Docket No. 7626

ALAN WOOD STEEL COMPANY

OSHRC Docket No. 7626

Occupational Safety and Health Review Commission

January 12, 1977

[*1]

Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Marshall H. Harris, Reg. Sol., USDOL

Robert A. Clancy, Associate Counsel, Alan Wood Steel Company, for the employer

OPINIONBY: BARNAKO

OPINION:

DECISION

BARNAKO, Chairman:

A decision of Administrative Law Judge Henry K. Osterman is before us for review pursuant to 29 U.S.C. § 661(i) of the Occupational Safety and Health Act of 1970. n1 Judge Osterman affirmed two serious citations which each alleged that Respondent violated the Act by failing to comply with the occupational safety standard at 29 C.F.R. § 1910.179(1)(3)(ii)(b) n2 in that Respondent did not maintain adjustments to assure the correct functioning of the limit switch n3 on two overhead cranes, No. 60 and No. 69. Both citations alleged that the metal plates on the top of the hoist blocks of both cranes were bent and broken to the extent that the limit switches malfunctioned during hoisting operations. Having examined the record in its entirety, the Commission finds that the serious citation regarding crane No. 60 was correctly affirmed by the judge but that the serious citation regarding crane No. 69 must be vacated. Accordingly, [*2] we adopt the decision of the judge except as modified herein.

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n1 29 U.S.C. § 651 et seq.

n2 29 C.F.R. § 1910.179(1)(3)(ii)(b) states, in pertinent part:

(ii) Adjustments shall be maintained to assure correct functioning of components. The following are examples:

(b) Limit switches.

n3 A limit switch is an emergency device which functions automatically to stop upward movement of the hoist. If the device malfunctions when needed, the hoist block and load could hit the trolley of the crane, causing the cable supporting the load to snap and the load to fall.

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On February 7 and 22, 1974, Complainant inspected the Finishing Department of the Hot Strip Mill in Respondent's steel foundry at Conshohocken, Pennsylvania. Complainant's compliance officer inspected Respondent's overhead cranes which were regularly used. He observed that the metal plates on top of the hoist blocks on cranes No. 60 and No. 69 were bent downward at a 45-degree angle out of position, and that the struts which support the plates were [*3] bent. The compliance officer therefore requested that the operators perform certain tests to determine whether the limit switches, which the plates activated, were functioning properly to stop the upward travel of the hoist. The tests consisted of (1) "inching" the hoist block into the limit switch at a slow speed, (2) raising the hoist block in one continuous motion into the limit switch at a slow speed, and (3) raising the hoist block in one continuous motion into the limit switch at a high speed.

Overhead Crane No. 69

The limit switch on crane No. 69 functioned properly during the slow speed tests. It failed, however, to stop the upward travel of the hoist block during the high speed test. Therefore, Complainant alleged that Respondent violated 1910.179(1)(3)(ii)(b) by failing to maintain adjustments to assure that the limit switch functioned properly.

It is undisputed that the crane was in regular service, rather than being a new or altered crane. Respondent defended on the ground that Complainant failed to establish a violation of the standard since (1) Complainant only showed that the switch malfunctioned during a high speed test, but (2) the standards in 1970.179 [*4] which cover testing require the employer to make a high speed test of the limit switch only if the crane is new or altered. In support, Respondent pointed to the requirements of 1910.179(k)(l)(i) and (ii) n4 which require a high speed test of the limit switch of a new or altered crane, and, in contrast, to the requirements of 1910.179(n)(4)(i) n5 which requires that the crane operator at the beginning of his shift, test the limit switch at slow speed, only. Respondent contended that the cited standard must be read with the standards pertaining to testing since the tests reveal whether adjustments have to be made to correct the limit switch.

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n4 29 C.F.R. § 1910.179(k)(1)(i) and (ii) state:

(i) Prior to initial use all new and altered cranes shall be tested to insure compliance with this section including the following functions:

(d) Limit switches, locking and safety devices.

(ii) The trip setting of hoist limit switches shall be determined by tests with an empty hook traveling in increasing speeds up to the maximum speed. The actuating mechanism of the limit switch shall be located so that it will trip the switch, under all conditions, in sufficient time to prevent contact of the hook or hook block with any part of the trolley.

n5 29 C.F.R. 1910.179(n)(4)(i) provides:

At the beginning of each operator's shift, the upper limit switch of each hoist shall be tried out under no load. extreme care shall be exercised; the block shall be "inched" into the limit or run in at slow speed. If the switch does not operate properly, the appointed person shall be immediately notified.

[*5]

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Judge Osterman was persuaded, by his examination of the standards regarding maintenance and inspection, that the cited standard requires that the employer adjust the limit switch whenever there is an unsafe condition that can be detected during the inspection. As to testing to determine whether a defect is causing an unsafe condition, the judge concluded that a high speed test could be required since such a test is not prohibited by any standard pertaining to cranes in regular service. The judge affirmed the citation since (1) an observable defect existed in the plate which activated the limit switch, and (2) the limit switch malfunctioned at high speed.

Having examined the various standards in 1910.179 to which the parties have referred, we are persuaded that Respondent's contentions are correct. The cited standard, 1910.179(1)(3)(ii)(b), pertains to one aspect of maintenance on overhead and gantry cranes, that is, the adjustment of limit switches to maintain correct functioning. It does not specify when and how the employer should determine whether or not the limit switch is malfunctioning. Other [*6] standards in 1910.179, however, contain provisions for inspections and tests which must be conducted to determine whether defects in cranes exist. For example, 1910.179(j) requires that certain items be inspected at various intervals. Section 1910.179(1)(3), which contains the cited provision, provides, inter alia, that maladjustments disclosed by the inspections required by 1910.179(j) be corrected.

Section 1910.179(j) does not, however, require testing of limit switches. Instead, requirements for testing limit switches appear in 1910.179(k) and (n). See notes 4 and 5, supra. Accordingly, we must look to these subsections to determine the requirements for testing limit switches.

Paragraph (4)(i) of 1910.179(n) is the only standard that requires testing of the limit switches of Respondent's crane No. 69. n6 It provides that ". . . the block shall be 'inched' into the limit or run in at a slow speed . . ." before each operator's shift. Neither this nor any other standard requires a test of the limit switch at high speed during the regular service of the crane. Nor can such a requirement be implied. Because section 1910.179 contains detailed and comprehensive requirements [*7] for testing and inspection of cranes, we must assume that the omission of a requirement for high speed testing of limit switches during regular service was deliberate. See Sunbeam Corp., Docket No. 3664, BNA 4 OSHC 1412 (July 6, 1976). Since Respondent was not required to perform a high speed test, a finding of a violation cannot be based solely on the result of such a test. See Diamond Roofing Co. v. OSHRC, 528 F.2d 645 (5th Cir., March 15, 1976). Accordingly, Respondent did not violate the cited standard with respect to crane No. 69.

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n6 Paragraphs (1)(i)(ii) of 1910.179(k) require both low and high speed testing of all new and altered cranes before they are placed in service. Since crane No. 69 was in regular service rather than being new or altered, these paragraphs are not applicable here. The dissenting Commissioner places heavy reliance on the fact that subparagraph (ii) does not use the words "prior to initial use all new and altered cranes. . .". We would not read the subparagraph out of context as he does. We note that that paragraph (2) also contains the limitation. In our view subsection (k) when read as a whole was only intended to apply to new and altered cranes.

[*8]

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Overhead Crane No. 60

At the compliance officer's request, the operator of crane No. 60 performed the two slow speed tests, that is, inching and continuous speed, to check the functioning of the limit switch. Because the compliance officer detected a malfunction at slow speed, he did not ask that a high speed test be performed. On the basis of the slow speed tests, Complainant issued a serious citation alleging that Respondent failed to maintain adjustments to assure the correct functioning of the limit switch on crane No. 60, in that the metal place on the hoist block was bent and broken to the extent that the limit switch did not function during hoisting operations.

Respondent contested the citation and denied the alleged violation in its answer to the complaint. A hearing was set for December 16 and 17, 1974. About three weeks before these dates, Respondent served on Complainant a Request for Admissions pursuant to Rule 52(a) n7 of the Commission's Rules of Procedure. By request No. 1(a), Respondent asked that Complainant admit ". . . the Limit Switch functioned properly on a slow speed [*9] test, as required by . . . 1910.179(n)(4)(i)."

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n7 Rule 52(a) of the Commission's Rules of Procedure, 29 C.F.R. § 2200.1 et seq., provides:

At the time after the filing of responsive pleadings, any party may request of any other party admissions of facts to be made under oath. Each admission requested shall be set forth separately. The matter shall be deemed admitted unless, within 15 days after service of the request, or within such shorter or longer time as the Commission or the Judge may prescribe, the party to whom the request is directed serves upon the party requesting the admission a specific written response.

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On December 13, 1974, which was three days before the hearing, Complainant served its Answers to the Request for Admissions. Complainant admitted to request No. 1(a). Nonetheless, during Complainant's case in chief, the compliance officer testified that the limit switch on crane No. 60 did not function properly when the hoist block was raised at a slow continuous speed. Respondent immediately [*10] objected to this testimony on the basis that Complainant had admitted that the limit switch functioned properly during a slow speed test as prescribed by 1910.179(n)(4)(1).

In response to the objection, Complainant's attorney stated that the admission was a mistake which resulted from preparing the answer to Respondent's request without first consulting the compliance officer who conducted the inspection. The attorney requested that he be allowed to present the testimony of the compliance officer to clarify the record on the results of the tests at slow speed. Respondent, while maintaining its objection, also conceded that it had not received its copy of Complainant's Answers, and had only learned on the morning of the hearing that Complainant had filed and served its answers to the request.

The judge sustained the objection but allowed Complainant to make an offer of proof as to what the compliance officer would state if allowed to testify on the results of the tests at slow speed. The offer stated that, during the test at a slow continuous speed, the limit switch did not operate properly. Respondent did not cross-examine the compliance officer on the proffer.

At the close [*11] of its case in chief, Complainant moved to amend its admission of request No. 1(a) to conform to the offer. The judge granted the motion over Respondent's objection. In response to the objection, Complainant moved to introduce the testimony of the compliance officer in place of the offer of proof. The judge then stated that he would take Complainant's motion under advisement.

In his decision, the judge accepted the offer of proof as evidence in support of his finding that the limit switch malfunctioned when tested at a slow continuous speed, and therefore he affirmed the citation as to crane No. 60. The judge did not expressly address the question on which Respondent based its defense at the hearing and in its brief to the judge: whether Complainant is bound by its admission pursuant to Rule 52(a) and (b) n8 of the Commission's Rules of Procedure.

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n8 Rule 52(b) of the Commission's Rules of Procedure, 29 C.F.R. § 2200.1 et seq., provides:

Copies of all requests and responses shall be served on all parties in accordance with the provisions of rule 7(a) and filed with the Commission within the time allotted and shall be a part of the record.

[*12]

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Respondent contends that the judge improperly allowed Complainant to amend its admission since the Commission rule pertaining to request for admissions does not specifically allow any amendment. Respondent adds that, even if amendment could be allowed in some instances, Complainant did not clearly and convincingly show that the compliance officer's testimony was in fact the truth, that the admission was false, and that the mistake in making the admission was due to exceptional circumstances. Complainant relies on its arguments to the judge that the admission resulted from lack of information from the compliance officer and that Respondent could not have relied on the admission to its prejudice when Respondent only learned of it on the day of the hearing.

Rule 52 of the Commission's Rules of Procedure covers requests for admissions and responses thereto, but the rule does not cover the matter of amendment of any responsive admission. Paragraph (b) of the rule merely states that the responses ". . . shall be a part of the record." This provision plainly does not preclude a later amendment. Therefore, [*13] we turn to the question of whether we should allow the Complainant to amend its admission to request No. 1(a) in the circumstances of this case. For the reasons given herein, we conclude that the amendment should be allowed.

In this case, Respondent had not received the answers through the mail by the day of the hearing, and only learned of the admission to request No. 1(a) on the morning of the hearing when Complainant's attorney showed him the answers. From this it is clear that Respondent did not rely on the admission in preparing its defense to citation No. 1 for crane No. 60. Respondent, moreover, does not contend that it did rely on the admission. Therefore, Respondent cannot be prejudiced by an amendment.

Additionally, Complainant adequately showed that the admission was contradictory to the direct observations of the compliance officer who made the inspection, and that the admission resulted from a mistake in preparing the responses to Respondent's request for admissions. On questioning by the judge, the compliance officer testified under oath that the limit switch of crane No. 60 did not function during a test of the hoist at a slow, continuous speed, and Complainant [*14] made an offer of proof to that effect. The judge relied on this as evidence of the violation, thereby accepting these portions of the record as credible evidence over the admission. As to the mistake, we do not agree that Complainant properly prepared the admissions; he should have consulted the compliance officer. Nevertheless, applying Rule 36(b), Federal Rules of Civil Procedure, n9 we will amend the admission to correspond to the offer of proof because Respondent was not prejudiced in preparing its defense to the merits and because to reject the amendment would be to render a decision on a procedural ground contrary to the real facts in controversy.

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n9 Rule 36(b) is as follows:

Effect of admission. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.

[*15]

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However, considering this matter, we are mindful that the judge made contradictory rulings by first sustaining Respondent's objection to the compliance officers testimony, then permitting amendment and then taking under advisement Complainant's motion to admit the offer of proof as evidence. Respondent contends that it was therefore prejudiced because it did not have an opportunity to present evidence in rebuttal or to cross-examine the compliance officer regarding the results of tests at slow speed.

In view of Respondent's contentions and the timing of the various rulings, we will allow the amendment of the admission but we will also afford Respondent an opportunity, if it so desires, to cross-examine the compliance officer and to present any additional evidence it may have regarding the results of the slow speed tests. Because the record as it now exists, however, establishes a serious violation with respect to crane No. 60, n10 we will affirm the Judge's decision subject to a request by Respondent for such an opportunity. n11

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n10 On review, Respondent also argues that the judge erred in excluding from evidence an arbitration award concerning the discharge of an employee of Respondent who testified in Complainant's behalf at the hearing. Respondent contends that the error was prejudicial because this witness testimony was the sole evidence to prove that Respondent knew or could have known of the violations, the judge relied on the testimony, and Respondent could have shown bias if the arbitration award had been admitted. Since, however, the contents of the award came into evidence when the employee himself testified, any error in not admitting the award itself was not prejudicial. Additionally, the testimony of the employee witness which supports the serious citation concerning crane No. 60 is similar to the testimony of the compliance officer thereon. The judge's findings of fact are, accordingly, supported by other evidence of record, and the employee's testimony is merely cumulative.

n11 Respondent also contends that the judge abused his discretion in assessing the proposed penalty of $1,000. In Respondent's view, the judge should have allowed a substantial reduction from the proposed penalty because Complainant presented inadequate evidence concerning Respondent's size. The argument is not meritorious. The parties stipulated that Respondent is the fifth largest among six steel companies operating in Conshohocken, Pennsylvania, and that Respondent's net sales and operating revenues were $129,321,000 for the nine months from January, 1974, to September, 1974. The parties also stipulated that Respondent employs a daily average of 2,742 employees. It is not stated whether or not this number applies to only the cited facility or to all of Respondent's facilities, but the remaining portions of the stipulation support the conclusion that Respondent is large in size. Therefore, we conclude that the judge's assessment of the maximum penalty was proper for the reasons stated by him in his decision. If, however, Respondent requests an opportunity to present further evidence relevant to the existence of a violation, such evidence may justify modification of the penalty even if a violation is still found to exist. Our decision does not preclude such a modification.

[*17]

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Accordingly, serious citation No. 2, which concerns crane No. 69, is vacated. The judge's decision regarding serious citation No. 1, pertaining to crane No. 60, is adopted to the extent that it is consistent herewith. If, however, Respondent requests further proceedings regarding serious citation No. 1 within ten (10) days of the date of the issuance of this order, the order will be withdrawn and the case will be remanded for further proceedings in accordance with this opinion. It is so ORDERED.

CONCURBY: MORAN; CLEARY (In Part)

CONCUR:

MORAN, Commissioner, Concurring:

I agree with the lead opinion but, since that opinion does not discuss all matters covered in Judge Osterman's decision, I am attaching his decision hereto as Appendix A.

DISSENTBY: CLEARY (In Part)

DISSENT:

CLEARY, Commissioner, CONCURRING IN PART AND DISSENTING IN PART:

I agree with the conditional affirmance of the citation for serious violation No. 1 concerning crane No. 60.

I dissent from vacating the citation for serious violation regarding crane No. 69. It is undisputed that the metal plate on top of the hoist block of crane No. 69 was bent downward and out [*18] of position at a 45-degree angle and that the struts which support the plate were bent. The operator of the crane since October 1972 testified that the hoist plate was "pretty badly damaged," that he operated the crane "40 hours a week, 8 hours a day -- regular schedule," and that he "always used it on full speed" because "it's a job requirement." The compliance officer and the crane operator both testified that the limit switch failed to operate at high speed. The operator indicated that the hoist block bypassed the limit switch "quite often."

The Judge held that "there is no merit" to respondent's contention that high-speed testing of the limit switch is only required for new and altered cranes. He concluded (1) that the standard gives separate and specific coverage to initial inspection of new or altered cranes and periodic and frequent inspection of all cranes, and (2) that limiting high-speed testing to new and altered cranes "would defeat the purpose of the regulation."

The cited standard requires that "adjustments" on limit switches "shall be maintained to assure correct functioning." The question in this case is what constitutes "correct functioning" of the limit switch? [*19] The Secretary argues that "correct functioning" includes the proper operation of the limit switch at high speed. I agree. The crane is consistently operated at high speed, and the necessity of a limit switch is rendered a nullity if it is not required to operate properly during normal usage. The evidence is clear that the hoist plate was obviously deformed and that the limit switch repeatedly malfunctioned. Respondent had at least constructive knowledge of these circumstances and the violation should be affirmed.

A careful reading of all relevant portions of section 1910.179 supports the finding of a violation. Four paragraphs of the section are relevant. Paragraph (j) governs "inspection," including frequent and periodic inspections; paragraph (k) governs "testing;" paragraph (l) governs "maintenance" (the cited standard is included in this paragraph); and paragraph (n) governs "handling the load" (the majority's holding is based on part of this paragraph).

Beginning with paragraph (j), a "frequent inspection" is required on daily to monthly intervals. Subparagraph (2) thereof requires that a frequent inspection be made of "all deficiencies" and that they be "carefully [*20] examined and determination made as to whether they constitute a safety hazard," such as:

(i) All functional operating mechanisms for maladjustment interfering with proper operation. Daily. n12

A "periodic inspection" is required in 1-to-12 month intervals and subparagraph (3) requires that any deficiencies be "carefully examined and determination made as to whether any deficiency constitutes a safety hazard" such as:

(i) Deformed, cracked or corroded members. n13

* * *

(x) Electrical apparatus, for signs of pitting of any deterioration of controller contactors, limit switches and pushbutton stations (emphasis added). n14

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n12 Clearly, the limit switch is a "functional operating mechanism," and its failure to operate at any speed can be considered a safety hazard. See note 3 of the majority opinion. The majority fails to reconcile this requirement of "daily" inspection with § 1910.179(n)(4)(i) upon which it relies.

n13 Bent metal plates and struts are "deformed" members.

n14 The bent plate and struts, together with the operational failure of the limit switch at high speed, is a deterioration of both the electrical apparatus and the limit switch.

[*21]

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Paragraph (k), governing "testing," is misread by the majority to require high-speed testing only for new and altered cranes but not for cranes in regular service. See note 6, supra. A reading of subparagraph (k)(1) in its entirety suggests that the majority errs. The text is as follows:

(k) Testing - (1) Operational tests.

(i) Prior to initial use all new and altered cranes shall be tested to insure compliance with this section including the following functions:

(a) Hoisting and lowering.

(b) Trolley travel.

(d) Limit switches, locking and safety devices.

Subdivisions (i) and (ii) clearly differ in scope. Subdivision (i) applies only to testing of new and altered cranes before use. Subdivision (ii) is not [*22] so limited, and it applies to all testing of limit switches, including those in regular service. n15 Subdivision (ii) plainly requires testing up to the maximum speed and is not limited to the time before initial use.

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n15 If all of paragraph (k) was intended to apply only to new and altered cranes, that limitation would more likely have been noticed in the paragraph heading or at least placed in both subparagraph ((1) and (2)) rather than only in the applicable subdivision of subparagraph (1).

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Paragraph (1) governs "maintenance," and includes the standard that respondent allegedly violated. Subparagraph (3) thereof governs "adjustments and repairs" and includes the cited standard at subdivision (ii)(b), requiring that limit switches "shall be maintained to assure correct functioning." Applying the testing provision at paragraph (k)(1)(ii) as a method of determining "correct functioning" of the limit switch requires that the switch mechanism

be determined by tests . . . up to the maximum speed

and that [*23] the switch mechanism

will trip the switch, under all conditions . . . . (emphasis added).

I find no convincing reason for failure to apply paragraph (k)(l)(ii).

Finally, there is paragraph (n), entitled "Handling the load," that includes the main requirement relied upon by the majority. Subparagraph (4)(i) thereof requires a check of the limit switch at low speed "at the beginning of each operator's shift." This provision only governs the minimum requirement for determining the safe operation of the limit switch and does not supplant the periodic and frequent inspection provisions of paragraph (j) and the testing provisions of paragraph (k).

In summary, it is apparent from a comprehensive reading of paragraphs (j), (k), (l), and (n) of § 1910.179 that the limit switch should be maintained to operate at high speed. The inspection provision under paragraph (j)(2)(i) requires a daily inspection of "all functional operating mechanisms for maladjustment interfering with proper operation" and paragraph (j)(3)(x) requires a periodic inspection of limit switches. The crucial provision is the testing provision of paragraph (k)(l)(ii) which requires testing of the limit switch [*24] to maximum speed, which includes high speed, to assure that the switch will operate under all conditions. Reading these provisions together with the cited maintenance standard at paragraph (1)(3)(ii)(b), requiring "correct functioning" of limit switches, clearly calls for the proper operation of the limit switch at high speed. This requirement is not negated by paragraph (n)(4)(i) requiring a slow speed check of the limit switch "at the beginning of each operator's shift." n16

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n16 The majority adopts other parts of the Judge's decision, which are not before us on review. The Judge's decision on those issues does not constitute binding precedent on us. See Leone Construction Co., 3 BNA OSHC 1979, 1975-76 CCH OSHD para. 20,387 (No. 4090, 1976), petition for review withdrawn, No. 76-4070, 2d Cir., May 17, 1976.

I would also note that the Secretary could have alleged a violation of section 5(a)(1) of the Act in the alternative or moved to amend to allege such a violation. See Dunlop v. Uriel G. Ashworth, 538 F.2d 562, 564 (4th Cir. 1976); Henkels & McCoy, Inc., 4 BNA OSHC 1502, 1976-77 CCH OSHD para. 20,944 (No. 8842, 1976).

[*25]

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APPENDIX A

DECISION AND ORDER

Louis Weiner, Regional Solicitor, U.S. Department of Labor and Richard D. Soltan, for Complainant

Robert A. Clancy, for Respondent

OSTERMAN, Judge, OSAHRC

This is a proceeding initiated by Respondent pursuant to Section 10(c) of the Occupational Safety and Health Act of 1970, 29 USC § 659(c) (hereafter the Act) to contest five (5) Citations and Notifications of Proposed Penalty issued on April 3, 1974. The Citations alleged three (3) serious violations with proposed penalties totaling $3,000, two (2) repeated violations with proposed penalties totaling $2,000, and nineteen (19) non-serious violations with proposed penalties totaling $1,095. All penalties proposed totaled $6,095. A Notice of Contest timely filed challenged the three serious violations; Item 1(b) and Item 2 of the repeated violations, and Items 5, 15, 17, and 18 of the non-serious violations alleged. All proposed penalties except those for Items 6, 8, 10 and 12 of the non-serious violations were contested. A Complaint and Answer and post-trial briefs were filed by the parties.

At the commencement [*26] of the hearing the Secretary withdrew Items 5, 15, and 17 of the non-serious violations alleged as well as the penalties proposed for these violations. The Respondent withdrew its Notice of Contest to Item 18 of the non-serious violations charged as well as its challenge to all proposed penalties except those penalties sought for the remaining violations. Thus, all items in Citation No. 5 (non-serious violations) together with the penalties proposed for these items, totaling $885, have become the final order of this Commission by operation of law (Tr. 113). The following alleged violations together with the abatement dates and proposed penalties remained at issue:

Serious Violations	Abatement Date	Proposed Penalty
Citation No. 1

29 CFR 1910.179(l)(3)(ii)(b)

[Adjustments were not maintained to assure	Immediate	$1000.00
correct functioning of the Limit Switch on
Crane #60. The metal plate on top of the
hoist block was bent and broken to the
extent that the counterweight was bypassed
during hoisting operations.]

Citation No. 2

29 CFR 1910.179(l)(3)(ii)(b)

[Adjustments were not maintained to assure	Immediate	$1000.00
correct functioning of the Limit Switch on
Crane #69. The metal plate on top of the
hoist block was bent and broken to the
extent that the counterweight was by-
passed during hoisting operations.]

Citation No. 3

29 CFR 1910.179(l)(1)

[A preventive maintenance program based on	April 30, 1974	$1000.00
the crane manufacturer's recommendation, for
Cranes #60, 68 and 69, was not established.]

Citation No. 4 [Repeated Violations]

1. 29 CFR 1910.179(l)(3)(iii)(c)

Crane #69
[b) the main lifting pin of the three leg	Immediate	$1000.00
yoke, attached to the lifting magnet, was
excessively worn in an oversized fitting.

The employer was previously cited for
alleged violation of this standard in the
Citation issued December 4, 1973.]

2. 29 CFR 1910.179(e)(2)(i)(a) & (e)(2)(ii)

[On February 22, 1974, Crane #68 in the	Immediate	$1000.00
thirty (30) inch strip mill, Finishing
Department was not provided with an
energy absorging bridge bumper on the
road side of the crane - (wooden block
was being used which had cracked and
had parts which had fallen away).

The employer was previously cited for
alleged violation of this standard in
the Citation issued July 5, 1973.]

[*27]

It should be noted that with respect to Citation No. 4 Respondent did not challenge the allegations that two bolts were missing at the joint on the trolley rail on the north side of Crane #68 (Item 1(a)), and that the bridge brake arm pin was loose and that a nut was missing from a bolt on the brake shoe on the south side of Crane #69 (Item 1(c)).

Citations No. 1 and No. 2

The regulation allegedly violated (29 CFR 1910.179) deals with the design, maintenance, inspection, testing and adjustment of overhead and gantry cranes. Periodic inspection and testing is required in order to discover and eliminate defects which constitute a safety hazard. Subparagraph (l)(3)(ii)(b) of the regulation with which we are involved here requires the adjustment and repair of any unsafe condition disclosed in all functional operating mechanisms including the "limit switches" on an overhead crane. n1 The regulation deals specifically and separately with "initial" inspections of new or altered cranes and "periodic" and frequent inspections of all cranes. There is no merit to Respondent's contention that a test of a "limit switch" should not include a high-speed test unless the crane is new or [*28] altered (Tr. 45-46). The regulation itself does not preclude a high-speed testing of the "limit switch" on other than new and altered cranes and to read such a limitation into the regulation would defeat the purpose of the regulation.

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n1 A "limit switch" is an emergency device designed to stop the upward movement of a crane. Failure of this device can cause the crane to drop an extremely heavy load to the ground below.

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The testimony of Compliance Officer O'Matz with respect to Crane #60 (Tr. 40-41) and Crane #69 (Tr. 44-48) is highly persuasive. It was his testimony that the limit switch on Crane #60 did not function at "slow" speed and he therefore did not test at high speed (Tr. 35), nor did the limit switch on Crane #69 function at "high" speed (Tr. 46). Robert Smith, an employee of Respondent confirmed this fact (Tr. 79-80) and testified also that crane operators were required to use the cranes at maximum speed in the presence of their supervisors (Tr. 47, 78-80). The evidence was uncontradicted that the malfunctioning [*29] of the limit switches on Cranes 60 and 90 was caused in each case by the fact that a ten-inch-square hoist "plate" located on the top of the hoist block was bent and deformed in such a manner (45 degrees) that it failed to properly strike a counterweight which would normally activate the limit switch on each of these cranes (Tr. 31-32, 41, 44, 76). The said "plates" were not newly deformed (Tr. 34) and were visible even from the floor level (Tr. 41, 88). There was unrebutted testimony that the loads lifted by these cranes were extremely heavy (Tr. 44, 83) and that a dropped load could cause serious injury to other employees who were at work near or under these cranes (Tr. 42-44, 80-85).

In Citation No. 3 Respondent is charged with failure to establish a preventive maintenance program with respect to Cranes numbered 60, 68 and 69 as required by 29 CFR 1910.179(l)(1). That section of the regulation provides that "a preventive maintenance program based on the crane manufacturer's recommendations shall be established." The regulation does not describe in any further detail the type of maintenance program which must be established, nor does it indicate whether the regulation would [*30] be satisfied if the maintenance program is executed by following certain established work procedures or whether the program must be formalized in a written document e.g., by use of a check list.

The evidence furnished by the Respondent indicates that a maintenance program was in effect at the time the Secretary's compliance officers made their inspection of Respondent's plant. The program, which was not formalized in writing until after February 7, 1974, was the responsibility of Joseph Kling, General Foreman of Maintenance who testified that prior to February 7 he inspected the Cranes in question once a week (Tr. 160) and that the operators of the cranes were instructed to test the cranes at each "turn" (shift). In addition the oilers would inspect and oil all moving parts of the cranes twice a week (Tr. 158-162). Kling also testified that he had read the manufacturer's suggested maintenance program and that there is nothing suggested by the manufacturer that was omitted from the program which he followed (Tr. 164, 168-173). After the Secretary conducted his inspection on February 7, a detailed inspection check-list was formalized in writing (Exh. C-3; C-7; R-3).

The Secretary [*31] urges that the program followed by Respondent related to "breakdown maintenance" rather than "preventive maintenance" (Tr. 172). The dividing line between the two kinds of programs is a fine one. The testimony of Respondent's witnesses together with the maintenance records submitted indicate that a program of sorts was in effect prior to the Secretary's inspection on February 7 (Tr. 164-173; Exh. R-3). On balance I must conclude that Respondent did prior to February 7, 1974 comply with the requirements of 29 CFR 1910.179(l)(1).

Citation No. 4 contains allegations of two repeated violations. The first allegation charges that the main lifting pin of the three-leg yoke on Crane #69 was "excessively worn" - a violation of 29 CFR 1910.179(l)(3)(iii)(c). It is further alleged that Respondent was previously cited for violation of the standard on December 4, 1973 (Exh. C-1).

Compliance officer Smith who inspected the main lifting pin testified that the pin was approximately 2 inches in diameter (Tr. 12), that he had not actually measured the pin (Tr. 20, 190), and that it was worn so that a space one quarter (1/4) of an inch existed between the pin and the fitting into which it was [*32] inserted (Tr. 12). Richard Carter, a systems general manager for the Respondent did measure the pin and it was his testimony that its diameter was 2 1/2 inches and that it is made of forged steel (Tr. 151). It was held in the fitting by welding rods inserted into holes in either end of the pin (Tr. 102-103).

The regulation itself does not define the term "excessively worn", and although requested by the undersigned to provide some evidence of what constitutes "excessive wear" on the pin in question, counsel for the Secretary could not do so (Tr. 129-130). I do not find that the Secretary's witnesses possessed sufficient expertise to determine the holding power of a forged steel pin 2 1/2 inches in diameter which had been inserted in a fitting leaving a 1/4 inch space between the fitting and the pin. In the absence of specific wear limitations in the regulation itself, I must find that the regulation is too vague to be enforceable.

The final allegation to be considered is the repeated violation of 29 CFR 1910.179(e)(2)(i)(a) and (e)(2)(ii). On July 5, 1973 Respondent was cited for a similar violation with respect to Cranes numbered 60 and 69 (Exh. C-4).

Section 1910.179(e)(2)(i)(a) [*33] of 29 CFR provides, in effect, that a "bridge bumper" shall have sufficient energy absorbing capacity to stop the crane when traveling at a speed of at least 40% of rated load speed. Section 1910.179(e)(2)(ii) provides that bumpers shall be so designed as to minimize parts falling from the crane in case of breakage.

No evidence was submitted by the Secretary to support a finding that the bumper attached to Crane #68 failed to meet the standard imposed by 29 CFR 1910.179(e)(2)(i)(a), nor was there any evidence submitted by the Secretary that the bumper on Crane #68 (as distinguished from the permanently attached "stop" at the end of the rails) failed to meet the design standard of 29 CFR 1910.179(e)(2)(ii). Consequently, this portion of Citation No. 4 must also be dismissed. n2

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n2 Line 16 on page 53 of the transcript of this hearing contains a typographical error. I am informed by the reporter that this line should read as follows: "The runway bumper on Crane 68 where the block had . . . ."

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With respect to the [*34] penalties proposed in connection with Citations No. 1 and No. 2, the evidence indicates that the Secretary considered all of the criteria established by Section 17 of the Act (Tr. 113-122). In my view these penalties are reasonable under the circumstances herein and are not inconsistent with Section 17. However, I find that a penalty of $1,000 for Items 1(a) and 1(c) of Citation No. 4, which were not contested, is excessive and should be reduced to $500.

FINDINGS OF FACT

1) Respondent is a corporation organized and existing under the laws of the State of Pennsylvania and at all material times has maintained a worksite located in Conshohocken, Pennsylvania.

2) Respondent purchases goods and materials which have been manufactured or processed outside of the Commonwealth of Pennsylvania and ships its finished products to points outside of the Commonwealth of Pennsylvania.

3) Respondent owns, operates, and controls various cranes located in its Conshohocken facility, including Cranes #60, 68, and 69.

4) On February 7, 1974 and on February 22, 1974, Respondent's worksite was inspected by employees of the Secretary of Labor acting pursuant to the Occupational Safety and Health [*35] Act of 1970.

5) As a consequence of these inspections citations were issued alleging three serious violations, two repeat violations, and 19 non-serious violations. Respondent filed a Notice of Contest with reference to all three alleged serious violations, one of the repeat violations and a portion of the other, four of the non-serious violations, and all but four of the proposed penalties for the non-serious violations. Three of the alleged non-serious violations, together with the proposed penalties, were withdrawn by Complainant, and Respondent withdrew its Notice of Contest as to the remaining alleged non-serious violations and all proposed penalties except those relating to the Citations they were contesting.

6) The remaining Citations alleged that the "limit switches" on Cranes #60 and 69 bid not function properly; that Respondent did not have a satisfactory preventive maintenance program in effect for Cranes #60, 68 and 69; that the main lifting pin on the hoist attached to Crane #69 was "excessively worn"; and that the energy absorbing bumper on Crane #68 was broken and ineffective.

7) It is clear from the evidence in the record that the hoist plates on both Crane #60 [*36] and Crane #69 were deformed so as to prevent the proper functioning of the limit switches on these two cranes and that these hoist plates had been deformed for some time before the inspection and were readily seen to be deformed not only by the operator of the crane but from the floor below. The Respondent had been made aware of these defects prior to the inspections.

8) The improperly functioning limit switches posed the possibility that an extremely heavy load could be dropped inadvertently with possible consequences of serious injury or death to employees on the ground below. Thus the hazard presented by these violations must be considered "serious" within the meaning of Section 17(k) of the Act.

9) Prior to the inspections made in February 1974, Respondent did have in effect a preventive maintenance program which followed the recommendations of the manufacturer of the said overhead cranes.

10) On the day of inspection a main lifting pin on a hoist attached to Crane #69 was found to be worn. The said lifting pin was 2 1/2 inches in diameter and the worn area between the pin and its fitting was 1/4 inch. However, the standard under this Respondent was charged does not define [*37] the term "excessively worn" and there was no evidence offered by the Secretary to show that the worn area on the pin and/or its fitting was "excessive" within the meaning of the standard involved.

11) There is no evidence in the record to establish that the energy absorbing bridge bumper on Crane #68 failed to meet the requirements of 29 CFR 1910.179(e)(2)(i)(a) or (e)(2)(ii).

CONCLUSIONS OF LAW

1. Respondent is an "employer" engaged in "commerce" as those terms are defined by Section 3 of the Act.

2. At the time of the Secretary's inspections of Respondent's workplace in February 1974, Respondent was in violation of 29 CFR 1910.179(l)(3)(ii)(b) with respect to Cranes numbered 60 and 69.

3. At the time of the Secretary's inspections in February 1974 the Respondent was not in violation of 29 CFR 1910.179(l)(1).

4. At the time of the Secretary's inspections in February 1974, Respondent was not in violation of 29 CFR 1910.179(l)(3)(iii)(c) insofar as this relates to the main lifting pin on Crane #69 [Item 1(b) of Citation No. 4].

5. The penalty proposed for Respondent's conceded violations of Items 1(a) and 1(c) of Citation No. 4 is excessive and should be reduced to [*38] $500.

6. At the time of the Secretary's inspections in February 1974, Respondent was not in violation of 29 CFR 1910.179(e)(2)(i)(a) or (e)(2)(ii).

ORDER

Pursuant to Section 10 of the Occupational Safety and Health Act of 1970 and Rule 66 of this Commission's Rules of Procedure and upon the basis of this record as a whole, it is

ORDERED:

1. That the Secretary's motion to submit in evidence the testimony of Louis O'Matz which relating tests which he performed on Crane #60 be, and the same hereby is, GRANTED.

2. That Citation No. 1 and Citation No. 2 and the proposed penalties of $1000 each relating to these two Citations be, and the same hereby are, AFFIRMED.

3. That Citation No. 3 be, and the same hereby is, DISMISSED and the penalty proposed for this Citation is VACATED.

4. That Respondent's motion to dismiss Item 1(b) of Citation No. 4 be, and the same hereby is GRANTED, and the proposed penalty totaling $2,000 which relates to this Citation is reduced to $500.

HENRY K. OSTERMAN, Judge

Dated: May 5, 1975