SECRETARY OF LABOR.

Complainant,

v.

TAMPA SHIPYARDS. INC.,

Respondent.

OSHRC Docket Nos. 86-0360 and 86-0469

DECISION

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

BY THE COMMISSION:

These cases are before the Commission based on the petition of Tampa Shipyards, Inc. ("Tampa") for discretionary review of the decision of Administrative Law Judge James D. Burroughs.  The portion of the judge's decision directed for review is his finding that Tampa willfully violated the general duty clause, section 5(a)(1), of the Occupational Safety and Health Act ("the Act"), 29 U.S.C. 654(a)(1).[[1]] The Secretary alleged that one of Tampa's cranes was used to hoist a load that was known to be in excess of the crane manufacturer's recommended load limitation ("rated load capacity").  While hoisting the load, the crane had collapsed and killed two employees.  For the reasons set forth below, we affirm the judge's finding of a willful violation, and the $8,000 penalty that he imposed.

BACKGROUND

Tampa operates a large shipping facility in Tampa, Florida.  At approximately 6:15 p.m. on October 4, 1985, a Tampa crane operator was using tower crane no. 6 to lift and then horizontally move part of a ship deck called the "0-1 section." [[2]]   In his decision, Judge Burroughs described the circumstances that led to the accident:

An eyewitness and participant in the lift, Wendell Croft, testified to the facts surrounding the lift.  His testimony is undisputed.  As rigger leaderman for the second shift, he received the turnover sheet from the day shift leaderman as to what was expected to be completed that evening.  He was told by Joe Seither, the day shift leaderman, to set the 0-1 section on the bow of a ship under construction.  He was not given any instructions as to how the lift was to be made.   He understood the load weighed 33 tons.  This weight was recorded on his paperwork.  He told William Caulley, leaderman of the crane operators, and James Morgan, the crane operator, what the load weighed.  The three of them discussed the load that evening.  Croft assigned two riggers, Michael Sicich and Ezekial Bains, to assist in hooking up the load and receiving it on the bow.

After discussing the lift and assigning riggers to assist, Croft went to the supervisor's office.  He returned to the crane site when they were ready to make the lift and was in radio communication with Caulley. There was concern over the weight of the load to be lifted.  Caulley had the boom angle of the crane set for a 21-ton lift.  Caulley, Croft and Morgan were aware that a lift of 33 tons was being attempted.  Croft agreed to watch the rollers of the cab and to notify Caulley by radio if the rollers commenced to raise off the turntable.  Caulley lifted the load a height of approximately 6 to 18 inches and held it while Croft observed that the wheels were firmly on the turntable.  The load was then lifted to a height of 10 feet above the dry dock and held for approximately 90 seconds to make sure the crane would handle the load.  The wheels remained on the turntable, and Caulley indicated he was going to place the load.  He commenced swinging the load to the north and the wheels started to rise from the tracks.  Croft told him that the wheels were coming up.  As the load was being swung horizontally to the north, the crane toppled.

(Footnotes and citations to record omitted).  Following an investigation of this incident, the Secretary issued a citation alleging that Tampa had willfully violated the general duty clause in that "[o]n or about October 4, 1985, and at other times, tower crane(s) were used to hoist loads, or boom out with hoisted loads, in excess of the crane manufacturer's recommendation."[[3]]  As a feasible abatement method, the citation stated that Tampa should "comply with the manufacturer's load rating indicator, which is located inside the cab of each crane, formulate a crane safety policy and institute a system of enforcement of that policy."

Judge Burroughs found that the practice of "[u]tilizing a crane to hoist loads in excess of the crane manufacturer's recommendation" was "'recognized [as a hazard] by officials of Tampa Shipyards." He held that such "overloading of a crane can cause it to overturn and result in death or serious physical harm to employees."  The judge further found that Tampa had no clearly defined policy for preventing overlifts and, in particular, that it lacked procedures for accurately determining the weights of the loads to be lifted.  Judge Burroughs concluded that the hazard could be abated by better communication and enforcement of detailed safety instructions prohibiting overloading.  These instructions would include procedures to ensure that accurate weights are provided to the crane operators.

DISCUSSION

In order to prove a violation of section 5(a)(1) of the Act, the Secretary must show that: (1) a condition or activity in the workplace presented a hazard to an employee, (2) the hazard was recognized, (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible means existed to eliminate or materially reduce the hazard.   E.g., United States Steel Corp., 12 BNA OSHC 1692 1697-98, 1986-87 CCH OSHD 27,517, p. 35,669 (No. 79-1998, 1986). The evidence must show that the employer knew, or with the exercise of reasonable diligence could have known, of the violative conditions.   Id. at 1699, 1986-87 CCH OSHD at p. 35,671, citing Getty Oil Co. v. OSHRC, 530 F.2d 1143, 1145 (5th Cir. 1976).

The direction for review is limited to the issues of whether the judge erred in holding that the Secretary proved: (1) that Tampa failed to use feasible means to materially reduce the hazard, (2) that Tampa had the requisite knowledge of the violation, and (3) that the alleged violation was willful. [[4]]

I. Whether there were feasible means to materially reduce the recognized hazard

As mentioned above, the Secretary bears the burden of establishing that feasible and useful means existed to eliminate or materially reduce the recognized hazards. Matthew Burkart, an expert on crane safety operations, testified to various feasible and useful measures that would minimize the hazard of a crane overload such as the one that occurred on October 4, 1985.  Those measures included installing a load indicator on each crane, creating a written crane safety policy, and monitoring potential overlifts.   We find that the Secretary met her burden of proof based on Burkart's testimony and other evidence.

a. Load indicators

The Secretary presented evidence as to six tower cranes (nos. 1 to 6) that were operated on adjacent piers in one area of Tampa's vast facility.  Tampa had attached a weighing device called a load indicator to the boom of only one of the six cranes (crane no. 3), and that device had been inoperable for at least six weeks before the accident.

Tampa had no effective system for weighing the cranes' loads.   Tampa's General Superintendent Ewell Rhoden testified that Tampa had a dynamometer which leadermen could use to determine the weights of loads about which they were concerned.  However, there was no evidence that Tampa required the use of the dynamometer, and the evidence clearly shows that no accurate weighing device was used consistently for potential capacity loads.  For example, crane operator Joseph Mossey testified:

when you make a lift, it's general knowledge, and the way I was taught was if they told you one weight, you try to give yourself approximately five times [sic] more towards your favor because a lot of times [the] weights are not correct, ....

There was additional testimony about numerous specific occurrences of failure to accurately weigh potential capacity loads on the cranes at issue during the weeks and months before the accident.  The record establishes that the 0-1 section involved in the accident had not been weighed beforehand.  A Tampa plant engineer testified that, after the accident, the load was determined to weigh 38.099 tons.   Croft had understood that it weighed 33 tons, and had passed on this erroneous information to both Caulley and Morgan.  Thus, although Caulley and Croft knew that crane no. 6 was overloaded before the fatal lift, they did not know the full extent of the overload.  Crane operator Mossey testified that he lifted the same load that was involved in the accident, earlier on the day of the accident, using crane no. 3.  He testified that "the only proper way of weighing is with the scales that are in the crane, and those were not working at the time."  Crane operator Johnny Lee testified without contradiction that, a few weeks before the accident, a rigger leaderman misinformed him as to the weight of a piece comparable to the one involved in the accident.  Crane operator Sims testified that he did not know the weight of certain grandstands that he lifted a few weeks before the accident, and which he believed approached or exceeded the crane's capacity.  Crane operator Charles Christie testified that in approximately August, 1984, he argued at length that it was unwise to lift a front-end loader whose weight was unknown.  He finally agreed to lift it, utilizing an extra safety precaution -- an electrician to check the limit switches.   (A limit switch is designed to prevent hazardous overtravel of the load block.) Crane operator Burton Ashmore testified that in early 1984 or late 1983, the weight of a sand hopper he was lifting was underestimated by 20 tons, resulting in an overlift.

In addition, crane operator Lee Hansen testified that many times during the years preceding the accident, the weights provided to him on crane no. 3 were incorrect.  He explained that he knew this because crane no. 3 had a load indicator, and he had checked the weights.  Hansen testified that he thought the weights given to him on other cranes were also wrong, because he would notice himself leaning forward in the cab, which would feel light, and he would observe unusual stress on the crane.  He stated that this occurred with the sand pots he routinely lifted as part of Tampa's ship sandblasting operation.

The testimony of these crane operators establishes that Tampa did not have an effective system for weighing, or even identifying, potentially excessive loads.  Burkart, the Secretary's expert witness, testified as to the measures that were needed:

if you don't know the weight of the load, you either have a load indicating device on the machine as you pick it up so you can get an accurate reading before you attempt to lift it, or you make an effort to calculate the load as accurately as possible through engineering calculations.

He testified that load indicators could be attached to each of the cranes in question, and that doing so would materially reduce the problem of inaccurate or unknown weights that crane operators were lifting.  Burkart further testified that load indicators, which have been on the market for a number of years, are quite common and accurate. His testimony establishes the feasibility and likely utility of installing load indicators on each of the six cranes, to materially reduce the risk of overlifts.

b. Written crane safety program

Tampa recognized the feasibility and utility of a written program for training crane operators.  Its contract with the employees' union contained the following provision:

a learner or apprentice program will be instituted at the Employer's yard.  Each program shall be reduced to writing as mutually agreed by the parties and such program shall be governed by the terms of those agreements and not [by] the terms hereof.

Searle Walton, Tampa's safety director, testified that "how we train the operators is really an apprenticeship program."

However, Walton acknowledged that Tampa had no written crane safety policy.  Its general employee safety manual did not relate directly to crane operators, but only to the duties of other employees when dealing with crane operators.   The only instruction course discussed in the evidence was one given by the union.[[5]]  Crane operator Barry Sims testified that he had trained new operators on behalf of Tampa, that he had received no guidance from the company as to what to tell the trainees, and that the trainees were not tested before they became crane operators.   Sims further testified that there was no written apprenticeship program at Tampa.   Crane operator Ashmore testified that his basic instructions on crane safety were to "use your best judgment."

Burkart testified that Tampa's oral, on-the-job training for crane operators "appears to be good," but that the lack of written safety instructions specific to crane operators was a defect in Tampa's safety program.  The evidence overwhelmingly establishes that Tampa did not have the kind of written apprenticeship program that it knew was necessary.  Furthermore, Burkart testified that Tampa's training of operators was deficient in numerous other ways, including: (1) the failure to tell operators what to look for during the required daily inspections of cranes;[[6]] (2) the failure to prohibit the operators' practice of lifting a load of unknown weight off the ground, with the boom angle set, to test the crane's capacity to transport the load; (3) the apportionment of a trainee's instruction to several different operators; and (4) the lack of a formal evaluation system to determine a trainee's qualifications.

Burkart described major improvements that could be made to Tampa's training program.  He testified that Tampa could readily develop an outline of what it needed to teach the operators, and a formal method of evaluating whether the operators were qualified.  He added that having such a program in place would result in a much safer operation because Tampa would know that its crane operators were qualified.  We conclude that the Secretary established that Tampa could have made numerous feasible and useful improvements to its crane safety program that would have materially reduced the risk of operators attempting overlifts on the cranes.

c. Monitoring Lifts

At the time of the crane collapse, Tampa had no system for monitoring compliance with the weight limitations of its cranes.[[7]]  Burkart described a monitoring program that would effectively enforce the prohibition against overlifts.  He testified that in such a program, the company's management instructs the crane operators and "front line supervision" (here, leadermen) never to attempt an overlift, and the leadermen's supervisors monitor lifts "to see that it doesn't happen."

Burkart testified that most lifts need not be monitored, because they will not approach the crane's rated capacity.  Thus, monitoring "a very small portion of [total lifts] soon gets the message across to the employees that overloads are not going to be tolerated ... [and] creates an awareness" which results in eliminating overloads.  Burkart discussed various nuclear power plant construction sites where effective crane safety programs had been instituted along the lines that he suggested.[[8]]  We find that Burkart's testimony establishes the feasibility and likely utility of a lift monitoring program in reducing the risk of overlifts.

Based on the discussion in section I, we find that the Secretary established the feasibility and likely utility of several abatement steps that would have materially reduced or eliminated the recognized hazard of hoisting loads in excess of the crane manufacturer's recommendations.  Those steps included installing and using a load indicator on each crane, developing a written crane safety program, and implementing a monitoring program for potential capacity lifts.

II. Whether Tampa had the requisite knowledge of the violative conditions

As mentioned above, the test of an employer's knowledge of a violation is whether the employer knew, or with the exercise of reasonable diligence could have known, of the violative conditions.  The actual or constructive knowledge of a foreman or other supervisory employee can be imputed to the employer. E.g., A. P. O'Horo Co., 14 BNA OSHC 2004, 2007,1991 CCH OSHD 29,223, p. 39,128 (No. 85-369,1991).  An employee who has been delegated authority over other employees, even if only temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an employer.   Id. Therefore, the Secretary may establish the requisite employer knowledge by showing that a supervisor knew or with the exercise of reasonable diligence could have known of the violative conditions.  The employer can rebut that showing by offering evidence that the supervisor's failure to follow proper procedures was unpreventable.   Id.

a. Whether the leadermen were supervisors

Here, the judge found that leadermen such as Croft and Caulley were supervisors, and that their knowledge of overlifts should be imputed to Tampa.  Tampa argues that imputing the leadermen's knowledge here is improper, because they were not supervisors.  For the reasons set forth below, we reject this argument.[[9]]

Tampa's collective bargaining agreement with its employees' unions stated that leadermen were first-line supervisors, and that the union has no right to interfere with the supervisory functions of leadermen.[[10]]  The leadermen were directly responsible to Tampa's management.  There was no level of supervision between the leaderman and Tampa's superintendents, Rhoden and Jim Baker.  In particular, the leadermen were responsible for informing the superintendents of safety problems reported to them by employees.  As noted above (note 8), the union contract clearly stated that an employee "will initially raise requests, complaints, or questions concerning his work" with the leaderman.   We find that where leadermen such as Caulley and Croft exercised this type of authority over the work being performed, they were supervisors whose knowledge is imputable to Tampa.  See O'Horo.

b. Whether the leadermen's knowledge should be imputed to Tampa

It is undisputed that, when the accident happened on October 4, 1985, leaderman Croft had been informed that the crane's load weighed 33 tons, that he told leaderman Caulley the weight, and that Caulley nevertheless proceeded with the lift, with the boom angle set for a load of only 21 tons.  Under the principles discussed above, that evidence makes a prima facie showing that Tampa, with the exercise of reasonable diligence, could have known of the violative conditions.

To rebut that prima facie showing, Tampa argues that on October 4, 1985, Caulley and Croft committed misconduct that was contrary to its safety policy and was unpreventable.  As mentioned above, to rebut the Secretary's prima facie proof that the knowledge of company supervisors should be imputed to it, the company must offer evidence that it had established work rules designed to prevent the violation, had adequately communicated those work rules to its employees (including supervisors), had taken reasonable steps to discover violations of those rules, and had effectively enforced the rules in the event of infractions.  E.g., O'Horo.  See Jones & Laughlin Steel Corp., 10 BNA OSHC 1778, 1782, 1982 CCH OSHD 26,128, p. 32,887 (No. 76-2636, 1982) (comparable evidence required to rebut Secretary's prima facie case of violation under 5(a)(1)).

In order to prevent overlifts, Tampa needed work rules designed to ensure that its crane operators and leadermen received accurate weight estimates for all potential capacity loads, and that they attempted no lift unless the weight estimate was safely within the crane's rated capacity.  Tampa, however, had no such rules.   Tampa notes that many of its crane operators and riggers were aware of an unwritten rule prohibiting crane overloads, because they were told by Anselmi, Tampa's President, not to make an overload and to come to him if there was an overload.  The crane operators recognized that it was a matter of common sense not to overload a crane.

However, that general understanding was inadequate to correct the longstanding, hazardous practices that led to so many overlifts.  As further discussed below, Tampa's leadermen and crane operators often made lifts based on inaccurate weight estimates, and they had a practice of testing the crane's ability to make a potential capacity lift by seeing how far off the turntable the rollers came.   These practices were not contrary to any of Tampa's work rules. Burkart, the Secretary's expert witness, testified that if the rollers came off the turntable, it indicated a "severe overload."  Thus, Tampa did not have the necessary work rules to deal with the root causes of the overlifts. For this reason alone, Tampa has failed to rebut the Secretary's prima facie evidence that its leadermen's knowledge of the violative conditions should be imputed to it.

Even if Tampa had created adequate work rules, there is no evidence that it attempted to discover violations of crane safety rules.  Thus, it could not have enforced its work rules effectively.  We therefore conclude that Tampa has failed to rebut the Secretary's prima facie showing that the knowledge of leadermen Croft and Caulley of the violative conditions on October 4, 1985, should be imputed to it.   Tampa had the requisite knowledge of the violation.  See 29 U.S.C. 666(j).

Ill. Willfulness

A willful violation is one committed with intentional, knowing or voluntary disregard for the requirements of the Act, or with plain indifference to employee safety.   E.g., Williams Enterp., 13 BNA OSHC 1249, 1256-57,1986-87 CCH OSHD 27,893, p. 36,589 (No. 85-355, 1987).  The employer is responsible for the willful nature of its supervisors' actions to the same extent that the employer is responsible for their knowledge of violative conditions.  E.g., Donovan v. Capital City Excavating Co., 712 F.2d 1008 (6th Cir. 1983) (finding of willful violation required where crew foreman knew that trench was not supported as OSHA compliance officer had said was required, yet foreman ordered crew to continue work in trench before protective equipment arrived); Central Soya de Puerto Rico, Inc. v. Secretary of Labor, 653 F.2d 38, 39-40 (1st Cir. 1981) (willful violation found because two first-level supervisors had received repeated warnings of serious fall hazard, and it was not corrected); Western Waterproofing Co. v. Marshall, 576 F.2d 139, 144-45 (8th Cir.) (employer is responsible for willful nature of foreman's disregard of instructions, where foreman's action is preventable), cert. denied, 439 U.S. 965 (1978) (cited in Georgia Electric Co. v. Marshall, 595 F.2d 309, 320 n.27 (5th Cir. 1979)).  For the reasons that follow, we find that Tampa is responsible for the plain indifference to employee safety that Caulley displayed in permitting the overlift on October 4, 1985.

Caulley was Tampa's chief leaderman for the crane operators.   He had a longstanding, reckless practice of allowing lifts in excess of the crane's capacity to proceed with the rollers off the turntable, as he did on October 4, 1985.   Crane operator Barry Sims, who had been a crane operator for Tampa for about 2 1/2 years before the accident, testified that Caulley came up to watch the rollers on his crane a "lot of times," and that "[g]enerally when he would come up in the crane, it was going to be an over lift...." Sims specifically recalled one such lift with crane no. 3, a month or less before the accident. A smokestack was being lifted that ultimately was determined to weigh about 40 tons. In order to place it where another crane could handle it safely, Sims' crane was boomed down to about 25-ton capacity.  This resulted in a 15-ton overlift.

Sims testified that at about the same time, he was directed to lift some grandstands to be used for the dedication of a ship.  Sims asked Caulley to come up, and told him, "We're booming down too far to pick them up."  Sims testified that Caulley told him to proceed with the lift, and that Caulley watched the rollers while he completed it.  Sims testified without objection that, "I think my rollers were off ... two inches."[[11]]

Caulley was not the only leaderman who permitted lifts without ensuring that the rollers would rest firmly on the turntable.  For example, crane operator Burton Ashmore testified that once, when he brought his leaderman's attention to the fact that the rollers on crane no. 5 were off the turntable during a 33-ton lift, the leaderman told him, "Well, you know, he's done it; everybody has done it.   That's practice." [[12]]  Ashmore's testimony about that leaderman's statement is not challenged.  There is no evidence that Tampa's safety practices changed between the time of the leaderman's statement to Ashmore, and the 1985 accident.

The testimony demonstrates that, specifically during the weeks and months before the accident, supervisors other than Caulley were informed of lifts proceeding with the rollers off the turntable.  Mechanic Don Leske testified that, during a lift on crane no. 6 in mid-September 1985, a few weeks before the accident, he saw the rollers in the back of the cab come up off the rail.  At that time, he brought the situation to the attention of the operator of the crane, James Screws.   Leske testified that he then informed the garage foreman of his observations.

Screws testified that the next morning, he informed his immediate supervisor, leaderman Marshall Abrams, of the overlift.  He also testified that it was the leaderman's job to inform General Superintendent Rhoden of such matters.  Tampa called Rhoden as a witness to testify on other matters, and he did not refute Screws' testimony in any respect.

Crane operator Ashmore testified that he informed rigger leaderman Seither, during a lift in mid-1984, that the rollers were not firmly on the turntable, and that after Seither held a discussion with Rhoden, Rhoden directed Ashmore to proceed with the lift.  The lift involved a ship section that Ashmore was sure exceeded the rated capacity of crane no. 5, which he was operating.  The load was the same kind of 0-1 section that was involved in the 1985 accident. Ashmore testified that he felt the rear of the crane come up when he initially picked up the 0-1 section.  He then "yelled down" to Seither that the piece was too heavy, and specifically that the rear end of the crane had come up.

Ashmore then set the load down.  He observed Seither talking with Rhoden, after which Rhoden walked over, pointed his finger up at Ashmore, and indicated vehemently that he wanted him to lift the load again.  Ashmore got the impression from Rhoden's attitude on that occasion that he could be fired for failure to make an overlift as directed.  Ashmore did not know whether Rhoden actually knew that the crane was overloaded.  However, Ashmore believed that Rhoden was within earshot when Ashmore yelled down to Seither about the apparent overlift.  Ashmore's testimony about that specific incident was not contradicted.

The leadermen's practice of attempting lifts with the rollers off the turntable was reckless.  As mentioned above, crane operations expert Burkart testified that if rollers come off the turntable during a lift, it indicates "a severe overload."  The crane operators who testified had the same understanding.[[13]]  Burkart explained that the maximum capacity of a crane is rated at only 75 percent or 85 percent of the load that could cause the rollers to leave the turntable.  He gave the opinion that the type of crane involved in the accident was not designed so that the rollers may leave the turntable safely.[[14]]

The evidence demonstrates that none of the cranes at issue were designed to operate safely with their rollers off the turntable.  The crane involved in the accident was crane no. 6, which was a Clyde "whirly" crane.  Crane nos. 1, 2, 4, and 5 also were Clyde "whirly" cranes, as Tampa's Safety Director testified. [[15]]   Burkart testified that crane nos. 5 and 6 were identical "except for a few small details .... " Crane Operator Lee testified that crane no. 3 was a Diamond crane.  Tampa presented no evidence that crane no. 3 was designed to operate safely with the rollers off the turntable.

Under the principles set forth at the outset of this section, Tampa is responsible for its leadermen's longstanding, well-known and reckless practice of attempting lifts with the rollers off the turntable.  Tampa is equally responsible for the well-known, reckless practice of allowing lifts to proceed without an accurate weight estimate, including potential capacity lifts.  Despite the knowledge among supervisors of these reckless practices, Tampa's crane safety program remained lax.

For example, as discussed above, Tampa failed to develop a system calculated to ensure that the crane operators received accurate weight estimates. Tampa's employee training was haphazard, with no work rules designed to prevent crane operators from lifting loads that did not have an accurate weight estimate safely within the crane's rated capacity.  Tampa failed to take steps to create the written apprenticeship program for crane operators that it was contractually obligated to prepare.   Nor did it develop a monitoring program to detect violations of crane safety requirements.

Tampa's failure to provide accurate weighing methods is particularly difficult to understand in light of crane operator Hansen's testimony that Tampa actually had load indicators lying on the floor of the cabs on crane nos. 4, 5 and 6 when those cranes were being assembled during his first two years with Tampa, starting in 1980.  Hansen did not know whether the load indicators were actually part of those cranes.  However, Tampa did not suggest any other reason why they were in the cabs, and failed to explain why it never installed load indicators on those cranes.

The evidence establishes that Tampa is responsible for the plain indifference to employee safety that its leadermen showed by their reckless crane lifting practices, including Caulley's actions on October 4, 1985.  See, e.g., Mineral Industries & Heavy Constr. Group, Brown & Root, Inc. v. OSHRC, 639 F.2d 1289, 1295 (5th Cir. 1981) (failure to institute and enforce procedures known to be required constitutes willful violation).  The evidence shows "such reckless disregard for employee safety ... that one can infer that if the employer had known of the [legal provision], the employer would not have cared that the conduct or conditions violated it."  Williams Enterp., 13 BNA OSHC at 1257, 1986-87 CCH OSHD at p. 36,589.  The Secretary has made the concrete evidentiary showing required to establish that Tampa willfully violated section 5(a)(1).  Cf., e.g., United States Steel Corp., 12 BNA OSHC at 1703, 1986-87 CCH OSHD at p. 35,675 (citing, inter alia, St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840, 846 (8th Cir. 1981)) (more concrete evidentiary showing is required to prove violation of general duty clause than of more specific standard).[[16]]

Tampa attempts to minimize the significance of the overlifts by arguing that there were ten million lifts at the shipyard during the seven years before the accident.  There is no basis in the record for that assertion, however.  Its apparently rests on the representation by Tampa's counsel, not supported by evidence, that all the cranes on its vast worksite were used for two shifts a day for seven years, making about 100 lifts a day.  However, this case relates only to tower crane nos. 1 through 6, and crane nos. 1 and 2 were not operated during 1985.  The large number of reckless lifts on those cranes during the weeks and months before the accident establishes that a widespread, severe, and well-known safety hazard of overlifts way ongoing on the worksite.

Tampa argues that its safety efforts were made in good faith, thus precluding a finding of willfulness.  If an employer has made a good faith effort to comply with the Act's requirements, a finding of willfulness is not justified, even though the employer's efforts are not entirely effective or complete.  However, the test of good faith in this regard is an objective one -- whether the employer's efforts to comply were reasonable under the circumstances.  See Calang Corp., 14 BNA OSHC 1789, 1792-93, 1987-90 CCH OSHD 29,080, p. 38,872-73 (No. 85-319, 1990) (employer's use of certain safety measures does not constitute objective good faith effort to comply with standard, where employer provides no reasonable basis for failing to use other required safety measures).  Tampa fails this test.  Its lack of response to the widely known problem of overlifts was unreasonable.  For example, as discussed above, Tampa has given no reasonable basis for failing to provide an operable load indicator on each crane, written training materials for crane operators, and a monitoring program to detect overlifts.[[17]] Accordingly, Tampa's violation on October 4, 1985, was willful.

PENALTY

The hazards caused by overloading cranes were severe, as the fatalities demonstrate.   Tampa had a vast shipyard with a large number of cranes and employees.  Its safety program was deficient in crucial respects.  In light of the willful nature and high gravity of the violation, and having considered the other relevant considerations set out at 29 U.S.C. 666(j), we find that the $8,000 penalty proposed by the Secretary and assessed by the judge is appropriate.

CONCLUSIONS

For the reasons set forth above, we affirm a willful violation of the general duty clause of the Act, as alleged in Item 1 of the willful citation in Docket No. 86-360.  We assess a penalty of $8000 for that violation.

Edwin G. Foulke, Jr.

Chairman

Donald Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: March 10, 1992


SECRETARY OF LABOR,

Complainant,

v.

TAMPA SHIPYARDS, INC.,

Respondent.

OSHRC Docket Nos. 86-0360 and 86-0469

(Consolidated)

APPEARANCES:
Curtis L. Gaye, Esquire, and James L. Stine, Esquire, Office of the Solicitor, U. S. Department Of Labor, Atlanta, Georgia, on behalf of complainant

Robert D. Moran, Esquire, Washington, D. C., on behalf of respondent

DECISION AND ORDER

Burroughs, Judge: Tampa Shipyards, Inc., contests a serious citation, alleging a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970 ("Act"), and a willful citation, alleging four violations of section 5(a)(1), issued to it on March 3, 1986.  The citations emanated from an investigation of two fatalities occurring on October 4, 1985, as a result of a crane falling at respondent's shipyard in Tampa, Florida.  Tampa Shipyards also contests a serious citation issued to it on March 14, 1986, as the result of an accident investigation of a fire and explosion occurring on board the ship Robert G. Matthiesen.

A proposed decision was forwarded to the parties on June 18, 1987.  Counsel for the Secretary filed a motion for reconsideration on June 30, 1987, requesting that this Judge reconsider that portion of the decision holding that 29 C.F.R. 1910.179 was applicable to the cranes used by Tampa Shipyards. The proposed decision concluded that provisions of 1910.179 were applicable to three of the alleged 5(a)(1) violations.  Since a specific standard was determined to apply to the facts, the Secretary was precluded from relying on section 5(a)(1) of the Act.  The motion to reconsider was granted by an order issued on July 6, 1987, and the proposed decision mailed to the parties on June 18, 1987, was withdrawn.  On reconsideration, it is concluded that no standards are applicable to the cranes in question.

The Crane Case (Docket No. 86-0360)

On October 4, 1985, at approximately 6:15 p.m. during the second shift, a crane accident occurred at Tampa Bay Terminal shipyards.  The number 6 crane, operated by James J. Morgan, the crane operator, and William, F. Caulley, the crane operator leaderman, fell to the surface of the number 2 dry dock while lifting a part of a ship deck referred to as an 0-1 section (Tr. 36, 41-42, 165).  Both employees were killed.  All of the alleged 5(a)(1) violations pertain to conditions regarding cranes, referred to as numbers 1, 2, 3, 4, 5 and 6, used by Tampa Shipyards in its operations.

Preemption Defense

Tampa Shipyards argues that it has been improperly charged with violating section 5(a)(1) of the Act.  It contends that section 5(a)(1) is inapplicable to the facts because OSHA has adopted standards which address the subject matter of the alleged violations. This argument relies on the principle established by the Commission "that the Secretary cannot rely on the general duty clause when a specific standard applies to the facts."  Kastalon, Inc., 86 OSAHRC___, 12 BNA OSHC 1928, 1929, 1986 CCH OSHD 27,643, p. 35,971 (Nos. 79-3561 & 79-5543, 1986), appeal filed, September 16, 1986 (7th Cir., No. 86-2528), withdrawn December 16, 1986.  Where no occupational safety or health standard is applicable, the Secretary can rely on the general duty clause to obtain correction of a workplace hazard.  Kastalon, Inc., supra.

The Secretary argues that section 5(a)(1) is appropriate because no specific standards deal with the particular cranes and conditions in issue.   The standards cited by Tampa Shipyards as being applicable, according to the Secretary, are limited in scope.  While some standards may cover similar situations with certain types of cranes, the Secretary contends that they are not applicable to the cranes cited in this case.

Tampa Shipyards refers to standards in Subpart G of Part 1915, among others, as being applicable to the cranes in issue.  Part 1915 of 29 C.F.R. contains specific standards applicable to all repairing, shipbuilding and shipbreaking employments.  29 C.F.R. 1915.2(a).

There is no dispute that Tampa Shipyards is engaged in the ship repairing and shipbuilding business.  The standards referred to by Tampa Shipyards in Subpart G are directed toward gear and equipment for rigging and material handling.  Section 1915.111 provides for inspecting of gear and equipment used for rigging.  Section 1915.112 applies to ropes, chains and slings.  Section 1915.113 applies to shackles and hooks.   Section 1915.114 applies to chainfalls and pull-lifts.  Subsections (a) and (c) of section 1915.115 apply to derricks and cranes but are limited to those "which are part of or regularly placed aboard barges, other vessels or on wingwalls of floating drydocks" and mobile crawler or truck cranes used on a vessel.  Section 1915.116 applies to the use of gear.  While section 1915.117 is entitled "Qualification of operators," no specific provision of that standard covers the conditions in issue.   There are no specific standards in Subpart G of Part 1915 that are applicable to the conduct allegedly in violation of section 5(a)(1) in this case.

Where there are no specific standards, a general standard which might otherwise be applicable to the same condition will prevail.   29 C.F.R. 1910.5(c)(1) and (2).  Tampa Shipyards submits that the general industry standards, Part 1910 of 29 C.F.R., apply to all users of cranes including those engaged in maritime operations.  In Dravo Corporation v. OSHRC, 613 F.2d 1227, 1234 (3d Cir. 1980), the court concluded:

. . . . even in areas properly citably under specific maritime standards, the Secretary my hold an employer to the general industry standards in those situations where no specific standard is applicable.

The Secretary does not contend that the general industry standards are not applicable in the absence of specific maritime standards, [[1/]] he does contend that the general industry standards pertaining to cranes are inapplicable to the tower or portal cranes used by Tampa Shipyards.  The Area Director is directed to issue citations under the general duty clause "in appropriate circumstances where employees are exposed to hazards which are covered by neither shipyard employment (Part 1915) nor General Industry Safety and Health Regulations (Part 1910)."  Section D.3, OSHA Instruction STD.2 issued November 4, 1985.

While OSHA Instruction STD.2 makes reference to the applicability of 1910.179 and 1910.180 to shipyard employment, the instruction is clear in section D that the standards are to be enforced "in a manner consistent with their respective scopes and definitions."  They apply in appropriate circumstances. Their inclusion in Appendix A of the instruction is not interpreted to mean that they apply to all cranes used in a shipyard regardless of design, operation and other fundamental characteristics.

One of the difficulties in determining if the general industry standards apply concerns the proper classification of cranes 1 through 6.  Counsel for the Secretary and the numerous crane operators testifying in this matter referred to the cranes as gantries (Tr. 147, 163, 172, 218, 239, 244-245, 267, 328, 578, 588-589, 732).  The citations refer to the cranes as tower cranes.  Matthew Burkhart, a crane expert testifying on behalf of the Secretary, classified the cranes as portal cranes which run on rails with a revolving structure on top (Tr. 850, 1024, 1038).   According to Burkhart, the difference between a portal and tower crane is that the portal crane has an opening at the bottom of the structure supporting the crane; whereas, the tower crane has lacework from the top to the bottom of the support structure (Tr. 850, 1024, 1038).  The cab of the crane that fell was situated on a turntable or rail circle on top of a tower approximately 80 feet high.  The turntable allowed the crane to turn by means of rollers underneath the cab.  The tower configuration had a mobile base that allowed it to move along rails (Ex. 12; Tr. 81, 173, 457, 710, 1117).  The crane could move to any point along the rails.  It had a rotating superstructure with operating machinery and boom.

Section 4-0.2 of the ANSI Standard for Portal, Tower, and Pillar Cranes, B30.4-1981, defines a gantry as "[A] movable structure frame consisting of columns and bracing capable of supporting a crane with its working and dynamic loads."  The cranes in this case were on "a movable structure frame."  Section 4-0.2 of ANSI B30.4-1981 defines a portal crane and tower crane as follows:

crane, portal.  A crane consisting of a rotating superstructure with operating machinery and boom, all of which is mounted on a gantry.   The crane and gantry assembly may be fixed or mobile.  An opening for traffic is normally provided between the gantry columns or legs.  (Fig. 4)

crane, tower.  Similar to a portal crane, but with a tower between the rotating superstructure and gantry or fixed foundation and no provision is normally made for traffic (Figs. 1 and 2).  To resist overturning moments, the assembly may be counterweighted, fixed to a foundation, or a combination of both.   The gantry (tower) and crane may be fixed or mobile (horizontally or vertically).

A portal crane is mounted directly on a gantry.  A tower crane has a tower between the rotating substructure and the gantry.  The cranes in this case had a tower between the rotating substructure and the gantry (defined as a "movable structure frame").  A tower crane is illustrated in Figure 1 of ANSI B30.4-1981 as follows:

*The pictorial referred to above is not available in this format.

Please telephone the Review Commission Public Information Office, 202-606-5398, to request a paper copy; TTY: 202-606-5386; FAX: 202-606-5050; e-mail: lwhitsett@oshrc.gov

The configuration of Figure 1 is similar to Exhibit 12, which is a photograph of crane number 5, and to Exhibit 17, which is a drawing of a crane resembling crane number 6 (Tr. 455, 822).  The bottom portion of the crane in Figure 1 is referred to as the gantry.   It supports the tower and rotating superstructure of the crane at the top of the tower.  It is called a gantry since it moves along the rails.

The record contains little evidence as to the characteristics and configuration of cranes 1 through 4.  Burkhart, who observed cranes 1 through 5, testified that they were basically portal cranes "running on rails with a revolving structure on top" (Tr. 850).  He stated that cranes 5 and 6 were similar (Tr. 1031).  The safety manager for Tampa Shipyards, Searle Walton, also testified that cranes 5 and 6 were similar (Tr. 455).  Crane operator Barry Sims thought cranes 5 and 6 were identical (Tr. 678).  The crane operators and counsel for the Secretary referred to all the cranes as gantries.  According to Burkhart, people in the trade often refer to tower cranes as gantries (Tr. 1034).  There is no evidence indicating that cranes 1 through 4 were any different than those described by Burkhart, and there is no reason to assume or believe they should be classified differently than cranes 5 and 6.   Accordingly, it is concluded that crane numbers 1 through 6 are properly classified as tower cranes.

Burkhart's statement that the cranes were "basically a portal crane" is not inconsistent with the classification of the cranes as tower cranes.  He stated that the cranes could be called a portal or a tower crane, depending on how one interprets the definition (Tr. 1033).  The definition of tower crane in ANSI B30.4-1981 states that it is "similar to a portal crane."   Figure 1 refers to the portal area.  It is further noted that the 1973 edition of ANSI B30.4 defined a tower crane as follows:

4-0.2.1.2  Tower Crane.  A portal crane, with or without an opening between the legs of its supporting structure, adapted to hoist and swing loads over high obstructions and mounted upon a fixed or mobile tower-like gantry.  The revolving crane may be supported on the tower by a revolving mast or by a turntable.

This definition refers to a tower crane as a portal crane, whereas the 1981 edition of the standard uses the phrase "similar to a portal crane."  It is clear that a tower crane can be referred to as a type of portal crane.

In arguing that general industry standards are applicable to the cranes in question, Tampa Shipyards makes particular reference to the provisions of 29 C.F.R. 1910.179 and 29 C.F.R. 1910.180.  The law is clear that the general industry standards, Part 1910 of 29 C.F.R., can apply to users of cranes engaged in maritime operations if there are no specific standards covering the factual allegations of the cranes in issue.  Since Part 1915 does not cover the conduct in question, a determination must be made as to the applicability of 1910.179 and 1910.180.

Section 1910.179 pertains to overhead and gantry cranes.   Its application is set forth under 1910.179(b) as follows:

(b) General requirements--(1) Application.  This section applies to overhead and gantry cranes, including semigantry, 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.

While the cranes in issue were commonly referred to as gantries by employees, they do not fit the definition of a gantry crane as defined by 1910.179(a)(6), which states:

"Gantry crane" means 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.

The tower cranes have no bridge or trolley but do have a movable structure frame, referred to as a gantry, [[2/]] that can travel on fixed rails.   In a technical sense, the tower cranes in issue and gantry cranes have at least one similar travel characteristic since they both move on fixed rails.

Subsection (b) of 1910.179 specifically states that the listed cranes are grouped because "they all have trolleys and similar travel characteristics "(Emphasis added).  Even if it is concluded that the phrase "similar travel characteristics" refers to travel along fixed rails rather than to the travel of the trolley, the tower cranes have no trolleys [[3/]] and different operating characteristics.  The tower cranes have no bridge rails which carry the hoisting mechanism.  They have a rotating superstructure with operating machinery and boom.  The boom can rotate 360 degrees.  A gantry crane has no rotating superstructure and has a hoisting mechanism in lieu of a boom.  It has a flat bridge between two towers or supports.  A trolley runs across the bridge.  The hoisting mechanism travels along the bridge rail rather than rotating on a turntable like the superstructure of a tower crane.

Gantry cranes are defined by 1910.179(a)(6) as being "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."  The trolley moves at right angles to the crane runway.[[4/]]  The tower cranes in use by Tampa Shipyards do not have trolleys that move at right angles to the runway.  They have rotational movement of the boom.  The configuration and operating characteristics of tower cranes are different from gantry cranes.  While both types of cranes have travel characteristics along rails, tower cranes have no trolleys and no trolley travel.  Gantry cranes are depicted in ANSI B30.2.0-1967, Overhead and Gantry Cranes, as follows:

*The pictorial exhibit referred to above is not available in this format.

Please telephone the Review Commission Public Information Office, 202-606-5398, to request a paper copy; TTY: 202-606-5386; FAX: 202-606-5050; e-mail: lwhitsett@oshrc.gov

Tower cranes do not meet the general requirements specified for gantry cranes set forth at 1910.179(b).  Section 1910.179 is not applicable to crane numbers 1 through 6.

The provisions of 1910.180 pertain to crawler locomotive and truck cranes, "wheel mounted cranes of both truck and self-propelled wheel type, and any variations thereof which retain the same fundamental characteristics."[[5/]]  The definitions of "crawler crane," [[6/]] "locomotive crane,[[7/]] "truck crane"[[8/]] and "wheel mounted crane" [[9/]] indicate that cranes grouped under 1910.180 are those which are equipped for travel.  While the tower cranes used by Tampa Shipyards can be pushed or pulled along a railroad track, they are not equipped with any type of powerplant for independent travel or movement.  Their travel is limited to a path along rails laid in a particular direction.  Each of the cranes referred to in 1910.180(b)(1) has a power source for travel.

The crawler crane has crawler treads for travel.  A locomotive crane is mounted on a base or car equipped for travel on a railroad track.  It may be self- propelled or propelled or propelled by an outside source.  A truck crane is mounted on an automotive truck equipped with a powerplant for travel.  A wheel mounted crane is mounted on a base or platform equipped with axles and rubber-tired wheels for travel.   The tower crane has no such methods for travel even though it sits on a railroad track.  Section 1910.180 is deemed inapplicable to crane numbers 1 through 6 used by Tampa Shipyards.  They do not have the "same fundamental characteristics" specified for cranes under 1910.180(b).

Serious Citation

The serious citation issued on March 3, 1986, alleges that Tampa Shipyards violated section 5(a)(1) by allowing tower cranes to be operated by "employee(s) who were not qualified by extensive knowledge, training and experience."  Tampa Shipyards argues that "[t]here are specific OSHA standards regulating the qualification of crane operators, 29 C.F.R. 1915.117 (b)-(d), 1910.179(b) (8) and 1910.180(b) (3)."  Assuming arguendo that the cited standards apply to tower cranes, they contain no specific provisions concerning the qualifications for crane operators alluded to by the Secretary.[[10/]] Since there are no specific standards applicable, the Secretary may rely on section 5(a)(1) if the facts support such determination.

The burden is on the Secretary to prove all elements of a section 5(a)(1) violation.   Cerro Metal Products Division, Marmon Group, Inc., 86 OSAHRC _______, 12 BNA OSHC 1821, 1822, 1986 CCH OSHD 27,579 (No. 78-5159, 1986), appeal filed, July 7, 1986 (3d Cir., No. 86-3397), withdrawn July 31, 1986.  In order to establish such a violation, the Secretary must prove: (1) the employer failed to render its workplace free of a hazard, (2) the hazard was recognized either by the cited employer or generally within the employer's industry, (3) the hazard was causing or was likely to cause death or serious physical harm, and (4) there was a feasible means by which the employer could have eliminated or materially reduced the hazard.  Phillips Petroleum Co., 84 OSAHRC 2/E7, 11 BNA OSHC 1776, 1779, 1984 CCH OSHD 26,783 (No. 78-1816, 1984), aff'd, F.2d ___, 1985 CCH OSHD 27,428 (10th Cir. 1985).

Tampa Shipyards contends that the evidence is insufficient to sustain the allegation that the operators were not qualified.  It has an unwritten program of on-the-job training for crane operators which was found lacking by the Secretary (Tr. 55-57, 60-61, 163-164, 483-484, 490, 589, 591, 647).  A considerable number of deficiencies was determined in the training program.  This type of evidence does not establish that a particular individual is unqualified to perform the duties of a crane operator.  One of the obvious abatement methods for unqualified operators may be a written training program and proper supervision; however, the hazard is still the use of unqualified operators.  It is not the lack of a proper training program and supervision that constitutes the hazard.  There is no evidence to indicate any particular crane operator was unqualified.  There is also no evidence establishing how the operators as a group or individually were unqualified.

Most of the operators testifying in this case had considerable years of experience operating a crane.  While some of them received their training at Tampa Shipyards, others were trained through the union apprentice program or by other employers.  Crane operator Johnnie Lee testified that he had been a crane operator for 20 years prior to working for Tampa Shipyards (Tr. 233).  Crane operator Charles Christie had completed five years of union apprenticeship before commencing work at Tampa Shipyards (Tr. 730).  Each of the crane operators testifying in this matter believed that he and the other operators were fully qualified to operate the cranes to which he had been assigned.  (Tr. 192, 233, 416-418, 535-536, 633-634, 698, 701, 702, 704, 729, 736).  There is evidence to indicate that Caulley and Morgan were both qualified operators (Tr. 112-113, 654-655, 703-704).  There is no discrete evidence to the contrary. Counsel for the Secretary stipulated that Caulley was qualified (Tr. 702-703).

Burkhart testified that Tampa Shipyards needed to develop an outline as to what has to be taught to a crane operator and a system of formal evaluation to determine if an operator is qualified (Tr. 943).  He noticed a deficiency in the "training of operators on some of the procedures and theories so that all the operators are operating in the same framework" (Tr. 942-943).  Even if there were deficiencies in the training program, the deficiencies do not per se establish any particular operator to be unqualified.  This is especially true since many of the operators had years of experience as crane operators with other employers or had gone through the union apprentice program for Crane operators.  Tampa Shipyards secured crane operators from the union hall (Tr. 480).  While Burkhart testified concerning qualification of crane operators, he conceded that he could not identify any unqualified crane operator at Tampa shipyards (Tr. 1019-1020).   While section 4-3.1.2, of ANSI B30.4-1973 states that "[o]perators shall be required to pass a practical operating examination," no evidence was introduced to show that any crane operator working for Tampa Shipyards failed to pass such an examination.

Tampa Shipyards was not cited for deficiencies in its training program.  The issue for decision involves the qualifications of the crane operators.   The Secretary has failed to meet its burden on the issue.  The alleged section 5(a)(1) violation is vacated.

Willful Citation

Item one of the willful citation alleges a violation of section 5(a)(1) for hoisting loads in excess of the manufacturer's recommendation.  There is no dispute over the fact that crane number 6 was involved in a lift of at least 33 tons [[11/]] at a boom angle which gave the crane a lifting capacity of 21 tons.  Tampa Shipyards concedes that "[t]here seems to be no question that Caulley and Morgan were wrong in making this lift at the boom angle they selected" (Brief, pg. 20).

An eyewitness and participant in the lift, Wendell Croft, testified to the facts surrounding the lift.  His testimony is undisputed.  As rigger Ieaderman for the second shift, he received the turnover sheet from the day shift Ieaderman as to what was expected to be completed that evening.  He was told by Joe Seither, the day shift leaderman, to set the 0-1 section on the bow of a ship under construction (Tr. 105-106).   He was not given any instructions as to how the lift was to be made (Tr. 106).   He understood the load weighed 33 tons.  This weight was recorded on his paperwork (Tr. 106, 112, 132).  He told William Caulley, leaderman of the crane operators, and James Morgan, [[12/]] the crane operator, what the load weighed (Tr. 106, 112, 113, 142).  The three of them discussed the load that evening (Tr. 106-107).   Croft assigned two riggers, Michael Sicich and Ezekial Bains, to assist in hooking up the load and receiving it on the bow (Tr. 107, 141-142, 145).

After discussing the lift and assigning riggers to assist, Croft went the supervisor's office.  He returned to the crane site when they were really to make the lift and was in radio communication with CauIley.  There was concern over the weight of the load to be lifted (Tr. 108).  Caulley had the boom angle of the crane set for a 21-ton lift.  Caulley, Croft and Morgan were aware that a lift of 33 tons was being attempted (Tr. 108).  Croft agreed to watch the rollers of the cab and to notify Caulley by radio if the rollers commenced to raise off the turntable (Tr. 107, 122, 144).   Caulley lifted the load a height of approximately 6 to 18 inches and held it while Croft observed that the wheels were firmly on the turntable (Tr. 108, 114).  The load was then lifted to a height of 10 feet above the dry dock and held for approximately 90 seconds to make sure the crane would handle the load (Tr. 109, 114, 115).  The wheels remained on the turntable, and Caulley indicated he was going to place the load.  He commenced swinging the load to the north and the wheels started to rise from the tracks.   Croft told him that the wheels were coming up.  As the load was being swung horizontally to the north, the crane toppled (Tr. 109, 115). [[13/]]

The accident occurred around 6:15 p.m. on October 4, 1985, a Friday.  Immediately after the accident, Tampa Shipyards employees commenced investigating to ascertain the cause of the accident.  The safety director, Searle Walton, [[14/]] testified that he arrived at the yard within a half hour of the accident and that employees had already commenced the investigation.  The investigation continued late into the night (Tr. 427).  Searle continued the investigation through Saturday and Sunday (Tr. 430).   On Monday, October 7, OSHA inspectors arrived to commence an investigation (Tr. 430).  The company investigation ceased while OSHA personnel were conducting their inspection (Tr. 430, 435).  When the company initiated its investigation, there was concern that the accident may have been caused by a crane failure (Tr. 434, 435).

After a few hours of investigation, company officials concluded that there was not a crane failure but that the accident was caused by the way the load was lifted (Tr. 435, 542).  The boom angle and the weight of the 0-1 section were not compatible to make a safe lift (Tr. 435-436, 542, 543).  The lift was not beyond the 40-ton capacity of the crane but was beyond the capacity for the particular boom angle at which the load was being lifted (Tr. 436).  Morgan and Caulley were lifting a load thought to weigh 33 tons with a boom angle set for a safe lift of 21 tons.  When the Iift was made, Caulley, Morgan and Croft were aware that they were lifting at least 33 tons with the crane set at a boom angle to pick up 21 tons (Tr. 108).  Croft acknowledged that the boom angle resulted in an overload of the crane (Tr. 108).

Tampa Shipyards argues that there can be no section 5(a)(1) violation because specific standards apply to the undisputed facts.  Reference is made to 1915.111(b), 1915.115(c)(2), 1915.116(b), 1915.117(a), 1918.51(a), 1910.179(b)(5), (m) and (n), and 1910.180(h) (Brief, pg.19).  Part 1915 sets forth safety and health standards specifically applicable to shipyard employment but, as previously discussed, contains no provisions applicable to the conditions cited in this case.  Part 1918 applies to longshoring and is not applicable to the operations conducted by Tampa Shipyards involving shipbuilding and repair. Sections 1910.179 and 1910.180, for reasons previously discussed, are inapplicable to the allegation since those sections do not apply to tower cranes.

There is no dispute over the fact that the lift attempted by Caulley and Morgan on October 4, 1985, exceeded the manufacturer's recommended load capacity.  The Secretary contends that this was a recognized hazard.  The evidence fully supports this determination.  Utilizing a crane to hoist loads in excess of the crane manufacturer's recommendation is a hazard of common knowledge to those who operate or are familiar with the operation of cranes. The hazard was so recognized by officials of Tampa Shipyards and its crane operators.  The crane operators, in general, recognized that the crane's rated load capacity should always be observed (Tr. 51, 251, 567-570, 598, 637, 769).  Crane operator Barry Sims stated: "It's general knowledge don't overload a crane"(Tr. 705).  The president of Tampa Shipyards, Ralph Arselmi, recognized the hazard by personally advising the crane operators that cranes should never be overloaded (Tr. 188-190, 263, 347, 705, 771).   Respondent's safety director, Searle Walton, acknowledged that the boom angle and weight lifted were not compatible with a safe lift (Tr. 436).  He would not permit someone to make a lift that he knew was an overload; however, he also pointed out that he is not consulted by the crane operator when a lift is being made (Tr. 558).  Burkhart testified that the lifting of loads in excess of the rated load capacity is a hazard (Tr. 944-945) and should never be done (Tr. 853).  There was general agreement among all witnesses that lifting loads in excess of the crane's rated load capacity presents a hazard.  This type of workplace hazard is also recognized by section 4-3.2.1a of ANSI B30.4-1973 and promulgated standards applicable to other types of cranes and is specifically prohibited. [[15/]]

Two employees in the crane and an unknown number of employees on the ground were exposed to the recognized hazard.  The evidence fully supports the additional two elements necessary to establish a section 5(a)(1) violation.  The overloading of a crane can cause it to overturn and result in death or serious physical harm to employees.  This is especially true where the crane sits on an 80-foot tower.  The safety program of Tampa Shipyards with respect to enforcement of crane safety procedures was somewhat lax.   The safety program for crane operators was oral (Tr. 476-477, 480).  There was no written rule regarding overloading of cranes.  There is no evidence that training among operators was consistent or that all necessary elements for a successful safety program were included.  The hazard can be abated by utilizing consistent and detailed safety instructions, better communication of those instructions to employees, better supervision of employees and uniform enforcement.  Tampa Shipyards was deficient in all these areas with respect to its crane operators.

Tampa Shipyards argues that it had no knowledge of the overload condition and that the condition was not reasonably foreseeable (Brief, pgs. 20-21).   It points out that Caulley and Morgan were qualified crane operators with many years of experience in crane operations.  Neither of them had ever been involved in an accident.  It is further argued that there is no evidence showing Tampa Shipyards was aware that either Caulley or Morgan had lifted a load in excess of a crane's rated load capacity (Brief, pg. 21).  It points out that eight full-time safety specialists are employed to search for unsafe conditions and that the safety director would fire any supervisor who tried to make any operator hoist an overload.  The statement by the safety director that he would be fired if be did not fire the supervisor (Tr. 559) is hypothetical and meaningless since be concedes that he is not consulted about lifts (Tr. 558) and that if he does not know about a situation, he does not get involved (Tr. 559).

While Tampa Shipyards argues that it had no knowledge of the overload, it is an undisputed fact that William Caulley, leaderman for the crane operators, and Wendell Croft, leaderman for the riggers, were both aware of the overlift and, in fact, were both directly involved in making the lift.  They were both employed by Tampa Shipyards as leadermen, and their supervisor was Elwell Rhoden, general superintendent for Tampa Shipyards (Tr. 201-202, 1108).  Unlike other crafts, there was no foreman between them and the general superintendent (Tr. 1108).  The argument that Croft and Caulley were not part of management and their knowledge imputable to Tampa Shipyards ignores reality.  If they were not part of management for supervision purposes, then Tampa Shipyards had insufficient supervision of crane operators and riggers.  The only person with supervision over Caulley and Croft was the general superintendent.  In commenting on the duties of the general superintendent, counsel for respondent stated (Tr. 71):

MR. MORAN: WelI, Your Honor, this is a mammoth operation.   There are probably 25, maybe a hundred cranes there.  This testimony presumes that he knows every lift made by every crane for every man on every day of the operation.   This man is the general superintendent.  He is not involved in the operations.   He sits in an office.  (Underlining added)

The duties of the general superintendent are too large to allow him to do any significant direct supervision of crane operators and riggers.

The evidence is clear that crane operators and rigger leadermen were part of the supervision team of Tampa Shipyard.  Sections 1 and 2 of Article 7 of the agreement between Tampa Shipyards and the Tampa Metal Trades Council, which represents several different unions with workers employed at Tampa Shipyards, makes the following statement concerning leadermen (Ex. 3):

SECTION 1.--Leadermen are the first line of supervision and are responsible to higher supervision for the progress and execution of the work.   Leadermen do not have the right to hire or discharge employees under their jurisdiction, but may make recommendations to higher supervision concerning disciplinary actions and promotions of employees.  It is further agreed that no interference will be exercised by any Unions or their officials with respect to the supervisory functions of any leaderman.  It is recognized by the Company that leadermen are bargaining unit employees covered [sic] by the terms and conditions of this agreement. (Emphasis added)

SECTION 2.--It is the intent of management that an employee will normally have only one direct craft leaderman at a time from whom he shall take direction and be responsible, and with whom he will initially raise requests, complaints, or questions concerning his work.  However, this does not excuse an employee from taking directions from any supervisor in cases of emergency or compelling production situations.  In such situations, the workmen's leaderman will be immediately notified. (Emphasis added)

Searle Walton, safety manager for Tampa Shipyards, testified that the company generally followed Section 2 of Article 7 (Tr. 575-576).   Respondent's director of Iabor relations, George Turner, testified that the foreman over the crane operator leadermen and rigger leaderman had not been replaced and that the leadermen in those two crafts take supervision directly from the general superintendent (Tr. 1108, 1111).  While the crane and rigger leadermen are part of the bargaining unit, Turner indicated that the company was trying to remove them from the bargaining unit and include them as part of management (Tr. 1106-1107, 1109).  Removing them from the bargaining unit would give them authority to answer grievances, to adjust grievances and to effect discipline directly (Tr. 1110).  They do not presently have such authority.

General superintendent Rhoden testified that the leaderman is in charge of the lift that has been assigned to him.  The day leaderman turns over the orders to lift to the night leaderman (Tr. 35, 42).  A leaderman has between 5 and 14 employees under his supervision (Tr. 104-105).  Crane operators Screws, Tucker, Sims and Heisserer testified that the leaderman was the immediate supervisor who told them what to do (Tr. 177, 199, 201, 206, 602, 713, 746-747).  The leaderman is the person who goes to the next line of supervision, which in the case of crane operators and riggers was the general superintendent (Tr. 1152).  The crane operator and rigger leadermen were the immediate supervisors of members of their group.  Where leadermen have exercised substantial authority over the work being performed, they have been deemed to be supervisory employees.  Todd Shipyards Corporation, 84 OSAHRC 39/A2, 11 BNA OSHC 2177, 1984 CCH OSHD 27,001 (No. 77-1598, 1984), appeal dismissed in unpublished opinion (9th Cir. 1985, No. 84-7643).  In view of their particular responsibilities, Caulley and Croft are held to be supervisors and their knowledge attributable to Tampa Shipyards.

The facts are undisputed that Caulley, Morgan and Croft were all aware that the lift involved at least 33 tons and that the boom angle was set for a lift of 21 tons. In order to prevail on the defense that the violation resulted from employee conduct which was not reasonably foreseeable, Tampa Shipyards must show that it "has established workrules designed to prevent the violation, has adequately communicated workrules to its employees, has taken steps to discover violations of the rules, and has effectively enforced the rules in the event of infractions."   Jones & Laughlin Steel Corp., 82 OSAHRC 34/A2, 10 BNA OSHC 1778, 1782, 1982 CCH OSHD 26,128 (No. 76-2636, 1982).

The employee handbook (Ex. 13) utilized by Tampa Shipyards contains a small section on crane safety.  It does not contain a workrule to prevent the violation in issue.  No evidence was introduced by Tampa Shipyards to show that it had a written rule prohibiting the use of a crane in making an overlift. There was adequate evidence to show that such a rule existed and had been orally communicated to most crane operators who testified.  In any event, the crane operators recognized such a rule as a matter of common sense.  Since there is no requirement that the rule must be written, the first element has been established.

There has been an inadequate showing that Tampa Shipyards took reasonable steps to enforce the rule.  The fact that it had eight full-time safety specialists does not reveal its enforcement procedure.  There is no evidence as to how the rule was reinforced upon the minds of the crane operators or how violations were detected.  Walton acknowledged that his department was not consulted on lifts (Tr. 558-559).  He had no way of determining whether the lifts were being properly made until a mishap occurred.   The only realistic enforcement of the rule had to be through supervisors who were familiar with the lifts being undertaken.  While Caulley and Croft were acting in a supervisory capacity, there is no evidence of steps taken to enforce the rule against overlifts.  The record contains several instances of previous overlifts.[[16/]] Most of the overlifts occurred because of a lack of determining the weight of an object before it was lifted [[17/]] (Tr. 180, 183-184, 593, 723-724).

The knowledge of Caulley and Croft of the violation is imputed to Tampa Shipyards for the purpose of providing employer knowledge of the violations unless it "establishes that it took all necessary precautions to prevent the violation[s], including adequate instruction and supervision of the two leadermen.  Daniel Construction Company, 82 OSAHRC 23/A2, 10 BNA OSHC 1549, 1552, 1982 CCH OSHD 26,027, p. 32,672 (No. 16265, 1982).  The fact that supervisors were involved in the misconduct is strong evidence that Tampa Shipyards was lax.  Daniel Construction Company, supra; United Geophysical Corp., 81 OSAHRC 77/D6, 9 BNA OSHC 2117, 2123, 1981 CCH OSHD 25,579, p. 31,907 (No. 78-6265, 1981), aff'd in unpublished opinion (5th Cir. 1982, No. 81-4342), "[w]here a supervisory employee is involved in the violation the proof of unpreventable employee misconduct is more rigorous and the defense is more difficult to establish since it is the supervisor's duty to protect the safety of employees under his supervision."   Daniel Construction Company, supra, 10 BNA OSHC at 1552, 1982 CCH OSHD at p. 32,672.  See also Floyd S. Pike Electrical Contractor, Inc., 78 OSAHRC 50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD 22,805 (No. 3069, 1978).  Tampa Shipyards has failed to establish that Croft and Caulley were adequately trained or supervised with regard to safety matters.  In addition, instances of previous overloads are too numerous to conclude that safety procedures were effectively enforced to prevent overloads from occurring at the workplace.

While Walton testified that Tampa Shipyards had an oral safety policy for crane employees, the extent of this policy is unknown.  There were obvious problems concerning procedures used in determining the weight of objects being lifted.   There is considerable evidence concerning overlifts which resulted from ignorance as to the weight of the object to be lifted.  Crane operator Hansen testified that the weight of the load was usually furnished to the crane operators by the department for whom they were making the lift (Tr. 592).  Crane operator Lee testified that the rigger informs the operator as to the weight of the load (Tr. 251).  Any well developed policy for preventing crane overlifts has to include procedures for accurately determining weights of the objects to be lifted. Tampa Shipyards has not shown that it had a clearly defined policy in this regard, and there is no evidence that such a policy was enforced if it did exist.  Advising crane operators not to make overload lifts is a useless gesture if action is not undertaken to insure they have accurate information as to the weight of the object to be lifted.  The alleged violation is sustained.

Nature of Violation

The Secretary alleges that the violation was willful. "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."  Asbestos Textile Company, Inc., 84 OSAHRC 48/B12, 12 BNA OSHC 1062, 1063, 1984 CCH OSHD 24,763 (No. 79-3831, 1984).  Caulley and Morgan were aware that the boom angle of the crane was set to make a safe lift of 21 tons.  They were told the 0-1 section weighed 33 tons.  In spite of these facts, they commenced to lift and swing the load in total disregard of the manufacturer's rated load capacity.   They knowingly tried to swing and place the load.  A willful violation has been established.

Penalty Determination

A penalty must be determined for the violation.  Pursuant to section 17(j) of the Act, the Commission must 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).   Caulley, Croft and Morgan had knowledge that the piece to be lifted weighed at least 33 tons.  They knew the rated load capacity of the crane at its boom angle at the time of the lift was 21 tons.  They chose to ignore the facts.  The gravity is considered severe.  The cab of the crane was 80 feet in the air.  A penalty of $8,000 is assessed for the violation.

Item Two

Item two of the willful citation alleges that on October 4, 1985, and at other times, the weight of loads was not determined and the operators were not notified of the weight prior to hoisting.  The description of the alleged violation raises two specific acts of omission: (1) the weight of loads was not determined, and (2) the operator was not notified of the weights prior to hoisting.  Tampa Shipyards argues that the same standards it referenced as applicable to item one are also applicable to item two.   According to Tampa Shipyards, the "cited condition is virtually indistinguishable from item 1 of this citation" (Brief. pg. 32).

Rhoden testified that Tampa Shipyards had a policy of determining the weight of loads before they made a lift (Tr. 47).  According to him, the weight is determined by the use of a dynamometer (Tr. 47).  He testified (Tr. 49):

A. When they've got a section that they are concerned with, they put the dynamometer on it, and that's the leaderman of that particular department who puts the dynamometer on it with the operators and the other riggers with him and determines the weight.

The number three crane has a load indicator, but it was not operational at the time the lift in issue was made on October 4 (Tr. 47, 235, 240).

Tampa Shipyards argues that the Secretary produced no evidence to prove that the weight of the 0-1 section was not determined or that the operator was not notified of the weight prior to hoisting (Brief, pg. 33).  In view of the discrepancies in the weight the operators were told and the actual weight of the 0-1 section, it is clear that such an argument must be rejected.  While Croft testified that his paperwork showed the 0-1 section weighed 33 tons, there is no evidence as to how that figure was determined. The same section had been lifted by crane number 3 around 9:00 a.m. to 10:00 a.m. on the morning of October 4.  Crane operator Joseph Mossey testified that he was told by the rigger that the section weighed 30 tons (Tr. 733-734).   He did not weigh the section (Tr. 733).  He set his boom at 32 tons to make the lift (Tr. 733-734).  No evidence was presented by Tampa Shipyards to show how the weight of the 0-1 section was supposedly determined or even if it had been determined prior to the accident.  The weight of the section was determined after the accident to be 38.099 tons (Tr. 1132).

Burkhart testified that the failure to determine the weight of loads before lifting them could constitute a hazard (Tr. 945).  This is particularly true on heavy loads that have the potential to exceed the crane's rated load capacity for a particular boom angle.  Failure to accurately determine the weight of a load can lead to overlifts.  While Rhoden stated Tampa Shipyards had a policy of determining the weight of loads being lifted, the extent of that policy is unknown.

Tampa Shipyards had no written procedures for determining the weight of loads to be lifted by cranes.  If the oral policy was communicated to employees, it was not very well followed.  There is no evidence as to how the policy was orally communicated to all employees or what attempts were made to enforce it. The evidence discloses numerous instances where lifts were made when the crane operator did not know the weight of the load or the weight given to him was erroneous (Tr. 168, 592-593, 596, 667-672, 723-724, 745).  The policy had little substance.

Tampa Shipyards argues that this condition, i.e., failure to determine the weight of the load, is indistinguishable from item one concerning the allegation that the rated load capacity of the cranes was exceeded.  There is merit to this argument.  The hazard presented to employees for failing to weigh a load, if one exists, is the overload of the crane.  There is no hazard present in an unweighed load that is less than the rated load capacity of the crane. The weight of the load must be known if an overload is to be avoided. The objective of weighing a load is to avoid an overload. Determining the weight of the object to be lifted is one of the procedures necessary in the abatement process of preventing overloads. It is part of the information essential to preventing overloads and cannot be cited as a separate violation. The alleged violation is vacated.

Item Three

Item three alleges that "[o]n or about October 4, 1985, and at other times, operation of tower crane(s) were permitted with known hazardous defects in numerous functional operating mechanisms, control systems, and clutches."  Tampa Shipyards submits that the "cited conditions are regulated by the OSHA standards codified at 29 C.F.R. 1910.179(j), 1910.179(1), 1910.180(d)( 3) and (4), 1910.180(f), 1915.111(a), 1915.115(a), 1915.116(k) and 1915.117(a)" (Brief, pgs. 41-42).  As previously pointed out, 1910.179 and 1910.180 are inapplicable to tower cranes.   Those provisions of Part 1915 referred to by Tampa Shipyards are not applicable to the conditions alleged in the citation.

Several operators testified that they used a piece of wood behind the crane friction levers to prevent them from disengaging. [[18/]]  This applied only to cranes 4, 5 and 6 (Tr. 628).  Crane operator Sims testified that while he used a piece of wood, he did not think there was anything wrong with the lever.   He testified that some of the operators used the piece of wood and some did not use it.  He thought it was safer to use the piece of wood (Tr. 679-680, 708-709).   He has not used a piece of wood since October 4, 1985 (Tr. 680).  Crane operator Don Heisserer testified that he did not use the piece of wood but acknowledged that some operators used it (Tr. 744-745).  Burkhart testified that the use of the piece of wood indicated that the normal locking device was not functioning properly (Tr. 921).  In his opinion, the cranes should not have been operated in that condition (Tr. 921-922).  Sims thought the friction levers were designed to be easily disengaged (Tr. 679).  Burkhart testified that the levers "are designed to be operated with relative ease but when you pull them into detent, they should stay there for the normal operation of the crane" (Tr. 923).

There is no substantive evidence to support the conclusion that the cranes had defective friction levers during the time period relevant to this proceeding. Hansen testified that he had trouble in 1980, 1981 and 1982 (Tr. 607).   He testified that he reported the problems with the different cranes, and they were fixed within a period of time (Tr. 629-632).  Mossey testified that he had used a piece of wood but did not state that he had any trouble with the friction lever disengaging (Tr. 735).  Sims testified that he used a piece of wood but did not state when or if he had trouble with the friction lever (Tr. 674).  Christie testified that he used a piece of wood but did not state when or if he had trouble with the friction lever (Tr. 725-729).  It appears the piece of wood was being used by some operators as a precaution against a problem they believe had existed in the past.  Charles Dowless, the plant manager, testified that if the friction lever jumped out while the crane was traveling, it would be of particular concern to the crane operator (Tr. 1134).   He had no knowledge of seeing such a condition reported for repair (Tr. 1135).   Burkhart's assumption that the friction lever was defective because a piece of wood was used was based on a practice that evolved from past difficulties with the friction lever.  The preponderance of the evidence does not support the allegation the friction levers were defective at the time of the inspection.  There is also insufficient evidence to conclude that management officials were aware that the piece of wood was being used by the crane operators.

Evidence was presented with respect to defective limit switches and an emergency shutoff switch.  No evidence of the specific nature of the alleged limit switch problem or how long it existed was presented.  Hansen testified that he had problems with limit switches on cranes 4, 5 and 6 and that they were fixed (Tr. 632).   He had a problem on crane number 1 that was not fixed, but the crane was removed from service in 1984 (Tr. 633).  The problem occurred in 1980 and 1981 (Tr. 633).   He stated that he had problems with the emergency shutoff switches on cranes 4 and 5 (Tr. 634).  A switch was placed on crane number 4, and he was not aware if the switch had been fixed on crane number 5 (Tr. 634-636).  He believed there was no emergency shutoff switch on crane number 5 in October, 1985 (Tr. 603).  There was no evidence that anyone of authority for Tampa Shipyards was aware of the defects or that they were not fixed once they were reported.

The Secretary includes the fact that the load indicator in crane number 3 was inoperable for a period of time in late September and October, 1985, as a defect.  However, his own expert, Matthew Burkhart, made it clear that the fact that the load indicator was not operable was not a hazard to the operation of the crane (Tr. 946-947).  The crane operator can compensate for the inoperable load indicator by having the weight of loads determined by other means (Tr. 946).  No evidence was presented which showed any risk to the mechanical operation of the crane resulting from the claimed defect.  No evidence was presented that load indicators were required on cranes.

The other alleged defects are reflected on craft turnover forms entered into evidence as Exhibit 14.  The forms cover the period from September 3, 1985, to October 4, 1985 (Tr. 466).  These forms were turned over by the first shift leaderman to the second shift leaderman.  The first shift recorded on the form what they wanted the second shift to do (Tr. 465, 1144).  The forms indicate that maintenance items were recorded by the second shift.  A copy was sent to the maintenance department to indicate the need for repair (Tr. 1144).  The Secretary points to several of these items and charges that the cranes were operated with known defects.  While the forms indicate some need for repairs, there is no evidence that the cranes were operated under unsafe conditions. There is no evidence that the repairs were not made within a short or reasonable period of time.  All the forms show is that at a particular period of time maintenance was needed.  There is no evidence to indicate what was done once the item was noted on the form.  The listing of a problem on the form does not per se prove that the crane was operated with such a defect.   The allegations were based on Burkhart's opinion as to what he thought was meant by the entries on the craft turnover sheets.  Burkhart assumed hazards existed as a result of the entries on the sheets (Tr. 1023).  He had no knowledge that the cranes were operated with hazardous defects.

A company that operates as many cranes as Tampa Shipyards will certainly experience a number of maintenance problems over a period of time.  Simply because a limit switch, emergency shutoff switch or other mechanical items become broken or inoperative does not establish a violation.  There is no evidence that any item reported was not eventually repaired once it was reported.  There is also no evidence that Tampa Shipyards required its crane operators to operate cranes with hazardous conditions or that the cranes in issue were operated with hazardous defects.  Crane operator James Screws testified (Tr. 191):

Q.  If you don't find anything properly working, do you know what to do?

A.  Yes, sir.  You report it and don't run the crane if it is something that is unsafe until the problem is checked into.

The alleged violation is vacated.

Item Four

Item four alleges that "[o]n or about October 4, 1985, and at other times, tower crane(s) were operated without conducting frequent and complete periodic inspections to insure safe operations."  Tampa Shipyards argues that "[t]here are a number of OSHA standards regulating the inspection and maintenance of cranes which would preempt this 654(a)(1) charge," citing 29 C.F.R. 1910.179(j)(1)(ii), (j)(2), (j)(3), 1910.179(1), 1910.180(d)(3) and (4), 1910.180(f), 1915.111(a), 1915.113(b), 1915.114(b), 1915.115(a)(1), and 1915.181 (Brief, pg. 52).  It further argues that item four is no different from the allegations of item three and is multiplicious.  Sections 1910.179 and 1910.180 and Part 1915 are inapplicable for the reasons previously stated.

The Secretary argues that Tampa Shipyards lacks an effective inspection schedule for daily, weekly, monthly and quarterly inspections.  He submits that there is no policy as to who is in charge of conducting inspections and that this results at times in inspections being made by "whoever is available."    He states that "[W]hile some operators conduct 'inspections' of their own, there are no guidelines as to what to inspect or when to inspect" (Brief, pg. 8).

Frequent and periodic inspections for tower cranes are required by section 4-2.1 of ANSI B30.4-1973, Portal, Tower and Pillar Cranes.  Crane standards, particularly 1910.179 and 1910.180, generally require frequent and periodic inspections.  Frequent inspections are required to be made from daily to monthly intervals, while periodic inspections must be made from 1 to 12-month intervals.[[19]]  Interval of inspections are dependent upon the degree of exposure to wear, deterioration or malfunction of the critical components of the crane.  Assuming frequent and periodic inspections are required, the preponderance of the evidence supports the determination that Tampa Shipyards was in compliance.  The evidence fails to show that daily, frequent or periodic inspections were not conducted.

Crane operator James Screws, when asked if he knew how cranes were inspected, testified that he had a crane report that is filled out once a month (Tr. 169).  According to him, the operators are supposed to fill out the reports but that sometimes the leaderman fill them out (Tr. 169).  Daily checks are made by operators (Tr. 169, 191, 727).  Crane operator Johnnie Lee testified he was not aware of crane inspections but that the maintenance people might have conducted inspections (Tr. 234).   Crane operator Charles Christie testified that he did not know who checked the cranes but that he checked his crane daily before he commenced his shift (Tr. 727).   While the crane operators appeared to know little about inspections performed by others, there was no evidence that any of them neglected to do their own inspection on a daily or frequent basis.

Rhoden testified that Tampa Shipyards has a maintenance program that includes crane inspections (Tr. 62-63).  The plant engineer, Charles Dowless, testified that crane inspections are performed once a month (Tr. 1126). No one person performs the inspections.  Inspections are performed by the maintenance foreman, assistant supervisor, or whoever is available (Tr. 1126).  Copies of the monthly forms used were placed into evidence as Exhibits 22 and C. They show inspections of listed items (checklist) for cranes that were conducted for a specific month.  The form contains the heading:

TAMPA SHIPYARDS INCORPORATED
MAINTENANCE DEPARTMENT
MONTHLY CRANE CONDITION INSPECTION

The inspection forms show that some of the inspections were performed by a crane operator leaderman (Ex. 22; Tr. 1140).  Dowless further testified that the cranes were serviced at least once a month and more often if the frequency of operation so requires (Tr. 1142-1143).  The cranes are usually also looked over during the servicing (Tr. 1142).

The allegation pertains to the failure to conduct frequent and complete periodic inspections.  The record shows that periodic inspections were made by some individual on a monthly basis.  While the individual making the inspections may have varied from month to month, the Secretary did not offer evidence to indicate that any particular crane was not inspected.  There is no support in law for the position that one particular individual must do the inspection.  The Secretary further failed to show that the monthly inspection form, which contains a list of several items to be inspected, was deficient in any manner.

The Secretary acknowledges that "[T]here is evidence that some operators made inspections of the cranes which they operated" (Brief, pg. 18).    In an equally true manner, it can be stated that the evidence fails to show any operator that did not make a daily inspection of his crane.  The argument is made that there were no guidelines by which these inspections were conducted.  Burkhart testified that he saw no daily inspection checklists (Tr. 939) and that, in his opinion, written checklists were needed (Tr. 1014-1015).[[20/]]  No evidence was offered to indicate what items should be included on a written checklist or that the operators failed to check any of the items that might be included on such a checklist.

Tampa Shipyards lacks a cohesive and detailed policy of conducting inspections.   However, it is charged with not "conducting frequent and complete periodic inspections."  While inspection procedures may have been slipshod, frequent and periodic inspections were made by employees of Tampa Shipyards. No evidence was introduced to reflect that those inspections were incomplete or deficient in any manner.  The alleged violation is vacated.

Docket No. 86-0469

On January 29, 1986, employees of Tampa Shipyards were welding in a room approximately 30 feet by 45 feet on the deck level of the vessel Robert G. Matthiesen.  The welding took place in the "fan" room where the ship's air conditioning was located (Tr. 1087).  During the welding operations, a fire and explosion occurred that resulted in three persons being burned.  At the time of the explosion, six employees of Tampa Shipyards were in the room.  An employee of a subcontractor was also in the room.   An investigation of the accident by Compliance Officer Fred Carpenter disclosed that a can of paint thinner in the room had been ignited when a welder's rod touched it while the welder was crawling around in the room.

The citation issued on March 14, 1986, as a result of the fire and explosion, cited alleged violations of three standards.  During the hearing, the Secretary withdrew item two of the citation (Tr. 1068-1069).  Items one and three remain in issue. Item one alleges a violation of 29 C.F.R. 1910.106 (e)(2)(iv)(d) because "paint thinner was drawn from or poured from the original containers."   Item three alleges a violation of 29 C.F.R. 1915.52(b)(2) for failure to have a suitable fire extinguishing equipment available in work areas where weIding, cutting or heating operations were being performed.

Item One

Tampa Shipyards argues that the Secretary failed to establish noncompliance with 29 C.F. R. 1910.106(e)(2)(iv)(d).[[21/]]  It submits the standard "regulates only a specified activity: the manner, or method, by which certain liquids may be 'drawn from' or 'transferred into' containers" (Brief, pg. 82).  There is no evidence that the paint thinner had been drawn from or transferred into the particular can found in the room.  The testimony of Compliance Officer Carpenter indicates that the can of paint thinner was cited for a violation because it was not in a safety can (Tr. 1075-1076).

There is no dispute over the fact that paint thinner was in the can.  The can was not a safety can. It contained a label indicating the contents were flammable. The can was sitting in the room.  There is no evidence to indicate that Tampa Shipyards had transferred the paint thinner into the can.  The thinner was probably in the same can in which it was purchased by Tampa Shipyards.  The can was similar to that in which paint thinner is sold (Exs. 20, 21; Tr. 1074).

The Secretary's brief does not comment on the applicability of 29 C.F.R. 1910.106(e)(2)(iv)(d) to the facts in issue.  His brief simply makes the assumption that the standard is applicable.  Why the Secretary believes the standard is applicable to the facts of this case is unknown.  As pointed out by respondent, the "standard is specifically limited in scope and application to those portion [sic] of an 'industrial plant' where the use and handling of flammable or combustible liquids is only incidental to the plant's principal business" (Brief, pg. 83).  The alleged violation occurred on a ship.

In order to prove a violation of a standard, the Secretary must show that the cited standard applies to the cited condition.  Clement Food Company, 84 OSAHRC 26/A2, 11 BNA OSHC 2120, 2123, 1984-85 CCH OSHD 26,972 (No. 80-607, 1984).  The Secretary has failed to show how the standard is applicable to the facts.  The alleged violation is vacated.

Even if the standard was applicable, the Secretary has failed to establish that respondent had actual or constructive knowledge of the condition.  Compliance Officer Carpenter testified that he did not know who put the paint thinner can in the room, that there was no reason for it to be there, and that he did not know who knew it was there (Tr. 1089).   The can was similar to cans of mastic in the room, and it was not readily discernable by anyone as containing paint thinner (Tr. 1076-1077).  Carpenter conceded that the cans blended together and that "nobody noticed the distinct difference between them which was not very great" (Tr. 1077).  He further stated (Tr. 1090):

As I said, nobody knew before the explosion that it was there.  It was only afterwards that they realized they had seen it.

Item Three

The Secretary alleges a violation of 29 C.F.R. 1910.2(b)(2) [[22/]] because there was allegedly no firefighting equipment in the immediate vicinity of the fire. The standard requires suitable fire extinguishing equipment be available in the work area and maintained in a state of readiness for instant use.

Compliance Officer Carpenter arrived at the jobsite on January 30, the day following the accident. He went to the room where the fire had occurred.  There were fire extinguishers in the room when he arrived at the site (Tr. 1077).   His investigation disclosed that there was no fire extinguisher in the room at the time the fire commenced (Tr. 1078-1079).  Two fire extinguishers were located over 25 feet from the room.  The fire extinguishers were not in sight but were located behind closed doors.  The employees had no indication of where they were located (Tr. 1079). One of the fire extinguishers was located inside of the stairs on the next deck; the second extinguisher was on the same deck inside a door that led to the engine room (Tr. 1079). At the time of the fire, employees had difficulty in locating fire extinguishers.   They had to use insulating material to smother the flames (Tr. 1080). The fire hose in the area of the room had been removed the previous day in order to paint the deck (Tr. 1079, 1089).  The nearest hose was on the other side of the ship. It was not hooked up (Tr. 1079-1080).

The standard requires that suitable fire extinguishing equipment be available in the work area "in a state of readiness for instant use."  The standard makes reference to "suitable fire extinguishing equipment."  While the standard does not state what precise equipment is required for firefighting purposes, it is clear that some fire extinguishing equipment is required.  Since there was no fire extinguishing equipment located in the work area, it is unnecessary to define or interpret what is suitable fire extinguishing equipment.

Tampa Shipyards argues that the evidence does not include any clarification of what was meant by the terms "immediate vicinity" or "instant use."  The standard does not use the words "immediate vicinity."  The equipment is required to be immediately available in the work area.  The work area is construed to be the room in which the welding operation was being performed.  The fire extinguishers were located at least 25 feet from the room in which the work was being performed.  The violation has been established.

Nature of Violation

The Secretary contends that the violation of 29 C.F.R. 1915.52(b)(2) is serious within the meaning of section 17(k) of the Act. Under section 17(k) of the Act, a serious violation exists where there is a substantial probability that death or serious physical harm could result from the condition and the employer has knowledge of the condition, or could have discovered the violation with the exercise of reasonable diligence.  The Secretary need not prove that an accident is probable; it is sufficient if an accident is possible and its probable result would be serious injury or death.  Brown & Root, Inc., Power Plant Division, 80 OSAHRC 17/B8, 8 BNA OSHC 1055, 1980 CCH OSHD 24,275 (No. 76-3942, 1980); Niagara Mohawk Power Corp., 79 OSAHRC 36/A2, 7 BNA OSHC 1447, 1979 CCH OSHD 23,670 (No. 76-2414, 1979).

The Secretary must further prove that the employer knew or with the exercise of reasonable diligence should have known of the existence of the violation. The knowledge element is directed to the physical conditions which constitute a violation of section 5 of the Act.   Southwestern Acoustics and Specialty, Inc., 77 OSAHRC 25/E7, 5 BNA OSHC 1091, 1977-78 CCH OSHD 21,582 (No. 12174, 1977).  It is difficult for an employer to prevail on the defense that he had no knowledge of the violation since he has an obligation to inspect the work area, to anticipate hazards to which employees may be exposed, and to take measures to prevent their occurrence.  Frank Swidzinski Co., 81 OSAHRC 4/E14, 9 BNA OSHC 1230, 1981 CCH OSHD 25,129 (No. 76-4627, 1981); Automatic Sprinkler Corp. of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1385, 1980 CCH OSHD 24,495 (No. 76-5089, 1980).  Had Tampa Shipyards inspected for suitable fire extinguishing equipment in the room prior to commencing work, it would have discovered its noncompliance with the standard.  It should also have known that the fire hoses in the area had been removed the previous day in order to paint the deck.  Since suitable fire equipment was unavailable, employees had to use insulating material to smother the flames.   The violation was serious since a fire in the room could and did result in the burning of employees.

Penalty Determination

A penalty must be determined for the violation of 1915.52(b)(2) since it has been classified as a serious 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).

Tampa Shipyards exposed six of its employees and an employee of a subcontractor to welding operations in a room approximately 30 feet by 45 feet without providing for suitable fire extinguishing equipment.  Employees had been working in the room for several hours prior to the explosion and fire (Tr. 1081). At the time of the fire, Tampa Shipyards employed in excess of 800 employees (Tr. 1082).  A penalty of $800 is assessed for the violation.

FINDINGS OF FACT

1.  Respondent is a corporation engaged in shipbuilding and repair at a place of business located at 1130 McCloskey Boulevard, Tampa, Florida (Tr. 1084).

2.  On October 4, 1985, crane number 6 fell onto the number 2 dry dock (Tr. 36, 41-42).  The accident occurred around 6:15 p.m. (Tr. 429).  The crane fell during a lift of an 0-1 section at a boom angle with a rated load capacity of 21 tons (Tr. 108, 113, 143).

3.  The crane sat on a turntable on top of an 80-foot tower. Rollers underneath the cab rotated on the turntable to allow the crane to pivot.  The tower sat on a gantry that moved along rails (Ex. 12; Tr. 173, 710, 850, 1117).

4.  CompIiance Officer SaIvatore Jimenez commenced an investigation of the accident on October 7, 1985 (Tr. 430, 530).

5.  After the accident, the 0-1 section wreckage was cut into three pieces and weighed by Charles Dowless, plant engineer.  The combined weight of the three pieces was 38.099 tons (Tr. 165, 509, 1112, 1132, 1143).  At the time of the lift, the 0-1 section was believed to weigh 33 tons (Tr. 106).

6.  James Morgan was the operator of crane number 6 at the time of the lift.   William Caulley was the leaderman for crane operators.  He was in the crane with Morgan at the time of the lift (Tr. 42, 260, 564, 565, 655-656). Caulley and Morgan were informed by Wendell Croft, the rigger leaderman, that the 0-1 section weighed 33 tons (Tr. 106-107).

7.  Caulley usually went up in the crane with the operator when a heavy or maximum lift was to be made (Tr. 118, 656, 661-662, 666-667).  There was concern over the weight of the load to be lifted (Tr. 108).

8.  Caulley, Morgan and Croft were all aware that the lift involved at least 33 tons and that the boom angle was set for a lift of 21 tons (Tr. 106-107).

9.  The accident occurred because the boom angle of the crane and the amount of weight being lifted were not compatible for a safe lift (Tr. 435, 436, 532).

10.  Crane operator leadermen and rigger leadermen perform supervisory duties at Tampa Shipyards.  There is no foremen between them and the general superintendent (Ex. 3; Tr. 201-202, 1108).  They are assigned between 5 and 14 employees under their supervision and are the immediate supervisor of those employees (Tr. 104-105, 177, 199, 201, 206, 602, 713, 746-747).

11.  The manufacturer of a crane rates the load capacity of a crane at various boom angles (Tr. 854).  The operator makes the decision as to what boom angle is necessary to handle a load (Tr. 555-557, 769, 984-985).

12.  When the operator is given the weight of a lift, he is expected to set the boom angle at the necessary angle in order to make a lift (Tr. 558).

13.  The crane operator has the authority to refuse to make a lift if he considers the lift to be an overload (Tr. 262, 566, 567, 637).

14.  Crane number 6 had a rated lifting or load capacity of 40 tons (Tr. 46, 50, 113, 508).  This means that the crane could lift loads up to 40 tons with the proper boom angle (Tr. 50).

15.  As the boom angle increases, the load lifting capacity decreases (Tr. 46, 50).   The safe lifting range for a load depends on the boom angle and the weight (Tr. 53).

16.  An overload occurs when the load is more than the boom angle indicates as being the maximum safe load at that angle (Tr. 53).

17.  One of the job responsibilities of the rigger leaderman is to calculate the weight to be lifted by the crane (Tr. 135, 316).  The crane operator is told the weight (Tr. 135, 249-250).  Riggers have in the past been misinformed as to the accurate weight (Tr. 252).

18.  The president of Tampa Shipyards informed crane operators that he did not want the cranes overloaded (Tr. 188-190, 263, 347, 705, 770-771).  He further informed them that if anyone ordered them to make an overlift that they could come to him (Tr. 354).

19.  Tampa Shipyards trains its crane operators by on-the-job training.   Generally, they work as an oiler in the shipyard for a period of three years and then are trained by the crane operators (Tr. 55-56, 60-61, 163-164, 268-269, 483-484, 589, 591, 645-647, 653, 683-684).  The general superintendent, leaderman and operators determine when an oiler is ready to become an operator (Tr. 57).

20.  There have been overlifts made on previous occasions by employees of Tampa Shipyards.  Most of the overlifts occurred because of a lack of determining the weight of an object before it was lifted (Tr. 167-168, 173-174, 178, 183-185, 593, 723-724, 745-746, 766-768).

21.  Tampa Shipyards has a crane inspection program.  Frequent and periodic inspections of cranes were conducted by Tampa Shipyards (Exs. 22, C; Tr. 62-63, 169, 191, 234, 727, 1126).

22.  Tampa Shipyards has an unwritten safety policy (Tr. 476-477, 480).  It employs a safety director with a staff of eight people (Tr. 501).

23.  In April, 1978, Tampa Shipyards was cited for violations pertaining to cranes 1 through 6 under 29 C.F.R. 1910.179 (Tr. 891-898).

24.  On January 30, 1986, Compliance Officer Fred G. Carpenter conducted an investigation of a fire occurring on the premises of Tampa Shipyards on January 29, 1986 (Tr. 1069).

25.  The fire and explosion occurred in a room on the vessel Robert G. Matthiesen.   A can of paint thinner in the room had been ignited and exploded when a welder's rod touched the can when he was crawling around in the space (Ex. 19, 20; Tr. 1071-1073, 1085).  The paint thinner had a flash point of 73 degrees (Tr. 1073).

26.  At the time of the fire and explosion, six employees of Tampa Shipyards were in the room.  An employee of a subcontractor was also in the room (Tr. 1077, 1080).   They had been working in the room for several hours prior to the fire (Tr. 1081).

27.  The employee of the subcontractor and two employees of Tampa Shipyards were seriously burned (Tr. 1077).

28.  Two fire extinguishers were located approximately 25 feet from the room but were behind closed doors.  One fire extinguisher was located on the next deck inside the stairs.  The second fire extinguisher was on the same deck as the work area but inside a door that led to the engine room (Tr. 1079).

29.  At the time of the fire, employees were unable to locate the fire extinguishers (Tr. 1080).  They used insulating material to smother the flames on the employees (Tr. 1080).

30.  The fire hoses had been removed from the vicinity of the work area in order to paint the deck and were not hooked up at the time of the fire.  The nearest hose was on the other side of the ship.  It was not connected to a water source (Tr. 1079-1080, 1088-1089, 1094).

31.  The label on the can of paint thinner indicated the contents were flammable (Tr. 1074).

32.  The can which the thinner was found was not a safety can.  It was a single-layered can (Tr. 1075).

33.  The white metal can which contained the paint thinner looked similar to three cans of mastic that were in the room.  It was difficult to notice the differences between the cans (Tr. 1076-1077).

34.  At the time of the fire and explosion, employees were not aware that the can contained paint thinner (Tr. 1088).  Employees had observed the can but confused it with the mastic cans in the room (Tr. 1088).

35.  None of the employees in the room were doing any kind of work that would require the use of paint thinner (Tr. 1088).  There was no known reason as to why the paint thinner can should have been in the room (Tr. 1089).

CONCLUSIONS OF LAW

1.  Tampa Shipyards, at all times material to this proceeding, was engaged in a business within the meaning of section 3(5) of the Act.

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

3.  Cranes 1 through 6 are tower cranes.  There are no standards applicable to tower cranes which regulate the specific type of conduct for which Tampa Shipyards was cited.

4.  The secretary has failed to meet his burden of proof in establishing a violation of section 5(a)(1) for allegedly allowing unqualified crane operators to operate tower cranes located in the shipyard.  The alleged violation and proposed penalty are vacated.

5.  Tampa Shipyards was in violation of section 5(a)(1) for lifting loads with tower cranes in excess of the crane manufacturer's recommended load capacity. The violation was wiIIfull.  A penalty of $8,000 is assessed for the violation .

6.  Tampa Shipyards is not in violation of section 5(a)(1) for failing to determine the weight of loads prior to hoisting.  The need to determine the weight of a load is part of the procedure essential to avoiding overloads.  The alleged violation and proposed penalty are vacated.

7.  The Secretary has failed to meet his burden of proof in establishing a violation of section 5(a)(1) for allegedly allowing tower cranes to be operated with known hazardous defects.  The alleged violation and proposed penalty are vacated.

8.  Tampa Shipyards was not in violation of section 5(a)(1) for allegedly allowing tower cranes to be operated without conducting frequent and complete periodic inspections to ensure safe operation.  Frequent and periodic inspections were made by employees of Tampa Shipyards.  The alleged violation and proposed penalty are vacated.

9.  Tampa Shipyards was not in violation of 29 C.F.R. 1910.106(e)(2)(iv)(d).   The Secretary failed to meet his burden in establishing the applicability of 1910.106(e)(2)(iv)(d).  The proposed penalty is vacated.

10.  Tampa Shipyards was in violation of 29 C.F.R 1915.52 (b)(2) for failure to have fire extinguishing equipment available in a work area where welding was being performed.  The violation was serious.  A penalty of $800 is assessed for the violation.

ORDER

Based upon the foregoing findings of fact and conclusions of law, it is

ORDERED:

(1) That the serious citation issued to Tampa Shipyards on March 3, 1986, and the penalty proposed for the alleged violation are vacated;

(2) That items 2, 3 and 4 set forth in the willful citation issued to Tampa Shipyards on March 3, 1986, and the penalties proposed for the alleged violations are vacated;

(3) That item 1 of the willful citation issued to Tampa Shipyards on March 3, 1986, is affirmed and a penalty of $8,000 assessed for the violation;

(4) That items one and two of the serious citation issued to Tampa Shipyards on March 14, 1986, and the penalties proposed for the alleged violations are vacated; and

(5) That item three of the serious citation issued to Tampa Shipyards on March 14, 1986, and the penalty proposed for the violation are affirmed.

JAMES D. BURROUGHS

Judge


FOOTNOTES:

[[1]] That section provides:

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.

[[2]] The crane involved in the accident is one of six tower cranes at this location.   A tower crane consists of a rotating superstructure, made up of operating machinery, cab and boom, that rests on a circular track atop a tower that sits on rails.   The tower of crane no. 6 was 80 feet high.

[[3]] The only alleged violation on review is the hoisting of the load that led to the accident on October 4, 1995.  The judge struck from the record evidence of overlifts that occurred after that date.  The alleged overlifts that occurred before that date, which are discussed below, am relevant to whether Tampa had the requisite knowledge of the violative conditions on October 4, 1985, and whether the alleged violation willful.

[[4]] The direction for review specified only these issues, all of which involve only Docket No. 86-0360.  Despite this limitation, Tampa's briefs on review address a number of other issues that it raised in its petition for review but that are not within the scope of the direction for review, including arguments involving Docket No. 86-0469.   In her brief, the Secretary stated that she would not address these issues because they were not "fairly within the direction for review."

In its reply brief, Tampa argues that the Commission must address all material issues presented on the record, regardless of whether they fall within the scope of the direction for review.  The Commission does have jurisdiction over all the items and issues in a case that it directs for review.  Hamilton Die Cast, Inc., 12 BNA OSHC 1797, 1800, 1986-87 CCH OSHD 27,576, p. 35,822 (No. 83-308, 1986).  However, the Commission also has discretion to limit the scope of its review.  E.g., Bay State Refining Co., 15 BNA OSHC 1471, 1476, 1992 CCH OSHD 29,579, p. 40,025 (No. 88-1731, 1992).  See 29 U.S.C. 661(j).  Ordinarily the Commission does not decide issues that are not directed for review.  29 C.F.R. 2200.92(c), 93(a).  We find no reason to depart from that policy here.  The only objections that Tampa raised to the judge's decision that have sufficient support to merit review are those directed for review.   Accordingly, we do not address the arguments by Tampa that are outside the scope of the direction for review.  Because no issue involving Docket No. 86-469 is within the scope of the direction for review, that case is now a final order of the Commission.

[[5]] Crane operator Ashmore testified that a safety book for crane operators was kept on crane no. 3.  However, the record indicates that the book was not required reading, and was not a regular part of any safety program for Tampa's crane operators.   Further, crane no. 3, to which that book related, was manufactured by a different manufacturer than the other crane at issue here.  Moreover, there was no testimony as to the contents of the safety book, or whether it covered all the safety precautions necessary to prevent the kind of overlifts that occurred on Tampa's worksite.

[[6]] Tampa asserts that it "has eight full-time safety specialists...who search for conditions that may be unsafe[.]"  However, that figure included paramedics and first aid personnel.  The evidence indicates that none of its safety personnel took the initiative to inspect cranes unless a safety problem was reported to them.  For example, crane operator Christie testified that "[t]hey report what I report to them, sir.  That's all I've seen done."

[[7]] Rhoden testified that when an operator told him that a near-capacity lift would be attempted, he consulted with the operator about the load and even "had the president of the company out there," and that be never knowingly overloaded a crane.   However, such consultations did not constitute a monitoring system.  In a satisfactory monitoring system, Tampa's superintendents would make active attempts to detect hazardous lifts that had not been brought to their attention by operators in advance.

[[8]] As Tampa notes, Burkart acknowledged that he could not state how many supervisors and how much monitoring would be required at its worksite without knowing the number of employees Tampa bad there, and the number and timing of lifts that it made.  He did not have that information.  However, be testified that Tampa would be able to determine how many supervisors and how much monitoring would be required, because it had the necessary information.

[[9]] Tampa argues that the Secretary submitted evidence, an this and other issues, that varied from her counsel's responses to its pre-hearing interrogatories.  It seems to argue that, as a result, the Commission should rely on those answers to interrogatories and not on the sworn evidence submitted at the bearing.  However, Tampa does not cite any objections it made to the introduction of the evidence.  The proper time to object to the introduction of evidence, on the ground that it is inconsistent with answers to interrogatories, is at the hearing.  Power Fuels, Inc., 14 BNA OSHC 2209, 2214, 1991 CCH OSHD 29,304, p. 39,347 (No. 85-166, 1991), and cases cited therein.  Even where answers to interrogatories are stipulated into evidence, as here, they generally have no binding effect if they are contradicted by other evidence introduced at the hearing.  Id.  The mere fact that certain evidence submitted by the Secretary at the hearing varied from her answers to interrogatories is no basis for failing to consider the evidence, or for failing to give it appropriate weight.

[[10]] Article 7 of the union contract provided:

SECTION 1. - Leadermen are the first line of supervision and are responsible to higher supervision for the progress and execution of the work.   Leadermen do not have the right to hire or discharge employees under their jurisdiction, but may make recommendations to higher supervision concerning disciplinary actions and promotions of employees.  It is further agreed that no interference will be exercised by any Unions or their officials with respect to the supervisory functions of any leaderman.  It is recognized by the Company that leadermen are bargaining unit employees covered by the terms and conditions of this agreement.

SECTION 2. - It is the intent of management that an employee will normally have only one direct craft leaderman at a time from whom he shall take direction and be responsible, and with whom he will initially raise requests, complaints, or questions concerning his work.

[[11]] Tampa's assertion that Sims did not know whether "anyone in the company" knew about the overlifts is incorrect.  Sims specifically testified that leadermen were supervisors for the company.

[[12]] Ashmore joined Tampa in August 1980.

[[13]] Crane operator Johnnie Lee explained why the cranes could not be operated safely with the rollers off the turntable:

When that roller comes off that turntable, it's right under that counterweight, and you have lost the ability of the counterweight more or less.   When that roller comes off there, your counterweight is already off set.

[[14]] There was hearsay testimony to the contrary, but it was not substantiated.   Mechanic Don Leske testified that when he reported the overlift to the garage foreman, a few weeks before the fatal accident, as discussed above, the foreman told him that the crane was designed to operate with the rollers off the turntable.  Leske then testified that he would have to take the foreman's word for it, because the foreman is supposed to know this kind of thing.  However, Leske later testified that he still didn't believe that the crane was designed that way.  The garage foreman did not testify, and Tampa presented no other evidence that the cranes were designed to operate safely with the rollers off the turntable.  The testimony of Burkart and of the crane operators clearly established that the cranes were not designed to operate in that manner.

[[15]] Tampa's counsel represented that crane nos. 1 and 2 were not in operation at all during 1985.

[[16]] It can also be argued that Tampa acted with conscious disregard for the general duty clause.  It it did, that would be an independent ground for finding the violation willful under Williams Enterp., supra p.12.  Tampa apparently was aware, long before the accident, of the general duty imposed by section 5(a)(1) of the Act.   That provision had been brought up by a Commission judge in a previous decision apparently involving the same company.  Tampa Ship Repair and Dry Dock Co., 79 OSAHRC 52/A2, A14 (No. 78-1907, 1979).  (There, section 5(a)(1) was referred to in the judge's decision regarding proof of a repeated violation.  The section was cited merely as "section 5(a) of the Act," but, in context, the judge was clearly referencing section 5(a)(1).)

Tampa has argued vigorously that section 5(a)(1) does not cover the particular violation involved here.  However, it was aware that, as a general matter, it was required to free the workplace, to the extent feasible of recognized hazards that were likely to cause serious physical harm.  Thus, it could be argued that Tampa showed conscious disregard for whether its actions violated section 5(a)(1).

[[17]] Tampa has not asserted or shown that a willful violation is precluded here by any reasonable belief on its part that it was in compliance with 5(a)(1). Cf., Williams Enterp., 13 BNA OSHC at 1259, 1986-87 CCH OSHD at p.36,591 (employer may defend on grounds that it believed in reasonable good faith the violative conditions conformed to requirements of cited provision).

[[1/]] OSHA Instruction STD.2, issued November 4, 1985, identified general industry safety and health standards (29 C.F.R. Part 1910) having applicability to shipyard work.  Appendix A identifies general industry standards applicable to shipyard work.  Included among the identified standards are 29 C.F.R. 1910.179 and 1910.180 pertaining to cranes.

[[2/]] Defined by section 4-0.2 of ANSI B30.4-1981 as "[A] movable structure frame consisting of columns and bracing capable of supporting a crane with its working and dynamic loads."

[[3/]] A trolley is defined at 1910.179(a)(63) as follows:

(63) The "trolley" is the unit which travels on the bridge rails and carries the hoisting mechanism

[[4/]] Section 1910.179(a)(64) states:

(64) "Trolley travel" means the trolley movement at right angles to the crane runway.

[[5/]] Section 1910.180(b)(1) provides:

(b) General requirements--(1) Application.  This section applies to crawler cranes, locomotive cranes, wheel mounted cranes of both truck and self-propelled wheel type, and any variations thereof which retain the same fundamental characteristics.  This section includes only cranes of the above types, which are basically powered by internal combustion engines or electric motors and which utilize drums and ropes. Cranes designed for railway and automobile wreck clearances are excepted.  The requirements of this section are applicable only to machines when used as lifting cranes.

[[6/]] Section 1910.180(a)(1) states:

(1) A "crawler crane" consists of a rotating superstructure with powerplant, operating machinery, and boom, mounted on a base, equipped with crawler treads for travel.  Its function is to hoist and swing loads at various radii.

[[7/]] Section 1910.180(a)(2) states:

(2) A "locomotive crane" consists of a rotating superstructure with powerplant, operating machinery and boom, mounted on a base or car equipped for travel on railroad track.  It may be self-propelled or propelled by an outside source.  Its function is to hoist and swing loads at various radii.

[[8/]] Section 1910.180(a)(3) states:

(3) A "truck crane" consists of a rotating superstructure with powerplant, operating machinery and boom, mounted on an automotive truck equipped with a powerplant for travel.  Its function is to hoist and swing loads at various radii.

[[9/]] Section 1910.180(a)(4) states:

(4) A "wheel mounted crane" (wagon crane) consists of a rotating superstructure with powerplant, operating machinery and boom, mounted on a base or platform equipped with axles and rubber-tired wheels for travel.  The base is usually propelled by the engine in the superstructure, but it may be equipped with a separate engine controlled from the superstructure.  Its function is to hoist and swing loads at various radii.

[[10/]] Sections 1910.179(b)(8) and 1910.180(b)(3) are identical and provide as follows:
Designated personnel--Only designated personnel shall be permitted to operate a crane covered by this section.

The Secretary made no allegation that someone other than designated personnel were allowed to operate cranes.

Sections 1915.117(b)-(d) provide as follows:

(b) Only those employees who understand the signs, notices, and operating instructions, and are familiar with the signal code in use, shall be permitted to operate a crane, winch, or other power operated hoisting apparatus.

(c) No employee known to have defective uncorrected eyesight or hearing, or to be suffering from heart disease, epilepsy, or similar ailments which may suddenly incapacitate him, shall be permitted to operate a crane, winch or other power operated hoisting apparatus.

(d) No minor under eighteen (18) years of age shall be employed in occupations involving the operation of any power-driven hoisting apparatus or assisting in such operations by work such as hooking on, loading slings, rigging gear, etc.

The Secretary does not contend that crane operators did not understand the signs, notices, and operating instructions for cranes, were under 18 or had any physical impairment.

[[11/]] Wendell Croft, the leaderman rigger for the second shift, testified that his paperwork listed the weight as 33 tons (Tr. 106, 133-135).  After the accident, the wreckage was cut into three sections and weighed.  The three sections weighed 38.099 tons (Tr. 509. 1132).

[[12/]] Caulley and Morgan were experienced crane operators.  Each of them had considerable years of experience in operating cranes (Tr. 112, 113). Caulley had a policy of assisting operators on lifts approaching the maximum of the rated load limits of a crane (Tr. 118, 656, 661-662, 666-667).

[[13/]] The crane was more stable in a direction along the longer axis or down the rails.   When the load was raised, it was over the northeast corner of the support structure to the line of the rails.  This is one of the more stable configurations for the crane.  While the crane was overloaded, it was able to sustain the weight while the boom was in that configuration.  As the load was swung from the longer axis, the lifting capacity diminished.  The lifting capacity is not the same throughout the 360-degree radius (Tr. 877-880, 882-883).

[[14/]] As safety director, Searle takes the lead in investigating accidents that occur in the shipyard (Tr. 428, 505).  He took the lead in investigating the October 4 accident (Tr. 428, 521).

[[15/]] Section 4-3.2.1a of ANSI B30.4-1973, applicable to tower cranes, states that no crane shall be loaded beyond the rated load, except for test purposes.  See 29 C.F.R. 1910.179(n)(1) and 29 C.F.R. 1910.180(h) which state that no crane shall be loaded beyond the rated load.

[[16/]] See testimony of crane operators Douglas Tucker (Tr. 580), Barry Sims (Tr. 706), Don Heisserer (Tr. 745-746, 766, 767-768), and James Screws (Tr. 167-168, 173-174, 178, 185).  The operators could tell there was an overload because wheels of the crane raised off the turntable. This condition is an indication of an overload (Tr. 169, 174, 232-233, 657, 710, 746, 767, 874-875).

[[17/]] An overload lift can occur in either of two ways.  In one situation the operator lifts a heavy load without knowing the weight, and this could result in an overload.  A guess can easily be wrong. The second way occurs when the operator is aware the weight exceeds the rated load but goes ahead and makes the lift (Tr. 859).

[[18/]] See the testimony of crane operator Joseph Mossey (Tr. 735), Lee Hansen (Tr. 609, 610, 627, 628, 630), Barry Sims (Tr. 674, 708) and Charles Christie (Tr. 725-729).

[[19/ ]] See 29 C.F.R 1910.179(j)(1)(ii), 29 C.F.R. 1910.180(d)(2), and section 4-2.1 of ANSI B30.4-1973, Portal, Tower and Pillar Cranes.

[[20/]] Section 4-2.1 of ANSI B30.4-1973, Portal, Tower and Pillar Cranes, lists items of tower cranes that are subject to frequent and periodic inspections. The standard does not specify that there must be a written checklist, although this is one way of assisting the person making the inspection to be certain something is not overlooked during an inspection.

[[21/]] Section 1910.106(e)(2)(iv)(d) states:

(d) Flammable or combustible liquids shall be drawn from or transferred into vessels, containers, or portable tanks within a building only through a closed piping system, from safety cans, by means of a device drawing through the top, or from a container or portable tanks by gravity through an approved self-closing valve.  Transferring by means of air pressure on the container or portable tanks shall be prohibited.

[[22/]] Section 1915.52(b)(2) states:

(2) Suitable fire extinguishing equipment shall be immediately available in the work area and shall be maintained in a state of readiness for instant use.  In addition, when hot work is being performed aboard a vessel and pressure is not available on the vessel's fire system, an auxiliary supply of water shall be made available where practicable, consistent with avoiding freezing of the lines or hose.