimony of Harry W. Stoneburgh
The witness was employed by the respondent as a "rigger" and on April 21, 1975, he began working at the Miller Brewery where respondent was installing large tanks. The tanks were lowered into position by the use of 4 manual type "chain falls" operated by [*12] electric motor (Tr. 18-20). On the 25th of April, as it was being lowered into position by the described method, the tank fell striking the floor about 7 or 8 feet from where he was working. The following testimony was elicited concerning his observations at that time:
"Q. In relationship to that landing pad, n3 where was Mr. Bonaparte standing; how was he struck; what was he doing when you saw him working?
"A. Helping Mr. Mackenzie operate the electric motor to lower the hoist or to lower the tank."
"Q. How was he standing or sitting or what?
"A. He was squatting down.
"Q. He was squatting down. Where was he squatting down in relationship to the landing pad?
"A. Almost directly underneath it.
"Q. About how far out was he from the side of the tank?
"A. A couple of feet.
"Q. Two feet? Is that correct?
"A. Yes. Two feet" (Tr. 24-25).
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n3 The "landing pad" was described as a welded attachment to the tank extending about 2 feet therefrom (Tr. 24).
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Testimony of Leonard Carvell
The witness was [*13] one of 4 employees of the respondent engaged in lowering the tank at the Miller Brewery site on April 25, 1975. The men were stationed in pairs on opposite sides of the tank, using electric drills to operate chain hoists at a distance of about 3 or 4 feet away from the tank (Tr. 28-30).
Testimony of Robert Storie
Mr. Storie was hired by respondent on the morning of April 25, 1975, to help install tanks at the Miller Brewery plant. He worked along with Leonard Carvell in operating the chain hoist with a drill (Tr. 39-41).
Testimony of William Gillooly on Direct Examination by Complainant
The witness, employed by respondent as field superintendent, furnished respondent's employees the drills used with the hoists to lower the tank on April 25, 1975 (Tr. 47-48).
Testimony of William Gillooly on Direct Examination by Respondent
Mr. Gillooly described the extent of respondent's use of the hoist under power prior to the fatal accident in April 1975 as follows (Tr. 121-122):
"Q. When did you first receive the drill described?
"A. Well, originally, two weeks prior to the accident, we received one as a sort of an experiment to try it out to see if it worked.
"Q. Do [*14] you know where that was made?
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"A. It was assembled in this condition at our shop in Syracuse.
"Q. What was that drill used for?
"A. To overhaul the chain falls, to set the elevations.
"Q. Were the loads on the chain falls at the time?
"A. Not always, no. At first we used it strictly for empty chain falls.
"Q. Do you recall the first time you used the described drill on a loaded condition?
"A. It was the day of the accident."
The injury sustained by Mr. Bonaparts on April 25, 1975 was described by the witness as "a massive head injury" at "the base of his skull in the back" which could have been caused by the "cable that was supporting the tank, or the hook on the load block on the chain fall" (Tr. 132-133). He stated further that "when the chain broke, it separated the hook part from the block causing one side to slip down which would tend to whip it out away from the tank . . ." (Tr. 34). He did not witness the accident (Tr. 141).
Testimony of William A. Ellis
Mr. Ellis, a university graduate in mechanical engineering, is employed by Duff-Norton Company as Chief Engineer of Standard Hoist Products; he is a supervisor in the design, modification and [*15] application of overhead hoisting equipment (Tr. 55). Safety factors are taken into account in designing hoists. In his opinion, the use of the drill to operate the manual chain hoist is unsafe because such a procedure "would cause rapid wear" of the hoist's friction-breaking device (Tr. 57-58), because the hand-operated chain hoist would not have an automatic device to shut the hoist off at the "safe upper and lower limits" of travel, and because it results in additional wear on all rotating parts of the hoist (Tr. 64). The hand-operated chain hoist used by respondent at the Miller Brewery plant in April 1975 was manufactured by Duff-Norton Company and the operating instruction manual (Exh. C-5) for that hoist states: "The CB hand chain hoist is designed for manual operation. Do not operate under power" (Tr. 58-59). The safety standards for overhead hoists formulated under the auspices of the American National Standards Institute, ANSI n4 B30.16-1973 (Exh. C-6) provide that all hand chain operated hoists shall have a label affixed thereto warning against operating hoist with other than manual power, and that such hoists shall never be operated by other than hand power (Tr. 62-63). [*16] It was his opinion that the chain hoists could have been operated by men positioned some 13 feet away from the tank (Tr. 75).
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n4 ANSI is a private organization which has adopted safety standards on various subjects.
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Testimony of Frank J. Carroll
Mr. Carroll is Safety Director of D.W. Winkham Company of which respondent is an affiliate. He was previously employed for 26 years by the State of New York in industrial safety. When asked whether he ever had occasion to see a hand chain fall being operated by other than manual power, Mr. Carroll stated (Tr. 97): "Yes, a number of times over the years on various construction sites. Elevator constructors use it very often. I recall the first time I saw it, I thought it was a good idea because it saved the manpower and the man wearing himself out pulling the chain. I checked my regulations to see if there was anything at all that would not permit this and I could find nothing and it did not appear to me to be an unsafe act in any way or an unsafe condition." The [*17] Winkham Company and its affiliates have general safety rules and regulations which did not prohibit the use of the motor device with hand chain hoists. It was used with the respondent's knowledge "when there's a long chain haul." One of the respondent's safety rules is: "never stand under a load that's being hoisted or lowered in any way" (Tr. 99). A booklet entitled Foreman's Safety Manual (Exh. R-2) is furnished to each foreman who has the responsibility to enforce safety rules with respect to the men assigned under him. Among the "unsafe acts which often cause accident" listed in the manual are: "Using defective tools or equipment or using tools and equipment in unsafe ways" and "Standing under suspended loads or riding loads." The witness was of the opinion that the use of the motor drill with the hand chain hoist "is a safe operation" (Tr. 102).
Testimony of Lawrence Carvey
Mr. Carvey, an engineering graduate from Cooper University, has been employed by OSHA since 1972 as Senior Safety Engineer. From 1960 to 1970 he had been employed by the American National Standards Institute (ANSI) "in charge of all the safety standards" (Tr. 144-146). Circulars issued by three [*18] manufacturers of hoists (Exh. C-9) contain the following items: "The equipment illustrated and described in this bulletin is designed for manual operation only and is not to be power driven;" "Never attempt to motorize a hand operated hoist or trolley;" and "The CM Cyclone Hoist has been designed for manual operation only. Warning; Power operation may result in structural damage or premature wear." The bulletin (Exh. C-5) issued by Duff-Norton Company, the manufacturer of the hand chain hoist in issue, sets forth "safety pointers and precautions which should be followed in order to maintain safe operation," including the following: "The CB Hand Chain Hoist is designed for manual operation. Do not operate under power." Based upon the ANSI standards and the aforementioned bulletins issued by hoist manufacturers, as well as his experience, knowledge and application of safety engineering principles (Tr. 172), Mr. Carvey was of the opinion that "the greatest number of manufacturers of manually operated hoists . . . have all agreed that the use of power on a manual hoist should be forbidden" (Tr. 152); and that the use of the drill to operate the hand chain hoist "was unsafe" (Tr. 161). [*19]
Testimony of Walfred Hansen
Mr. Hansen is employed by the Department of Labor as a compliance safety and health officer. He stated that he recommended a penalty of $600.00 be assessed against the respondent for the violation in question which he considered to be serious in view of the facts that the tanks weighed about 68 thousand pounds and that it was suspended from a height of 20 feet. In determining the amount of the penalty he gave the maximum reductions of 20 percent for "good faith" and for "history" of no previous violations. No reduction was given for "size" because respondent employed over 100 persons. He stated that he inspected the site of the accident on April 25, 1975, as a result of a report from the respondent that a fatality had occurred (Tr. 175-178). He indicated that he had not been aware of any prohibition in the use of power tools on hand hoists (Tr. 193). He indicated that at the time of his investigation in April 1975, he had not been aware of manufacturers' recommendations regarding hand chain hoists or of any prohibition in the use of power tools to operate such hoists (Tr. 193).
Testimony of Frank Wieczorek
The witness has been employed [*20] by the respondent for about 16 years as master mechanic and is responsible for the repair and maintenance of its equipment. He stated that prior to the Miller Brewery job, he had used power to operate a hand chain hoist on only one other occasion and that occurred about 10 years ago without an accident (Tr. 200-202), and that the respondent used various hoists made by different manufacturers comprising "just about every one (manufacturer) that was mentioned here today" (Tr. 207).
Testimony of Gary Wilson
Mr. Wilson is a professional engineer with a Master's Degree in Structural Engineering and is employed by respondent as Vice-President of Engineering. He has been associated with the respondent for 2-1/2 years and has been an officer of the firm for about 8 months. He stated that he is "not aware" that operating a hand chain hoist by a power device is unsafe. The operator of the chain hoist, with or without the use of power, would be able to stand "well away" from the tank (Tr. 210-211). As to the effects of the use of power in the operation of the hand chain hoist, Mr. Wilson testified as follows (Tr. 211-212, 220-221):
"Q. As an engineer, are you familiar with the amount [*21] of force that can be applied to the hand chain, the maximum amount of force?
"A. Yes, I am.
"Q. Do you know what that is for the hoist in question?
"A. Yes. In order to life a ten ton load, which is the design load, requires eighty-eight pounds of force.
"Q. Are you familiar with the drill which was used by employees at Syracuse Rigging?
"A. Yes, I am.
"Q. Do you know what force can be exerted by that drill?
"A. Yes. The force that can be exerted by that drill is in the neighborhood of forty to fifty pounds. There was no way you could lift that load.
"Q. Do you know if the drill was used for lifting purposes?
"A. There was no intention to lift it, to lift any load with that particular drill. The tanks were set at elevations by the cranes. They were inserted in the buildings so there was no need at all to do any lifting.
"Q. You're aware that the tank fell on April 25, 1975?
"A. Yes, I am.
"Q. Are you aware of any facts as to the cause of that falling tank?
"A. Yes. I examined the broken link the day of the accident and the other section of the link when it was found on the following Monday. It was my opinion at that time that there was a failure in [*22] the weld on the link . . . . n5
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"Q. Can you compare the difference between using, operating a chain fall with an electric device and operating it manually?
"A. Well, first of all, a man can exert a lot more force than the drill can. The drill can go faster but the man can pull a lot more weight, a couple of hundred pounds against a chain fall where the drill is limited to around forty. I would think that, judging from my own experience, this will go about one and a half to two times as fast as a man could possibly go."
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n5 The steel chain link, broken into two pieces, was submitted to Ernest F. Fullam Incorporated, Scientific Consultants, for analysis. The report of analysis (Exh. R-4) was offered into evidence by respondent on the basis that the report fell within Rule 803(6) (i.e., "Records of regularly conducted activity") of the Federal Rules of Evidence as an exception to the hearsay rule. Complainant objected to its admission on the grounds that it is hearsay and irrelevant. The report of analysis conducted by an independent consultant clearly does not come within the hearsay exception of Rule 803(6). While I do not reply upon it the report of analysis is admitted because it has some relevancy (surely the question of whether or not the fatality was the result of failure to comply with the Occupational Safety and Health Act has some connection with the allegation of "serious violation"), because Rule 43 of the Federal Rules of Procedure states: "the statute or rule which favors the reception of the evidence governs" and because the Commission has held that hearsay evidence is admissible. Secretary v. B & K Paving Company, 11 OSAHRC 444 (1974).
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On cross-examination, the following testimony was elicited (Tr. 224):
"Q. You said that heat is generated when a load is lowered by hand, I think you multiplied the rate per load times the distance it travels?
"A. That's right. The common measure of energy is foot pounds.
"Q. Now, would you generate heat faster using the drill?
"A. About one and a half times as fast, yes."
The drill was used to operate the hand chain hoist because of the "long drop" involved. The following testimony was related on redirect examination (Tr. 227).
"Q. How many instances of long drops has Syracuse Rigging been involved with during your tenure?
"A. This is the only long drop that we've used a chain fall on. There are other -- there's all sorts of hoisting equipment available to a rigging company. We use whatever is applicable. In this case, chain falls were the most applicable.
"Q. This apparatus is used only for long drops?
"A. That's right.
"Q. And long drops are not a regular matter with Syracuse Rigging?
"A. They have been occasionally."
The tank that fell on April 25 was the only tank lowered [*24] at the Miller Brewery site with the use of powered hand chain hoists (Tr. 230). On recross-examination, Mr. Wilson testified as follows (Tr. 232):
"Q. . . . How many tanks were installed prior to the accident?
"A. Prior to the accident? Twelve. There were thirteen tanks.
"Q. When did you cease using this device?
"A. We were advised by OSHA that there was a citation coming down and this was one of the causes of the citation. But, although I was ninety-nine point nine-nine percent certain that the cause of the accident was a defective chain link, we weren't about to take any chances with anything."
DISCUSSION
An occupational safety and health standard promulgated under the authority of the Act, which regulates a specific type of conduct, takes precedence over the general duty requirement of section 5(a)(1) of the Act. Secretary v. Sun Shipbuilding and Drydock Co., 4 OSAHRC 1020 (1973). Thus a citation for violation of section 5(a)(1) of the Act would not be warranted where a duly promulgated safety standard is applicable to the condition or practice alleged to be in breach of the Act.
In his amended pleadings, the complainant, as an alternate charge, has [*25] cited the respondent for failure to comply with the safety standard § 1926.554(a)(4) which provides that "[t]he hoist shall be installed only in locations that will permit the operator to stand clear of the load at all times." The evidence does not provide a sufficient basis for concluding that the respondent violated this standard. There were four employees engaged in lowering the tank on April 25, 1975, when it fell resulting in the death of one employee. The facts surrounding the cause of the fatality are obscure. It appears, however, from the nature of the injury and a photograph (Exh. C-1) that he was not struck by the tank. The other three employees who escaped injury were positioned several feet away from the load. There is testimony by an expert witness that the hoists were located in such a manner that the men could have operated the hoists clear of the load by some 13 feet.
I find it unnecessary to decide whether the respondent failed to render its workplace free of a "recognized" hanard pursuant to the general duty requirement of section 5(a)(1) of the Act because the use of a power device to operate a "hand chain hoist" contrary to the operating instructions of the [*26] manufacturer is expressly prohibited by the safety standard published as 29 CFR § 1926.554(a)(6). This standard provides:
"All overhead hoists in use shall meet the applicable requirements for construction, design, installation, testing, inspection, maintenance, and operation, as prescribed by the manufacturer." (emphasis added)
The Chain hoist in issue was manufactured by Duff-Norton Company and designed for manual operation. This is undisputed. The operating and maintenance instruction bulletin issued by Duff-Norton provides certain "precautions which should be followed in order to maintain safe operation," including prohibiting operation of the hoist under power. That respondent did not heed this precaution is also undisputed.
A key point presented by the evidence and mentioned in the citation was the respondent's use of power to operate a hoist that was designed for manual operation. The failure of complainant to cite respondent for failure to comply with § 1926.554(a)(6) does not prevent the undersigned from considering that safety standard's applicability. It is well settled that a material issue which has been actually and fairly tried by the parties should be [*27] decided by the Commission regardless of whether it has been specifically pleaded. Secretary v. Brisk Waterproofing Company, Inc., 3 OSAHRC 1132 (1973). Rule 15(b), Federal Rules of Civil Procedure. See also Frito Company, Western Division v. N.L.R.B. 330 F.2d 458 (1964). Accordingly, the pleadings are hereby amended to include the safety standard § 1926.554(a)(6) which I find was violated by respondent.
The citation issued to respondent alleges a serious violation. Section 17(k) of the Act states that a "serious violation" exists "if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation."
It is not necessary to show that there is a substantial probability that an accident will occur from the violative condition; a violation is serious if there is a substantial probability that the consequences of an accident resulting from the condition will [*28] be death or serious physical harm. Crescent Wharf & Warehouse Co., 2 OSAHRC 1318 (1973).
While accident prevention is important in all trades, it takes on added significance in rigging where the danger of serious or fatal accidents is great. A causal relationship between the fatality and the substandard condition need not be proven in order to establish a serious violation in this case. The respondent's failure to operate the hand chain hoist in accordance with the manufacturer's operating instructions could have resulted in damage or premature wear of the hoisting equipment. Obviously this would have an adverse affect upon the load capacity by lessening the work load that the hoist will safely withstand. The size and weight of the load for which the hoist was utilized by respondent were enormous, and its misuse under such circumstances was a perilous undertaking.
Several of respondent's employees testified that they were unaware of any prohibition against utilizing power to operate a hand chain hoist. Yet such a practice is expressly forbidden by several manufacturers of hand operated hoists used by respondent (according to Mr. Wieczarek, respondent's master mechanic), [*29] including the hoist in issue made by Duff-Norton. It is well known that manufacturers usually provide printed material containing instructions and recommendations for the proper operation of its product, and that operating instruction manuals are routinely furnished to equipment purchasers. I have no difficulty in concluding that respondent failed to exercise reasonable diligence to ascertain the existence of the hazard.
I cannot help but comment on the curious fact that, while respondent claims it to have been a safe and convenient practice, it operated hand chain hoists under power on only one occasion in the past (10 years ago according to Mr. Wieczorek), and it waited until after installing 12 tanks at the Miller Brewery site before resuming its practice.
The evidence provides ample basis for concluding that respondent seriously violated the standard requiring it to operate the hand chain hoists as prescribed by the manufacturer. Appropriateness of the penalty to be assessed depends upon the size of the business of the charged employer, gravity of the violation, good faith of the employer and history of previous violations. Section 17(j) of the Act (29 USC § 666(j)). These [*30] factors cannot always be given equal weight, and gravity is usually of greater significance because it is relevant only to the violation under consideration while the remaining factors relate to the employer generally. Secretary v. Colonial Craft Reproductions, Inc., 1 OSAHRC 933 (1972). The essential elements of gravity include the probability of an accident occurring as the result of a violation, exposure to the violation (number of employees exposed and the duration of their exposure), and the probable severity of injury if an accident were to occur. Secretary v. Boltz Brothers Packing Company, 2 OSAHRC 384 (1973).
Although the respondent has no history of prior occupational safety and health violations and appears to be committed to the objective of assuring safe and healthful working conditions, it is believed that the potential for serious injury was so severe in this case as to warrant assessment of the $600.00 penalty proposed by complainant.
FINDINGS OF FACT
1. Respondent is a New York corporation engaged in business as a rigger.
2. In April 1975, four of respondent's employees were involved in lowering a large tank (weighing about 68,800 pounds) [*31] in the aging room of the Miller Brewery plant under construction in Volney, New York.
3. The tank was suspended for a height of 20 feet or more and was being lowered by four "hand chain hoists" operated by motor drill; the respondent's employees were only a few feet away from the load.
4. The chain hoists, manufactured by Duff-North Company, were designed for manual operation only.
5. Respondent's use of the chain hoists under power was contrary to the operating instructions prescribed by the manufacturer.
6. Respondent's misuse of the hand chain hoists could have resulted in its structural damage, which the respondent should have known.
7. There was a substantial probability that serious injury or death could have resulted from the hazard of operating the hand chain hoists under power.
CONCLUSIONS OF LAW
1. At all times relevant herein, respondent has been engaged in a business affecting commerce within the meaning of section 3 of the Act.
2. Respondent did not violate 29 CFR § 1926.554(a)(4).
3. Respondent seriously violated 29 CFR § 1926.554(a)(6), and assessment of a penalty therefor of $600.00 is appropriate.
4. A citation for violation of section 5(a)(1) [*32] of the Act (29 USC 654(a)(1)) is not appropriate.
ORDER
It is hereby ORDERED that:
1. The citation and complaint filed herein, alleging serious violation of section 5(a)(1) of the Act, are amended to include as an alternative allegation, serious violation of 29 CFR § 1926.554(a)(4).
2. The citation and complaint are further amended to conform the pleadings to the proof to reflect serious violation of 29 CFR § 1926.554(a)(6).
3. The charges of violations of section 5(a)(1) of the Act and 29 CFR § 1926.554(a)(4) are vacated.
4. The citation issued on May 6, 1975, as amended, for serious violation of 29 CFR § 1926.554(a)(6) is affirmed and a penalty of $600.00 is assessed.
Dated: December 31, 1975
New York, New York
RICHARD DeBENEDETTO, JUDGE, OSAHRC