SECRETARY OF LABOR,
Complainant,

v.

ALL PURPOSE CRANE, INC.,
Respondent.

OSHRC Docket No. 82-0284

_DECISION_

Before:  BUCKLEY, Chairman, and WALL, Commissioner.

BY THE COMMISSION:

This case is before the Occupational Safety and Health Review Commission
under 29 U.S.C. § 661(j), section 12(j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678 ("the Act").  The Commission is
an adjudicatory agency, independent of the Department of Labor and the
Occupational Safety and Health Administration ("OSHA").  It was
established to resolve disputes arising out of enforcement actions
brought by the Secretary of Labor under the Act and has no regulatory
functions.  _See_ section 10(c) of the Act, 29 U.S.C. § 659(c).

All Purpose Crane, Inc., was operating a crane on a construction site in
Vero Beach, Florida, on Tuesday, December 29, 1981.  The wire boom rope
on the crane broke and the boom of the crane collapsed.  OSHA
investigated the accident the following day, December 30, 1981, and the
Secretary of Labor issued a citation alleging that All Purpose Crane had
violated a number of OSHA construction safety standards.  The citation
was subsequently amended; item 3 of the amended citation alleged a
violation of 29 C.F.R. § 1926.550(a)(7)(1), which provides:   "Wire rope
shall be taken out of service when any of the following conditions
exist: (i) In running ropes, six randomly distributed broken wires in
one lay or three broken wires on one strand in one lay. . . ." [[1]]  A
hearing was held before an administrative law judge, who found that the
standard had been violated and affirmed item 3.  We conclude that the
Secretary did not prove the standard was violated and vacate the item.

I

Although the Secretary's citation alleged that the violation occurred on
December 30th, the day of the OSHA investigation, he attempted at the
hearing to prove that the violation occurred at some point before
December 29th, the day of the accident.  He focused primarily on
December 24, when the crane operator inspected the rope and would have
been required by the standard to take it out of service if the wires
were broken.  There is no dispute that, when OSHA inspected the crane on
the day after the accident, there were a number of locations in the rope
where there were six broken wires in one lay or three broken wires in
one strand.  All Purpose Crane claims, however, that the wires must have
been broken in the accident due to the whipping of the broken rope
through the sheaves.  If this was so, then there is no basis to conclude
that the crane operator should have found broken wires when he inspected
the rope on December 24, and thus no reason to hold the company in
violation of the standard.  The issue litigated by the parties, then, is
whether the Secretary has established by a preponderance of the evidence
that these wires were broken when the crane operator inspected the rope
on December 24.

The only witness who saw the rope before the accident occurred was the
crane operator, Donald Hamilton.  He testified that he had lowered the
boom of the crane and inspected the wire rope on December 24, the last
day the crane was used before the accident. On that date, he lightly
wiped the entire rope with an oily workglove and visually inspected it
for wear and for broken wires.  He did not find enough broken wires to
require that the rope be removed from use.

The record suggests, however, that Hamilton's inspection would not have
disclosed breaks that may have existed in the wires.  The Secretary
presented three expert witnesses who all testified that the proper way
to inspect a wire rope is to remove all tension from it and to bend or
"flex" it to reveal concealed breaks.  One of these witnesses explained
that, because of the way a wire rope is manufactured, the wires would
lie flat even if they were broken, and that, with a preformed woven rope
like this one, it is necessary to flex the rope to cause the ends of
broken wires to "pop up."  Since Hamilton did not remove the weight from
the boom rope and flex it, we accord limited weight to his testimony
that the wires were not broken before the accident.  We must therefore
look to the testimony of other witnesses who addressed this question.

The other witnesses all saw the wire rope for the first time after the
accident.  Three witnesses offered expert testimony on behalf of the
Secretary that, in their opinion, some instances of six broken wires in
one lay of the rope and three broken wires in one strand in one lay
existed before the accident.  The first of these, Frances L. Silverberg,
was a safety specialist employed as a compliance officer by OSHA.  He
worked for ten years in the heavy construction industry, both using and
supervising the use of cranes.  He then served as a safety inspector for
the state of Florida, inspecting cranes, before he joined OSHA.   Mr.
Silverberg had inspected about 300 cranes and 100 crane accidents, of
which 8 or 10 involved a wire rope failure.  He was accepted as an
expert in crane inspection.

The day after the accident, Mr. Silverberg went to the construction site
and inspected the wire rope that had broken.  He also inspected it three
weeks later, on January 21, at All Purpose Crane's yard.  His
inspections disclosed that, on either side of the separation, there were
"many short pieces of broken wire."  He concluded from his observations
that there were "a large number of broken wires" in the rope before the
accident, with several locations having either six broken wires in a lay
or three broken wires in one strand in a lay, or both.

Another witness was Robert DeBenedictis, a crane and rigging safety
consultant, who had also inspected the rope on behalf of Wireco, the
company that apparently manufactured the wire rope.  Mr. DeBenedictis
had inspected over 1000 cranes in his career and had supervised a group
of inspectors who had inspected over 40,000 cranes.  He was accepted as
an expert on cranes.  Mr. DeBenedictis explained that there are two
different reasons why wires break:  fatigue, and excessive tension
caused by overloading. He testified that the ends of wires that break as
a result of fatigue look different from those that break from excessive
tension.  Mr. DeBenedictis described the differences in the appearance
of each kind of break and introduced documents to illustrate and amplify
his explanation.  He testified that, although a state court injunction
prohibited him from flexing this rope[[2]] when he inspected it, he
found numerous breaks that were caused by fatigue.  Mr. DeBenedictis
gave his opinion that, based on the number and the kind of breaks, he
was reasonably certain that the breaks existed before the rope parted on
December 29 and that they were of the number and location that would
require the rope to be removed from service.

The Secretary also called Larry D. Means as a witness.  He is an
engineer employed by Wireco.  One of his duties is to investigate all
accidents or failures involving ropes manufactured by Wireco; and he has
examined "hundreds, or maybe thousands" of wire ropes.  Mr. Means has
his bachelor's degree in metallurgical engineering and has completed the
course requirements for a master's degree in that field.  Like Mr.
Silverberg, he examined the rope on the day after the accident and again
on January 21.  As a result of his examination, he concluded that the
rope was "worn out" before it broke.  He testified that the rope failed
because the load on it was too great for its remaining strength.   He
found numerous broken wires in the rope, especially in the area near
where the rope parted.  He said that he could tell whether a break was
caused by fatigue or by excessive tension, and he stated that he found
both kinds of breaks in the rope.  Mr. Means expressed the opinion that
many of the wires had already been broken before the accident.

All Purpose Crane presented Robert Hochman, who holds a Ph.D. in
metallurgical engineering and is professor of metallurgy at the Georgia
Institute of Technology.  Professor Hochman testified that, in addition
to his duties with the college, he had also acted as an independent
consultant for several years.   He had investigated between 400 and 500
metallurgical failures, including a number of crane collapses and six or
eight wire rope failures.  When he inspected the wire rope, the
injunction was in effect, so he could not perform the extensive
examination and testing that he believed was necessary to determine the
cause of the broken wires.

Professor Hochman agreed with Mr. DeBenedictis that it is possible to
determine with some degree of accuracy the cause of a break by closely
examining the broken end.  In illustrating this point, he mentioned
several causes of breaking not mentioned by either Mr. DeBenedictis or
Mr. Means.  He testified that he had recently presented a report to a
meeting in Paris dealing with the hydrogen embrittlement of metal and
that some of the wires he examined could have broken because they had
become embrittled.  Professor Hochman had been able to photograph a few
of the broken ends under high magnification, and he testified that the
photographs showed a broad range in the types of fractures.  He
testified that one difficulty is that the wires might have been broken
when the rope snapped.

Professor Hochman testified that it is possible, through an in-depth
spectrographic analysis, to pinpoint the nature and cause of many of the
fractures.  He testified, however, that it was not possible to determine
when or why the breaks occurred without a more detailed analysis of the
rope than he or any of the other witnesses was permitted to perform.  It
was his recommendation that a spectrographic analysis of the wires be
done in order to disclose the cause of the broken wires and thereby help
to determine whether they broke before the accident or during it.

Both Mr. DeBenedictis and one of the OSHA compliance officers took
measurements and noted the locations where the number of broken wires
exceeded the limits permitted by the standard.  Their measurements
showed that nearly all the breaks were found within one thirty-foot
length of the rope near the point of failure.  In one of the two pieces
of the rope, the broken wires were concentrated within eight feet of the
break; in the adjoining piece, the broken wires were concentrated within
about 21 feet of the break.  The other witnesses generally concurred in
this description.  Based on this concentration of broken wires in one
part of the rope, Professor Hochman emphasized that there were a number
of possible explanations for this condition, no one of which could be
clearly established as the right one without additional testing.  When
the rope parted, the ends were "whipped" through the crane's sheaves;
and Professor Hochman suggested that the wires may have broken when they
banged against the crane's metal framework or flexed around the sheaves
at high speed.  He also pointed out the possibility that the portion of
the rope in which the break occurred might have been weakened or
embrittled, either during the manufacturing process or as a result of
something that was done to it subsequently, such as exposure to a
chemical or to the elements.  Because of these uncertainties, Professor
Hochman advocated spectrographic analysis of the wire rope.

II

The administrative law judge who heard the case decided that Dr.
Hochman's "opinion is entitled to considerable weight"; nevertheless, he
further decided that the opinion testimony of the Secretary's three
experts about breaks before the rope snapped is of "greater value."  All
Purpose Crane challenges this evaluation of the relative weight of the
expert testimony.   All Purpose Crane argues that, as its expert
testified, without further analysis of the rope, one cannot find that
the broken wires observed after the accident were not broken as a result
of the accident.  All Purpose Crane relies on the fact that the breaks
were concentrated in the area of the separation to support its claim
that the breaks were caused by the whipping action through the sheaves
when the rope snapped.

The Secretary, on the other hand, argues that the administrative law
judge correctly found that the wires were broken before the accident. 
He points to the opinion testimony of his witnesses and recites their
credentials as experts.  The Secretary asserts that the judge's decision
involved his findings as to the relative credibility of the witnesses
and that these findings should not be disturbed.

III

The Secretary has the burden of proving each element of his case by a
preponderance of the evidence.  _Astra Pharmaceutical_ _Products, Inc_.,
9 BNA OSHC 2126, 2129, 1981 CCH OSHD ¶ 25,578, pp. 31,899-900 (No.
78-6247, 1981), _aff'd in pertinent_ _part_, 681 F.2d 69 (1st Cir.
1982).  We find, on this record, that the Secretary has not carried that
burden.  After a careful review of the record, we simply cannot say that
it is more likely than not that, before the accident, there were six
broken wires in one lay of the rope or three broken wires in one strand
in one lay

The standard establishes specific numerical criteria for when a wire
rope must be removed from service.  Conversely, the rope need not be
removed from service if there are fewer breaks than the number
specified.   Thus, a wire rope can have a large number of broken wires
and not be removed from service if the number of broken wires in any lay
is less than six and the number in one strand in a lay is less than three.

The rope had a number of areas where there were more broken wires than
permitted, but they were found only after an accident in which the rope
broke and the broken ends were whipped through the sheaves at high
speed.  The concentration of broken wires in the vicinity of the break
suggests that the whipping action may have caused a number of the
breaks.  The problem before us is to determine whether the numerical
limits of the standard were exceeded before the accident.

To resolve this problem, it would be necessary to examine carefully one
or more areas of the rope where the limits were exceeded after the
accident, to attempt to identify the cause of the various breaks, to
determine how many were caused by the accident, and thereby to infer how
many were present before the accident.  The Secretary's experts
attempted to do this, but their task was made more difficult by the
state court injunction that prohibited any examination that would alter
the state of the rope.  Nevertheless, they testified that they could
tell that many of the breaks were caused by fatigue rather than by
overloading, and would have been there before the accident.  The expert
presented by All Purpose Crane, Professor Hochman, testified that such a
cursory examination could not determine the cause of a break.   He
stated that many factors, such as chemical embrittlement, could be a
factor in the breaks and that the cause of the breaks could not be
determined without further testing.

We find Hochman's testimony persuasive in light of his extensive
expertise in metallurgy.  Moreover, an exhibit introduced by the
Secretary indicates that the matter of determining the cause of breaks
in wires is considerably more complex than the Secretary's experts
intimated.  Ex. C-32 is a publication of the American Iron and Steel
Institute entitled "Wire Rope Users Manual."  On page 59 of that
publication, table 14, entitled "Diagnostic Guide to Common Wire Rope
Abuses," lists nine types of abuse that can lead to broken wires: 
fatigue; tension; abrasion; cut, gouged or rough wire; torsion or
twisting; mashing; corrosion; abrasion plus fatigue; and abrasion plus
tension.  For each type of abuse it lists the physical appearance of the
broken wire.  The Secretary's experts considered only two of these
possible sources of abuse:  fatigue and tension.   Any breaks caused by
the rope's whipping through the sheaves would apparently be the result
of one or more of the other types of abuse, which the Secretary's
experts did not consider. This detracts considerably from their
testimony that they could differentiate from breaks caused by the
accident and breaks existing before the accident.

The Secretary characterizes the judge's evaluation of the weight of the
testimony as a credibility finding and argues that we should accept that
determination.  It is true that, because the judge who tried the case
has had the opportunity to observe the demeanor of the witnesses and to
evaluate their credibility, the Commission will give deference to
findings that are based on credibility determinations.  _Okland
Construction Co_., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD ¶
20,441 (No. 3395, 1976).  Here, however the judge did not purport to
base his decision on factors uniquely observable by him, such as
demeanor.   He did not state that he was making credibility findings;
rather, he referred to the relative weight and "greater value" of the
testimony of the Secretary's experts.  Here, we are in as good a
position as the judge to evaluate the qualifications of the experts and
weigh their testimony in light of the other evidence of record. 
Moreover, the judge's decision did not come to grips with the most vital
point of Professor Hochman's testimony--that without the necessary
in-depth analysis _neither he nor anybody else_ could determine what
caused the wires to break.  The Secretary's witnesses purported to be
able to tell by merely looking at the broken ends whether they broke
before or after the accident, a claim which Professor Hochman described
as "presumptuous."  Such testimony from an expert of Professor Hochman's
stature causes us to question how much weight can be accorded to the
opinion testimony of the Secretary's witnesses.  It may be that they are
correct; Professor Hochman did not rule out that possibility.  But we
cannot say with any confidence either that the breaks in the wire rope
occurred before the accident or that they occurred during the accident. 
Because we are at a loss to say which is the more likely course of
events, we must conclude that the party who had the burden of proof has
not carried it.

We would comment that this was a difficult case, which we have decided
solely on the preponderance of the evidence test. Weighing and
reconciling conflicting opinion testimony from expert witnesses is never
a simple task.   Here, we were impressed by the candor of Professor
Hochman, who did not attempt to convince us that the wires could not
possibly have been broken before the accident.   Instead, he explained
that, because of the court's injunction, he was not able to perform the
necessary examination in order to make that determination.  He explained
how, without such an examination, one kind of break may be mistaken for
another. His testimony leads us to find that the other witnesses'
opinions were formed without adequate empirical data to draw definitive
conclusions.

Whether the examination suggested by Dr. Hochman was subsequently
performed for the civil litigation, we do not know.  If it was
performed, we have no information as to the results.  The parties have
informed us that the litigation has been concluded in the civil suit,
but neither party has either proffered information as to the outcome of
that case or asked to reopen the record to submit more complete
evidence.  Under the circumstances, we can only adjudicate this case on
the record compiled by the parties, however many questions we may have.

After considering the evidence, we are not able to find that it is more
likely than not that the wires were broken before the accident; nor can
we say with any confidence that they were not.  Accordingly, we must
hold that the party bearing the burden of proof, the Secretary, has
failed to carry that burden.  The judge's decision is therefore reversed
as to item 3 of the amended citation:  the item is vacated.  In all
other respects the judge's decision is affirmed.[[3]]

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  April 14, 1987

------------------------------------------------------------------------

SECRETARY OF LABOR,
Complainant,

v.

ALL PURPOSE CRANE, INC.,
Respondent.

OSHRC Docket No. 82-0284

APPEARANCES:

Stephen Alan Clark, Esquire, Office of the Solicitor, U. S. Department
of Labor, Ft. Lauderdale, Florida, on behalf of complainant.

Edward R. Nicklaus, Esquire, Dixon, Dixon, Hurst and Nicklaus, Miami,
Florida, on behalf of respondent.

_DECISION AND ORDER_

SPARKS, Judge:  Three workers died in an accident at the construction
site of the Sea Cove Condominiums, Vero Beach, Florida, on December 29,
1981.  The accident occurred with the breaking of the wire boom rope and
the collapse of the crane boom which was being used to lift buckets of
concrete to a fourth-floor pouring site.

Following an inspection by OSHA, serious and other than serious
citations were issued charging respondent with violating safety
regulations by overloading the crane, by failing to discard a defective
wire rope and using a defective sling, failing to use "U" clamps,
failing to keep proper inspection records, and failing to have a
properly charged fire extinguisher.

Respondent disputes the factual allegations and legal conclusions urged
by the Secretary and adamantly contends the complainant failed to carry
his burden of proof.

Respondent argues that all observations, measurements and photos were
made after the accident which greatly altered the condition of the wire
rope and other circumstances.

To prove a violation of section 5(a)(2) of the Act, the Secretary must
show by a preponderance of the evidence that (1) the cited standard
applies, (2) there was a failure to comply with the cited standard, (3)
employees had access to the violative conditions, and (4) the cited
employer either knew or could with the exercise of reasonable diligence
have known of the condition.  _Daniel_ _International Corp_., 81 OSAHRC
71/D6, 9 BNA OSHC 2027, 1981 CCH OSHD ¶ 25,813 (No. 76-181, 1981);
_Union Boiler_ _Co_., __OSAHRC BNA OSHC __, 1980 CCH OSHD ¶ 24,178 (No.
79-232, Feb. 28, 1983).

A.

_OVERLOADING OF THE CRANE_

Item two of the amended serious citation alleged that respondent
violated 29 C.F.R. § 1926.550(a)(1)[[1/]] by lifting loads which
exceeded the manufacturer's specifications by as much as 1,305 pounds. 
A metal plate attached to the vehicle captioned "Rated Crane Loads In
LBS" listed the maximum loads to be lifted by the crane in various
configurations (Ex. C-12).

Measurements made by the OSHA compliance officers at the area showed
that pourings of concrete up to 121 feet had been made before the
accident (Ex. C-4, C-6, C-19; Tr. 26, 54, 64-65, 84-85, 121-125,
206-207).   Assuming the concrete bucket held one cubic yard filled with
regular concrete thereby weighing approximately 4,305 pounds, the load
capacity, as shown by the manufacturer's chart, was exceeded by 1,305
pounds (Ex. C-25; Tr. 154, 159, 205-207).   Calculations were made based
upon differing assumptions regarding the weight of the load and the
distance to be carried (Ex. C-23, C-26; Tr. 140-141).  On
cross-examination, Compliance Officer Bermudez acknowledged there had
been no evidence the bucket was filled and, if the concrete was as much
as one foot from the top, would weigh approximately 2,000 pounds.  At
that distance, the crane will support a load of 2,636-1/2 pounds and
would not be overloaded (Tr. 210-212).

The compliance officers apparently did not measure the weight or volume
of concrete in the bucket on the last load but estimated the volume by
examining photographs of the concrete bucket.  At the hearing, Roger
Jeeves, the project superintendent, estimated it was filled to within
about four inches of the top (Ex. C-4; Tr. 27).  He did not believe
there was any over reaching of the crane's capacity on the day of the
accident (Tr. 29).  The owner of the GRF Masonry Company, which was
handling the concrete on the job, estimated the concrete was five to six
inches from the bottom of the crossbar on the last pour (Ex. C-8; Tr.
51-52).  He testified it was customary for the buckets to be about
three-quarters full (Tr. 53, 56).

Billy Law, Jr., who was employed by the general contractor as the
assistant superintendent on the project, was responsible for determining
the moisture content of the concrete and was actively involved in the
concrete operations.  He testified the buckets of concrete could not
have been filled as about 50 buckets had already been poured and they
were working from the third or fourth truckload of concrete, each of
which holds ten cubic yards (Tr. 72).  The operating radius of the boom
crane was measured at 105 feet and the maximum distance to the last pour
was 121 feet (Tr. 83-84, 121-123, 156, 239).

Respondent strongly argues that the information produced by complainant
was incompetent and inadequate to establish that the crane had been
overloaded (Resp. brief pp. 10-19).  It points out that the compliance
officer did not measure the weight of the concrete in the actual bucket
being used but measured a similar bucket at the jobsite.  (Tr. 134) and
from Florida Bucket Company obtained the weight of the headache ball,
sting, shackles and other assembly which he found to total 375 pounds
(Tr. 136-137).  The weight of the concrete was obtained from Rinker
Materials which supplied the concrete on the day of the accident (Tr.
148).  It was found to weigh 3,775 pounds per cubic yard (Tr. 147-149). 
Pearock concrete was found to weigh 3,698 pounds according to
information from Rinker Materials (Tr. 150).

The Review Commission considered the gravity and quality of proof
necessary to establish a violation in _Ultimate Distribution_ _Systems,
Inc_., 82 OSAHRC 22/B12, 10 BNA OSHC 1568, 1982 CCH OSHD ¶ 26,011 (No.
79-1269, 1982), where it stated as follows:

To prove a violation of section 5(a)(2) of the Act, 29 U.S.C. §
654(a)(2), the Secretary must show by a preponderance of the evidence
that, among other things, the cited employer failed to comply with a
standard at its workplace.  _Olin Construction Co. v._ _OSHRC_, 525 F.2d
464 (2d Cir. 1975).  Under _Astra Pharmaceutical Products, Inc_., 81
OSAHRC 79/D10, 9 BNA OSHC 2126, 2131 n. 17, 1981 CCH OSHD ¶ 25,578 at p.
31,901 N. 17 (No. 78-6247, 1981), _appeal filed,_ No. 81-1672 (1st Cir.
Sept. 23, 1981), a "preponderance of the evidence" is "that quantum of
evidence which is sufficient to convince the trier of the fact that the
facts asserted by a proponent are more probably true than false."

The Secretary satisfies his burden of proof if the record, when
considered as a whole, contains preponderating evidence in support of
his allegations.  See _Universal Camera Corp. v. NLRB_, 340 U.S. 474
(1951).   In addition to direct evidence, circumstantial and hearsay
evidence are admissible in Commission proceedings and this evidence may
he probative.  _E.g_., _Chicago Bridge & Iron Co_., 74 OSAHRC 92/A2, 2
BNA OSHC 1413, 1973-74 CCH OSHD ¶ 15,416 (No. 224, 1974), _aff'd_, 535
F.2d 371 (7th Cir. 1974) (circumstantial evidence admissible); _Hurlock
Roofing Co_., 79 OSAHRC 93/A2, 7 BNA OSHC 1867, 1979 CCH OSHD ¶ 24,006
(No. 14907, 1979) (hearsay evidence admissible).  For example, in
_Okland Construction Co_., 76 OSAHRC 30/F4, 3 BNA OSHC 2023, 1975-76 CCH
OSHD ¶ 20,441 (No. 3395, 1976), the Commission concluded that a judge
properly entered findings that the Secretary established a violation
based on inferences drawn by the judge from circumstantial evidence: 
noneyewitness testimony creating the reasonable inference that an
employee fell from an unguarded beam.  See _generally_ 1 _Jones on
Evidence_ § 1.3 at 4 (6th ed. 1972) (drawing reasonable inferences from
circumstantial evidence).

It is noted that the hearsay evidence of the Secretary was not rebutted
by specific contradictory evidence.  The evidence of the Secretary was
sufficient to convince the undersigned that the facts asserted are "more
probably true than false."

The preponderance of the evidence shows the concrete bucket was usually
filled about three-quarters full or about six inches below the crossbar
(Tr. 27, 41, 51, 53, 56).

Calculations prepared by Compliance Officer Bermudez show that the
weight of the bucket filled within six inches of the top with pearock
concrete is 3,424 pounds including bucket and attachments.  At that
level, the bucket is slightly less than three-quarters filled (Ex. C-26;
Tr. 136-138, 150).  As the maximum load recommended by the manufacturer
at an operating radius of 110 feet is 3,000 pounds, the recommended
maximum weight was consistently exceeded by more than 400 pounds (Ex.
C-12, C-26; Tr. 206-207, 209).  There is creditable evidence of record
that the bucket was filled within four inches of the crossbar on the
last lift which would yield a total weight of 3,760 or 760 pounds above
the maximum permitted by the manufacturer's load chart if the boom was
at the 110-foot mark and an overload of more than 1,000 pounds at the
120-foot distance (Ex. C-8, C-26; Tr. 27, 51-52).

Respondent's crane operator had many years' experience as a crane
operator.  He claimed he always checked the manufacturer's chart before
booming out and never overloaded the crane (Tr. 418-419, 425).  He
testified the buckets of concrete were from one-half to three-quarters
full during operations (Tr. 424).  He could not recall any of the
readings on the rating chart but insisted he stayed within the limits of
the chart (Tr. 245).  The tack of specific recall the operations on the
day of the accident detracts from the weight to be given his testimony.

The weight of the probative evidence establishes that respondent
exceeded the manufacturer's rated capacity of the crane during
operations of December 29, 1981, and thereby violated 29 C.F.R. §
1926.550(a).  As death or serious injury could result, a serious
violation has been established.

Item 2(b) of the amended citation alleges that "...'U' clamp pins as
specified by the manufacturer or equivalent locking pins were not
installed in order to prevent all four floats from sliding out from
under the outrigger beams."  Photographs taken the day after the
accident show that "U" clamps or other locking devices were not in place
(Ex. C-13, C-14; Tr. 103).   Respondent does not claim they were in
place on that date but points out the crane was not in operation at that
time (Resp. brief p. 20).  Mr. Bermudez acknowledged that respondent's
owner had told him the pins had to be removed so the crane could be
moved (Tr. 107-109).  The crane operator testified the pins were removed
only to move the crane (Tr. 426-427).  Complainant made no attempt to
refute the contention that the pins had been taken out to move the
crane.  Complainant has not established by a preponderance of the
evidence that the "U" clamps were missing while it was in operation and
employees were exposed to the hazard.  The allegations must be vacated.

B.

_DEFECTIVE WIRE ROPE SLING_

Item one of the amended citation alleged a serious violation of 29
C.F.R. § 1926.251(c)(4)(iv)[[2/]] in that the wire rope sling showed
signs of excessive wear, corrosion, or defect.

Compliance Officer Bermudez acknowledged he did not inspect the wire
sling on December 30, 1981, and does not know the condition of the rope
on that date (Tr. 178).  The sling which was attached to the bucket of
concrete was not examined until January 21, 1982 (Tr. 179).  On the
later date, he noticed 17 broken wires and corrosion, but he also
acknowledged the sling was in the respondent's yard at the time he
examined it and he is not aware of the possible damage or corrosion
which may have occurred subsequent to the accident (Tr. 182).  In view
of the interval between the accident and the examination of the rope
more than three weeks later, during which time the rope had been exposed
to the weather, it is concluded that the complainant has failed to
establish that the rope sling was in the defective condition alleged
while it was in use (Tr. 414).

C.

_DEFECTIVE WIRE RUNNING ROPES_

Item three of the amended citation alleges that respondent violated 29
C.F.R. § 1926.550(a)(7)(i)[[3/]] in that the boom hoist cable had seven
areas which had six or more randomly distributed broken wires in one lay
in both dead and live ends, and had four areas containing three or more
broken wires in one strand in one lay.

The running rope used on the crane boom was 371 feet long, 1/2-inch, six
by twenty-five Right Regular Lay IWRC Wire Construction with a rated
capacity of 23,000 pounds (Tr. 184, 223, 265).  The evidence clearly
shows that following the accident, wire rope used on the crane was
separated with many broken wires including six or more randomly
distributed broken wires in one lay and three broken wires, in one
strand in one lay (Ex. C-15; C-16; Tr. 86, 90-91, 112-113).  Compliance
Officer Silverberg, who testified for complainant as an expert witness,
described the condition of the rope as follows (Tr. 240-241):

... I found there was extreme deterioration of the wire rope in the
break area and adjacent to it.  There was a lot of rust in the valleys
between the strands in the rope; . . . there were dog legs in the rope
and broken wire for ... a length of about twenty-five feet from the
break ... and there were many short pieces of broken wire . . . . These
wires were broken on both ends, the short pieces, and I did flex the
rope in a couple of places, one relatively near the break area, and upon
flexing the rope, many wires popped up out of the rope.

* * *

Q.  Did the manner in which you flexed the wire rope break -- does that
type of testing break the wires?

A.  No.  I am nowhere near strong enough to break those wires.

Most of the broken and frayed wires were found within a 30-foot length
located on each side of the break point (Tr. 192-194, 362, 364).   The
break point was approximately 84 feet from the "dead" end (Tr. 188).

Mr. Robert De Benedictis, a crane consultant who was a well-qualified
expert witness, agreed that the proper way to inspect a wire rope is by
flexing it thereby causing the broken ends to pop up (Tr. 269).  During
an inspection of the rope, he also noted many broken wires, fatigue
breaks and other defects (Ex. C-33 through C-60; Tr. 270, 283-284,
292-309, 336-337).  In his opinion, the defects were so serious the rope
should have been removed from service (Tr. 294, 308-309).   Further, he
was of the opinion that had a competent inspection been performed prior
to the accident, the rope would have been removed from service (Tr. 310,
335).

Mr. Larry Means, an employee of the rope manufacturer, testified his
inspection disclosed many broken ends caused by fatigue.   In his
opinion, the rope broke because it was overloaded for its remaining
strength (Tr. 341-343).  He agreed a competent inspection prior to the
accident would have revealed these conditions (Tr. 344-346).

Respondent does not seriously dispute the findings concerning the
condition of the rope after the accident but contends the evidence is
insufficient to show the defects were present or were observable prior
to the accident.

Dr. Robert F. Hochman, Professor of Metallurgy at Georgia Tech, agreed
there were a number of brittle fractures, some shear fractures and some
tensile overload but was of the opinion that a definitive answer
regarding the cause of the rope failure could be given only after
further testing (Tr. 354-357).  He raised the possibility of possible
defects arising from the manufacturing process (Tr. 356-357) and
considered the opinion that the break was caused by fatigue as
"presumptuous" but did not rule out metal fatigue as the cause (Tr.
355-356, 362).  He acknowledged that fatigue is the highest potential
cause of failure and also noted the presence of rust on the rope (Tr.
364).  In one important aspect, Dr. Hochman's opinion varied from those
of complainant's experts.  He testified there would be no "surety" as to
when the breaks in the wires occurred, especially in view of the
extensive action of going through the sheaves at the time of the
accident (Tr. 354-355).

Dr. Hochman's opinion is entitled to considerable weight concerning the
metallurgical properties of the rope and particularly concerning
possible manufacturing defects.  He had not performed the extensive
testing, however, which he felt was necessary to form firm conclusions
regarding the causes of the failure.

The opinions of Mr. DeBenedictis and Compliance Officer Silverberg are
of greater value concerning the issues in this case because of their
extensive experience involving cranes and wire rope.  Based upon their
knowledge and experience, they were of the opinion that the defects in
the rope were present prior to the accident and could have been
discovered by a competent inspection (Tr. 243-244, 250-251, 310, 335). 
Accordingly, it is concluded that respondent knew or should have known
or the conditions which required the wire rope to be removed from
service pursuant to 29 C.F.R. § 1926.550(a)(7)(i).

In _Union Boiler Co_., _supra_, the Review Commission stated as follows:

In determining whether an employer should have known of a hazardous
condition, the Commission has inquired as to whether the employer
exercised reasonable diligence to detect the condition.  In exercising
reasonable diligence an employer is required to inspect and perform
tests to discover safety-related defects in material and equipment. 
_Prestressed Systems, Inc_., 81 OSAHRC, 43/D5, 9 BNA OSHC 1864, 1981 CCH
OSHD ¶ 25,358 (No. 16147, 1981).

The testimony of the operator that he performed an inspection only three
or four days prior to the accident at which time no broken wires or
defects were found is not convincing.  Any inspection which failed to
show the extensive defects was performed inadequately in that he failed
to remove tension from the rope while inspecting it and did not flex or
closely observe the rope.  The violation is serious as an accident
resulting from such hazard would likely result in death or serious
bodily injury.

D.

_FAILURE TO MAINTAIN RECORDS OF MONTHLY INSPECTIONS OF CRANE AND ROPES_

Items 4(a) and 4(c) of the amended citation allege violations of 29
C.F.R. § 1926.550(b)(2)[[4/]] which, among other things, requires
inspections, testing and maintenance of all crawler, truck, or
locomotive cranes as prescribed in ANSI B30.5-1968.  The latter requires
monthly inspection reports which are written, dated and signed are
readily available.

Respondent's records were requested by Compliance Officer Bermudez at
the time of the inspection but were produced only shortly before the
hearing (Ex. C-1).  The record appears to be clean, neat and orderly.  
The crane operator testified he performed the required inspections and
sent in the information to respondent's office where it was transcribed
onto a permanent record (Ex. C-1; Tr. 415).  The records are not signed
or dated nor were they readily available for inspection.  A violation of
the cited regulation is established.  _M & O Steel Erection, Inc_., 79
OSAHRC 85/F1, 7 BNA OSHC 2136, 1979 CCH OSHD ¶ 23,915 (No. 78-5571).

Although a serious violation was alleged, the evidence does not show
that the failure to maintain records as required would result in death
or serious bodily injury.  If complainant had sought to establish that
inspections were not performed, the weight of the evidence fails to
sustain such contention.  Items 4(a) and 4(b) are affirmed as other than
serious violations without penalty.

E.

_FAILURE TO HAVE PROPERLY CHARGED FIRE EXTINGUISHER_

The other than serious citation charged a violation of 29 C.F.R. §
1926.150(a)(4)[[5/]] as the fire extinguisher in the cab of the crane
was not charged.  During his inspection, Compliance Officer Bermudez
observed the fire extinguisher which indicated a discharged condition
and was told it had been in that condition for some time (Ex. 14; Tr.
166-171).  The reasonable inference to be drawn from the established
facts is the fire extinguisher was not in a charged condition while the
crane was in operation.  The allegation is affirmed without penalty.

Compliance Officer Bermudez also observed the swing radius of the crane
was not barricaded as required by 29 C.F.R. § 1926.550(a)(9) (Tr. 92). 
In the amended citation, it is alleged to be a _de_ _minimis_ violation
without penalty.  There is no evidence that the condition existed while
the crane was in operation or that employees were exposed to any hazard
as a result of the condition.  The allegation is vacated.

F.

_PENALTY_

In determining the penalty, section 17(j) of the Act requires that
consideration be given to the gravity of the violation and the
employer's size, good faith and history of previous violations.

Serious violations by respondent have been found by the overloading of
the rated capacity of the crane and the use of defective running ropes. 
The gravity of the violations is very high and would likely result in
death or very serious injury should a collapse of the boom or fall of
the load occur.

The size, good faith and past history are mitigating factors.

The Secretary proposes a penalty of $360 for each of the violations
which is reasonable under the circumstances.

_FINDINGS OF FACT_

1.  Respondent has a place of business and does business in Palm Bay,
Florida, and at the times hereinafter mentioned, maintained a workplace
at 1700 South Ocean Drive, Vero Beach, Florida.

2.  Respondent engaged in the operation of a crane service, and used
materials, supplies and equipment produced outside the State of Florida.

3.  Respondent was contracted by Proctor Construction Company to provide
crane services at the construction site of Sea View Condominium in Vero
Beach, Florida.  One of the cranes respondent provided was a truck
crane, a P & H model 430 TC, serial number 29603.

4.  On or about December 24, 1981, the crane operator lowered the boom
of the aforesaid crane and inspected the crane and the boom hoist
cable.  At the time of the inspection, the boom hoist cable was still
under tension as it supported the bale and sheave assembly and it was
not possible to flex the cable to check for broken wires.

5.  The accepted method for proper and competent inspection of a wire
rope, such as the boom hoist cable, requires that all tension be removed
from the rope, and that the rope cleaned, flexed, and closely inspected
for broken wires and other defects on all surfaces, including the crowns
and valleys.

6.  On December 24, 1981, the boom hoist cable was fatigued, and
contained numerous instances of six or more randomly distributed broken
wires in one lay of the rope, three or more broken wires in one strand
in one lay of the rope and other defects.

7.  A complete and adequate inspection of the boom hoist cable on
December 24, 1981, would have revealed the defects mentioned above, and
would have caused the rope to be removed from service.

8.  The crane operator, who had found no defects in the boom hoist
cable, continued to use the crane with the defective wire rope.

9.  On December 29, 1981, respondent's crane operator failed to operate
the crane within the specifications and limitations of the
manufacturer's load chart for the crane, in that he lifted loads
substantially exceeding the manufacturer's recommendations.

10.  At the time of the inspection, the crane was sitting without
connecting the floats to the outriggers with "U" clamps to prevent their
coming off of the outriggers, but it was not established that the crane
had been operated in that condition.

11.  The fire extinguisher located in the cab of the crane was in a
discharged condition.

12.  Respondent failed to date, sign and have available records of the
inspection and maintenance of the crane, and the records of the
inspection of each of the ropes used on the crane.

13.  Although respondent did not have in place on December 30, 1981, a
barricade to prevent workers from being crushed or struck within the
swing radius of the crane, it was not established that the conditions
existed while the crane was in operation.

14.  The 5/8-inch wire rope sling showed signs of excessive wear,
corrosion or defects during its inspection several weeks following the
accident, but the sling had been exposed to the weather and the evidence
does not establish that it was defective while in use.

15.  The conditions found in paragraphs six and nine above would likely
result in death or serious injury.

16.  Penalties of $720 are reasonable and warranted.

_CONCLUSIONS OF LAW_

1.  Respondent violated the safety standard set forth at 29 C.F.R. §
1926.550(a)(1) failing to comply with the manufacturer's specifications
and limitations applicable to the operation of cranes.

2.  Respondent violated the safety standard set forth at 29 C.F.R. §
1926.550(a)(7)(i) by failing to remove from service a wire rope with six
or more randomly distributed broken wires in one lay or three or more
broken wires in one strand in one lay.

3.  Respondent violated the safety standard set forth at 29 C.F.R. §
1926.550(b)(2) by failing to date, sign and have available proper
inspection and maintenance records of the crane and its wire ropes in
service.

4.  Respondent did not violate the safety standard set forth at 29
C.F.R. § 1926.251(c)(4)(iv).

5.  Respondent violated the safety standard set forth at 29 C.F.R. §
1926.550(a)(4) in that it failed to maintain the crane's firefighting
equipment in operating condition.

6.  Respondent did not violate the safety standard set forth at 29
C.F.R. § 1926.550(a)(9).

7.  The violations referred to in paragraphs one and two are serious
violations within the meaning of section 17(k) of the Act, but those
described in paragraphs three and five are other than serious.

8.  Penalties of $720 are appropriate.

_ORDER_

1.  Serious violations of 29 C.F.R. § 1926.550(a)(1) and 29 C.F.R. §
1926.550(a)(7)(i) are affirmed.

2.  Other than serious violations of 29 C.F.R. § 1926.550(b)(2) and
C.F.R. § 1926.550(a)(4) are affirmed.

3.  Alleged violations of 29 C.F.R. § 1926.251(c)(4)(iv) and 29 C.F.R. §
1926.550(a)(9) are vacated.

4.  Penalties of $720 are assessed.

Dated this 21st day of April, 1983.
JOE D. SPARKS
Judge


FOOTNOTES:

[[1]] A lay is the distance along the rope that one strand takes to make
a complete spiral around the core of the rope.

[[2]] There was litigation in a state court relating to the accident. 
That court had entered an injunction prohibiting any inspection or
testing that would alter the state of the rope.

[[3]] Whether to review a judge's decision is a matter solely within the
discretion of the Commissioners.  29 C.F.R. § 2200.91(a). When a judge's
decision is directed for review, the entire decision is before the
Commission.  _Hamilton Die Cast, Inc_., 86 OSAHRC, 12 BNA OSHC 1797,
1986 CCH OSHD ¶ 27,576 (No. 83-308).  The Commission has the power,
however, to exercise its discretion and review only certain issues or
items.  Although All Purpose Crane raised several issues in its petition
for review, the Commissioner who directed this case for review exercised
his discretion, specifying that the Commission would review only the
issue addressed here.  All Purpose Crane nevertheless presented
arguments in its brief on other issues.  Although we have the power to
address these issues, we again exercise our discretion and review only
the issue specified in the direction for review.

[[1/]] Section 1926.550(a)(1) of 29 C.F.R. provides:

(a) _General requirements_.  (1) The employer shall comply with the
manufacturer's specifications and limitations applicable to the
operation of any and all cranes and derricks.  Where manufacturer's
specifications are not available, the limitations assigned to the
equipment shall be based on the determinations of a qualified engineer
competent in this field and such determinations will be appropriately
documented and recorded.  Attachments used with cranes shall not exceed
the capacity, rating, or scope recommended by the manufacturer.

[[2/]] Section 1926.251(c)(4)(iv) of 29 C.F.R. states:

Wire rope shall not be used if, in any length of eight diameters, the
total number of visible broken wires exceeds 10 percent of the total
number of wires, or if the rope shows other signs of excessive wear,
corrosion, or defect.

[[3/]] Section 1926.550(a)(7)(i) of 29 C.F.R. provides:

(7) Wire rope shall be taken out of service when any of the following
conditions exist:

(i) In running ropes, six randomly distributed broken wires in one lay
or three broken wires in one strand in one lay;

[[4/]] Section 1926.550(b)(2) of 29 C.F.R. states:

All crawler, truck, or locomotive cranes in use shall meet the
applicable requirements for design, inspection, construction, testing,
maintenance and operation as prescribed in the ANSI B30.5-1968, Safety
Code for Crawler, Locomotive and Truck Cranes.

[[5/]] Section 1926.150(a)(4) of 29 C.F.R. provides:

All firefighting equipment shall be periodically inspected and
maintained in operating condition.  Defective equipment shall be
immediately replaced.