CRESCENT ERECTION COMPANY

OSHRC Docket No. 4290

Occupational Safety and Health Review Commission

September 19, 1975

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners

OPINIONBY: MORAN

OPINION:

MORAN, COMMISSIONER: A July 18, 1974, decision of Review Commission Judge George W. Otto is before the Commission for review pursuant to 29 U.S.C. 661(i).

Having examined the record, we find no prejudicial error therein. Accordingly, the Judge's decision is hereby affirmed.

CLEARY, COMMISSIONER: I do not agree with my colleagues' disposition of this case.

On July 2, 1973, Crescent Erection Co., respondent, was engaged in the installation of aluminum panels on the outside of a building known as the "First Wisconsin Center" in Milwaukee, Wisconsin. Each panel was 20-feet long by 3 1/2 feet wide and weighed about 150 pounds.

Respondent employed a Sasgen derrick, Champion model, to position the aluminum panels during the installation procedure. The derrick was of all steel construction with malleable fittings. It had two legs, each 27 inches long, that were joined together at a 90-degree angle to form a base. A mast rose from the apex of the two legs to a height of approximately 8 feet. A mast brace extended from the mast to each leg and a boom, about 5 feet in length, extended from the mast. The boom [*2] was capable of swiveling a full 360 degrees and was supported, in part, by a boom brace attached to the mast by a boom hanger. A strand of 1/4 inch wire rope cable that was passed through a pulley twice was used to suspend the load. When used as intended by the manufacturer, the derrick had a rated capacity of 1,000 pounds and a built-in safety factor of eight. n1

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n1 The safety factor of a piece of equipment is determined by comparing the force needed to rupture or cause a failure in the weakest part of the structure to the rated capacity. The wire rope cable is ordinarily considered the weakest part of the structure and in this case the cable was able to withstand a strain of approximately 4,000 pounds. Since the cable on the derrick at issue was double looped, however, its capacity was increased from 4,000 to about 8,000 pounds. Comparing this ability to withstand rupture, 8,000 pounds, to the rated capacity of the equipment, 1,000 pounds, a safety factor of eight is arrived at for the derrick at issue.

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[*3] Respondent had successfully installed the aluminum panels on the exterior of the building from the 3rd to the 40th floor. In order to install the panels on the 41st floor, the top floor of the First Wisconsin Center, it was necessary to position the derrick on the roof of the building. The procedure required that the derrick be mounted close to the edge of the roof with its boom extending beyond the face of the building. In this case, however, a two-rail track, intended for use by window washers and maintenance crews, had already been set permanently around the roof's perimeter. The presence of this track, together with the rather limited usable space between the track and a protective railing, made placement of the derrick a difficult problem. Respondent solved the difficulty by adapting a Sasgen derrick to take full advantage of the already installed track.

The derrick was modified by welding its legs to a new triangular base constructed by respondent. This new base consisted of two "I" beams welded to each other at a 90-degree angle. Metal pads were placed at the apex and at the ends of each beam. These pads were then attached to short metal beams placed vertically so [*4] as to raise the entire base. Attached to each of the three short vertical beams was a metal wheel. The entire original derrick was then welded to this makeshift base and a 250-pound elevator weight was fastened over each of the rear wheels. Respondent's employees later added several pieces of angle iron to the rear of the base as additional counterweight. This new base-on-wheels enabled the derrick to be repositioned by rolling it along the existing window washer track. Complainant's Exhibit 11, a simplified sketch of the derrick, is appended hereto in order to aid the verbal description that has been given.

These modifications were completed on June 28, 1973. The following day, Friday, June 29, the derrick was positioned on the window washer track for a "test run." Except for the counterweight, the derrick was not secured in any manner, but merely sat on top of the track. The test went well and the derrick was considered ready for the panel placement that was to begin the next week. On Monday, July 2, 1973, as the first panel was being lowered into position, the entire derrick, with its new platform and counterweight, fell off the roof to the ground, 41 floors below.

[*5] Following a prompt inspection by the Labor Department, a citation and notification of proposed penalty were issued to respondent alleging a serious violation of the Act for its failure to comply with the standards at 29 CFR 1926.550(a)(16), (a)(1), and (a)(5).

Respondent timely contested the citation as well as the proposed penalty and a hearing on the contested matters was held before Judge George W. Otto. On July 18, 1974, the Judge rendered his decision wherein he vacated complainant's citation and proposed penalty, finding that respondent had complied with the standards at issue. The case was directed for review on August 19, 1974, and is before us pursuant to that direction. Having found no prejudicial error in the record, the majority of the Commission has voted to affirm the Judge's decision.

Insofar as the Judge's decision finds no failure on respondent's part to comply with the standards at 29 CFR 1926.550(a)(1) and (a)(5), I would agree with the majority's decision. In my view, however, the record supports a finding of non-compliance with the standard at 29 CFR 1926.550(a)(16) and, therefore, I must dissent from my colleagues' position on this issue.

The standard [*6] at 29 CFR 1926.550(a)(16) reads as follows:

1926.550 Cranes and derricks

(a) General requirements

(16) No modifications or additions which affect the capacity or safe operation of the equipment shall be made by the employer without the manufacturer's written approval. If such modifications or changes are made, the capacity, operation, and maintenance instruction plates, tags, or decals, shall be changed accordingly. In no case shall the original safety factor of the equipment be reduced.

Respondent's numerous assertions present, in effect, the following two arguments:

1. That it made no modification or addition with regard to the Sasgen derrick but merely placed the original derrick on a moveable base of the type contemplated and endorsed by the manufacturer; and

2. Even if it had made modifications or additions to the Sasgen derrick, such modifications or additions did not affect the capacity and safe operation of the equipment making the manufacturer's approval unnecessary.

Regarding respondent's first argument, I begin by noting that the term "modify" means "to change the form or properties of for a definite purpose" n2 and the term "add" [*7] is defined as "to join, annex, or unite (as one thing to another) so as to bring about an increase (as in number, size, or importance) or so as to form one aggregate." n3 In this case, respondent changed the original Sasgen derrick so that it could be rolled along the window washer track. This alteration was accomplished by welding the manufacturer's version of the derrick to a new base of respondent's own design and construction and balancing the completed piece of equipment with counterweight. By adding the new base to the derrick, respondent has changed the form of the manufacturer's version for a specific purpose. This appears therefore to be both an addition and a modification.

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n2 Webster's Third New International Dictionary, unabridged, G & C Merriam Company, 1971.

n3 Id.

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The modification was noted by the Judge during his questioning of complainant's witness, Mr. Phillip Falson, an engineer and representative for the derrick manufacturer. There was the following colloquy:

THE JUDGE: Is there anything [*8] below the [original] base itself, I am looking at what was not prepared by you or anybody from your company apparantly, specifically Exhibit Number 11 and there appears to be something which if my interpretation is correct which may or may not be the fact, there seems to be something below the [original] base. Now, does the mast brace go from the mast to the [original] base?

A. Yes, it does.

THE JUDGE: Now I am pointing to two vertical pieces below the green colored base on Exhibit 11 [the two "I" beams of the base constructed by respondent], is that part of your hoist equipment as you sell it?

A. No, sir, that is not. n4

Indeed, respondent's own employee, the man who worked on the new base, when asked to describe his job, testified that he "was involved in the modifications of the base of the building of the derrick." n5

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n4 Transcript of January 10, 1974 (Tr. 1/10/74) at 59.

n5 Tr. 1/10/74 at 70.

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During his testimony, the manufacturer's representative, Mr. Falson, noted that the derrick at issue [*9] was "not designed to be operated with counterweights," but, instead, "is designed to be bolted to a secure foundation or something moveable, a moveable object." Respondent, seizing upon this reference to a "moveable object," argues that the platform on wheels that it welded to the original derrick is not a modification at all, but merely the type of "moveable object" envisioned by Mr. Falson. After careful review, I find that Mr. Falson's testimony, as a whole, does not support respondent's position. It appears that the "moveable object" referred to by the witness would be something that, while moveable between operations, would be securely fastened during the hoisting procedure. On cross-examination, the witness explained the manufacturer's position as follows:

A. One of the reasons we don't recommend a derrick of this type to be used with counterweight, although I would imagine that some people do, is that if in some manner or another the derrick becomes overloaded and you only have your counterweight to withstand a certain amount of load you would run into problems; do you see what I mean?

Q. What if your base was now above ground and could be lashed to something above ground, [*10] would that preclude the problem that you are talking about?

A. Do you mean if you had it tied down in some other manner?

Q. Yes.

A. If you had it tied down for safety, it would be all right . . . n6

In this case, respondent's derrick was resting on but not secured to the track on the roof. They were relying solely upon the counterweight to provide the appropriate margin of safety. It seems clear to me that respondent's actions with regard to the Sasgen derrick amount to a "modification" within the meaning of the standard at 29 CFR 1926.550(a)(16), and the record establishes that respondent made no attempt to secure the manufacturer's approval for such modifications.

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n6 Tr. 1/10/74 at 65.

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The only question left to be answered is whether this modification affected the capacity or safe operation of the equipment such that the manufacturer's approval was necessary. The record is replete with very technical explanations, arguments, interpretations, and computations attempting to resolve this issue. [*11] The "bottom line" of the testimony seems to be, however, that when the derrick is mounted as intended by the manufacturer; that is, bolted to something solid or securely fastened, it has a rated capacity of 1,000 pounds with a safety factor of eight; when it is mounted in some other manner such that counterweight must be used, its rated capacity is something less than 1,000 pounds with the new rated capacity and safety factor being a function of the amount and placement of the counterweight. In this case, testimony reveals that the amount and placement of counterweight by respondent reduced the derrick's rated capacity to 52.5 pounds with a safety factor of eight or 105 pounds with a safety factor of four.

Accordingly, I would find that respondent made modifications to the Sasgen derrick that affected the equipment's rated capacity and safety of operation without seeking the manufacturer's approval in noncompliance with the standard at 29 CFR 1926.550(a)(16).

[SEE ILLUSTRATION IN ORIGINAL]

[The Judge's decision referred to herein follows]

OTTO, JUDGE: This is a proceeding under the Act to determine the question of alleged violation of occupational safety and health [*12] standards, whether the violation if established was serious and the appropriate penalty therefor.

Following inspection on July 2, 1973, the Secretary of Labor, complainant, issued a citation on July 24, 1973 alleging one item of serious violation and on July 24, 1973 issued a notification of proposed penalty of $560. By letter dated August 15, 1973, Crescent Erection Company, respondent, contested the citation and penalty, a complaint was served September 4, 1973 and an answer September 20, 1973. Hearings were held at Milwaukee, Wisconsin, on January 10, 1974 (transcript A) and in Chicago, Illinois, on February 19, 1974 (transcript B).

ESSENTIAL FACTS

Respondent was engaged in metal erection at the First Wisconsin Center in Milwaukee, Wisconsin, a 42-story building under construction; this work included installing aluminum panels 20 feet long by 3-1/2 feet high on the outside of the building. The inspection of July 2, 1973 was prompted by the fall of a Sasgen Derrick from the 42nd floor to the 3rd floor. (A-13, B-77, complainant's exhibits 1 through 10).

The Sasgen Derrick, Champion model, was of all steel construction with malleable fittings, capacity 1,000 pounds, [*13] unit weight 225 pounds, overall height of 8 feet with the boom extending 5 feet (respondent's exhibit 5). The derrick was moved to the roof at the 42nd floor level at least a week before July 2 and assembled by respondent employees and was used on June 29 in the placement of one aluminum panel and fell on July 2 during the installation of a second aluminum panel (A-77, 83, B-60, 77, 96). As manufactured the derrick had two 27 inch legs joined together at a horizontal 90 degree angle to form a base; a mast rose from the apex of the two legs to the eight foot height, a brace extended from the mast to each leg, the boom extended from the mast and could swivel 360 degrees and was supported in part by a boom brace connected to the mast by a boom hanger.

Respondent employees constructed a mobile platform on the roof car tracks (A-17). A permanent two-rail track ran the perimeter of the roof for the intended use of window washers or maintenance (A-30). The derrick was welded to a triangular platform with three wheels, one wheel resting on the outer rail and the other two on the inner rail (A-70, 71). Counterweights were placed near each rear wheel and from eight to ten pieces of angle [*14] iron were located less than a foot from the rear wheels (A-73, 91).

A panel would be set in place by first hooking it up on the roof, swinging the boom out over the edge and then lowering the piece, using a motorized mechanism with remote electrical hand controls (A-73). On July 2, 1973 a panel was hooked, swung out and lowered to the 41st floor. Jerome Starr went down to the 41st floor and Paul Krist, foreman, lowered the hand controls and tag lines tied onto the panel, then he came down followed by Leo Miller (A-74, 77, 93, B-69). All three were respondent employees. While they were on the 41st floor, with no respondent employee remaining on the roof (42nd floor), and while the panel operation was in progress, the derrick fell, intact, "wheels and all" from the roof to the 3rd floor. No respondent employee was injured.

THE ISSUES

1. Whether respondent failed in its duty under 29 USC 654(2) to comply with occupational safety and health standards promulgated under the Act, particularly 29 CFR 1926.550(a)(16), (a)(1), (a)(5).

2. In the event of such failure, whether the violation was serious within the meaning of 29 USC 666(j).

3. Whether the date by which [*15] alleged violation must be corrected was proper.

4. In the event of violation, the appropriate penalty under 29 USC 666(b) and (i).

29 CFR 1926.550(a)(16):

No modifications or additions which affect the capacity or safe operation of the equipment shall be made by the employer without the manufacturer's written approval. If such modifications or changes are made, the capacity, operation, and maintenance instruction plates, tags, or decals, shall be changed accordingly. In no case shall the original safety factor of the equipment be reduced.

29 CFR 1926.550(a)(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.

29 CFR 1926.550(a)(5):

The employer shall designate a competent person who shall inspect all [*16] machinery and equipment prior to each use, and during use, to make sure it is in safe operating conditions. Any deficiencies shall be repaired, or defective parts replaced, before continued use.

The complainant contends the respondent made modifications and additions to the derrick affecting the capacity or safe operation of the equipment, without the manufacturer's written approval, by adding a coffing hoist and by constructing a new base, that as a result of the modifications and additions the derrick capacity was reduced from the rated 1,000 pounds to 52.5 pounds, that 105 pounds would be the maximum safe load that could be handled as modified, with only a 1.7 safety factor if 250 pounds was hoisted, whereas the derrick would have a safety factor of 32 while carrying a 250 pound load if used as designed, that the safety and health of the employees was affected in that the derrick would topple if a load or strain of more than 420 pounds was placed on it and the three respondent employees were endangered because the safety cable to which the safety lines were attached vibrated due to the derrick fall and the lines could have been snapped, with further danger of either the panel [*17] or derrick striking an employee.

Respondent claims there was no modification or addition and that the capacity or safe operation of the equipment was not affected, that it was proper to secure the derrick to something movable, that neither the constructed mobile platform nor counterweighting constituted a change in the method of anchoring the derrick, that even if considered a new base the part welded to the original two derrick legs did not affect the capacity or safe operation, that complainant's mathematical rationale was based upon a surmise that the derrick had an original safety factor of 8 and upon an assumption that the rope was the weakest part of the equipment.

The record does not disclose how the use of a coffing hoist mechanism affected the capacity and safe operation of the equipment. If the derrick fell because the chain fall line hooked onto something or because the boom collar was defective, the coffing hoist mechanism was not contributorily involved. Further, both projections were speculative (B-111, 112).

The arrangement to permit use of the derrick in installation of panels from a mobile platform did not constitute a modification or addition which [*18] affected the capacity or safe operation of the equipment. Thus it was not necessary to secure the manufacturer's written approval.

A new base was not constructed as part of the derrick but rather as a mobile platform upon which the derrick could be mounted. The derrick was designed to permit attachment to a movable object (A-62). Harold White, Department of Labor technical advisor, testified that it is a common modification to put a derrick on a new base which could be mounted on a wheel track, that a rail is considered common procedure as long as it is properly secured (A-118). The tracks were a permanent installation, the roof was completed and there is no indication that there was movement of the tracks or the roof beneath as a factor in triggering the fall of the derrick on July 2, 1973. The rails were properly secured. He considered placement on a base as a modification because the manufacturer sells his unit with the idea it will be anchored to the floor and specifies how it should be anchored (A-119). However, there is no manufacturer specification directing the bolting of this derrick to a floor. The manufacturer's description (R-5) contains no reference to bolt holes [*19] in the legs and neither directs nor recommends any particular form of anchorage. The parts list does not include any 5/8 inch bolts although 23 other bolts of various dimensions are included (R-5). The derrick did not pull away from the platform constructed by respondent since it was described as falling completely in one piece, wheels and all (B-78). Attachment by welding was as effective as by bolting considering that the entire unit remained intact, at least until it passed the 41st floor. Manufacturer's description or specifications as far as this record discloses does not mention the use of counterweights. Although Phillip Falson, an engineer and designer employed by the Sasgen Derrick manufacturer, testified it did not recommend that derricks of this type be used with counterweights (A-63), a knowledge of such limitation in use may not reasonably be imputed to the respondent. Further, it does not appear the use of counterweights reduced the rated capacity.

From the 3rd floor up the panels were installed by use of rigs on rubber wheels but not on tracks (B-97). The same rig could not be used on the roof because of the permanent track installation and other permanent [*20] projections (B-102). Wind may well have been a factor in producing this episode (B-103). Although the panel weighed only an estimated 150 pounds (A-45), almost any wind blowing on the panel or pulling on it would add additional weight (A-113). The danger in handling these big panels on the east side of the roof was recognized by the respondent (B-88). The method used without modification of or addition to the derrick constituted a reasonably safe operation as far as the respondent could reasonably anticipate.

Complainant alleges violation of 29 CFR 1926.550(a)(5) because the boom hanger was found broken after the fall, contends the hanger was defective in that it was rusted and such weakening defect should have been noted by the respondent in the course of inspection. It cannot be determined whether the boom hanger broke before or during or after the derrick fall. Randall Sherman, compliance officer, testified he could not say whether the rust on the hanger was on a surface visible to the naked eye (A-51) and that there is no basis for a conclusion that the collar was cracked other than the finding of rust on it (A-36).

James Cassie, respondent safety director, testified the [*21] equipment was inspected and repainted before it left for a job, was scraped before painting to determine structural defects, if any, and rechecked on the job (B-49). Paul Krist, respondent foreman, saw the boom hanger in the course of assembly of the derrick on the roof, saw no defect or rust, it was freshly painted and he saw no cracks at all (B-61). George Spetz, respondent job superintendent, inspected the derrick and saw no defects (B-86, 87).

FINDINGS OF FACT

1. At all times relevant the respondent was an employer engaged in a business affecting commerce among or between states.

2. On July 2, 1973 respondent's derrick with rated capacity of 1,000 pounds fell from the 42nd floor level to the 3rd floor of the First Wisconsin Center, a building under construction in Milwaukee, Wisconsin.

3. At the time of the episode the derrick was in operation in the placement of an aluminum panel weighing about 150 pounds.

4. The derrick was welded to a three-wheel base constructed by respondent with the entire unit placed on permanent tracks located on the 42nd floor roof level.

5. The two original derrick legs contained 5/8 inch bolt holes. The derrick was not bolted [*22] to the base.

6. The respondent placed counterweights on the base above the two inner track wheels.

7. A coffing hoist was used in the panel placement operation.

8. The use of a coffing hoist and the attachment of the derrick by welding to a mobile base did not constitute a modification or addition affecting the capacity or safe operation of the derrick. The original safety factor of the equipment was not reduced.

9. The respondent complied with the manufacturer's specifications and limitations applicable to the operation of the derrick.

10. Rust was observed within the broken boom hanger after the fall.

11. The respondent followed adequate inspection procedures to determine whether the derrick parts including the boom hanger or collar were in safe operating condition, and such inspection was conducted by competent personnel.

12. The respondent did not permit the use of the derrick with known defective parts or deficiencies.

CONCLUSIONS OF LAW

1. Respondent was an employer within the meaning of 29 USC 652(5).

2. On and before July 2, 1973 respondent did not fail to comply with occupational safety and health standard 29 CFR 1926.550(a)(16).

3. On and before July [*23] 2, 1973 respondent did not fail to comply with occupational safety and health standard 29 CFR 1926.550(a)(1).

4. On and before July 2, 1973 respondent did not fail to comply with occupational safety and health standard 29 CFR 1926.550(a)(5).

ORDER

It is therefore ordered that the citation issued July 24, 1973 be and the same is hereby vacated, the notification of proposed penalty of July 24, 1973 and the complaint served September 4, 1973 dismissed, and this proceeding terminated.