SECRETARY OF LABOR,

Complainant,

v.

PASCHEN CONTRACTORS, INC.,

Respondent.

OSHRC Docket No. 84-1285

_DECISION_

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

BY THE COMMISSION:

Paschen Contractors, Inc., contracted with the Florida Department of
Transportation to build the Sunshine Skyway Bridge across Tampa Bay from
St. Petersburg to Bradenton. To accomplish this task, Paschen had an
engineering firm design a device to lift prestressed concrete slabs
weighing over 200 tons. Paschen built the device, but the first time the
lifting device was used it collapsed, injuring four employees. The
Occupational Safety and Health Administration of the Department of Labor
("OSHA") investigated the incident and cited Paschen for a willful
violation of the standard at 29 C.F.R. § 1926.550(d)(4).[[1/]]

Paschen was charged with willfully failing to load test the device,
which the Secretary alleged to be a modified gantry crane, in violation
of the requirements set out in the American National Standards Institute
("ANSI") standard incorporated by reference into 29 C.F.R. §
1926.550(d)(4). Paschen contested the citation, and a hearing was held
by an administrative law judge of this Commission.

At the hearing, the primary issue tried by the parties was whether the
device was a "gantry crane" and therefore subject to the requirements of
the cited standard. Although the judge did not agree with the Secretary
that the device was a gantry crane, he nevertheless concluded that
Paschen's machine was governed by the cited standard because, under the
scope provision of the ANSI standard, devices are covered if they have
"the same fundamental characteristics" as a gantry crane.[[2/]] In the
judge's opinion, Paschen's machine met this test for coverage under the
ANSI and OSHA standards. The judge also found that Paschen had committed
a willful violation of the cited standard, and he therefore affirmed the
citation. The case was directed for review and is before the Review
Commission pursuant to section 12 (j) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 661(j).

In order to establish a violation, the first element of the Secretary's
burden of proof is to show that the cited standard applies to the cited
working conditions. _Dun-Par Engineered Form Co.,_ 12 BNA OSHC 1962,
1986 CCH OSHD ¶ 27,651 (No. 82-928, 1986). The citation alleged that the
device was a gantry crane. For the reasons set forth below, we find that
Paschen's machine is not a gantry crane as defined by the standard and
we conclude that 29 C.F.R. § 1926.550(d)(4) the standard cited, does not
apply. We therefore reverse the judge's decision and vacate the citation.

The largest single component of Paschen's lifting device was a steel
framework, a "gantry," approximately 15 feet high, 13 feet wide, and
over 300 feet long, which sat on the concrete piers that later would be
the permanent supports of the bridge. The piers were approximately 140
feet apart, so that the gantry was supported approximately in the middle
and near each end. After it had been lifted onto the piers by a
water-borne crane, the "gantry" could be moved into position on the next
pier, as sections of the bridge were completed.

On the top of the "gantry" were rails along which a trolley could be
moved. Mounted on the trolley were two lifting devices, one on each
side. Although the trolley could be moved into position over a load
before it made a lift, it would not move while the load was suspended.
Once a concrete segment was raised to the appropriate height, cables
would be attached to the bottom edge and the segment would be lifted
into position rather than transported horizontally by moving the trolley.

The OSHA standard under which Paschen was cited does not define either
"crane" or "gantry crane." It does, however, incorporate by reference
ANSI B30.2.0-1967, which does define those terms. Section 2-0.2.1.1
defines the term "crane:"

A machine for lifting and lowering a load and moving it horizontally,
with the hoisting mechanism an integral part of the machine. Cranes
whether fixed or mobile are driven manually or by power.

The term "gantry crane" is defined in section 2-0.2.1.6:

A crane similar to an overhead crane except that the bridge for carrying
the trolley or trolleys is rigidly supported on two or more legs running
on fixed rails or other runway.

That definition is complemented by section 2-0.2.1.8, which sets out the
definition of an "overhead crane:"

A crane with a movable bridge carrying a movable or fixed hoisting
mechanism and traveling on an overhead fixed runway structure.

Based on our review of the record and the ANSI standard, we conclude
that Paschen's machine does not fit within the definitions in ANSI
B30.2.0-1967.

Because those definitions give us very little guidance concerning the
characteristics of cranes generally and gantry cranes in particular, we
view the information that is provided by the ANSI committee as being
particularly important. We are therefore unwilling to treat any part of
the ANSI definitions lightly. In particular, we place significance on
the language in the definitions that specifies that the legs of a gantry
crane travel along rails and that a crane is a machine "for moving a
load horizontally".

The first question before us is whether Paschen's machine was a "gantry
crane," as the Secretary alleged. Under the ANSI definition, it is the
ability of the bridge to travel because its supporting legs are mounted
on rails, not the presence of a bridge or "gantry," that makes a crane a
gantry crane. Paschen's device did not have legs mounted on rails.
Instead, the bridge of the machine remained stationary on the permanent
concrete piers.

Our conclusion that Paschen's machine does not fall within the
definition of "gantry crane" is reinforced by the illustrations in ANSI
B30.2 depicting the types of cranes covered by the standard and showing
the directions they can travel. As stated in the ANSI scope provision,
_supra_ at note 2, all of the cranes depicted in these illustrations are
"grouped" together because they all have "similar travel
characteristics." Specifically, the illustrations reveal that each of
the cranes depicted has the same three lines of travel: the load can be
raised and lowered; it can be transported horizontally as the lifting
mechanism travels back and forth across the bridge; and the bridge
itself can move along rails in a direction perpendicular to the path of
the trolley. By contrast, Paschen's machine was able only to lift a
load; its trolley was not designed to move in any direction while the
machine was supporting a load. Paschen's machine therefore had only one
of the three paths of travel characteristic of the cranes covered by the
ANSI standard, although the trolley was capable of moving across the
bridge when the crane was not supporting a load. Based on the wording of
the definition and the illustrations, we conclude that Paschen's machine
is clearly not a gantry crane, because it lacks the ability to travel on
rails in a direction perpendicular to the gantry.

Reading the ANSI definitions, we question whether the cited machine was
a crane at all. It appears from ANSI's definition of the term "crane"
that the primary function of a crane is to transport a load horizontally
and that the ability to lift may merely be a necessary incident to that
function. In contrast, Paschen's machine was not intended to transport a
load; it was designed merely to lift its load to a height where it could
be moved into place by other means. It therefore was not a machine "for
moving [its load] horizontally" within the ANSI definition.

For these reasons, we disagree with the administrative law judge's
conclusion that Paschen's machine was governed by the crane standard
because it has the "same fundamental characteristics" as the cranes
governed by the standard. The judge misread the scope provision of ANSI
B30.2, which says that the standard applies to "overhead and gantry
cranes, including semi-gantry, cantilever gantry, wall cranes, storage
bridge cranes, and others having the same fundamental characteristics".
We read that provision to say that the standard applies to those cranes
specifically mentioned and to other cranes having the same fundamental
characteristics. Our conclusion that the judge and the Secretary have
erroneously interpreted this provision is further supported by the
sentence that follows it: "These cranes are grouped because they all
have trolleys and similar travel characteristics." That sentence makes
clear that the emphasis of the scope provision is on the travel
characteristics of the machine, characteristics which Paschen's device
does not share. The ability of a gantry structure to travel along rails
must be one of the most fundamental characteristics of an overhead crane
or a gantry crane, since it is the only characteristic mentioned in the
definitions. Contrary to the Secretary's arguments, the language of the
ANSI scope provision reinforces our view that the cited standard does
not apply. Paschen's machine is not a crane, and it does not have the
same characteristics as the cranes described in the standard. It
therefore cannot be brought within the purview of the standard by the
scope provision.

Because we find that Paschen's machine was not designed "for moving a
load horizontally," we conclude that it is not a crane at all. Although
it is not necessary that we determine what the machine is in order to
decide this case, we note that Paschen's expert witness opined that the
machine was an "overhead hoist," and Paschen has maintained that
position throughout the course of this litigation. OSHA has a standard
governing overhead hoists, which is published at 29 C.F.R. § 1926.554.
One of the provisions of that standard, subsection (a)(3), mandates that
the hoist's supporting structure must not impede free movement of the
hoist and must not restrict the hoist from lining itself up with the
load. This indicates that an overhead hoist has at least limited ability
to travel horizontally, as did Paschen's device. The ANSI standard
governing overhead hoists, ANSI B30.16-1973, indicates that the hoist
mechanism may be mounted on a trolley that travels on overhead beams.
_See_ § 16-0.2.31. This information almost exactly describes Paschen's
device. We therefore conclude that the cited machine most closely
resembles an overhead hoist governed by ANSI B30.16. Consequently, the
applicable OSHA standard appears to be 29 C.F.R. §1926.554, and the
Secretary probably should have cited Paschen under that standard if any
of its provisions were violated.[[3/]]

It is easy to see how the OSHA compliance personnel in this case
mistakenly characterized Paschen's device as a gantry crane. Even the
engineers who designed the device called it a "launching gantry," and a
number of Paschen's own employees referred to it as a "crane." This
confusion underscores the difficulties an employer unfamiliar with the
standards may experience in trying to determine the requirements with
which it must comply.

It is precisely because of uncertainties like this that the Commission
has in the past encouraged pleading in the alternative when there is a
question or controversy over which standard governs the cited
conditions. _E.g._, _McWilliams Forge Co.,_ 11 BNA OSHC 2128, 2131, 1984
CCH OSHD ¶ 26,979, p. 34,671 (No. 80-5868, 1984). We take this
opportunity to repeat that recommendation.

In conclusion, because the standard cited does not apply to Paschen's
machine, we reverse the decision of the administrative law judge and
vacate the citation.

Edwin G. Foulke, Jr.
Chairman

Velma Montoya
Commissioner

Donald G. Wiseman
Commissioner

Dated: _August 29, 1990_

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

SECRETARY OF LABOR,

CompIainant,

v.

PASCHEN CONTRACTORS, INC.,

Respondent.

OSHRC Docket No. 84-1285

APPEARANCES:

Curtis L. Gaye, Esquire, Office of the Solicitor, U. S. Department of
Labor, Atlanta, Georgia, on behalf of complainant.

Davisson F. Dunlap, Esquire, George Barford, Esquire, and James R.
Wiley, Esquire, Cariton, Fields, Ward, Emmanuel, Smith and Cutler, P.A.,
Tampa, Florida, on behalf of respondent.

_DECISION AND ORDER_

BRADY, Judge:    This proceeding is brought pursuant to section 10 of
the Occupational Safety and Health Act of 1970 (Act) to contest a
citation issued by the Secretary of Labor (Secretary) pursuant to
section 9(a) of the Act.

The underlying facts in this case are not in dispute. Paschen
Contractors, Inc., (Paschen), contracted to build spans on the Sunshine
Skyway Bridge, a structure of approximately four miles which connects
St. Petersburg and Bradenton, Florida. A portion of the bridge was to be
constructed with pre-cast roadway segments being placed alternately on
either side of a pier until a span between two piers is closed. The
machine used by respondent to lift the roadway segments into place is
the subject of the dispute in this proceeding. Variously referred to in
the record as a crane, a gantry, gantry crane and launching gantry, it
was over 300 feet long and rested on supports at three piers. On July
30, 1984, certain portions of the machine collapsed while attempting to
lift a roadway segment to the top of pier five north injuring four
employees. An investigation by the Occupational Safety and Health
Administration (OSHA) resulted in issuance of the citation.

Respondent is charged with violating the regulation at 29 C.F.R. §
1926.550(d)(4) which provides as follows:

(4) All overhead and gantry cranes in us shall meet the applicable
requirements for design, construction, installation, testing,
maintenance, inspection, and operation as prescribed in the ANSI B30.2.0
- 1967, Safety Code for Overhead and Gantry Cranes.

Section 2-1.3.5 of the American National Standards Institute (ANSI)
B30.2.0-1967 states:

Cranes may be modified and rerated provided such modifications and the
supporting structure are checked thoroughly for the new rated load by a
qualified engineer or the equipment manufacturer. The crane shall be
tested in accordance with Paragraph 2-2.2.2. New rated load shall be
displayed in accordance with Paragraph 2-1.1.1.

Section 2-2.2.2 in turn provides that:

Prior to initial use all new, extensively repaired, and altered cranes
should be tested by or under the direction of an appointed or authorized
person and a written report furnished by such person, confirming the
load rating of the crane. The load rating should not be more than 80
percent of the maximum load sustained during the test. Test loads shall
not be more than 125 percent of the rated load unless otherwise
recommended by the manufacturer. The reports shall be placed on file
where readily available to appointed personnel.

The alleged violation is described in the citation as follows:

(a) On or about 7/30/84, the Gantry Crane, located atop piers 7n, 6n,
and 5n of the new Sunshine Skyway Bridge, had not been thoroughly
checked as to the field modifications that differed from the Certified
detail drawings that had been provided by the design engineers. In
addition, the crane had not been load tested prior to operational use in
accordance with the provisions of Paragraph 2-2.2.2.

The Commission has held that in order to establish a violation under
section 5(a)(2) of the Act as alleged, it is necessary for the Secretary
to show by a preponderance of the evidence that (1) the cited standard
applies; (2) there was a failure to comply with the standard; (3)
employees had access to the violative condition; and (4) the cited
employer either knew or could have known of the condition with the
exercise of reasonable diligence. _Astra Pharmaceutical Products, Inc.,_
82 OSAHRC 55/E9, 9 BNA OSHC 2126, 1982 CCH OSHD ¶ 26,251 (No. 78-6247,
1985); _Daniel International Corp., _81 OSAHRC 71/D6, 9 BNA OSHC 2027,
1977-78 CCH OSHD ¶ 21,679 (No. 76-181, 1977).

A primary issue in this case relates to the applicability of the
standard. The Secretary maintains that the machine used by respondent
was a crane subject to the Overhead and Gantry Crane Standards. This
contention is based primarily on the scope of the ANSI standard at
B30.2.0-1967. The general scope of the standard set forth at 2- 01
states it "applies to overhead and gantry cranes, including semi-gantry,
cantilever gantry, wall cranes, storage bridge cranes and others having
the same fundamental characteristics. These cranes are grouped because
they all have trolleys and similar travel characteristics." It is
alleged, therefore, that the machine in question is a crane subject to
the standard in that it has the fundamental characteristics of overhead
and gantry cranes, including a bridge that moves, which in turn supports
a movable hoisting mechanism capable of lifting a load and moving it
horizontally. In addition, the machine, supported at piers 5n, 6n, and
7n, was capable of moving itself from pier to pier (Joint Ex. 6).

Respondent points out that section 1926.550(d)(4) does not define a
gantry crane but only references the ANSI standard in that regard. It,
therefore, adopts a position based on the Commission's reasoning in
_Lisbon Contractors, Inc.,_ _ OSAHRC __,11 BNA OSHC 1971, 1972-73, 1981
CCH OSHD ¶ 25,222 (No. 80-97, 1984). In that case, the Commission was
faced with a situation where a backhoe was used to perform the function
of a crane in lifting a trench box and lowering it into a trench. The
Commission overruled several prior decisions which upheld the functional
argument based on a machine's use, and stated that the crane standards
"were tailored instead to particular configurations and mechanisms of
cranes and derricks rather than to the machine's functions."
Accordingly, it found the backhoe was not a crane, because it did not
have a "boom" within the meaning of the ANSI standard. Respondent,
therefore, asserts that its machine did not have the configuration and
mechanism of a gantry crane as defined in section 2-0.2.1.6 which states:

A crane similar to an overhead crane except that the bridge for carrying
the trolley or trolleys is rigidly supported on two or more legs running
on fixed rails or other runway.

In addition, reference is made to the scope clause of ANSI B30.2 which
indicates the cranes "... all have trolleys and similar travel
characteristics." Thus, it is argued that although the hoist mechanism
was mounted on a trolley and capable of horizontal travel on a truss,
the truss was incapable of perpendicular movement. In support of its
position, respondent points out that the examples depicted under "Types
of Cranes" in joint exhibit 10 all have three directions of movement:

(1) vertical lift by a hoisting mechanism;
(2) horizontal travel by a trolley along a bridge; and
(3) transverse travel of the entire structure perpendicular to the
bridge and the travel of the trolley along the bridge.

Essentially respondent maintains that all B30.2 cranes are capable of
three directions of movement while supporting a load and there is
nothing to indicate cranes covered by the standard can move in only one
or two directions at a time.

In determining the applicability of the standard, it must first be shown
that respondent's machine is a crane. A crane is defined in section
2-0.2.1.1 of ANSI B30.2 in pertinent part as follows:

A machine for lifting and lowering a load and moving it horizontally,
with the hoisting mechanism an integral part of the machine . . . .

The record discloses that respondent's expert witness questioned whether
the machine was a crane because he did not believe the hoisting
mechanism was an "integral part of the machine" (Tr. 467). Complainant's
argument is adopted for the purpose of determining this issue. It is
pointed out that "in_Webster's New World Dictionary of the American
Language,_ (2d ed. D. Guralnik 1972), 'integral' is defined as necessary
for completeness; essential. The launching gantry was erected for the
purpose of lifting bridge segments and setting them into position. The
hoisting mechanism is absolutely necessary to perform this function and
a launching gantry would be incomplete without it."

The question which now must be decided is whether respondent's machine,
meeting the definition of a crane, is an overhead or gantry crane within
the meaning of section 1926.550(d)(4). It is concluded from the evidence
of record, Commission precedent and the scope provisions of ANSI B30.2
that the standard does apply in this case.

Since a definition for overhead and gantry cranes is not found in the
standard, clarification is sought in the scope provision of ANSI B30.2.
Section 2-0.1 identifies certain types of overhead and gantry cranes
which are included and then states that B30.2 also applies to "others
having the same fundamental characteristics." Without setting forth what
specific features or attributes such cranes must possess, the drafters
obviously intended the standard's application to those cranes with
varying but basic characteristics. The machine in question has been
shown to possess the "fundamental characteristics" of the identified
overhead and gantry cranes. These characteristics include a movable
bridge carrying a movable hoisting mechanism and possessing the
capability of moving itself from pier to pier. The fact that it could
not move perpendicular to the horizontal travel while mounted on a fixed
runway, or perform three moving functions at the same time is not deemed
dispositive in light of the machine's basic components and its lifting
capacity.

Mr. Robert De Benedictis, the Secretary's expert, testified that "it is
very, very, very, very seldom and in fact practically never that you
perform more than one function at a time" when making heavy lifts with a
gantry crane (Tr. 245). Respondent's expert, Mr. Matthew Burkhart,
agreed in stating "it is not usually advisable to perform more than one
function at a time." He also agreed that the operational characteristics
of the machine as to load lifting and potential hazards are the same as
for a typical gantry crane (Tr. 488-490).

The Commission, as seen in _Lisbon Contractors,_ _supra,_ and the cases
discussed therein, has dealt with the question of applying the crane
standards to various machines performing lifting functions. Those cases
were concerned with machines performing lifting functions, whether they
were designed for that function or not. The machine in the instant case,
however, was designed and used exclusively for the purpose of lifting
for a specific job and was even characterized by respondent on several
occasions as a gantry crane (Joint Ex. 6; Tr. 84). For the purpose of
this decision, it is also pertinent to note that the Commission in
discussing the standard at 29 C.F.R. § 1926.550, captioned "Cranes and
Derricks" stated:

Given the purpose of the Act, any ambiguity in the standard should be
resolved in favor of eliminating the hazard to which the standard is
addressed .....

........ Respondent's argument would lead to the incongruous result that
machinery designed and manufactured specifically to perform a given
function should be held to more stringent requirements than shop built
equipment improvised to perform the same function .....

.......we believe that this interpretation affords employees the
greatest protection from the dangers of improvised equipment that may be
inadequate for the task to which it is put. _Gil Haugan,_ 79 OSAHRC
107/A2, 7 BNA OSHC 2004, 1979 CCH OSHD ¶ 24,105 (Nos. 76-1512 & 76-1513,
1979).[[*/]]

Clearly, from the evidence respondent's crane does not fit the precise
definition of an overhead or gantry crane. But in light of the scope
provision of B30.2 and consistent with the interpretation placed on
1926.550 by the Commission, the standard applies in this case.

Complainant having shown that the cited standard applies, the question
of whether respondent failed to comply must now be resolved. The record
is clear that no load tests were made as described in section 2-2.2.2 of
ANSI standard B30.2 (Tr. 123). Respondent, however, maintains that the
section is only advisory and cannot of itself provide the basis for a
citation, and it was justified in relying on the consultants who
designed the machine to ensure its capability for lifting the
predetermined load. Also, it had met the requirements of section 2-1.3.3
in that all modifications to the crane were checked thoroughly by the
properly designated persons.

There is no dispute that extensive modifications had been made to the
crane in question (Tr. 119, 156, 157, 208, 297). Since it was previously
used in the construction of a similar bridge to lift roadway segments
weighing approximately 65 to 70 tons, the modifications were necessary
to enable it to lift the 220-ton segments at the Skyway Bridge.

While section 2-1.3.5 recognizes that cranes may be modified, it also
makes it mandatory that such cranes are to be tested and the new rated
load must be displayed. Complainant accurately points out that reference
to paragraph 2-2.2.2 only describes the manner in which such load
testing is to be conducted but in no way negates the mandatory
requirements for testing under 2-1-3.5. The standard was, therefore,
violated as alleged in the citation.

The Secretary has classified respondent's failure to load test the
modified crane as a willful violation. The Commission has interpreted
the term "willful" in_Asbestos Textile Co.,_ ____ OSAHRC,_____, 12 BNA
OSHC 1062, 1984 CCH OSHD ¶ 26,101 (No. 79-3831, October 31, 1984), as
follows:

To establish that a violation was willful, the Secretary must show that
it was committed with intentional, knowing or voluntary disregard for
the requirements of the Act or with plain indifference to employee
safety. e._See,e.g._ _D. A. & L. Caruso, Inc.,_ 84 OSAHRC_____,11 BNA
OSHC 2138, 2142, 1984 CCH OSHD ¶ 26,985, p. 34,694 (No. 79-5676,
1984);_Duquesne Light Co.,_ 84 OSAHRC____,11 BNA OSHC 2033, 2040, 1984
CCH OSHD ¶ 26,959, p. 34,603 (No. 79-1692, 1984), _pets. for rev.
filed,_ Nos. 84-3520 & 84-3538 (3d Cir. Aug. 20 & 28, 1984). It is not
enough for the Secretary simply to show carelessness or a lack of
diligence in discovering or eliminating a violation; nor is a willful
charge justified if an employer has made a good faith effort to comply
with a standard or eliminate a hazard even though the employer's efforts
are not entirely effective or complete. _Marmon Group, Inc.,_ 84
OSAHRC,____,11 BNA OSHC 2090, 1984 CCH OSHD ¶ 26,975 (No.
79-5363,1984),_pet. for rev. filed,_ No. 84-2193 (8th Cir. Sept. 17,
1984), _citing Mobile Oil Corp.,_ 83 OSAHRC____,11 BNA OSHC 1700, 1983
CCH OSHD ¶ 26,699 (No. 79-4802, 1983).

Application of the Commission's interpretation to the instant case
warrants the conclusion that respondent's decision not to load test the
crane was "willful."

The record is clear that respondent had actual knowledge of its
obligation under the Act, because it was bound by contract to comply
with Federal Safety and Health Standards (Ex. C-3. Tr. 352, 353, 441).
The evidence also shows that respondent was aware of its responsibility
to perform load testing as required by the standard.

On June 20, 1984, a meeting was held between Paschen, representatives of
two engineering consultant firms, and the Florida Department of
Transportation. As a result of the discussion, several points were
resolved, one of which was that (Joint Ex. 13):

9. Prior to attempting lifting any precast Superstructure Segments,
Paschen Contractors have a comprehensive testing schedule to check out
all lifting and jacking equipment.

A representative of the engineering firm that designed the bridge and
who attended the meeting, testified that, in his opinion, testing in
this context would involve load testing (Tr. 217, 221). It is clear from
the record that respondent made a conscious decision not to conduct the
testing referred to in the letter, designated joint exhibit 13. In a
letter dated July 10, 1984, Mr. William Roach, Project Manager,
responded by stating, "...We do not anticipate any comprehensive testing
schedule before actual erection ..." (Joint Ex. 14). Although Mr. Roach
did not testify, his letter indicates that testing of the equipment
would be performed prior to lifting. The facts show, however, that
obviously no "comprehensive testing schedule," or load testing was
intended to check out the equipment.

Mr. Andrew King, Assistant Project Engineer, testified that the need to
conduct a load test prior to July 30, 1984, had been discussed. He did
not recall, however, details of the discussions and who was present (Tr.
171-172) Mr. King did not know if the load rating of the gantry crane
had been determined but did stencil "150 Tons" on the load blocks of the
movable crane. He stated the 150 tons had nothing to do with the lift in
question, but "I got those numbers from the maximum lift that those
blocks would see due to another mode of erection" (Tr. 162-165). Mr.
Howard Kronis, Gantry Foreman, testified that he discussed load testing
with his superiors and made some suggestions in that regard. He stated,
"At first, it met with favorable response but it never actually came
off" (Tr. 207, 209).

In addition to respondent's knowledge of its responsibility, the record
discloses actual knowledge of the hazard created by noncompliance. There
is no dispute that in the course of making the initial lift of a roadway
segment on July 30, 1984, employee concerns caused it to be put down
(Tr. 175). It was determined that part of the support structure of the
gantry began to give way (Tr. 200). Mr. King decided to install two
additional tie-downs without further corrective action (Tr. 177). During
the second attempted lift "everything broke loose" according to Mr.
Kronis, and several employees were injured as a result of the crane's
collapse (Joint Ex. 2; Tr. 203-207).

The decision to proceed with the second lift with full knowledge of the
hazard created by the failure to load test is deemed a voluntary
disregard for the requirements of the Act and employee safety.

The next question for determination concerns the amount of penalty to be
assessed for the violation. Under section 17(j) of the Act, the
Commission is required to find and give "due consideration" to the size
of the employer's business, the gravity of the violation, the good faith
of the employer, and the history of previous violations in determining
the assessment of an appropriate penalty. The gravity of the offense is
the principal factor to be considered. _Nacirema Operating Co., _72
OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ¶ 15,032 (No. 4, 1972).
The Commission stated in _Secretary v. National Realty and Construction
Co.,_ 72 OSAHRC 9/A2, 1 BNA OSHC 1049, 1971-73 CCH OSHD ¶ 15,188 (No.
85, 1971), that the elements to be considered in determining the gravity
are: (1) the number of employees exposed to the risk of injury; (2) the
duration of exposure; (3) the precautions taken against injury, if any;
and (3) the degree of probability of occurrence of injury.

Weighing all the foregoing factors in light of the circumstances, it is
concluded that a penalty in the amount of $2,500.00 is deemed appropriate.

_FINDINGS OF FACT_

1. Paschen Contractors, Inc., at all times hereinafter mentioned, was a
contractor engaged in construction of the Sunshine Skyway Bridge
connecting St. Petersburg and Bradenton, Florida.

2. Commencing July 31, 1984, authorized representatives of the Secretary
conducted an inspection of the aforesaid work site resulting in issuance
of the citation.

3. A portion of the bridge was to be constructed with the placement of
pre-cast roadway segments alternately on either side of a pier until a
span between two piers was closed.

4. On July 30, 1984, the crane collapsed while lifting a 220-ton segment
to the top of pier five north. Four employees were injured.

5. The crane, with a movable bridge; movable hoist mechanism; and
capable of moving itself; possessed the fundamental characteristics of
overhead and gantry cranes.

6. The Commission has applied the crane standards to various machines
which perform lifting functions whether they were designed for that
purpose or not.

7. The crane had been used in the construction of another bridge but
lifted roadway segments weighing only 65 to 70 tons. It, therefore, had
undergone extensive modification prior to use in this case.

8. Following modification, the crane and supporting structure were not
checked for the new rated load. It also had not been load tested prior
to operational use.

9. Through meetings, discussions and correspondence, respondent's
officials were fully aware of the need to check the modified crane and
supporting structure. This included the need for load testing prior to
operational use of the crane.

10. After the crane's first pickup of a roadway segment on July 30,
1984, it was noticed that the support at pier five north had started to
give way. Upon the installation of two additional tie-downs, the second
lift was attempted which resulted in the crane's collapse and employee
injuries.

_CONCLUSIONS OF LAW_

1. Paschen Contractors, Inc., at all times pertinent hereto, was an
employer engaged in a business affecting commerce within the meaning of
section 3(5) of the Occupational Safety and Health Act of 1970, and the
Commission has jurisdiction of the parties and subject matter herein
pursuant to section 10(c) of the Act.

2. Respondent is, and at all times pertinent hereto, required to comply
with the safety and health regulations promulgated by the Secretary
pursuant to section 6(a) of the Act.

3. Respondent, at the time of the aforesaid inspection, was in violation
of 29 C.F.R. § 1926.550(d)(4).

_ORDER_

On the basis of the foregoing findings of fact, conclusions of law, and
the entire record, it is hereby ORDERED:

The citation is hereby affirmed and a penalty in the amount of $2,500 is
hereby assessed.

Dated this 15th day of October, 1985.

PAUL L. BRADY
Judge

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FOOTNOTES:

[[1/]] That standard provides:

§1926.550  _Cranes and derrricks._

(d) _Overhead and gantry cranes_

(4) All overhead and gantry cranes in use shall meet the applicable
requirements for design, construction, installation, testing,
maintenance, inspection, and operation as prescribed in the ANSI
B30.2.0-1967, Safety Code for Overhead and Gantry Cranes.

[[2/]] That provision says:

*Section 2-0.1 Scope of B30.2*

Within the general scope, defined in Section I, B30.2 applies to
overhead and gantry cranes, including semi-gantry, cantilever gantry,
wall cranes, storage bridge cranes, and others having the same
fundamental characteristics. These cranes are grouped because they all
have trolleys _and similar travel characteristics._ (emphasis added)

[[3/]] The parties did not litigate whether there were violations of any
requirements in section 1926.554, and we will not adjudicate issues not
before us. We mention, however, if the Secretary should encounter this
situation again, that there may have been a violation of section 1926.
554(a)(2) here, as it was not the lifting mechanism that failed, but the
support structure. Depending on the manufacturer's requirements, there
also may have been a violation of 1926.554(a)(6).

[[*/]] This decision was not overruled in _Lisbon,_ _supra,_ based upon
the dissimilarity of the machines used as cranes.