Docket No. 934

ED MILLER AND SONS, INC.

OSHRC Docket No. 934

Occupational Safety and Health Review Commission

July 31, 1974

[*1]

Before MORAN, Chairman; VAN NAMEE and CLEARY, Commissioners

OPINIONBY: VAN NAMEE

OPINION:

VAN NAMEE, COMMISSIONER: This matter is before the Commission in accordance with my order directing review of a decision rendered by Judge Vernon Riehl. Judge Riehl affirmed Complainant's citations alleging two serious and two non-serious violations of section 5(a)(2) of the Occupational Safety, and Health Act of 1970 (29 U.S.C. 651 et seq., hereinafter "the Act"). He assessed an aggregate penalty of $1,250.

We have reviewed the entire record. n1 Based on such review we modify the decision of the Judge and we assess a total penalty of $265. Accordingly, the decision of the Judge is adopted only to the extent it is consistent herewith.

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n1 Complainant indicated an intent to file a brief on review. He has not done so, and he has not otherwise indicated his position on the issues.

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CITATION NO. 1 FOR SERIOUS VIOLATION

The relevant facts are as follows: Respondent, a demolition contractor, was using a crane to demolish the Union Station [*2] in Omaha, Nebraska. This crane had been originally manufactured without rigging so that the user could attach any one of a number of implements as needed. The crane was suitable for use with a wrecking ball and had a rated capacity of 35 tons. Respondent installed a cable on the crane boom as a loadline and suspended a 3000-pound wrecking ball from the loadline by means of a used rubber truck tire. It is uncontroverted that a wrecking ball can be accidentally disconnected when suspended from a tire. Since the ball was attached to the loadline by means of a tire, a swivel-type connection was not used. Respondent employed a dragline to prevent twisting. During operation of the crane Respondent's crane operator and oiler, but no other employees, were exposed to possible injury.

Complainant alleged that Respondent failed to comply with 29 C.F.R. 1926.859(d). n2 We agree. Since it was agreed that accidental disconnection is possible when a tire is used as a suspension means it is obvious that a tire cannot be the "positive means" contemplated by the standard. Moreover, it is also obvious that accidental disconnection of a 3000-pound wrecking ball during use can cause [*3] death or serious physical injury. Accordingly, we conclude that Respondent committed a serious violation of the cited standard and of the Act. n3

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n2 This standard requires that "[t]he ball shall be attached to the loadline with swivel-type connection to prevent twisting of the loadline, and shall be attached by positive means in such manner that the weight cannot become accidentally disconnected."

n3 Section 17(k) of the Act provides as follows:

For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable dilligence, know of the presence of the violation. (29 U.S.C. 666(k))

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By this citation Complainant also alleged as part of the same violation [*4] that the use of the tire and lack of a swivel constituted a modification of the crane reducing its safety factor contrary to 29 C.F.R. 1926.550(a)(16). n4 We do not agree.

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n4 This standard provides as follows:

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

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The question then is whether the tire constitutes a modification or addition which affects the capacity or safe operation of the crane. If it is then under the standard Respondent was required to have the manufacturer's written approval. Clearly, the capacity of Respondent's crane was unaffected. Nor do we believe the use of the tire and absence of the swivel constitute a modification or addition within the meaning of the [*5] standard. Were Complainant's theory of the standard acceptable in this instance, it would also be acceptable where an employer complies with the requirements of section 1926.859(d). But such result would be absurd since it would impose an onerous requirement on employers without furthering the purposes of safety and health. Moreover, the requirement would be redundant since Complainant is free to proceed under section 1926.859(d) as he has done here.

We therefore vacate the charge that Respondent violated 29 C.F.R. 1926.550(a)(16) and affirm the charge of violation of 29 C.F.R. 1926.859(d).

We turn now to the assessment of an appropriate penalty for the violation of 29 C.F.R. 1926.859(d). Only two employees, the operator and oiler, were exposed to the hazard of the ball becoming disconnected. Furthermore, the record is not very revealing concerning the likelihood that the tire would break. On the other hand, disconnection of a 3000-pound ball could easily cause death. We conclude that the gravity of the violation as established on the record is low to moderate and that a penalty of $200 is appropriate. n5

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n5 We note that in assessing penalties the Judge considered the four criteria specified in section 17(j) of the Act. We concur with his conclusions as to Respondent's size, its good faith, and prior history under the Act. We find, however, that the Judge erred in his determination of the gravity of Respondent's violations. Accordingly, in assessing a penalty for each violation found in this decision we substitute our analysis of gravity for that of the Judge.

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CITATION NO. 2 FOR SERIOUS VIOLATION

Complainant's compliance officer testified that he saw one fire extinguisher in the cab of the crane and that this extinguisher was rated at 4BC. However, at the hearing Respondent produced an extinguisher stipulated by the parties to be rated at 10BC. When shown this extinguisher the crane operator testified that an extinguisher of identical size was in the crane on the day of the inspection. He stated that the crane was also equipped with another extinguisher of smaller size. Complainant did not rebut this testimony. Accordingly Complainant has not proven by a preponderance [*7] of the evidence that Respondent provided only a 4BC extinguisher. We therefore vacate that portion of this citation alleging that Respondent violated the Act by failing to comply with 29 C.F.R. 1926.550(a)(14)(i). n6

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n6 This standard requires that "[a]n accessible fire extinguisher of 5BC rating, or higher, shall be available at all operator stations or cabs of equipment."

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In this citation, as part of the same violation, Complainant also alleged that Respondent was in noncompliance with 29 C.F.R. 1926.550(a)(2). n7 It is uncontroverted on the record that the crane did not have a load capacity chart. Accordingly we affirm this portion of the citation. However, we do not agree that the violation is serious in nature as alleged.

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n7 This standard provides as follows:

Rated load capacities, and recommended operating speeds, special hazard warnings, or instruction, shall be conspicuously posted on all equipment. Instructions or warnings shall be visible to the operator while he is at his control station.

[*8]

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The cited standard requires only the posting of an instructional chart which among other things lists rated load capacities. Its only function is to serve as a warning device. It cannot be said, however, that a crane will be operated in excess of its rated capacity in the absence of a chart. Indeed, on the facts of this case it is apparent that the load capacity could not be exceeded. Accordingly, we cannot conclude that there is a substantial probability that death or serious physical harm will result because of the absence of a chart. We will therefore modify the citation to non-serious.

We consider now the assessment of an appropriate penalty for the violation of 29 C.F.R. 1926.550(a)(2). There is no dispute that Respondent's crane operator was experienced. As previously stated, the wrecking ball was well within the rated capacity of the crane. Therefore the probability of occurrence of injury from the lack of a load chart is low. We conclude that the gravity of the violation is low and that a penalty of $65 is appropriate.

CITATION FOR NON-SERIOUS VIOLATION

Item No. 1

The [*9] evidence establishes that before it began demolition operations Respondent conducted a survey of the structure as required by 29 C.F.R. 1926.850(a). n8 Respondent's vice president, Robert Miller, inspected the roof, ceilings, floors, and exterior portions of the columns on two separate occasions. From these inspections he determined the sequence of demolition. There is no question that Miller is an experienced demolition contractor. Miller wrote and signed a memorandum confirming that an inspection had been performed. We find on the record that Respondent's survey was adequate and had been performed by a competent person. Since Respondent had written evidence that it had conducted the required survey, we vacate this item of the citation. Ark Wrecking Co.,

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n8 This standard provides as follows:

Prior to permitting employees to start demolition operations, an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure. Any adjacent structure where employees may be exposed shall also be similarly checked. The employer shall have in writing evidence that such a survey has been performed.

[*10]

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Item No. 2

The evidence of record is that approximately one week before demolition commenced the crane had been completely overhauled and its engine rebuilt. At that time, all critical components were examined. Respondent's shop foreman signed a document verifying that equipment had been inspected and that necessary repairs had been made.

This writing neither identifies the equipment inspected nor specifies the results of the inspection, particularly the individual items requiring repair. Respondent therefore failed to comply with 29 C.F.R. 1926.550(a)(6). n9 However, Respondent did in fact perform maintenance and repair. The mere written record of this inspection and repair would not change its adequacy. Indeed, the violation is so minimal that we find the Judge's assessment of a penalty ($125) inappropriate. We conclude that assessment of a penalty for this violation would do little to effectuate the purposes of the Act.

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n9 This standard requires that "[a] thorough, annual inspection of the hoisting machinery shall be made by a competent person, or by a government or private agency recognized by the U.S. Department of Labor. The employer shall maintain a record of the dates and results of inspections for each hoisting machine and piece of equipment."

[*11]

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Accordingly, it is ORDERED that the decision of the Judge be modified as follows:

(1) that portion of the first citation for serious violation alleging violation of 29 C.F.R. 1926.550(a)(16) is vacated, that portion alleging a violation of 29 C.F.R. 1926.859(d) is affirmed, and a penalty of $200 is assessed therefor; (2) that portion of the second citation for serious violation alleging a violation of 29 C.F.R. 1926.550(a)(2) is affirmed as a non-serious violation, a penalty of $65 is assessed therefor, and that portion alleging a violation of 29 C.F.R. 1926.550(a)(14)(i) is vacated; (3) item no. 1 of the citation for non-serious violation is vacated and item no. 2 is affirmed but no penalty is assessed therefor.

As modified the decision of the Judge is hereby affirmed.

CONCURBY: CLEARY (In Part); MORAN (In Part)

DISSENTBY: CLEARY (In Part); MORAN (In Part)

DISSENT:

CLEARY, COMMISSIONER, concurring in part and dissenting in part: I concur in Commissioner Van Namee's opinion except for (1) the conclusion of compliance with the engineering survey standard, and (2) the vacation of the penalty assessed for the failure [*12] to maintain adequate records of the crane inspections.

1. Engineering Survey

Preparatory to demolition, the standard at 29 CFR 1926.850(a) requires in part that:

. . . an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure . . . The employer shall have in writing evidence that such a survey has been performed.

Respondent's evidence that such a survey had been performed consisted of the following written statement by its vice president, Robert Miller:

Mike Regan and I inspected the Union Station job today and inspected the type of construction and its condition.

There is nothing in the writing concerning the condition of the framing, floors, walls, or any possibility of an unplanned collapse. Accordingly, respondent's conclusory statement cannot be reasonably characterized as written evidence.

The compliance officer testified that the engineering survey should have defined the structure, referred to the structural integrity indicating steel and concrete tiered construction, included plans for unscheduled collapses if [*13] any part of the structure was weakened, and referred to the sequence of demolition operations. He further stated that this survey had to be expressed in writing so that management personnel at the worksite would not forget some items in the survey. n10

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n10 Respondent's witness, Robert Miller, testified on direct examination that an inspection of the worksite was made in which he mentally noted many of the requirements necessary for the engineering survey. But these notations were never put in writing.

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The compliance officer's application of this standard seems far better calculated than that of the majority to achieve the obvious purpose of the standard, which is to permit those engaged in the demolition to have the benefit of the survey. The statutory objective of job safety is better served by that application. Cf. Brennan v. O.S.H.R.C. and Gerosa, Inc., 491 F.2d 1340 (2d Cir. 1973).

2. Records of Crane Inspections

I agree that respondent's failure to maintain adequate records of the crane [*14] inspections was a violation of 29 CFR 1926.550(a)(6). The $125 proposed penalty should have been assessed, however, rather than vacated.

The requirements of the standard are twofold: first, an annual inspection must be conducted; and second, a record of that inspection must be maintained. The majority obviously considers the inspection requirement to be more important than the recordkeeping requirement. The standard, however, says nothing of the comparative significance of either requirement.

The compliance officer testified on direct examination that the recordkeeping requirement has two purposes: first, to indicate the frequency of inspections and second, to prevent a damaged item from going unnoticed. n11 He further stated that the requirement was necessary for the protection of personnel working near or with the equipment. The majority eschews this opinion evidence concluding:

. . . respondent did in fact perform maintenance and repair. The mere written record of this inspection and repair would not change its adequacy.

The violation was found to be "minimal." I do not agree. I would assess a $125 penalty because of the gravity of the hazard.

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n11 Although not specifically stated, it is reasonable to infer that recording the dates of inspections is necessary to comply with the first requirement of the standard. Furthermore, a written record would act as a checklist in recording deficiencies and repairs made.

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MORAN, CHAIRMAN, concurring in part, dissenting in part: I concur with the lead opinion except insofar as it holds that the respondent failed to comply with 29 C.F.R. § 1926.859(d). I would vacate the citation for that violation.

The evidence fails to establish that any of the respondent's employees were exposed to the hazard that allegedly resulted from suspending the wrecking ball from the tire. It shows that about 12 of the respondent's employees were working in the project area, but it does not show that they were in the vicinity of the crane.

The government safety inspector testified that the crane's oiler was near the crane, but his exact location was not established. The crane operator testified that no employees were ever close enough to the crane [*16] to be endangered by its operation. He also indicated that if the tire were to break the ball would fall "right straight down." The only possible danger to him would be from debris that might be propelled in his direction when the ball struck the ground, but he was protected from this eventuality by a heavy mesh screen. Thus, with the evidence in this posture, I see no base to justify a finding that any of the respondent's employees were exposed to the alleged hazard. Proof of such exposure is required to establish the violation. Secretary v. Hawkins Construction Co., Secretary v. City Wide Tuckpointing Service Co.,

[The Judge's decision referred to herein follows]

RIEHL, JUDGE, OSAHRC: This is a proceeding pursuant to Section 10 of the Occupational Safety and Health Act of 1970 (29 USC 651 et seq., hereafter called the Act), contesting a Citation issued by the Complainant against the Respondent under the authority vested in Complainant by Section 9(a) of that Act. The Citation alleges that an inspection of the workplace under the ownership, operation, and control of the Respondent [*17] reveals the existence of workplace conditions that violate Section 5(a)(2) of the Act for the reason that these conditions fail to comply with certain Occupational Safety and Health standards promulgated by the Secretary of Labor pursuant to Section 6 thereof.

The amended Citation which was issued on May 12, 1972, alleges that the violation results from a failure to comply with standards promulgated by the Secretary by publication in the Federal Register. The description of the alleged violations contained on said Citation states:

AMENDED CITATION
	Standard or		Date on which
	Regulation		Alleged Vio-
Item	Allegedly	Description of	lation Must
No.	Violated	Alleged Violation	be Corrected
	Formerly part 1518	(Union Station, South 10th
1	29 CFR 1926.850	Street.) No engineering sur-
	(a), page 7404,	vey evidence in writing.
	Column 1.	The inspection was made
		on April 28, 1972. Received
		correspondence from em-
		ployer on May 8, 1972,
		about the inspection made
		at Union Station on March
		15, 1972.	Immediately
2	29 CFR 1926.550	(Union Station, South 10th
	(a)(6), page 7383,	Street.) An American
	Column 2.	crawler crane, used for
		mechanical demolition, had
		no annual inspection rec-
		ord of the hoisting ma-
		chinery. Employer was af-
		forded an opportunity to
		mail this inspection record
		to the OSHA office. Cor-
		respondence received on
		May 8, 1972, does not con-
		stitute the requirement.	Immediately

[*18]

The alleged violations in this Citation (amended) were cited from the Federal Register, dated April 17, 1971, Volume 36, Number 75, Regulations for Construction.

AMENDED CITATION FOR SERIOUS VIOLATION
Standard or		Date on which
Regulation		Alleged Vio-
Allegedly	Description of	lation Must
Violated	Alleged Violation	be Corrected
Formerly Part 1518	Between Union Pacific and Bur-	Immediately
29 CFR 1926.859(d)	lington Station. An American
(page 7406, column 1)	crawler crane used for mechani-
	cal demolition, using a ball ap-
	proximately 3000 pounds in size,
	had the ball suspended with a
	tire (with several cuts) which
	in turn was supported by wire
	ropes.

29 CFR 1926.550(a)(2)	Between Union Pacific and Bur-	Immediately
(page 7383, column 1)	lington Station. An American
	crawler crane used for mechani-
	cal demolition did not have a
	load rating chart.

29 CFR 1926.550(a)(3)	Between Union Pacific and Bur-	Immediately
(page 7383, column 1)	lington Station. An American
	crawler crane used for mechani-
	cal demolition did not have a
	boom angle indicator.

29 CFR 1926.550(a)(14)	Between Union Pacific and Bur-	Immediately
(i)(page 7383, column	lington Station. The American
3)	crawler crane had a two and
	three-fourth pound General fire
	extinguisher.

[*19]

The preceding alleged violations were cited from the Federal Register dated April 17, 1971, Volume 36, Number 75.

AMENDED NOTIFICATION OF
PROPOSED PENALTY
SERIOUS VIOLATIONS
Citation No.	Proposed Penalty
1	$500.00
2	500.00

OTHER VIOLATIONS
Citation No.	Item No.	Proposed Penalty
1	1	$125.00
1	2	125.00
Total for All Alleged Violations	$1,250.00

Pursuant to the enforcement procedure set forth in Section 10(a) of the Act, the Respondent was notified by letter dated May 12, 1972, by the Occupational Safety and Health Administration, that the U.S. Department of Labor proposed to assess a penalty for the violations alleged in the amount of $1,250.00 for serious and non-serious violations.

Pursuant to Section 10(c) of the Act, Respondent timely filed with the Secretary a notification to contest the Citation as to Amended Citation 1 of 2 and 2 of 2 as filed by the Secretary of Labor, as to the proposed penalties stated therein. Also, the employer served Notice of Contest to Amended Citation No. 1 as filed by the Secretary of Labor May 12, 1972, and Notice of Proposed Penalties. Respondent filed its notice of intent to [*20] contest the original Citations and Notifications of Proposed Penalties on May 15, 1972, and its notice of intent to contest the Amended Citations and Amended Notifications of Proposed Penalties on May 23, 1972.

Both cases were duly transmitted to the Occupational Safety and Health Review Commission and docketed numbers 903 and 934 respectively. Since all the alleged violations and the penalties proposed therefore were properly before the Commission under Docket 934, the Amended Citation of which superseded and amended the original Citation, Docket No. 903 was dismissed by the Commission on June 26, 1972.

The Complaint alleged, and Respondent in his Answer admitted, that Respondent Ed Miller & Sons, Inc., is an employer engaged in a business affecting commerce and is, therefore, an employer within the meaning of the Act. The issues remaining to be resolved in this proceeding are: whether Respondent violated the Act as alleged; whether the violations alleged in paragraph IV(a) and IV(b) of the Complaint were serious violations within the meaning of the Act; and whether the penalties proposed by the Secretary for said violations were appropriate within the meaning of the Act.

The [*21] Amended Citation for serious violations (1 of 2); Complaint paragraph IV(a). Respondent was cited for conducting mechanical demolition with a 3,000 pound wrecker ball suspended from the load lines of a crane by means of the rubber truck tire pictured in Exhibits G-6 and G-7. The evidence of record establishes that there was no swivel between the tire and the wrecker ball or between the tire and the load line, and the rubber tire was noticeably damaged, having several deep cuts and abrasions (T. 16-19).

29 CFR 1926.859 provides:

Mechanical demolition . . . (d) The ball shall be attached to the loadline with a swivel-type connection to prevent twisting of the loadline, and shall be attached by positive means in such manner that the weight cannot become accidentally disconnected.

Both the compliance officer and health officer who conducted the worksite inspection and Respondent's crane operator who was performing the mechanical demolition testified that they had observed wrecking balls become accidentally detached when rubber tires used in such manner gave way (T. 18, 115-117). Both testified that rubber tires used in this manner become progressively weaker due to the [*22] forces imposed on them (T. 22, 115-117). This fact is graphically illustrated by comparison with the tire in use at the time of the inspection as pictured in Exhibit G-6 and a second tire installed in the same manner, pictured in Respondent's Exhibit R-2 (T. 114). Both the compliance officer and the Respondent's crane operator, Mr. Hoden, testified that while the steel cable used to support the wrecking ball was of a standard strength with specified load limits and safety factors, there was no way to predict whether the rubber tire would continue to support a given load of when it might give way. Mr. Hoden testified that in his experience tires used in this manner become weakened more by dropping a wrecking ball to break concrete than by swinging it from side to side. He stated that prior to the time of the inspection the ball and tire in question had been used to break up concrete by raising the ball and dropping it (T. 115-117).

Respondent offered evidence of a test performed by the Omaha Testing Laboratories to show that the tire in question was capable of supporting its load. This test was performed by attaching a rubber truck tire to a coffeedam sheath piling [*23] and applying forces of from 7,000 to 10,000 pounds to the tire used in the hoisting cable of a crane. However, Mr. Mertz, who performed the test, stated that the force supplied to the tire during the test was applied gradually rather than under impact conditions which would place an additional strain on the tire. He further testified that his test did not consider the increased forces. Evidence of record indicates that the recommended safety factor for wire rope and attachments under impact loading is usually no less than 7. Thus, to support a 3,000 pound wrecking ball safely under such conditions, a tensile strength no less than 21,000 pounds would be required (T. 186). Mr. Mertz' tests were performed under loads less than one half this amount.

Mr. Mertz further testifies that although the tire which he tested showed no visible damage, the test was not conducted in such a way that it could be determined whether damage might result from type of continuous use to which the tire in question had been subjected (T. 94). Also, the record evidence indicates that the Respondent did not show that the tire being tested was the same as the one cited nor even that the two were [*24] similar except that both were described as "used truck tires."

We feel the conditions for testing the tire were not such that the results of the tests are of any probative value in determining the likelihood of the wrecking ball becoming accidentally detached under the conditions of actual use as set forth in the record.

In addition to the hazards presented by the suspension of the wrecking ball from a rubber tire, there was no swivel connection, as required by 29 CFR 1926.859(b) (T. 19) (Exhibits G-6, G-7). The evidence of record establishes that such a swivel is necessary whether or not a drag line is attached to the load, because wire rope will twist when raised or lowered due to its helical construction (T. 56, 184). Such twisting will in the absence of the swivel, cause a squeezing out of the core lubricant of the cable and eventually may weaken the cable to a metal fatigue (T. 57-58). The drag line, which Respondent's witness said would prevent the load from turning, does not obviate the necessaity for such a swivel (T. 184).

Suspension of the wrecking ball in the manner above described was also alleged to be a violation of 29 CFR 1926.550(a)(16) which provides:

Cranes [*25] and derricks -- (a) General Requirements -- (16) No modifications or additions which affect the capacity or safe operation of the equipment shall be made by the employer without the manufacturer's written approval . . . In no case shall the original safety factor of the equipment be reduced. (Emphasis added)

The evidence establishes that the manufacturer's specifications called for 7/8 inch cable which has a specified breaking point. Opposing the tire between the cable and the load reduced the safety factor to a considerable degree as previously discussed. This was confirmed in very practical terms by Mr. Hoden's testimony that in his experience he has seen tires break when used in the described manner (T. 116), but that the hoist cable would not break with a wrecking ball of this weight (T. 133). One portion of the testimony points out the total unreliability and uncertainty of the use of rubber tires in demolition work such as was done in the instant case.

This testimony is as follows: (T. 129)

Q: As far as this rubber tire this ball was suspended from, would you have any idea at the time this inspection occurred what kind of safety margin you would have with [*26] that rubber tire?

A: With the rubber tire?

Q: Yes.

A: No, actually no. I don't think we had it on too long but I wouldn't be able to tell you whether it would have lasted that day or a week. See, you just don't know.

The plain wording of the standard prohibits modifications when they reduce the original safety factor. The evidence of record establishes that the use of a tire is indeed a modification.

"Used tires" can vary in tensile strength from a badly worn one dollar castoff from the corner filling station to a tire with most of its rubber and vitality left. There can be no possible consistency of wear under the "used tire" methodology indulged in by the Respondent in the operation of his cranes and demolition work. A number of things are left unanswered by the "used tire" system of weight carrying. The standard does not specifically permit the use of "used tires," and, indeed the instant situation may point out the need for a rubber or other fabric cushion holder to be used in demolition work if reducing the shock is the prime consideration along with safety. Perhaps an inner wire or other container should be inserted into the bowels of the tire to act as [*27] a safety device when the "used tire" breaks.

We feel that the use of "used tires" is comparable to use of weaker wires than those recommended by the manufacturer and as ordered by regulation.

Insofar as we are concerned the total evidence establishes that the use of "used tires" constitutes a variance. We, of course, have no power to grant a variance as that function is one to be rendered by the Department of Labor. We feel that the fact that the record shows that tires break with unwarranted frequency speaks for itself, and, points up the additional danger to life and limbs for all concerned in and around a demolition project. The fact that a heavy steel ball could fall on a spot beyond the control of the crane operator should be evidence enough that additional hazard is imposed on the demolition operation by the use of "used tires" in demolition work. Who could possibly say what the unplanned fall of the 3,000 pound or more ball could do. It might break up, or propel hard objects in any direction, including the crane cab, and cause grievous injury or even death.

Another thing that an examination of the total record reveals is the fact that there is no quality control to [*28] check the endurance of used tires, nor any method with which to correctly project the "used tires" range of abilities to sustain shocks as a result of the kinetic energy generated in the act of swinging, lancing, striking and otherwise performancing as the steel ball hits against various angles during demolition work.

We do not know if there is a manufactured rubber or other material holder to use as a shock buffer for steel ball crane operator demolition work.

No one seems to know just how and why "used tires" were originally used in crane demolition work. It may be simply because "used tires" are extremely cheap to acquire.

We feel the life of one worker or the possible maiming of his body is worth more than the money saved by buying "used tires." The injury or maiming of one worker as a result of the steel ball unexpectedly falling does not justify the demolition industry looking only to "used tires" sales for a source of their equipment.

Surely, if the elimination of shock is the major consideration, there can be devised a sont of shock harness which could be manufactured under quality control and it could be a device which is properly tested as to its projected [*29] performance limits under demolition use; also such a device would have a known quantity of uniform performance under the heavy duty stresses arising out of demolition use.

The record does not show that the manufacturer approved this "used tire" method as a modification of its equipment, nor the fact that it passed on it one way or the other. The use of "used tires" very definitely was established from the evidence of record as a practice which reduces the original safety factor. The plain words in the standard prohibits such modifications when they reduce the original safety factor and Respondent has by its use violated this provision as well as the standard cited in the Citation which was amended by paragraph IV of the Complaint to include an alleged violation of 29 CFR 1926.50(a)(16).

In regard to the Citations for serious violations (2 of 2); Complaint paragraph IV(b). Load rating chart. It is clear from the record that the American Crawler Crane in question was not provided with a load rating chart as required by 29 CFR 1926.550(a)(2) (T. 11, 125). The machine was equipped with one when it was purchased; it had broken off and had not been replaced (T. 119). The [*30] purpose of such a chart is to inform the operator of the radius of operation based upon the weight of the load and the length and angle of the boom, at which the crane will be safe from tipping over. Such charts are rated to 85 percent of the tipping capacity of the crane in order to provide a 15 percent margin of safety (T. 11). Respondent's witness testified that its practice was to physically test the load that they lifted and raise boom lengths and angles and make the point where the crane began to tip the maximum limit at which the load would be handled (T. 128).

The existence or effectiveness of alternative safety measures to those provided in the standards is immaterial to the question of whether or not the cited standard was violated and, therefore, the Respondent was properly cited. A number of Commission cases have held that Respondent may not question the reasonableness of the standard as a defense of the alleged violation. See Hodgson v. Interstate Van Sickle Glass Co., Hodgson v. Bi-Co Pavers, Permission to use alternative methods may be obtained by means of the variance proceedings which are specifically [*31] provided for and detailed in the statute itself.

The required load rating chart would have provided a 15 percent margin of safety. Therefore, the violation did, in fact, present a serious hazard to both the operator of the crane and other employees working in the area (T. 42-44).

Fire extinguishers. 29 CFR 1926.550(a)(14)(i) requires that such a crane be equipped with an accessible fire extinguisher of 5 BC rating or higher. The compliance officer testified that the fire extinguisher which was produced for his inspection was of less than 5 BC capacity (T. 11). It thus had a lower extinguishing capacity than the extinguisher required, exposing the operator of the crane and other employees who might be present to an increased hazard in the event a fire should occur (T. 14-15).

The Respondent produced a fire extinguisher at the hearing which had a 10 BC rating. He offered heresay evidence that the extinguisher had been taken from the crane the day prior to the hearing (T. 177). The record does not show to our satisfaction that it was present on the crane on the day of the inspection. We feel the credible evidence establishes that the fire extinguisher on the crane [*32] on the day of the inspection was of less than 5 BC capacity.

The Citation and Complaint alleged violation of 29 CFR 1926.550(a)(3) which required the crane to be equipped with a boom angle indicator. On motion of the Secretary, this allegation was stricken, since that standard was not in effect on the date of the inspection.

Amended Citation for non-serious violations, Item 1. The cited standard, 29 CFR 1926.850, provides that:

(a) Prior to permitting employees to start demolition operations, an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure. Any adjacent structure where employees may be exposed shall also be similarly checked. The employer shall have in writing evidence that such a survey has been performed.

The evidence of record establishes that such engineering surveys generally contain a detailed description of the type of structure to be demolished, determinations as to the structural integrity and whether any portion of the structure may be susceptible to unscheduled collapse, and a sequence of demolitions [*33] such that employees will not be working in a hazardous area during the course of demolition (T. 23-24).

The purported engineering survey submitted by Respondent contained none of these elements nor did it constitute evidence of such a survey having been performed (Exhibit G-9). The record establishes that it is simply a memorandum signed by the Respondent's Vice President, Ed Miller, which states, "Mike Regan and I inspected the Union Station job today and inspected the type of construction and its condition." There is no reference to the competence or qualifications of either person. The document does not state whether the condition of the framing, floors, and walls or the possibility of unplanned collapse was considered.

Exhibit G-9 simply does not meet the requirements of the standard.

Amended Citation for non-serious violations, Item 2. 29 CFR 1926.550(a)(6) requires a thorough annual inspection of the hoisting machinery on all cranes and derricks to be made by a competent person or by a Government or private agency recognized by the U.S. Department of Labor. It further provides that, ". . . the employer shall maintain a record of the date and the results of inspections [*34] for each hoisting machine and piece of equipment." The employer testified to daily inspection which is required, but there is no evidence of record that a "thorough annual inspection" for which records of the dates and results was maintained. This requires that each and every piece of hoisting equipment and crane must be inspected with each item listed and its condition noted (T. 34).

The record submitted by the employer (Exhibit G-10) simply does not satisfy this requirement. It does not state specifically which pieces of equipment were inspected, when they were inspected, or what items or parts of the equipment were inspected. It only states that Respondent's equipment was as of March 22 "ready for the coming work season," which is too vague and general to meet the requirements of the standard.

Respondent's witnesses were too vague in recalling dates of inspection, precisely which items were inspected, the last time an inspection had been performed prior to the most recent one, and other details as required by the standards. Failure to maintain this record, even if the inspection itself had been performed, detracts from the safe operation of the crane, since there [*35] is no way to know at what intervals various parts have been checked and thus a damaged item may go unnoticed (T. 34-35). Respondent's efforts along these lines simply did not meet the statute or the standards imposed.

The crane operator and potentially all 12 of the employees on the worksite were exposed to the danger of a 3,000 pound ball involved becoming accidentally detached (T. 20). Respondent's crane operator testified that for the demolition and progress at the time of the inspection the ball was being swung either sideways or, on occasion, in the direction of the crane operator himself (T. 110). Employees were instructed to avoid the area in which the ball was operating, but the operator's attention was primarily focussed on the ball itself and it was possible for employees or other persons to enter the area of danger (T. 131-132). As we have previously stated, it is obvious that serious injury or death could result to the crane operator and employees if the ball unexpectedly became detached from the rubber tire and flew off and hit some object on the ground or projected something into the air from colliding with the demolition area, and conceivably, could be [*36] struck with the ball itself.

It is not necessary to show that all 12 of the employees could be injured, merely that one or more of them could under the circumstances in or there prevailing.

Evaluations were made as to the various degrees of severity in all of the citations as alleged by the Complaint, and the record establishes that these evaluations were fairly and properly arrived at when considering the likelihood of death and serious physical harm resulting from an accident.

There is no specific requirement for mathematical probability that the hazard would lead to an accident; under the total circumstances as revealed in the record we do not think that it is a remote possibility that an accident could happen. We feel the record establishes that it is more probable than not that death or serious injury could result if the 3,000 pound ball fell unexpectedly in the area. Nothing could be more serious than being struck with a 3,000 pound ball at full flight. The record establishes that the Respondent knew or should have known of the hazard as he was constantly supervising the project and admits the existence of the various things alleged in the Citation.

Respondent [*37] in his brief states that there was no danger to an employee of the Respondent, and, the Secretary failed to meet his burden by showing there was a "substantial possibility" that death or serious injury could result from the alleged violation of 29 CFR 1926.859(d). We do not go along with Respondent's contention and feel that the Secretary has met his burden of showing that there was a "substantial possibility" that death or serious injury could result to any one of the 12 employees as a result to the operation of the crane on the day of inspection.

Section 17(k) of the Act provides in pertinent part,

. . . a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.

In deciding whether a violation is serious, it must be decided (1) Is there a substantial probability that death or serious physical [*38] harm will result? And if so, (2) Did the employer know, or with the exercise of reasonable diligence should have known of the hazard. In this case the employer knew very thoroughly all of the circumstances complained of by the Citation.

The elements of a serious violation of the Act are well supported by the evidence of the record and the Amended Citation for serious violation (1 of 2) will be affirmed.

In regard to the Amended Citation for serious violation 2 of 2, the evidence of record establishes that the probable consequences and degree of probability of the crane tipping due to exceeding the maximum safe limits of operation which the load rating chart would have specified, was increased by the fact that the load was swinging and that a load rating chart has a safety factor which takes this momentum into account (T. 13, 154). Respondent's method of lifting a load to determine a tipping point seriously endangers the operator by the possibility that the crane will tip over. Other employees are potentially exposed as well. This plus the other evidence of record indicates that there is a substantial probability of serious physical harm or death and supports the penalty [*39] proposed.

The total evidence of record establishes that Respondent is aware of the presence of all of these violations as aforesaid mentioned and could have corrected all of them through the exercise of reasonable diligence.

PROPOSED PENALTIES

On the basis of Mr. Levalds' inspection report, Mr. DiSilvestro, in his capacity as Acting Area Director, issued a Notification of Proposed Penalties which he arrived at by consideration of the statutory criteria of Section 17(j) of the Act (Exhibit G-12, G-13, G-13; T. 69-88).

We have examined the methods arrived at the penalties and find that they follow the procedures as established by the Secretary. We also find that the evaluation coincides with our own evaluation which considers the total evidence of record, the gravity of the offenses involved, the likelihood of injury and the other factors required by the statute and the standards. We find that the penalties were all properly arrived at and for each of the cited violations and should be sustained.

FINDINGS OF FACT

We have considered the total evidence of record and make the following findings of fact:

(1) Respondent is a corporation with its principal office in Omaha, [*40] Nebraska, where it is engaged in mechanical and manual demolition contracting (Answer).

(2) On the date of the inspection Respondent was using an Emerican Crawler Crane (T. 9; Exhibit G-5) with the wrecker ball suspended from the load line of the cranes by means of a rubber tire (T. 16; Exhibits G-6, G-7). There were numerous cuts in the tire. There was no swivel between the tire and the ball or between the tire and the load line (T. 19, Exhibits G-6, G-7). The ball which weighed 3,000 pounds (T. 21) continually weakened the tire as the boom crane was being used; and the ball could have swung loose, falling towards the ground. Such cranes are not ordinarily equipped with a rubber tire for suspension and Respondent's crane operator did not know how much of a safety margin he had with the use of this rubber tire supporting the 3,000 pound ball. All 12 of Respondent's employees that were on the jobsite were exposed to the conditions described herein.

(3) There was no load rating chart in the crane. The rating chart is for the use of the operator to inform him of the means to operate the crane safely, based on various factors, including the amount of the load to be lifted; the [*41] chart is based on 85 percent of tipping capacity of the crane, thus providing a 15 percent margin of safety. Rather than use the load rating chart, Respondent's method of determining whether the crane could handle the load was to test it by swinging the load until it started to tip. Absent a load rating chart, a swinging load can swing far enough for the crane to tip and cause serious injury to either the operator or other employees.

(4) Respondent's employees were in the general area where the crane was operated and could have been in the area where the crane was so operated including the area where the ball or crane might fall.

(5) There was no fire extinguisher of at least 5 BC rating in the crane. The fire extinguisher observed by the compliance officer was only 4 BC. The BC ratings refer to units of extinguishing agent. Respondent contends it had a 10 BC extinguisher in the crane, as well as the 4 BC extinguisher. However, based on the credible and probative testimony of witnesses of record, this question has been resolved in favor of the Secretary.

Amended Citation for "Other" Violations, Item 1.

(6) A purported engineering survey given to the compliance [*42] officer on the day following the inspection made no reference to the type of structure being demolished; contained no analysis of the framing floors and walls; did not make any mention of the possibility of unplanned collapse of any portion of the structure. The only evidence of record of an engineering survey having been made was the statement, contained in Mr. Miller's letter, that he and Respondent's foreman looked at the building on the day the latter was dated. The absence of a survey in writing resulted in unsound and unsafe demolition practices, i.e., leaving a floor only partially demolished, thus exposing employees to the hazard of working under a partially demolished floor; pieces of concrete were hanging above them.

Amended Citation for "Other" Violations, Item 2.

(7) 29 CFR 1926.550(a)(6) requires that records be kept relating to the inspection of hoisting machinery on an annual basis. Correspondence was received from Respondent (Exhibit G-10) which did not specifically identify and piece of equipment or the results of the "inspection" (Exhibit G-10; T. 32-33). The failure to make such inspections on the part of the Respondent presented the hazard of allowing [*43] numerous possible unsafe aspects of the hoisting equipment to remain unnoticed, thus exposing the crane operator and other employees to danger from crane malfunctions.

(8) On the basis of the compliance officer's inspection and report, Mr. DiSilvestro, in his capacity as Acting Area Director, issued the Notification of Proposed Penalties which were arrived at by consideration of the statutory criteria of Section 17(j) of the Act.

(a) On the Penalty Assessment Worksheet, Exhibit G-12, each violation was evaluated numerically, based upon the extent of the violation, the likelihood of injury to employees and the probable severity of injury.

(b) The resulting numerical rating was indicative of the relative gravity of the violation and corresponded to a particular dollar amount for the unadjusted penalty.

(c) The unadjusted penalty was reduced by percentages based upon the good faith, size and history of previous violations of Respondent.

(d) The resulting figure was further reduced by a 50 percent abatement credit contingent upon abatement within the period specified in the Citation.

(9) The method of arriving at the proposed penalty was supported by evidence of record. [*44]

CONCLUSIONS OF LAW

(1) Jurisdiction of this proceeding is conferred upon the Commission by Section 10(c) of the Act.

(2) Respondent is and at all material times was an employer within the meaning of Section 5(a) of the Act.

(3) The inspection of Respondent's workplace was conducted under the authority granted in Section 8(a) of the Act.

(4) Respondent has violated Section 5(a)(2) of the Act by violating the Occupational Safety and Health standards (29 CFR 1926) in the manner alleged in paragraph IV of the Complaint.

(5) The violations alleged in paragraphs IV(a) and IV(b) of the Complaint constituted serious violations within the meaning of Section 17(k) of the Act.

(6) The penalties proposed for each violation were appropriate within the meaning of Section 17(j) of the Act.

DECISION

Based on the above findings of fact and conclusions of law, it is hereby ordered that the Amended Citations and Notification of Proposed Penalties herein are affirmed in all respects.