EVANSVILLE MATERIALS, INCORPORATED

OSHRC Docket No. 3444

Occupational Safety and Health Review Commission

June 14, 1978

[*1]

Before CLEARY, Chairman; and BARNAKO, Commissioner.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marvin Tincher, Regional Attorney

Philip E. Balcomb, Manager, Evansville Materials, Inc., for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This case is before the Commission for the third time to determine whether the Administrative Law Judge erred in vacating a citation issued to respondent, Evansville Materials, Inc., that alleged a violation of section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. ("the Act").

For the reasons that follow, the Judge's decision is reversed and the citation is affirmed.

I.

On May 22, 1973, respondent loaned its derrick barge No. 9 and an operator to Central Soya Corporation to lift a sunken harbor boat, the Jane C. owned by Central Soya. The Jane C. had been submerged in the Ohio River for six weeks and, therefore, had an accumulation of mud on the deck and in the interior spaces. Derrick barge No. 9 raised the Jane C on two previous occasions. On both those occasions, however, the Jane C had been submerged for approximately 24 hours, and had not accumulated the mud that was present [*2] on the third raising.

The plan called for the Jane C to be raised high enough to pump out the water and then be pushed to the river bank. During the operation, a shackle connecting a guy wore to the derrick boom snapped, causing a "whiplash" motion in the boom. The shackle was replaced and the operation resumed. As found by Judge Brady in his response to the last order of remand, the derrick lifted the Jane C out of the water. During the pumping operation the derrick operator set the brakes and walked around the deck of the barge. The operation had been proceeding for 2 1/2-3 hours when the boom began to distort and buckle, eventually bending in half. The employees of Central Soya, who were taking part in the operation, saw the boom begin to fall and ran for safety. One of the employees fell into the river and drowned.

An OSHA investigation ensued, resulting in respondent being cited for a serious violation of the safety standard published at 29 CFR 1918.74(a)(5). n1 In his complaint, the Secretary amended the citation to allege a violation of section 5(a)(1) of the Act, the general duty clause, because he determined that respondent's operation did not fall into [*3] the category of longshoring, ship repairing, shipbuilding, or shipbreaking to which the standard applies. The substance of the allegation was that respondent permitted the derrick to be operated in excess of its certificated safe working load, and for a use in which limitations had been imposed by the Department of Labor. A penalty of $550 was proposed for the violation.

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n1 1918.74 Cranes and derricks other than vessel's gear.

(a) The following requirements shall be met in the use of cranes, whether hoisted aboard a vessel for use thereon or used to service a vessel from the dock, shore, or another vessel, and in the use of any other crane or derrick not a part of a vessel's permanent equipment, but used in longshoring operations:

* * *

(5) The rated safe working loads of each crane and derrick, for the condition of use, shall not be exceeded.

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The certificate referred to in the citation was the result of the derrick's quadrennial inspection that took place on October 8, 1970. At the time of that inspection, [*4] respondent was using the derrick to lift sand and gravel. The inspector had the derrick pick up the weight with which it was working. Accordingly, the derrick picked up a load of 16,600 pounds at an operating radius of 34 feet, and 11,200 pounds at an operating radius of 78 feet. With the weights reduced 25 percent as a margin of safety, the rated loads were 12,450 pounds (6 1/4 tons) at a 34 foot radius, and 8,400 (4 1/5 tons) at a 78 foot radius.

The gross tonnage of the Jane C was 12.31 tons. Its dead weight was slightly less, however, at 11.714 tons. Testimony by Central Soya employees indicated that the mud in the 12 X 12 foot engine room varied between 6 inches and 2 feet deep. Mud in the bow of the hull ranged from 2-6 inches. W. L. Barnard, a marine surveyor who conducted the quadrennial inspection on the derrick, estimated that the mud in the engine room alone weighed 8.45 tons. He opined that the boom collapse was caused by an overload, but recognized that the boom could have been weakened by the breaking of the shackle earlier in the operation.

II.

In his initial decision, Judge Brady concluded that the certificate issued pursuant to the quadrennial inspection [*5] imposed no weight restrictions, and neither established the lifting capacity of the derrick, nor limited the purposes for which the derrick could be used. The Judge decided the case on the basis of whether the derrick lifted a weight in excess of its actual capacity, concluding that the Secretary failed to establish both the total weight of the Jane C with the accumulated mud, and the actual capacity of derrick No. 9. Accordingly, he vacated the citation.

On November 28, 1975, the Commission remanded the case to the Judge to determine whether the Jane C had been lifted out of the water, the operating radius of the derrick at the time of the lift, its safe lifting capacity at that radius, the weight of the Jane C with the accumulated mud, and, based thereon, whether there was a violation of section 5(a)(1).

The Judge's second decision, issued on September 2, 1976, reaffirmed his original holding, but failed to determine whether the Jane C was lifted out of the water.

The Commission, on July 12, 1977, again remanded the case to the Judge for a determination of whether the Jane C was lifted out of the water. n2 On August 8, 1977, Judge Brady issued a decision [*6] finding that the Jane C had been lifted out of the water.

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n2 The derrick operator testified that he did not lift the Jane C out of the water. To the contrary, however, several Central Soya employees at the site testified that they observed the Jane C out of the water.

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III

On review, the Secretary withdraws that aspect of the citation alleging that the derrick was used for other than its intended purpose. In so doing, he recognizes that the portion of the quadrennial inspection certificate stating that the crane was used for lifting sand and gravel was intended as an observation of use at the time of the inspection, rather than a limitation on future use.

The Secretary continues to assert, however, that respondent violated section 5(a)(1) of the Act by exceeding the derrick's certificated safe working load. According to the Secretary, the Judge's holding that the quadrennial inspection certificate does not limit the weight a derrick is allowed to lift renders the entire certification process a nullity. [*7] The Secretary notes that the quadrennial inspection provided the only known lifting capacity of the derrick. Although the weight of the Jane C at the time of the raising was not established, the Secretary observes that a minimum weight can be established by adding the dead weight of the Jane C (11.71 tons) will the weight of the mud in the engine room (8.45 tons). This total weight of 20.16 tons exceeded the certificated capacity of the derrick and, according to the Secretary, resulted in a violation of section 5(a)(1) of the Act.

Respondent, on review, takes exception to the Judge's finding that the derrick lifted the Jane C out of the water. n3 In all other respects, respondent supports the Judge's finding that there was not a violation of section 5(a)(1). According to respondent, the actual capacity of the derrick was between 12-25 tons and bore no relationship to the certificated capacity. Respondent points out that the Jane C was held in position for several hours prior to the collapse. Had that been a certification test, it is argued, the derrick would have been certified for the weight of the Jane C. Moreover, respondent argues that it did not seek [*8] a higher weight certification at the time of the quadrennial inspection because, at the time, there was no reason to seek a higher rating. Respondent also observes that on previous occasions, the derrick successfully lifted the Jane C out of the water.

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n3 We concur in the Judge's finding. We note that the Judge's finding that the Jane C was lifted out of the water is supported in the record. See n.2, supra. The Commission has stated that where a Judge's finding is supported by the evidence, we usually will not reweigh the evidence on review. Agrico-Chemical Co., 76 OSAHRC 127/A12, 4 BNA OSHC 1727, 1976-77 CCH OSHD para. 21,116 (No. 8285, 1976).

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Finally, respondent asserts that it was not the employer of the derrick operator for purposes of the Act. Rather, it argues that it merely loaned the derrick and the operator to Central Soya, which assumed full control and supervision over the operation of the derrick.

We conclude that respondent was the employer of the derrick operator for purposes of [*9] the Act. Elmo Madison, the derrick operator testified that, as the operator, he had responsibility over the derrick, that he had the authority to determine the placement of the derrick, and could have refused to make a lift if, in his judgment, the load was too heavy. Robert Wathen, Central Soya's Assistant Manager confirmed that Central Soya had no authority to require the operator to lift the boat if he thought it was too heavy.

On the other hand, Henry Land, and Evansville supervisor, testified that respondent leased the derrick with the understanding that Central Soya would take full responsibility for anything that might go wrong. Land stated that the derrick operator left Evansville's supervision and control when he went to the Central Soya job site. Land was convinced that Central Soya would provide adequate supervision. He further testified, however, that the operator was to proceed as he saw fit, based on his experience.

Central Soya hired the derrick and the operator from Evansville because of respondent's expertise and experience in operating derricks. n4 The fact that it contracted with Evansville indicates that Central Soya did not have the capability to raise [*10] the vessel, and although Central Soya had overall authority over the job, they necessarily relied heavily upon the capabilities of the derrick operator for the success and safety of the lifting operation. Thus, Evansville retained the duty to insure that the operator complied with safety requirements. Accordingly, respondent was the employer of the derrick operator for purposes of the Act. Lidstrom, Inc., 76 OSAHRC 40/E6, 4 BNA OSHC 1041 1975-76 CCH OSHD para. 20,564 (No. 3433, 1976). Frohlick Crane Service, Inc., 521 F.2d 628 (10th Cir. 1975).

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n4 See testimony of Lawrence Newman, Central Soya's plant manager.

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V.

Central to the Judge's holding that respondent did not violate section 5(a)(1) of the Act, was his finding that the quadrennial inspection certificate was not intended to limit the weight that could be lifted by the derrick. This finding was based on the testimony of derrick inspector Barnard who stated that line 6 of the test certificate, which calls for "remarks and/or limitations imposed," [*11] was intended only as a remark as to the use of the derrick during the test, and not as a limitation upon its use. Line 6 of the certificate did not refer, however, to the weight limits. Rather, it referred to the use of the derrick at the time of the inspection, which was the lifting of sand and gravel. n5 Moreover, contrary to the Judge's interpretation of the evidence, Barnard testified that operating a derrick in excess of its rated capacity is a hazard, especially if the actual capacity of the derrick is unknown. n6

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n5 Apparently, it was confusion caused by this line in the certificate that prompted the Secretary to originally charge respondent for using the derrick for other than its intended purpose, and it was the testimony of Barnard that persuaded the Secretary to withdraw that portion of the citation.

n6 In its brief of Nov. 3, 1976, respondent notes that the 1972 annual inspection did not set load limits in the space provided for such comments. Respondent argues that the failure to include any limits indicates that the 1970 inspection did not impose weight limits on the derrick. We are not persuaded.

Mr. Barnard testified that the difference between an annual and a quadrennial inspection is that a lift test is required for the latter. We note that the 1970 and 1972 certificate forms are nearly identical and that the 1972 form has line 5 (test loads applied) crossed out. Under these circumstances, we conclude that no weight limits appeared on the 1972 annual certificate because no weight tests were applied.

[*12]

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Properly framed, the issue in this case is whether using a derrick to lift weights in excess of its certificated safe working limits constitutes a recognized hazard causing or likely to cause serious physical harm, and, if, so, whether the derrick did exceed its certificated safe working load when it raised the Jane C out of the water.

Respondent agrees that operating derrick in excess of its actual operating capacity represents a recognized hazard. It contends, however, that exceeding the certified rating is not a hazard when that rating does not represent the true capacity of the derrick. We do not agree. As the Judge found, the actual capacity of the derrick was not established, inasmuch as the respondent did not know the model of the derrick, and the manufacturer's ratings could not be obtained. Therefore, the only known capacity of the derrick was established during the 1970 quadrennial inspection.

In the usual case, the actual capacity of a derrick is known. As all parties agree, exceeding the actual capacity constitutes a recognized hazard. Where, as here, however, that actual capacity [*13] is unknown the certificated safe working load provides the only frame of reference as to the derrick's capacity. In such a case the certificated safe working limits must be treated as the actual capacity, since without further controlled tests, it cannot be determined whether the certificated limits do, in fact, represent the derrick's actual capacity.

We conclude, therefore, that, under these circumstances, n7 exceeding a derrick's certificated safe working load constitutes a recognized hazard, causing or likely to cause death or serious physical harm. n8

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n7 Whether exceeding the certificated safe working load of a derrick is a recognized hazard, where the actual capacity is known, is not before the Commission. We note, however, Inspector Barnard's testimony which established that as a derrick ages, its actual capacity declines.

n8 As previously noted, operator Madison walked around the barge while the Jane C was suspended. Therefore, the operator was exposed to the hazardous condition. Had the boom collapsed at that time and landed on Madison death or serious physical harm would clearly have been the result.

[*14]

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We also find that the evidence establishes that respondent exceeded the derrick's rated capacity. The 1970 quadrennial inspection resulted in the derrick being rated at 12,450 pounds with a boom radius of 34 feet, and 8,400 pounds at a radius of 78 feet. n9 The operating radius is determined by measuring the distance from the mast, which is inside the derrick's turntable, to the point of the lift. n10 The radius of the derrick at the time of the accident was not positively determined. Testimony by derrick operator Madison established, however, that at the time of the last lift the Jane C was 4-5 feet from the end of the derrick, and that the turntable was about 6 feet from the end of the derrick. Based on these figures, derrick Inspector Barnard estimated the operating radius of the boom to have been a minimum of 26 feet. Extrapolating from the certificated weight limits at radii of 34 and 78 feet, Barnard estimated the capacity of the crane, per the certificated working limits, to be 7 1/2-8 tons.

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n9 At the time of the collapse, there was a sign on the boom that indicated that the derrick was rated for 6 tons at a 52 foot radius. According to Inspector Barnard that sign was from a previous inspection and does not represent the results of the 1970 quadrennial inspection.

n10 As the radius of the boom increases, the capacity decreases.

[*15]

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The certificate of admeasurement for the Jane C shows that it had a gross weight of 12.31 tons. Barnard indicated, however, that the dead weight of the vessel was 11.71 tons and estimated the total weight of the mud in the engine room alone at 8.45 tons. Thus, under Barnard's estimate the boat had a minmum weight of approximately 20 tons. Operator Madison disputed Barnard's figures, and, based on his experience and intuition, estimated the total weight to be 12-16 tons. Under either estimate, however, the total weight of the Jane C exceeded the certificated safe working limit, and we find that respondent's use of derrick No. 9 to lift the Jane C out of the water was a violation of section 5(a)(1) of the Act. n11

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n11 Respondent's prior use of the derrick to raise the Jane C does not alter the result. The dead weight of the Jane C exceeded the derrick's certificated safe working load. Though not before us, we note that, arguably, respondent was in violation of section 5(a)(1) on those occasions.

[*16]

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We are not persuaded by respondent's contention that had the lifting of the Jane C been a test, the derrick would have been certified for that weight. First, had the barge lifted the weight equal to that of the Jane C during the quadrennial inspection, the certificated working load would have been reduced by 25 percent as a safety margin. More important, however, is the fact that lift tests for quadrennial inspections are done under controlled conditions that minimize the danger to employees. Moreover, that the raising of the Jane C did not result in immediate strctural damage was a fortuity, and does not indicate that the weight of the barge was within the derrick's actual lifting capacity.

Respondent's own uncertainty over the actual capacity of the derrick underscores the extent of the hazard of its exceeding the derrick's rated capacity. Respondent asserts that the actual capacity was 12-25 tons. The Jane C with the accumulated mud weighed at least 20 tons. Thus, respondent could not be certain at the time of the lift if any by how much the Jane C was exceeding the derrick's [*17] actual capacity.

The Secretary proposed a penalty of $550 for the violation. Exhibit 24, the pealty worksheet, indicates that the proposal took into consideration respondent's size, history, good faith, and the gravity of the violation. We find the proposed penalty to be appropriate.

Accordingly, it is ORDERED that the Judge's decision is reversed. Respondent is found to have violated section 5(a)(1) of the Act, and a penalty of $550 is assessed.

Commissioner COTTINE took no part in the consideration or deeision of this case for the reasons set forth in his separate opinion.

SEPARATE OPINION

As a new member of the Commission, I must resolve the issue of my participation in pending cases. It is also necessary for me to set out the principles guiding my decision on this important issue.

In this case, Chairman Cleary and Commissioner Barnako reached a unanimous decision on the merits before I received my commission on May 1, 1978. A decision was already in preparation when I assumed office. I have concluded that the wisest exercise of discretion is to deeline to participate in this case even though a new Commission member has authority to participate in pending cases. [*18] It should be emplmsized that by deelining to participate I express to opinion on the proeedural or substantive issues in this case or on the appropriateness of the accompanying order.

Discretion of Commission Members

As a matter of law, it is not necessary for all Commission members to participate for an agency to take official action. In Drath v. FTC, 239 F.2d 452 (D.C. Cir. 1956), cert. denied, 353 U.S. 917 (1957), the Federal Trade Commission issued a cease-and-desist order with only three of its five members participating. The Court of Appeals rejected petitioner's contention that the FTC can act in its adjudicatory capacity only when all members participate, except when there is a vacancy. The court ruled that official action can be taken by the majority of the requisite quorum. Also Frischer & Co. v. Bakelite Corp., 39 F.2d 247 C.C.P.A. 1930), cited approvingly in FTC. v. Flotill Prod. Inc., 389 U.S. 179, 182-183 (1967). Similarly, section 12(f) of the Occupational Safety and Health Act, 29 U.S.C. 661(e), provides:

For the purposes of carrying out its functions under this chapter, two members of the Commission shall constitute a quorum [*19] and official action can be taken only on the affirmative vote of at least two members.

Thus, the unanimous decision already reached in this case satisfies the quorum and official action requirements of the Act and my participation is not necessary for the Commission to carry out its adjudicatory functions in this particular case.

However, it is also settled that a new member of an administrative agency may participate in pending cases. For example, a new member of the Civil Aeronauties Board who had not paricipated in previous proceedings was entitled to vote and break an existing tie where he had tamiliarized himself with the record. Western Air Lines v. CAB, 351 F.2d 778 (D.C. Cir. 1965), citing United Air Lines v. CAB, 281 F.2d 53 (D.C. Cir. 1960) n1 In United the court indicated that, where a member voting with the majority without hearing oral argument "had the record before him and the benefit of briefs", there was no abuse of discretion in his participation. 281 F.2d at 56. There are numerous other cases supporting this holding. The clearest statement of law is set forth in Gearhart & Otis, Inc. v. SEC, 348 F.2d 798 (D.C. Cir. 1965):

The decisions of [*20] numerous courts and administrative agencies establish that, even without agreement of the parties, a member of an adm nistrative agency who did not hear oral argument may nevertheless participate in the decision where he has the benefit of the record before him. [footnotes omitted]

348 F.2d at 802. n2 See Au Yi Lau v. U.S. Immigration and Naturalization Service, 555 F.2d 1036, 1042 (D.C. Cir. 1977); Arthur Lipper Corp. v. SEC, 547 F.2d 171, 182 & n.8 (2d Cir. 1976). Thus, a new member possesses the necessary authority to participate in all cases pending before the Commission on assuming office.

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n1 A Commissioner may vote simply to avoid an impasse. Public Service Commission of State of N.Y. v. FPC, 543 F.2d 757, 777 (D.C. Cir. 1974). See generally Screws v. United States, 325 U.S. 91, 134 (1945) (Rutledge, J., concurring in result).

n2 The Court distinguished WIBC, Inc. v. FCC, 259 F.2d 941 (D.C. Cir.), cert. denied, sub nom. Crosley Broadcasting Corp. v. WIBC, Inc., 358 U.S. 920 (1958), because oral argument was statutorily required if a party requested it. 348 F.2d 798, 802 n. 14.

[*21]

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Though a new member may participate in all pending cases, particularly those involving an impasse, the decision remains a matter of discretion since adjudicatory decisions may be upheld on a majority of a quorum. In FTC v. Flotill Prod., 389 U.S. 179 (1967), rev'g 358 F.2d 224 (9th Cir. 1966), an FTC member appointed to fill one of two vacancies declined to participate because he had not heard the oral argument. Thus, three of the possible for Commissioners actually participated in the decision. As a result, the FTC issued a cease-and-desist order based on the affirmative vote of only two members. Despite its obvious impact on the number of members constituting a majority, the Court did not review the exercise of discretion by the new member. Instead, the Court accepted abstention at face value and upheld the action of the two members of the FTC. See also LaPeyre v. ETC, 366 F.2d 117 (5th Cir. 1966); Atlantic Refining Co. v. FTC, 344 F.2d 599 (6th Cir. 1965). In addition, administrative decisions involving two or more abstentions have been upheld by reviewing courts without [*22] question or comment on the grounds for these abstentions. All that was necessary to sustain the agency decision was a majority of the required quorum. e.g., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 848, 861 (D.C. Cir. 1970), cert. denied, 403 U.S. 923 (1971).

Decision Not to Participate

I decline to participate in this case because a majority of the Commission has reached agreement on the merits and my vote would have no effect on the outcome. Moreover, in cases where Chairman Cleary and Commissioner Barnako have reached a unanimous decision, my participation would delay the issuance of decisions and conflict with the goal of a prompt and efficient decision-making process. See generally Atlas Roofing Co., Inc. v. OSHRC, 430 U.S. 442, 97 S.Ct. 1261, 1272 (1977); Keystone Roofing Co., Inc. v. OSHRC, 539 F.2d 960, 964 (3d Cir. 1976); Nader v. FCC, 520 F.2d 182, 205-207 (D.C. Cir. 1975), citing 5 U.S.C. 555(b). Since abatement is stayed until the Commission enters a final order, 29 U.S.C. s 659(b), additional deliberations would delay the control of hazardous working conditions in any case where the Commission has determined that a [*23] violation of the Act exists. That result would be inconsistent with the statutory purpose to assure so far as possible safe and healthful working conditions for every working man and woman. 29 U.S.C. 651(b).

I will, however, participate fully in all cases in which previous Commission deliberations have resulted in a one-to-one deadlock. Decisions by an equally divided Commission are without precedential value, e.g., Life Sciences Products Co., 77 OSAHRC 200/A2 (microfiche), 6 BNA OShC 1053, 1977-78 CCH OSHD P22,313 (No. 14910, Nov. 11, 1977), appeal filed, No. 77-1014 (4th Cir. Jan. 6, 1978), and, therefore, do not serve as guidance to the Commission's administrative law judges. More-over, these decisions also promote needles litigation in the U.S. Courts of Appeals to decide issues which should initially be determined by the Commission because its members have specialized training, education, and experience in occupational safety and health. 29 U.S.C. 661(a). See generally Atlas Roofing Co. v. OSHRC, supra at 1264, 1272; Keystone Roofing Co., Inc. v. OSHRC, supra at 963-964. Administrative resolution of pending issues also promotes a more [*24] uniform application and development of occupational safety and health law. After reading the record, I will participate in the consideration and decision of these cases.

Conclusion

My decision not to participate in pending cases which have reached a unanimous decision by my colleagues, but to participate in those cases with unresolved issues, promotes the prompt adjudication of cases. He full benefit of Commission review is also assured the parties and the public. Both of these results are essential to protecting the lives, health and safety of American workers and the operation of American business while providing for the effective adjudication of cases by the administrative law judges.