SECRETARY OF LABOR,

Complainant,

v.

PASCHEN CONTRACTORS, INC.,

Respondent.

OSHRC Docket No. 84-1285

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

Paschen Contractors, Inc., contracted with the Florida Department of Transportation to build the Sunshine Skyway Bridge across Tampa Bay from St. Petersburg to Bradenton. To accomplish this task, Paschen had an engineering firm design a device to lift prestressed concrete slabs weighing over 200 tons. Paschen built the device, but the first time the lifting device was used it collapsed, injuring four employees. The Occupational Safety and Health Administration of the Department of Labor ("OSHA") investigated the incident and cited Paschen for a willful violation of the standard at 29 C.F.R. 1926.550(d)(4).[[1/]]

Paschen was charged with willfully failing to load test the device, which the Secretary alleged to be a modified gantry crane, in violation of the requirements set out in the American National Standards Institute ("ANSI") standard incorporated by reference into 29 C.F.R. 1926.550(d)(4). Paschen contested the citation, and a hearing was held by an administrative law judge of this Commission.

At the hearing, the primary issue tried by the parties was whether the device was a "gantry crane" and therefore subject to the requirements of the cited standard. Although the judge did not agree with the Secretary that the device was a gantry crane, he nevertheless concluded that Paschen's machine was governed by the cited standard because, under the scope provision of the ANSI standard, devices are covered if they have "the same fundamental characteristics" as a gantry crane.[[2/]] In the judge's opinion, Paschen's machine met this test for coverage under the ANSI and OSHA standards. The judge also found that Paschen had committed a willful violation of the cited standard, and he therefore affirmed the citation. The case was directed for review and is before the Review Commission pursuant to section 12 (j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 661(j).

In order to establish a violation, the first element of the Secretary's burden of proof is to show that the cited standard applies to the cited working conditions. Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1986 CCH OSHD 27,651 (No. 82-928, 1986). The citation alleged that the device was a gantry crane. For the reasons set forth below, we find that Paschen's machine is not a gantry crane as defined by the standard and we conclude that 29 C.F.R. 1926.550(d)(4) the standard cited, does not apply. We therefore reverse the judge's decision and vacate the citation.

The largest single component of Paschen's lifting device was a steel framework, a "gantry," approximately 15 feet high, 13 feet wide, and over 300 feet long, which sat on the concrete piers that later would be the permanent supports of the bridge. The piers were approximately 140 feet apart, so that the gantry was supported approximately in the middle and near each end. After it had been lifted onto the piers by a water-borne crane, the "gantry" could be moved into position on the next pier, as sections of the bridge were completed.

On the top of the "gantry" were rails along which a trolley could be moved. Mounted on the trolley were two lifting devices, one on each side. Although the trolley could be moved into position over a load before it made a lift, it would not move while the load was suspended. Once a concrete segment was raised to the appropriate height, cables would be attached to the bottom edge and the segment would be lifted into position rather than transported horizontally by moving the trolley.

The OSHA standard under which Paschen was cited does not define either "crane" or "gantry crane." It does, however, incorporate by reference ANSI B30.2.0-1967, which does define those terms. Section 2-0.2.1.1 defines the term "crane:"

A machine for lifting and lowering a load and moving it horizontally, with the hoisting mechanism an integral part of the machine. Cranes whether fixed or mobile are driven manually or by power.

The term "gantry crane" is defined in section 2-0.2.1.6:

A crane similar to an overhead crane except that the bridge for carrying the trolley or trolleys is rigidly supported on two or more legs running on fixed rails or other runway.

That definition is complemented by section 2-0.2.1.8, which sets out the definition of an "overhead crane:"

A crane with a movable bridge carrying a movable or fixed hoisting mechanism and traveling on an overhead fixed runway structure.

Based on our review of the record and the ANSI standard, we conclude that Paschen's machine does not fit within the definitions in ANSI B30.2.0-1967.

Because those definitions give us very little guidance concerning the characteristics of cranes generally and gantry cranes in particular, we view the information that is provided by the ANSI committee as being particularly important. We are therefore unwilling to treat any part of the ANSI definitions lightly. In particular, we place significance on the language in the definitions that specifies that the legs of a gantry crane travel along rails and that a crane is a machine "for moving a load horizontally".

The first question before us is whether Paschen's machine was a "gantry crane," as the Secretary alleged. Under the ANSI definition, it is the ability of the bridge to travel because its supporting legs are mounted on rails, not the presence of a bridge or "gantry," that makes a crane a gantry crane. Paschen's device did not have legs mounted on rails. Instead, the bridge of the machine remained stationary on the permanent concrete piers.

Our conclusion that Paschen's machine does not fall within the definition of "gantry crane" is reinforced by the illustrations in ANSI B30.2 depicting the types of cranes covered by the standard and showing the directions they can travel. As stated in the ANSI scope provision, supra at note 2, all of the cranes depicted in these illustrations are "grouped" together because they all have "similar travel characteristics." Specifically, the illustrations reveal that each of the cranes depicted has the same three lines of travel: the load can be raised and lowered; it can be transported horizontally as the lifting mechanism travels back and forth across the bridge; and the bridge itself can move along rails in a direction perpendicular to the path of the trolley. By contrast, Paschen's machine was able only to lift a load; its trolley was not designed to move in any direction while the machine was supporting a load. Paschen's machine therefore had only one of the three paths of travel characteristic of the cranes covered by the ANSI standard, although the trolley was capable of moving across the bridge when the crane was not supporting a load. Based on the wording of the definition and the illustrations, we conclude that Paschen's machine is clearly not a gantry crane, because it lacks the ability to travel on rails in a direction perpendicular to the gantry.

Reading the ANSI definitions, we question whether the cited machine was a crane at all. It appears from ANSI's definition of the term "crane" that the primary function of a crane is to transport a load horizontally and that the ability to lift may merely be a necessary incident to that function. In contrast, Paschen's machine was not intended to transport a load; it was designed merely to lift its load to a height where it could be moved into place by other means. It therefore was not a machine "for moving [its load] horizontally" within the ANSI definition.

For these reasons, we disagree with the administrative law judge's conclusion that Paschen's machine was governed by the crane standard because it has the "same fundamental characteristics" as the cranes governed by the standard. The judge misread the scope provision of ANSI B30.2, which says that the standard applies to "overhead and gantry cranes, including semi-gantry, cantilever gantry, wall cranes, storage bridge cranes, and others having the same fundamental characteristics". We read that provision to say that the standard applies to those cranes specifically mentioned and to other cranes having the same fundamental characteristics. Our conclusion that the judge and the Secretary have erroneously interpreted this provision is further supported by the sentence that follows it: "These cranes are grouped because they all have trolleys and similar travel characteristics." That sentence makes clear that the emphasis of the scope provision is on the travel characteristics of the machine, characteristics which Paschen's device does not share. The ability of a gantry structure to travel along rails must be one of the most fundamental characteristics of an overhead crane or a gantry crane, since it is the only characteristic mentioned in the definitions. Contrary to the Secretary's arguments, the language of the ANSI scope provision reinforces our view that the cited standard does not apply. Paschen's machine is not a crane, and it does not have the same characteristics as the cranes described in the standard. It therefore cannot be brought within the purview of the standard by the scope provision.

Because we find that Paschen's machine was not designed "for moving a load horizontally," we conclude that it is not a crane at all. Although it is not necessary that we determine what the machine is in order to decide this case, we note that Paschen's expert witness opined that the machine was an "overhead hoist," and Paschen has maintained that position throughout the course of this litigation. OSHA has a standard governing overhead hoists, which is published at 29 C.F.R. 1926.554. One of the provisions of that standard, subsection (a)(3), mandates that the hoist's supporting structure must not impede free movement of the hoist and must not restrict the hoist from lining itself up with the load. This indicates that an overhead hoist has at least limited ability to travel horizontally, as did Paschen's device. The ANSI standard governing overhead hoists, ANSI B30.16-1973, indicates that the hoist mechanism may be mounted on a trolley that travels on overhead beams. See 16-0.2.31. This information almost exactly describes Paschen's device. We therefore conclude that the cited machine most closely resembles an overhead hoist governed by ANSI B30.16. Consequently, the applicable OSHA standard appears to be 29 C.F.R. 1926.554, and the Secretary probably should have cited Paschen under that standard if any of its provisions were violated.[[3/]]

It is easy to see how the OSHA compliance personnel in this case mistakenly characterized Paschen's device as a gantry crane. Even the engineers who designed the device called it a "launching gantry," and a number of Paschen's own employees referred to it as a "crane." This confusion underscores the difficulties an employer unfamiliar with the standards may experience in trying to determine the requirements with which it must comply.

It is precisely because of uncertainties like this that the Commission has in the past encouraged pleading in the alternative when there is a question or controversy over which standard governs the cited conditions. E.g., McWilliams Forge Co., 11 BNA OSHC 2128, 2131, 1984 CCH OSHD 26,979, p. 34,671 (No. 80-5868, 1984). We take this opportunity to repeat that recommendation.

In conclusion, because the standard cited does not apply to Paschen's machine, we reverse the decision of the administrative law judge and vacate the citation.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: August 29, 1990


SECRETARY OF LABOR,

CompIainant,

v.

PASCHEN CONTRACTORS, INC.,

Respondent.

OSHRC Docket No. 84-1285

APPEARANCES:

Curtis L. Gaye, Esquire, Office of the Solicitor, U. S. Department of Labor, Atlanta, Georgia, on behalf of complainant.

Davisson F. Dunlap, Esquire, George Barford, Esquire, and James R. Wiley, Esquire, Cariton, Fields, Ward, Emmanuel, Smith and Cutler, P.A., Tampa, Florida, on behalf of respondent.

DECISION AND ORDER

BRADY, Judge:    This proceeding is brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 (Act) to contest a citation issued by the Secretary of Labor (Secretary) pursuant to section 9(a) of the Act.

The underlying facts in this case are not in dispute. Paschen Contractors, Inc., (Paschen), contracted to build spans on the Sunshine Skyway Bridge, a structure of approximately four miles which connects St. Petersburg and Bradenton, Florida. A portion of the bridge was to be constructed with pre-cast roadway segments being placed alternately on either side of a pier until a span between two piers is closed. The machine used by respondent to lift the roadway segments into place is the subject of the dispute in this proceeding. Variously referred to in the record as a crane, a gantry, gantry crane and launching gantry, it was over 300 feet long and rested on supports at three piers. On July 30, 1984, certain portions of the machine collapsed while attempting to lift a roadway segment to the top of pier five north injuring four employees. An investigation by the Occupational Safety and Health Administration (OSHA) resulted in issuance of the citation.

Respondent is charged with violating the regulation at 29 C.F.R. 1926.550(d)(4) which provides as follows:

(4) All overhead and gantry cranes in us shall meet the applicable requirements for design, construction, installation, testing, maintenance, inspection, and operation as prescribed in the ANSI B30.2.0 - 1967, Safety Code for Overhead and Gantry Cranes.

Section 2-1.3.5 of the American National Standards Institute (ANSI) B30.2.0-1967 states:

Cranes may be modified and rerated provided such modifications and the supporting structure are checked thoroughly for the new rated load by a qualified engineer or the equipment manufacturer. The crane shall be tested in accordance with Paragraph 2-2.2.2. New rated load shall be displayed in accordance with Paragraph 2-1.1.1.

Section 2-2.2.2 in turn provides that:

Prior to initial use all new, extensively repaired, and altered cranes should be tested by or under the direction of an appointed or authorized person and a written report furnished by such person, confirming the load rating of the crane. The load rating should not be more than 80 percent of the maximum load sustained during the test. Test loads shall not be more than 125 percent of the rated load unless otherwise recommended by the manufacturer. The reports shall be placed on file where readily available to appointed personnel.

The alleged violation is described in the citation as follows:

(a) On or about 7/30/84, the Gantry Crane, located atop piers 7n, 6n, and 5n of the new Sunshine Skyway Bridge, had not been thoroughly checked as to the field modifications that differed from the Certified detail drawings that had been provided by the design engineers. In addition, the crane had not been load tested prior to operational use in accordance with the provisions of Paragraph 2-2.2.2.

The Commission has held that in order to establish a violation under section 5(a)(2) of the Act as alleged, it is necessary for the Secretary to show by a preponderance of the evidence that (1) the cited standard applies; (2) there was a failure to comply with the standard; (3) employees had access to the violative condition; and (4) the cited employer either knew or could have known of the condition with the exercise of reasonable diligence. Astra Pharmaceutical Products, Inc., 82 OSAHRC 55/E9, 9 BNA OSHC 2126, 1982 CCH OSHD 26,251 (No. 78-6247, 1985); Daniel International Corp., 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 1977-78 CCH OSHD 21,679 (No. 76-181, 1977).

A primary issue in this case relates to the applicability of the standard. The Secretary maintains that the machine used by respondent was a crane subject to the Overhead and Gantry Crane Standards. This contention is based primarily on the scope of the ANSI standard at B30.2.0-1967. The general scope of the standard set forth at 2- 01 states it "applies to overhead and gantry cranes, including semi-gantry, cantilever gantry, wall cranes, storage bridge cranes and others having the same fundamental characteristics. These cranes are grouped because they all have trolleys and similar travel characteristics." It is alleged, therefore, that the machine in question is a crane subject to the standard in that it has the fundamental characteristics of overhead and gantry cranes, including a bridge that moves, which in turn supports a movable hoisting mechanism capable of lifting a load and moving it horizontally. In addition, the machine, supported at piers 5n, 6n, and 7n, was capable of moving itself from pier to pier (Joint Ex. 6).

Respondent points out that section 1926.550(d)(4) does not define a gantry crane but only references the ANSI standard in that regard. It, therefore, adopts a position based on the Commission's reasoning in Lisbon Contractors, Inc., _ OSAHRC __,11 BNA OSHC 1971, 1972-73, 1981 CCH OSHD 25,222 (No. 80-97, 1984). In that case, the Commission was faced with a situation where a backhoe was used to perform the function of a crane in lifting a trench box and lowering it into a trench. The Commission overruled several prior decisions which upheld the functional argument based on a machine's use, and stated that the crane standards "were tailored instead to particular configurations and mechanisms of cranes and derricks rather than to the machine's functions." Accordingly, it found the backhoe was not a crane, because it did not have a "boom" within the meaning of the ANSI standard. Respondent, therefore, asserts that its machine did not have the configuration and mechanism of a gantry crane as defined in section 2-0.2.1.6 which states:

A crane similar to an overhead crane except that the bridge for carrying the trolley or trolleys is rigidly supported on two or more legs running on fixed rails or other runway.

In addition, reference is made to the scope clause of ANSI B30.2 which indicates the cranes "... all have trolleys and similar travel characteristics." Thus, it is argued that although the hoist mechanism was mounted on a trolley and capable of horizontal travel on a truss, the truss was incapable of perpendicular movement. In support of its position, respondent points out that the examples depicted under "Types of Cranes" in joint exhibit 10 all have three directions of movement:

(1) vertical lift by a hoisting mechanism;
(2) horizontal travel by a trolley along a bridge; and
(3) transverse travel of the entire structure perpendicular to the bridge and the travel of the trolley along the bridge.

Essentially respondent maintains that all B30.2 cranes are capable of three directions of movement while supporting a load and there is nothing to indicate cranes covered by the standard can move in only one or two directions at a time.

In determining the applicability of the standard, it must first be shown that respondent's machine is a crane. A crane is defined in section 2-0.2.1.1 of ANSI B30.2 in pertinent part as follows:

A machine for lifting and lowering a load and moving it horizontally, with the hoisting mechanism an integral part of the machine . . . .

The record discloses that respondent's expert witness questioned whether the machine was a crane because he did not believe the hoisting mechanism was an "integral part of the machine" (Tr. 467). Complainant's argument is adopted for the purpose of determining this issue. It is pointed out that "in Webster's New World Dictionary of the American Language, (2d ed. D. Guralnik 1972), 'integral' is defined as necessary for completeness; essential. The launching gantry was erected for the purpose of lifting bridge segments and setting them into position. The hoisting mechanism is absolutely necessary to perform this function and a launching gantry would be incomplete without it."

The question which now must be decided is whether respondent's machine, meeting the definition of a crane, is an overhead or gantry crane within the meaning of section 1926.550(d)(4). It is concluded from the evidence of record, Commission precedent and the scope provisions of ANSI B30.2 that the standard does apply in this case.

Since a definition for overhead and gantry cranes is not found in the standard, clarification is sought in the scope provision of ANSI B30.2. Section 2-0.1 identifies certain types of overhead and gantry cranes which are included and then states that B30.2 also applies to "others having the same fundamental characteristics." Without setting forth what specific features or attributes such cranes must possess, the drafters obviously intended the standard's application to those cranes with varying but basic characteristics. The machine in question has been shown to possess the "fundamental characteristics" of the identified overhead and gantry cranes. These characteristics include a movable bridge carrying a movable hoisting mechanism and possessing the capability of moving itself from pier to pier. The fact that it could not move perpendicular to the horizontal travel while mounted on a fixed runway, or perform three moving functions at the same time is not deemed dispositive in light of the machine's basic components and its lifting capacity.

Mr. Robert De Benedictis, the Secretary's expert, testified that "it is very, very, very, very seldom and in fact practically never that you perform more than one function at a time" when making heavy lifts with a gantry crane (Tr. 245). Respondent's expert, Mr. Matthew Burkhart, agreed in stating "it is not usually advisable to perform more than one function at a time." He also agreed that the operational characteristics of the machine as to load lifting and potential hazards are the same as for a typical gantry crane (Tr. 488-490).

The Commission, as seen in Lisbon Contractors, supra, and the cases discussed therein, has dealt with the question of applying the crane standards to various machines performing lifting functions. Those cases were concerned with machines performing lifting functions, whether they were designed for that function or not. The machine in the instant case, however, was designed and used exclusively for the purpose of lifting for a specific job and was even characterized by respondent on several occasions as a gantry crane (Joint Ex. 6; Tr. 84). For the purpose of this decision, it is also pertinent to note that the Commission in discussing the standard at 29 C.F.R. 1926.550, captioned "Cranes and Derricks" stated:

Given the purpose of the Act, any ambiguity in the standard should be resolved in favor of eliminating the hazard to which the standard is addressed .....

........ Respondent's argument would lead to the incongruous result that machinery designed and manufactured specifically to perform a given function should be held to more stringent requirements than shop built equipment improvised to perform the same function .....

.......we believe that this interpretation affords employees the greatest protection from the dangers of improvised equipment that may be inadequate for the task to which it is put. Gil Haugan, 79 OSAHRC 107/A2, 7 BNA OSHC 2004, 1979 CCH OSHD 24,105 (Nos. 76-1512 & 76-1513, 1979).[[*/]]

Clearly, from the evidence respondent's crane does not fit the precise definition of an overhead or gantry crane. But in light of the scope provision of B30.2 and consistent with the interpretation placed on 1926.550 by the Commission, the standard applies in this case.

Complainant having shown that the cited standard applies, the question of whether respondent failed to comply must now be resolved. The record is clear that no load tests were made as described in section 2-2.2.2 of ANSI standard B30.2 (Tr. 123). Respondent, however, maintains that the section is only advisory and cannot of itself provide the basis for a citation, and it was justified in relying on the consultants who designed the machine to ensure its capability for lifting the predetermined load. Also, it had met the requirements of section 2-1.3.3 in that all modifications to the crane were checked thoroughly by the properly designated persons.

There is no dispute that extensive modifications had been made to the crane in question (Tr. 119, 156, 157, 208, 297). Since it was previously used in the construction of a similar bridge to lift roadway segments weighing approximately 65 to 70 tons, the modifications were necessary to enable it to lift the 220-ton segments at the Skyway Bridge.

While section 2-1.3.5 recognizes that cranes may be modified, it also makes it mandatory that such cranes are to be tested and the new rated load must be displayed. Complainant accurately points out that reference to paragraph 2-2.2.2 only describes the manner in which such load testing is to be conducted but in no way negates the mandatory requirements for testing under 2-1-3.5. The standard was, therefore, violated as alleged in the citation.

The Secretary has classified respondent's failure to load test the modified crane as a willful violation. The Commission has interpreted the term "willful" in Asbestos Textile Co., ____ OSAHRC,_____, 12 BNA OSHC 1062, 1984 CCH OSHD 26,101 (No. 79-3831, October 31, 1984), as follows:

To establish that a violation was willful, the Secretary must show that it was committed with intentional, knowing or voluntary disregard for the requirements of the Act or with plain indifference to employee safety. e.See,e.g. D. A. & L. Caruso, Inc., 84 OSAHRC_____,11 BNA OSHC 2138, 2142, 1984 CCH OSHD 26,985, p. 34,694 (No. 79-5676, 1984); Duquesne Light Co., 84 OSAHRC____,11 BNA OSHC 2033, 2040, 1984 CCH OSHD 26,959, p. 34,603 (No. 79-1692, 1984), pets. for rev. filed, Nos. 84-3520 & 84-3538 (3d Cir. Aug. 20 & 28, 1984). It is not enough for the Secretary simply to show carelessness or a lack of diligence in discovering or eliminating a violation; nor is a willful charge justified if an employer has made a good faith effort to comply with a standard or eliminate a hazard even though the employer's efforts are not entirely effective or complete. Marmon Group, Inc., 84 OSAHRC,____,11 BNA OSHC 2090, 1984 CCH OSHD 26,975 (No. 79-5363,1984), pet. for rev. filed, No. 84-2193 (8th Cir. Sept. 17, 1984), citing Mobile Oil Corp., 83 OSAHRC____,11 BNA OSHC 1700, 1983 CCH OSHD 26,699 (No. 79-4802, 1983).

Application of the Commission's interpretation to the instant case warrants the conclusion that respondent's decision not to load test the crane was "willful."

The record is clear that respondent had actual knowledge of its obligation under the Act, because it was bound by contract to comply with Federal Safety and Health Standards (Ex. C-3. Tr. 352, 353, 441). The evidence also shows that respondent was aware of its responsibility to perform load testing as required by the standard.

On June 20, 1984, a meeting was held between Paschen, representatives of two engineering consultant firms, and the Florida Department of Transportation. As a result of the discussion, several points were resolved, one of which was that (Joint Ex. 13):

9. Prior to attempting lifting any precast Superstructure Segments, Paschen Contractors have a comprehensive testing schedule to check out all lifting and jacking equipment.

A representative of the engineering firm that designed the bridge and who attended the meeting, testified that, in his opinion, testing in this context would involve load testing (Tr. 217, 221). It is clear from the record that respondent made a conscious decision not to conduct the testing referred to in the letter, designated joint exhibit 13. In a letter dated July 10, 1984, Mr. William Roach, Project Manager, responded by stating, "...We do not anticipate any comprehensive testing schedule before actual erection ..." (Joint Ex. 14). Although Mr. Roach did not testify, his letter indicates that testing of the equipment would be performed prior to lifting. The facts show, however, that obviously no "comprehensive testing schedule," or load testing was intended to check out the equipment.

Mr. Andrew King, Assistant Project Engineer, testified that the need to conduct a load test prior to July 30, 1984, had been discussed. He did not recall, however, details of the discussions and who was present (Tr. 171-172) Mr. King did not know if the load rating of the gantry crane had been determined but did stencil "150 Tons" on the load blocks of the movable crane. He stated the 150 tons had nothing to do with the lift in question, but "I got those numbers from the maximum lift that those blocks would see due to another mode of erection" (Tr. 162-165). Mr. Howard Kronis, Gantry Foreman, testified that he discussed load testing with his superiors and made some suggestions in that regard. He stated, "At first, it met with favorable response but it never actually came off" (Tr. 207, 209).

In addition to respondent's knowledge of its responsibility, the record discloses actual knowledge of the hazard created by noncompliance. There is no dispute that in the course of making the initial lift of a roadway segment on July 30, 1984, employee concerns caused it to be put down (Tr. 175). It was determined that part of the support structure of the gantry began to give way (Tr. 200). Mr. King decided to install two additional tie-downs without further corrective action (Tr. 177). During the second attempted lift "everything broke loose" according to Mr. Kronis, and several employees were injured as a result of the crane's collapse (Joint Ex. 2; Tr. 203-207).

The decision to proceed with the second lift with full knowledge of the hazard created by the failure to load test is deemed a voluntary disregard for the requirements of the Act and employee safety.

The next question for determination concerns the amount of penalty to be assessed for the violation. Under section 17(j) of the Act, the Commission is required to find and give "due consideration" to the size of the employer's business, the gravity of the violation, the good faith of the employer, and the history of previous violations in determining the assessment of an appropriate penalty. The gravity of the offense is the principal factor to be considered. Nacirema Operating Co., 72 OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD 15,032 (No. 4, 1972). The Commission stated in Secretary v. National Realty and Construction Co., 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD 15,188 (No. 85, 1971), that the elements to be considered in determining the gravity are: (1) the number of employees exposed to the risk of injury; (2) the duration of exposure; (3) the precautions taken against injury, if any; and (3) the degree of probability of occurrence of injury.

Weighing all the foregoing factors in light of the circumstances, it is concluded that a penalty in the amount of $2,500.00 is deemed appropriate.

FINDINGS OF FACT

1. Paschen Contractors, Inc., at all times hereinafter mentioned, was a contractor engaged in construction of the Sunshine Skyway Bridge connecting St. Petersburg and Bradenton, Florida.

2. Commencing July 31, 1984, authorized representatives of the Secretary conducted an inspection of the aforesaid work site resulting in issuance of the citation.

3. A portion of the bridge was to be constructed with the placement of pre-cast roadway segments alternately on either side of a pier until a span between two piers was closed.

4. On July 30, 1984, the crane collapsed while lifting a 220-ton segment to the top of pier five north. Four employees were injured.

5. The crane, with a movable bridge; movable hoist mechanism; and capable of moving itself; possessed the fundamental characteristics of overhead and gantry cranes.

6. The Commission has applied the crane standards to various machines which perform lifting functions whether they were designed for that purpose or not.

7. The crane had been used in the construction of another bridge but lifted roadway segments weighing only 65 to 70 tons. It, therefore, had undergone extensive modification prior to use in this case.

8. Following modification, the crane and supporting structure were not checked for the new rated load. It also had not been load tested prior to operational use.

9. Through meetings, discussions and correspondence, respondent's officials were fully aware of the need to check the modified crane and supporting structure. This included the need for load testing prior to operational use of the crane.

10. After the crane's first pickup of a roadway segment on July 30, 1984, it was noticed that the support at pier five north had started to give way. Upon the installation of two additional tie-downs, the second lift was attempted which resulted in the crane's collapse and employee injuries.

CONCLUSIONS OF LAW

1. Paschen Contractors, Inc., at all times pertinent hereto, was an employer engaged in a business affecting commerce within the meaning of section 3(5) of the Occupational Safety and Health Act of 1970, and the Commission has jurisdiction of the parties and subject matter herein pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply with the safety and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.

3. Respondent, at the time of the aforesaid inspection, was in violation of 29 C.F.R. 1926.550(d)(4).

ORDER

On the basis of the foregoing findings of fact, conclusions of law, and the entire record, it is hereby ORDERED:

The citation is hereby affirmed and a penalty in the amount of $2,500 is hereby assessed.

Dated this 15th day of October, 1985.

PAUL L. BRADY
Judge


FOOTNOTES:

[[1/]] That standard provides:

1926.550  Cranes and derrricks.

(d) Overhead and gantry cranes

(4) All overhead and gantry cranes in use shall meet the applicable requirements for design, construction, installation, testing, maintenance, inspection, and operation as prescribed in the ANSI B30.2.0-1967, Safety Code for Overhead and Gantry Cranes.

[[2/]] That provision says:

Section 2-0.1 Scope of B30.2

Within the general scope, defined in Section I, B30.2 applies to overhead and gantry cranes, including semi-gantry, cantilever gantry, wall cranes, storage bridge cranes, and others having the same fundamental characteristics. These cranes are grouped because they all have trolleys and similar travel characteristics. (emphasis added)

[[3/]] The parties did not litigate whether there were violations of any requirements in section 1926.554, and we will not adjudicate issues not before us. We mention, however, if the Secretary should encounter this situation again, that there may have been a violation of section 1926. 554(a)(2) here, as it was not the lifting mechanism that failed, but the support structure. Depending on the manufacturer's requirements, there also may have been a violation of 1926.554(a)(6).

[[*/]] This decision was not overruled in Lisbon, supra, based upon the dissimilarity of the machines used as cranes.