SECRETARY OF LABOR.

Complainant,

v.

TAMPA SHIPYARDS. INC.,

Respondent.

OSHRC Docket Nos. 86-0360 and 86-0469

*DECISION *

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

BY THE COMMISSION:

These cases are before the Commission based on the petition of Tampa
Shipyards, Inc. ("Tampa") for discretionary review of the decision of
Administrative Law Judge James D. Burroughs.  The portion of the judge's
decision directed for review is his finding that Tampa willfully
violated the general duty clause, section 5(a)(1), of the Occupational
Safety and Health Act ("the Act"), 29 U.S.C. § 654(a)(1).[[1]] The
Secretary alleged that one of Tampa's cranes was used to hoist a load
that was known to be in excess of the crane manufacturer's recommended
load limitation ("rated load capacity").  While hoisting the load, the
crane had collapsed and killed two employees.  For the reasons set forth
below, we affirm the judge's finding of a willful violation, and the
$8,000 penalty that he imposed.

*BACKGROUND*

Tampa operates a large shipping facility in Tampa, Florida.  At
approximately 6:15 p.m. on October 4, 1985, a Tampa crane operator was
using tower crane no. 6 to lift and then horizontally move part of a
ship deck called the "0-1 section." [[2]]   In his decision, Judge
Burroughs described the circumstances that led to the accident:

An eyewitness and participant in the lift, Wendell Croft, testified to
the facts surrounding the lift.  His testimony is undisputed.  As rigger
leaderman for the second shift, he received the turnover sheet from the
day shift leaderman as to what was expected to be completed that
evening.  He was told by Joe Seither, the day shift leaderman, to set
the 0-1 section on the bow of a ship under construction.  He was not
given any instructions as to how the lift was to be made.   He
understood the load weighed 33 tons.  This weight was recorded on his
paperwork.  He told William Caulley, leaderman of the crane operators,
and James Morgan, the crane operator, what the load weighed.  The three
of them discussed the load that evening.  Croft assigned two riggers,
Michael Sicich and Ezekial Bains, to assist in hooking up the load and
receiving it on the bow.

After discussing the lift and assigning riggers to assist, Croft went to
the supervisor's office.  He returned to the crane site when they were
ready to make the lift and was in radio communication with Caulley.
There was concern over the weight of the load to be lifted.  Caulley had
the boom angle of the crane set for a 21-ton lift.  Caulley, Croft and
Morgan were aware that a lift of 33 tons was being attempted.  Croft
agreed to watch the rollers of the cab and to notify Caulley by radio if
the rollers commenced to raise off the turntable.  Caulley lifted the
load a height of approximately 6 to 18 inches and held it while Croft
observed that the wheels were firmly on the turntable.  The load was
then lifted to a height of 10 feet above the dry dock and held for
approximately 90 seconds to make sure the crane would handle the load. 
The wheels remained on the turntable, and Caulley indicated he was going
to place the load.  He commenced swinging the load to the north and the
wheels started to rise from the tracks.  Croft told him that the wheels
were coming up.  As the load was being swung horizontally to the north,
the crane toppled.

(Footnotes and citations to record omitted).  Following an investigation
of this incident, the Secretary issued a citation alleging that Tampa
had willfully violated the general duty clause in that "[o]n or about
October 4, 1985, and at other times, tower crane(s) were used to hoist
loads, or boom out with hoisted loads, in excess of the crane
manufacturer's recommendation."[[3]]  As a feasible abatement method,
the citation stated that Tampa should "comply with the manufacturer's
load rating indicator, which is located inside the cab of each crane,
formulate a crane safety policy and institute a system of enforcement of
that policy."

Judge Burroughs found that the practice of "[u]tilizing a crane to hoist
loads in excess of the crane manufacturer's recommendation" was
"'recognized [as a hazard] by officials of Tampa Shipyards." He held
that such "overloading of a crane can cause it to overturn and result in
death or serious physical harm to employees."  The judge further found
that Tampa had no clearly defined policy for preventing overlifts and,
in particular, that it lacked procedures for accurately determining the
weights of the loads to be lifted.  Judge Burroughs concluded that the
hazard could be abated by better communication and enforcement of
detailed safety instructions prohibiting overloading.  These
instructions would include procedures to ensure that accurate weights
are provided to the crane operators.

*DISCUSSION *

In order to prove a violation of section 5(a)(1) of the Act, the
Secretary must show that: (1) a condition or activity in the workplace
presented a hazard to an employee, (2) the hazard was recognized, (3)
the hazard was likely to cause death or serious physical harm, and (4) a
feasible means existed to eliminate or materially reduce the hazard.  
E.g., United States Steel Corp., 12 BNA OSHC 1692 1697-98, 1986-87 CCH
OSHD ¶ 27,517, p. 35,669 (No. 79-1998, 1986). The evidence must show
that the employer knew, or with the exercise of reasonable diligence
could have known, of the violative conditions.   Id. at 1699, 1986-87
CCH OSHD at p. 35,671, citing Getty Oil Co. v. OSHRC, 530 F.2d 1143,
1145 (5th Cir. 1976).

The direction for review is limited to the issues of whether the judge
erred in holding that the Secretary proved: (1) that Tampa failed to use
feasible means to materially reduce the hazard, (2) that Tampa had the
requisite knowledge of the violation, and (3) that the alleged violation
was willful. [[4]]

*I. Whether there were feasible means to materially reduce the
recognized hazard*

As mentioned above, the Secretary bears the burden of establishing that
feasible and useful means existed to eliminate or materially reduce the
recognized hazards. Matthew Burkart, an expert on crane safety
operations, testified to various feasible and useful measures that would
minimize the hazard of a crane overload such as the one that occurred on
October 4, 1985.  Those measures included installing a load indicator on
each crane, creating a written crane safety policy, and monitoring
potential overlifts.   We find that the Secretary met her burden of
proof based on Burkart's testimony and other evidence.

*a. Load indicators*

The Secretary presented evidence as to six tower cranes (nos. 1 to 6)
that were operated on adjacent piers in one area of Tampa's vast
facility.  Tampa had attached a weighing device called a load indicator
to the boom of only one of the six cranes (crane no. 3), and that device
had been inoperable for at least six weeks before the accident.

Tampa had no effective system for weighing the cranes' loads.   Tampa's
General Superintendent Ewell Rhoden testified that Tampa had a
dynamometer which leadermen could use to determine the weights of loads
about which they were concerned.  However, there was no evidence that
Tampa required the use of the dynamometer, and the evidence clearly
shows that no accurate weighing device was used consistently for
potential capacity loads.  For example, crane operator Joseph Mossey
testified:

when you make a lift, it's general knowledge, and the way I was taught
was if they told you one weight, you try to give yourself approximately
five times [sic] more towards your favor because a lot of times [the]
weights are not correct, ....

There was additional testimony about numerous specific occurrences of
failure to accurately weigh potential capacity loads on the cranes at
issue during the weeks and months before the accident.  The record
establishes that the 0-1 section involved in the accident had not been
weighed beforehand.  A Tampa plant engineer testified that, after the
accident, the load was determined to weigh 38.099 tons.   Croft had
understood that it weighed 33 tons, and had passed on this erroneous
information to both Caulley and Morgan.  Thus, although Caulley and
Croft knew that crane no. 6 was overloaded before the fatal lift, they
did not know the full extent of the overload.  Crane operator Mossey
testified that he lifted the same load that was involved in the
accident, earlier on the day of the accident, using crane no. 3.  He
testified that "the only proper way of weighing is with the scales that
are in the crane, and those were not working at the time."  Crane
operator Johnny Lee testified without contradiction that, a few weeks
before the accident, a rigger leaderman misinformed him as to the weight
of a piece comparable to the one involved in the accident.  Crane
operator Sims testified that he did not know the weight of certain
grandstands that he lifted a few weeks before the accident, and which he
believed approached or exceeded the crane's capacity.  Crane operator
Charles Christie testified that in approximately August, 1984, he argued
at length that it was unwise to lift a front-end loader whose weight was
unknown.  He finally agreed to lift it, utilizing an extra safety
precaution -- an electrician to check the limit switches.   (A limit
switch is designed to prevent hazardous overtravel of the load block.)
Crane operator Burton Ashmore testified that in early 1984 or late 1983,
the weight of a sand hopper he was lifting was underestimated by 20
tons, resulting in an overlift.

In addition, crane operator Lee Hansen testified that many times during
the years preceding the accident, the weights provided to him on crane
no. 3 were incorrect.  He explained that he knew this because crane no.
3 had a load indicator, and he had checked the weights.  Hansen
testified that he thought the weights given to him on other cranes were
also wrong, because he would notice himself leaning forward in the cab,
which would feel light, and he would observe unusual stress on the
crane.  He stated that this occurred with the sand pots he routinely
lifted as part of Tampa's ship sandblasting operation.

The testimony of these crane operators establishes that Tampa did not
have an effective system for weighing, or even identifying, potentially
excessive loads.  Burkart, the Secretary's expert witness, testified as
to the measures that were needed:

if you don't know the weight of the load, you either have a load
indicating device on the machine as you pick it up so you can get an
accurate reading before you attempt to lift it, or you make an effort to
calculate the load as accurately as possible through engineering
calculations.

He testified that load indicators could be attached to each of the
cranes in question, and that doing so would materially reduce the
problem of inaccurate or unknown weights that crane operators were
lifting.  Burkart further testified that load indicators, which have
been on the market for a number of years, are quite common and accurate.
His testimony establishes the feasibility and likely utility of
installing load indicators on each of the six cranes, to materially
reduce the risk of overlifts.

*b. Written crane safety program*

Tampa recognized the feasibility and utility of a written program for
training crane operators.  Its contract with the employees' union
contained the following provision:

a learner or apprentice program will be instituted at the Employer's
yard.  Each program shall be reduced to writing as mutually agreed by
the parties and such program shall be governed by the terms of those
agreements and not [by] the terms hereof.

Searle Walton, Tampa's safety director, testified that "how we train the
operators is really an apprenticeship program."

However, Walton acknowledged that Tampa had no written crane safety
policy.  Its general employee safety manual did not relate directly to
crane operators, but only to the duties of other employees when dealing
with crane operators.   The only instruction course discussed in the
evidence was one given by the union.[[5]]  Crane operator Barry Sims
testified that he had trained new operators on behalf of Tampa, that he
had received no guidance from the company as to what to tell the
trainees, and that the trainees were not tested before they became crane
operators.   Sims further testified that there was no written
apprenticeship program at Tampa.   Crane operator Ashmore testified that
his basic instructions on crane safety were to "use your best judgment."

Burkart testified that Tampa's oral, on-the-job training for crane
operators "appears to be good," but that the lack of written safety
instructions specific to crane operators was a defect in Tampa's safety
program.  The evidence overwhelmingly establishes that Tampa did not
have the kind of written apprenticeship program that it knew was
necessary.  Furthermore, Burkart testified that Tampa's training of
operators was deficient in numerous other ways, including: (1) the
failure to tell operators what to look for during the required daily
inspections of cranes;[[6]] (2) the failure to prohibit the operators'
practice of lifting a load of unknown weight off the ground, with the
boom angle set, to test the crane's capacity to transport the load; (3)
the apportionment of a trainee's instruction to several different
operators; and (4) the lack of a formal evaluation system to determine a
trainee's qualifications.

Burkart described major improvements that could be made to Tampa's
training program.  He testified that Tampa could readily develop an
outline of what it needed to teach the operators, and a formal method of
evaluating whether the operators were qualified.  He added that having
such a program in place would result in a much safer operation because
Tampa would know that its crane operators were qualified.  We conclude
that the Secretary established that Tampa could have made numerous
feasible and useful improvements to its crane safety program that would
have materially reduced the risk of operators attempting overlifts on
the cranes.

*c. Monitoring Lifts*

At the time of the crane collapse, Tampa had no system for monitoring
compliance with the weight limitations of its cranes.[[7]]  Burkart
described a monitoring program that would effectively enforce the
prohibition against overlifts.  He testified that in such a program, the
company's management instructs the crane operators and "front line
supervision" (here, leadermen) never to attempt an overlift, and the
leadermen's supervisors monitor lifts "to see that it doesn't happen."

Burkart testified that most lifts need not be monitored, because they
will not approach the crane's rated capacity.  Thus, monitoring "a very
small portion of [total lifts] soon gets the message across to the
employees that overloads are not going to be tolerated ... [and] creates
an awareness" which results in eliminating overloads.  Burkart discussed
various nuclear power plant construction sites where effective crane
safety programs had been instituted along the lines that he
suggested.[[8]]  We find that Burkart's testimony establishes the
feasibility and likely utility of a lift monitoring program in reducing
the risk of overlifts.

Based on the discussion in section I, we find that the Secretary
established the feasibility and likely utility of several abatement
steps that would have materially reduced or eliminated the recognized
hazard of hoisting loads in excess of the crane manufacturer's
recommendations.  Those steps included installing and using a load
indicator on each crane, developing a written crane safety program, and
implementing a monitoring program for potential capacity lifts.

*II. Whether Tampa had the requisite knowledge of the violative conditions*

As mentioned above, the test of an employer's knowledge of a violation
is whether the employer knew, or with the exercise of reasonable
diligence could have known, of the violative conditions.  The actual or
constructive knowledge of a foreman or other supervisory employee can be
imputed to the employer. E.g., A. P. O'Horo Co., 14 BNA OSHC 2004,
2007,1991 CCH OSHD ¶ 29,223, p. 39,128 (No. 85-369,1991).  An employee
who has been delegated authority over other employees, even if only
temporarily, is considered to be a supervisor for the purposes of
imputing knowledge to an employer.   Id. Therefore, the Secretary may
establish the requisite employer knowledge by showing that a supervisor
knew or with the exercise of reasonable diligence could have known of
the violative conditions.  The employer can rebut that showing by
offering evidence that the supervisor's failure to follow proper
procedures was unpreventable.   Id.

*a. Whether the leadermen were supervisors*

Here, the judge found that leadermen such as Croft and Caulley were
supervisors, and that their knowledge of overlifts should be imputed to
Tampa.  Tampa argues that imputing the leadermen's knowledge here is
improper, because they were not supervisors.  For the reasons set forth
below, we reject this argument.[[9]]

Tampa's collective bargaining agreement with its employees' unions
stated that leadermen were first-line supervisors, and that the union
has no right to interfere with the supervisory functions of
leadermen.[[10]]  The leadermen were directly responsible to Tampa's
management.  There was no level of supervision between the leaderman and
Tampa's superintendents, Rhoden and Jim Baker.  In particular, the
leadermen were responsible for informing the superintendents of safety
problems reported to them by employees.  As noted above (note 8), the
union contract clearly stated that an employee "will initially raise
requests, complaints, or questions concerning his work" with the
leaderman.   We find that where leadermen such as Caulley and Croft
exercised this type of authority over the work being performed, they
were supervisors whose knowledge is imputable to Tampa.  See O'Horo.

*b. Whether the leadermen's knowledge should be imputed to Tampa*

It is undisputed that, when the accident happened on October 4, 1985,
leaderman Croft had been informed that the crane's load weighed 33 tons,
that he told leaderman Caulley the weight, and that Caulley nevertheless
proceeded with the lift, with the boom angle set for a load of only 21
tons.  Under the principles discussed above, that evidence makes a prima
facie showing that Tampa, with the exercise of reasonable diligence,
could have known of the violative conditions.

To rebut that prima facie showing, Tampa argues that on October 4, 1985,
Caulley and Croft committed misconduct that was contrary to its safety
policy and was unpreventable.  As mentioned above, to rebut the
Secretary's prima facie proof that the knowledge of company supervisors
should be imputed to it, the company must offer evidence that it had
established work rules designed to prevent the violation, had adequately
communicated those work rules to its employees (including supervisors),
had taken reasonable steps to discover violations of those rules, and
had effectively enforced the rules in the event of infractions.  E.g.,
O'Horo.  See Jones & Laughlin Steel Corp., 10 BNA OSHC 1778, 1782, 1982
CCH OSHD ¶ 26,128, p. 32,887 (No. 76-2636, 1982) (comparable evidence
required to rebut Secretary's prima facie case of violation under §
5(a)(1)).

In order to prevent overlifts, Tampa needed work rules designed to
ensure that its crane operators and leadermen received accurate weight
estimates for all potential capacity loads, and that they attempted no
lift unless the weight estimate was safely within the crane's rated
capacity.  Tampa, however, had no such rules.   Tampa notes that many of
its crane operators and riggers were aware of an unwritten rule
prohibiting crane overloads, because they were told by Anselmi, Tampa's
President, not to make an overload and to come to him if there was an
overload.  The crane operators recognized that it was a matter of common
sense not to overload a crane.

However, that general understanding was inadequate to correct the
longstanding, hazardous practices that led to so many overlifts.  As
further discussed below, Tampa's leadermen and crane operators often
made lifts based on inaccurate weight estimates, and they had a practice
of testing the crane's ability to make a potential capacity lift by
seeing how far off the turntable the rollers came.   These practices
were not contrary to any of Tampa's work rules. Burkart, the Secretary's
expert witness, testified that if the rollers came off the turntable, it
indicated a "severe overload."  Thus, Tampa did not have the necessary
work rules to deal with the root causes of the overlifts. For this
reason alone, Tampa has failed to rebut the Secretary's prima facie
evidence that its leadermen's knowledge of the violative conditions
should be imputed to it.

Even if Tampa had created adequate work rules, there is no evidence that
it attempted to discover violations of crane safety rules.  Thus, it
could not have enforced its work rules effectively.  We therefore
conclude that Tampa has failed to rebut the Secretary's prima facie
showing that the knowledge of leadermen Croft and Caulley of the
violative conditions on October 4, 1985, should be imputed to it.  
Tampa had the requisite knowledge of the violation.  See 29 U.S.C. § 666(j).

*Ill. Willfulness*

A willful violation is one committed with intentional, knowing or
voluntary disregard for the requirements of the Act, or with plain
indifference to employee safety.   E.g., Williams Enterp., 13 BNA OSHC
1249, 1256-57,1986-87 CCH OSHD ¶ 27,893, p. 36,589 (No. 85-355, 1987). 
The employer is responsible for the willful nature of its supervisors'
actions to the same extent that the employer is responsible for their
knowledge of violative conditions.  E.g., Donovan v. Capital City
Excavating Co., 712 F.2d 1008 (6th Cir. 1983) (finding of willful
violation required where crew foreman knew that trench was not supported
as OSHA compliance officer had said was required, yet foreman ordered
crew to continue work in trench before protective equipment arrived);
Central Soya de Puerto Rico, Inc. v. Secretary of Labor, 653 F.2d 38,
39-40 (1st Cir. 1981) (willful violation found because two first-level
supervisors had received repeated warnings of serious fall hazard, and
it was not corrected); Western Waterproofing Co. v. Marshall, 576 F.2d
139, 144-45 (8th Cir.) (employer is responsible for willful nature of
foreman's disregard of instructions, where foreman's action is
preventable), cert. denied, 439 U.S. 965 (1978) (cited in Georgia
Electric Co. v. Marshall, 595 F.2d 309, 320 n.27 (5th Cir. 1979)).  For
the reasons that follow, we find that Tampa is responsible for the plain
indifference to employee safety that Caulley displayed in permitting the
overlift on October 4, 1985.

Caulley was Tampa's chief leaderman for the crane operators.   He had a
longstanding, reckless practice of allowing lifts in excess of the
crane's capacity to proceed with the rollers off the turntable, as he
did on October 4, 1985.   Crane operator Barry Sims, who had been a
crane operator for Tampa for about 2 1/2 years before the accident,
testified that Caulley came up to watch the rollers on his crane a "lot
of times," and that "[g]enerally when he would come up in the crane, it
was going to be an over lift...." Sims specifically recalled one such
lift with crane no. 3, a month or less before the accident. A smokestack
was being lifted that ultimately was determined to weigh about 40 tons.
In order to place it where another crane could handle it safely, Sims'
crane was boomed down to about 25-ton capacity.  This resulted in a
15-ton overlift.

Sims testified that at about the same time, he was directed to lift some
grandstands to be used for the dedication of a ship.  Sims asked Caulley
to come up, and told him, "We're booming down too far to pick them up." 
Sims testified that Caulley told him to proceed with the lift, and that
Caulley watched the rollers while he completed it.  Sims testified
without objection that, "I think my rollers were off ... two inches."[[11]]

Caulley was not the only leaderman who permitted lifts without ensuring
that the rollers would rest firmly on the turntable.  For example, crane
operator Burton Ashmore testified that once, when he brought his
leaderman's attention to the fact that the rollers on crane no. 5 were
off the turntable during a 33-ton lift, the leaderman told him, "Well,
you know, he's done it; everybody has done it.   That's practice."
[[12]]  Ashmore's testimony about that leaderman's statement is not
challenged.  There is no evidence that Tampa's safety practices changed
between the time of the leaderman's statement to Ashmore, and the 1985
accident.

The testimony demonstrates that, specifically during the weeks and
months before the accident, supervisors other than Caulley were informed
of lifts proceeding with the rollers off the turntable.  Mechanic Don
Leske testified that, during a lift on crane no. 6 in mid-September
1985, a few weeks before the accident, he saw the rollers in the back of
the cab come up off the rail.  At that time, he brought the situation to
the attention of the operator of the crane, James Screws.   Leske
testified that he then informed the garage foreman of his observations.

Screws testified that the next morning, he informed his immediate
supervisor, leaderman Marshall Abrams, of the overlift.  He also
testified that it was the leaderman's job to inform General
Superintendent Rhoden of such matters.  Tampa called Rhoden as a witness
to testify on other matters, and he did not refute Screws' testimony in
any respect.

Crane operator Ashmore testified that he informed rigger leaderman
Seither, during a lift in mid-1984, that the rollers were not firmly on
the turntable, and that after Seither held a discussion with Rhoden,
Rhoden directed Ashmore to proceed with the lift.  The lift involved a
ship section that Ashmore was sure exceeded the rated capacity of crane
no. 5, which he was operating.  The load was the same kind of 0-1
section that was involved in the 1985 accident. Ashmore testified that
he felt the rear of the crane come up when he initially picked up the
0-1 section.  He then "yelled down" to Seither that the piece was too
heavy, and specifically that the rear end of the crane had come up.

Ashmore then set the load down.  He observed Seither talking with
Rhoden, after which Rhoden walked over, pointed his finger up at
Ashmore, and indicated vehemently that he wanted him to lift the load
again.  Ashmore got the impression from Rhoden's attitude on that
occasion that he could be fired for failure to make an overlift as
directed.  Ashmore did not know whether Rhoden actually knew that the
crane was overloaded.  However, Ashmore believed that Rhoden was within
earshot when Ashmore yelled down to Seither about the apparent
overlift.  Ashmore's testimony about that specific incident was not
contradicted.

The leadermen's practice of attempting lifts with the rollers off the
turntable was reckless.  As mentioned above, crane operations expert
Burkart testified that if rollers come off the turntable during a lift,
it indicates "a severe overload."  The crane operators who testified had
the same understanding.[[13]]  Burkart explained that the maximum
capacity of a crane is rated at only 75 percent or 85 percent of the
load that could cause the rollers to leave the turntable.  He gave the
opinion that the type of crane involved in the accident was not designed
so that the rollers may leave the turntable safely.[[14]]

The evidence demonstrates that none of the cranes at issue were designed
to operate safely with their rollers off the turntable.  The crane
involved in the accident was crane no. 6, which was a Clyde "whirly"
crane.  Crane nos. 1, 2, 4, and 5 also were Clyde "whirly" cranes, as
Tampa's Safety Director testified. [[15]]   Burkart testified that crane
nos. 5 and 6 were identical "except for a few small details .... " Crane
Operator Lee testified that crane no. 3 was a Diamond crane.  Tampa
presented no evidence that crane no. 3 was designed to operate safely
with the rollers off the turntable.

Under the principles set forth at the outset of this section, Tampa is
responsible for its leadermen's longstanding, well-known and reckless
practice of attempting lifts with the rollers off the turntable.  Tampa
is equally responsible for the well-known, reckless practice of allowing
lifts to proceed without an accurate weight estimate, including
potential capacity lifts.  Despite the knowledge among supervisors of
these reckless practices, Tampa's crane safety program remained lax.

For example, as discussed above, Tampa failed to develop a system
calculated to ensure that the crane operators received accurate weight
estimates. Tampa's employee training was haphazard, with no work rules
designed to prevent crane operators from lifting loads that did not have
an accurate weight estimate safely within the crane's rated capacity. 
Tampa failed to take steps to create the written apprenticeship program
for crane operators that it was contractually obligated to prepare.  
Nor did it develop a monitoring program to detect violations of crane
safety requirements.

Tampa's failure to provide accurate weighing methods is particularly
difficult to understand in light of crane operator Hansen's testimony
that Tampa actually had load indicators lying on the floor of the cabs
on crane nos. 4, 5 and 6 when those cranes were being assembled during
his first two years with Tampa, starting in 1980.  Hansen did not know
whether the load indicators were actually part of those cranes. 
However, Tampa did not suggest any other reason why they were in the
cabs, and failed to explain why it never installed load indicators on
those cranes.

The evidence establishes that Tampa is responsible for the plain
indifference to employee safety that its leadermen showed by their
reckless crane lifting practices, including Caulley's actions on October
4, 1985.  See, e.g., Mineral Industries & Heavy Constr. Group, Brown &
Root, Inc. v. OSHRC, 639 F.2d 1289, 1295 (5th Cir. 1981) (failure to
institute and enforce procedures known to be required constitutes
willful violation).  The evidence shows "such reckless disregard for
employee safety ... that one can infer that if the employer had known of
the [legal provision], the employer would not have cared that the
conduct or conditions violated it."  Williams Enterp., 13 BNA OSHC at
1257, 1986-87 CCH OSHD at p. 36,589.  The Secretary has made the
concrete evidentiary showing required to establish that Tampa willfully
violated section 5(a)(1).  Cf., e.g., United States Steel Corp., 12 BNA
OSHC at 1703, 1986-87 CCH OSHD at p. 35,675 (citing, inter alia, St. Joe
Minerals Corp. v. OSHRC, 647 F.2d 840, 846 (8th Cir. 1981)) (more
concrete evidentiary showing is required to prove violation of general
duty clause than of more specific standard).[[16]]

Tampa attempts to minimize the significance of the overlifts by arguing
that there were ten million lifts at the shipyard during the seven years
before the accident.  There is no basis in the record for that
assertion, however.  Its apparently rests on the representation by
Tampa's counsel, not supported by evidence, that all the cranes on its
vast worksite were used for two shifts a day for seven years, making
about 100 lifts a day.  However, this case relates only to tower crane
nos. 1 through 6, and crane nos. 1 and 2 were not operated during 1985. 
The large number of reckless lifts on those cranes during the weeks and
months before the accident establishes that a widespread, severe, and
well-known safety hazard of overlifts way ongoing on the worksite.

Tampa argues that its safety efforts were made in good faith, thus
precluding a finding of willfulness.  If an employer has made a good
faith effort to comply with the Act's requirements, a finding of
willfulness is not justified, even though the employer's efforts are not
entirely effective or complete.  However, the test of good faith in this
regard is an objective one -- whether the employer's efforts to comply
were reasonable under the circumstances.  See Calang Corp., 14 BNA OSHC
1789, 1792-93, 1987-90 CCH OSHD ¶ 29,080, p. 38,872-73 (No. 85-319,
1990) (employer's use of certain safety measures does not constitute
objective good faith effort to comply with standard, where employer
provides no reasonable basis for failing to use other required safety
measures).  Tampa fails this test.  Its lack of response to the widely
known problem of overlifts was unreasonable.  For example, as discussed
above, Tampa has given no reasonable basis for failing to provide an
operable load indicator on each crane, written training materials for
crane operators, and a monitoring program to detect overlifts.[[17]]
Accordingly, Tampa's violation on October 4, 1985, was willful.

*PENALTY *

The hazards caused by overloading cranes were severe, as the fatalities
demonstrate.   Tampa had a vast shipyard with a large number of cranes
and employees.  Its safety program was deficient in crucial respects. 
In light of the willful nature and high gravity of the violation, and
having considered the other relevant considerations set out at 29 U.S.C.
§ 666(j), we find that the $8,000 penalty proposed by the Secretary and
assessed by the judge is appropriate.

*CONCLUSIONS*

For the reasons set forth above, we affirm a willful violation of the
general duty clause of the Act, as alleged in Item 1 of the willful
citation in Docket No. 86-360.  We assess a penalty of $8000 for that
violation.

Edwin G. Foulke, Jr.

Chairman

Donald Wiseman

Commissioner

Velma Montoya

Commissioner

Dated: March 10, 1992

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

SECRETARY OF LABOR,

Complainant,

v.

TAMPA SHIPYARDS, INC.,

Respondent.

OSHRC Docket Nos. 86-0360 and 86-0469

(Consolidated)

APPEARANCES:
Curtis L. Gaye, Esquire, and James L. Stine, Esquire, Office of the
Solicitor, U. S. Department Of Labor, Atlanta, Georgia, on behalf of
complainant

Robert D. Moran, Esquire, Washington, D. C., on behalf of respondent

_DECISION AND ORDER_

Burroughs, Judge: Tampa Shipyards, Inc., contests a serious citation,
alleging a violation of section 5(a)(1) of the Occupational Safety and
Health Act of 1970 ("Act"), and a willful citation, alleging four
violations of section 5(a)(1), issued to it on March 3, 1986.  The
citations emanated from an investigation of two fatalities occurring on
October 4, 1985, as a result of a crane falling at respondent's shipyard
in Tampa, Florida.  Tampa Shipyards also contests a serious citation
issued to it on March 14, 1986, as the result of an accident
investigation of a fire and explosion occurring on board the ship
_Robert G. Matthiesen._

A proposed decision was forwarded to the parties on June 18, 1987. 
Counsel for the Secretary filed a motion for reconsideration on June 30,
1987, requesting that this Judge reconsider that portion of the decision
holding that 29 C.F.R. § 1910.179 was applicable to the cranes used by
Tampa Shipyards. The proposed decision concluded that provisions of §
1910.179 were applicable to three of the alleged 5(a)(1) violations. 
Since a specific standard was determined to apply to the facts, the
Secretary was precluded from relying on section 5(a)(1) of the Act.  The
motion to reconsider was granted by an order issued on July 6, 1987, and
the proposed decision mailed to the parties on June 18, 1987, was
withdrawn.  On reconsideration, it is concluded that no standards are
applicable to the cranes in question.

_The Crane Case (Docket No. 86-0360)_

On October 4, 1985, at approximately 6:15 p.m. during the second shift,
a crane accident occurred at Tampa Bay Terminal shipyards.  The number 6
crane, operated by James J. Morgan, the crane operator, and William, F.
Caulley, the crane operator leaderman, fell to the surface of the number
2 dry dock while lifting a part of a ship deck referred to as an 0-1
section (Tr. 36, 41-42, 165).  Both employees were killed.  All of the
alleged 5(a)(1) violations pertain to conditions regarding cranes,
referred to as numbers 1, 2, 3, 4, 5 and 6, used by Tampa Shipyards in
its operations.

_Preemption Defense_

Tampa Shipyards argues that it has been improperly charged with
violating section 5(a)(1) of the Act.  It contends that section 5(a)(1)
is inapplicable to the facts because OSHA has adopted standards which
address the subject matter of the alleged violations. This argument
relies on the principle established by the Commission "that the
Secretary cannot rely on the general duty clause when a specific
standard applies to the facts."  _Kastalon, Inc.,_ 86 OSAHRC___, 12 BNA
OSHC 1928, 1929, 1986 CCH OSHD ¶ 27,643, p. 35,971 (Nos. 79-3561 &
79-5543, 1986), _appeal_ _filed_, September 16, 1986 (7th Cir., No.
86-2528), withdrawn December 16, 1986.  Where no occupational safety or
health standard is applicable, the Secretary can rely on the general
duty clause to obtain correction of a workplace hazard.  _Kastalon_,
_Inc._, _supra_.

The Secretary argues that section 5(a)(1) is appropriate because no
specific standards deal with the particular cranes and conditions in
issue.   The standards cited by Tampa Shipyards as being applicable,
according to the Secretary, are limited in scope.  While some standards
may cover similar situations with certain types of cranes, the Secretary
contends that they are not applicable to the cranes cited in this case.

Tampa Shipyards refers to standards in Subpart G of Part 1915, among
others, as being applicable to the cranes in issue.  Part 1915 of 29
C.F.R. contains specific standards applicable to all repairing,
shipbuilding and shipbreaking employments.  29 C.F.R. § 1915.2(a).

There is no dispute that Tampa Shipyards is engaged in the ship
repairing and shipbuilding business.  The standards referred to by Tampa
Shipyards in Subpart G are directed toward gear and equipment for
rigging and material handling.  Section 1915.111 provides for inspecting
of gear and equipment used for rigging.  Section 1915.112 applies to
ropes, chains and slings.  Section 1915.113 applies to shackles and
hooks.   Section 1915.114 applies to chainfalls and pull-lifts. 
Subsections (a) and (c) of section 1915.115 apply to derricks and cranes
but are limited to those "which are part of or regularly placed aboard
barges, other vessels or on wingwalls of floating drydocks" and mobile
crawler or truck cranes used on a vessel.  Section 1915.116 applies to
the use of gear.  While section 1915.117 is entitled "Qualification of
operators," no specific provision of that standard covers the conditions
in issue.   There are no specific standards in Subpart G of Part 1915
that are applicable to the conduct allegedly in violation of section
5(a)(1) in this case.

Where there are no specific standards, a general standard which might
otherwise be applicable to the same condition will prevail.   29 C.F.R.
§ 1910.5(c)(1) and (2).  Tampa Shipyards submits that the general
industry standards, Part 1910 of 29 C.F.R., apply to all users of cranes
including those engaged in maritime operations.  In _Dravo Corporation
v. OSHRC_, 613 F.2d 1227, 1234 (3d Cir. 1980), the court concluded:

. . . . even in areas properly citably under specific maritime
standards, the Secretary my hold an employer to the general industry
standards in those situations where no specific standard is applicable.

The Secretary does not contend that the general industry standards are
not applicable in the absence of specific maritime standards, [[1/]] he
does contend that the general industry standards pertaining to cranes
are inapplicable to the tower or portal cranes used by Tampa Shipyards. 
The Area Director is directed to issue citations under the general duty
clause "in appropriate circumstances where employees are exposed to
hazards which are covered by neither shipyard employment (Part 1915) nor
General Industry Safety and Health Regulations (Part 1910)."  Section
D.3, OSHA Instruction STD.2 issued November 4, 1985.

While OSHA Instruction STD.2 makes reference to the applicability of §§
1910.179 and 1910.180 to shipyard employment, the instruction is clear
in section D that the standards are to be enforced "in a manner
consistent with their respective scopes and definitions."  They apply in
appropriate circumstances. Their inclusion in Appendix A of the
instruction is not interpreted to mean that they apply to all cranes
used in a shipyard regardless of design, operation and other fundamental
characteristics.

One of the difficulties in determining if the general industry standards
apply concerns the proper classification of cranes 1 through 6.  Counsel
for the Secretary and the numerous crane operators testifying in this
matter referred to the cranes as gantries (Tr. 147, 163, 172, 218, 239,
244-245, 267, 328, 578, 588-589, 732).  The citations refer to the
cranes as tower cranes.  Matthew Burkhart, a crane expert testifying on
behalf of the Secretary, classified the cranes as portal cranes which
run on rails with a revolving structure on top (Tr. 850, 1024, 1038).  
According to Burkhart, the difference between a portal and tower crane
is that the portal crane has an opening at the bottom of the structure
supporting the crane; whereas, the tower crane has lacework from the top
to the bottom of the support structure (Tr. 850, 1024, 1038).  The cab
of the crane that fell was situated on a turntable or rail circle on top
of a tower approximately 80 feet high.  The turntable allowed the crane
to turn by means of rollers underneath the cab.  The tower configuration
had a mobile base that allowed it to move along rails (Ex. 12; Tr. 81,
173, 457, 710, 1117).  The crane could move to any point along the
rails.  It had a rotating superstructure with operating machinery and boom.

Section 4-0.2 of the ANSI Standard for Portal, Tower, and Pillar Cranes,
B30.4-1981, defines a gantry as "[A] movable structure frame consisting
of columns and bracing capable of supporting a crane with its working
and dynamic loads."  The cranes in this case were on "a movable
structure frame."  Section 4-0.2 of ANSI B30.4-1981 defines a portal
crane and tower crane as follows:

_crane_, _portal_.  A crane consisting of a rotating superstructure with
operating machinery and boom, all of which is mounted on a gantry.   The
crane and gantry assembly may be fixed or mobile.  An opening for
traffic is normally provided between the gantry columns or legs.  (Fig. 4)

_crane_,_tower_.  Similar to a portal crane, but with a tower between
the rotating superstructure and gantry or fixed foundation and no
provision is normally made for traffic (Figs. 1 and 2).  To resist
overturning moments, the assembly may be counterweighted, fixed to a
foundation, or a combination of both.   The gantry (tower) and crane may
be fixed or mobile (horizontally or vertically).

A portal crane is mounted directly on a gantry.  A tower crane has a
tower between the rotating substructure and the gantry.  The cranes in
this case had a tower between the rotating substructure and the gantry
(defined as a "movable structure frame").  A tower crane is illustrated
in Figure 1 of ANSI B30.4-1981 as follows:

*The pictorial referred to above is not available in this format.

Please telephone the Review Commission Public Information Office,
202-606-5398, to request a paper copy; TTY: 202-606-5386; FAX:
202-606-5050; e-mail: lwhitsett@oshrc.gov <mailto:lwhitsett@oshrc.gov>

The configuration of Figure 1 is similar to Exhibit 12, which is a
photograph of crane number 5, and to Exhibit 17, which is a drawing of a
crane resembling crane number 6 (Tr. 455, 822).  The bottom portion of
the crane in Figure 1 is referred to as the gantry.   It supports the
tower and rotating superstructure of the crane at the top of the tower. 
It is called a gantry since it moves along the rails.

The record contains little evidence as to the characteristics and
configuration of cranes 1 through 4.  Burkhart, who observed cranes 1
through 5, testified that they were basically portal cranes "running on
rails with a revolving structure on top" (Tr. 850).  He stated that
cranes 5 and 6 were similar (Tr. 1031).  The safety manager for Tampa
Shipyards, Searle Walton, also testified that cranes 5 and 6 were
similar (Tr. 455).  Crane operator Barry Sims thought cranes 5 and 6
were identical (Tr. 678).  The crane operators and counsel for the
Secretary referred to all the cranes as gantries.  According to
Burkhart, people in the trade often refer to tower cranes as gantries
(Tr. 1034).  There is no evidence indicating that cranes 1 through 4
were any different than those described by Burkhart, and there is no
reason to assume or believe they should be classified differently than
cranes 5 and 6.   Accordingly, it is concluded that crane numbers 1
through 6 are properly classified as tower cranes.

Burkhart's statement that the cranes were "basically a portal crane" is
not inconsistent with the classification of the cranes as tower cranes. 
He stated that the cranes could be called a portal or a tower crane,
depending on how one interprets the definition (Tr. 1033).  The
definition of tower crane in ANSI B30.4-1981 states that it is "similar
to a portal crane."   Figure 1 refers to the portal area.  It is further
noted that the 1973 edition of ANSI B30.4 defined a tower crane as follows:

4-0.2.1.2  _Tower Crane_.  A portal crane, with or without an opening
between the legs of its supporting structure, adapted to hoist and swing
loads over high obstructions and mounted upon a fixed or mobile
tower-like gantry.  The revolving crane may be supported on the tower by
a revolving mast or by a turntable.

This definition refers to a tower crane as a portal crane, whereas the
1981 edition of the standard uses the phrase "similar to a portal
crane."  It is clear that a tower crane can be referred to as a type of
portal crane.

In arguing that general industry standards are applicable to the cranes
in question, Tampa Shipyards makes particular reference to the
provisions of 29 C.F.R. § 1910.179 and 29 C.F.R. § 1910.180.  The law is
clear that the general industry standards, Part 1910 of 29 C.F.R., can
apply to users of cranes engaged in maritime operations if there are no
specific standards covering the factual allegations of the cranes in
issue.  Since Part 1915 does not cover the conduct in question, a
determination must be made as to the applicability of § 1910.179 and §
1910.180.

Section 1910.179 pertains to overhead and gantry cranes.   Its
application is set forth under § 1910.179(b) as follows:

(b) _General requirements_--(1) _Application_.  This section applies to
overhead and gantry cranes, including semigantry, 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.

While the cranes in issue were commonly referred to as gantries by
employees, they do not fit the definition of a gantry crane as defined
by § 1910.179(a)(6), which states:

"Gantry crane" means 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.

The tower cranes have no bridge or trolley but do have a movable
structure frame, referred to as a gantry, [[2/]] that can travel on
fixed rails.   In a technical sense, the tower cranes in issue and
gantry cranes have at least one similar travel characteristic since they
both move on fixed rails.

Subsection (b) of § 1910.179 specifically states that the listed cranes
are grouped because "they _all_ _have_ _trolleys_ and similar travel
characteristics "(Emphasis added).  Even if it is concluded that the
phrase "similar travel characteristics" refers to travel along fixed
rails rather than to the travel of the trolley, the tower cranes have no
trolleys [[3/]] and different operating characteristics.  The tower
cranes have no bridge rails which carry the hoisting mechanism.  They
have a rotating superstructure with operating machinery and boom.  The
boom can rotate 360 degrees.  A gantry crane has no rotating
superstructure and has a hoisting mechanism in lieu of a boom.  It has a
flat bridge between two towers or supports.  A trolley runs across the
bridge.  The hoisting mechanism travels along the bridge rail rather
than rotating on a turntable like the superstructure of a tower crane.

Gantry cranes are defined by § 1910.179(a)(6) as being "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."  The trolley moves at right angles to the crane
runway.[[4/]]  The tower cranes in use by Tampa Shipyards do not have
trolleys that move at right angles to the runway.  They have rotational
movement of the boom.  The configuration and operating characteristics
of tower cranes are different from gantry cranes.  While both types of
cranes have travel characteristics along rails, tower cranes have no
trolleys and no trolley travel.  Gantry cranes are depicted in ANSI
B30.2.0-1967, _Overhead and Gantry Cranes_, as follows:

*The pictorial exhibit referred to above is not available in this format.

Please telephone the Review Commission Public Information Office,
202-606-5398, to request a paper copy; TTY: 202-606-5386; FAX:
202-606-5050; e-mail: lwhitsett@oshrc.gov <mailto:lwhitsett@oshrc.gov>

Tower cranes do not meet the general requirements specified for gantry
cranes set forth at § 1910.179(b).  Section 1910.179 is not applicable
to crane numbers 1 through 6.

The provisions of § 1910.180 pertain to crawler locomotive and truck
cranes, "wheel mounted cranes of both truck and self-propelled wheel
type, and any variations thereof which retain the same fundamental
characteristics."[[5/]]  The definitions of "crawler crane," [[6/]]
"locomotive crane,[[7/]] "truck crane"[[8/]] and "wheel mounted crane"
[[9/]] indicate that cranes grouped under § 1910.180 are those which are
equipped for travel.  While the tower cranes used by Tampa Shipyards can
be pushed or pulled along a railroad track, they are not equipped with
any type of powerplant for independent travel or movement.  Their travel
is limited to a path along rails laid in a particular direction.  Each
of the cranes referred to in § 1910.180(b)(1) has a power source for travel.

The crawler crane has crawler treads for travel.  A locomotive crane is
mounted on a base or car equipped for travel on a railroad track.  It
may be self- propelled or propelled or propelled by an outside source. 
A truck crane is mounted on an automotive truck equipped with a
powerplant for travel.  A wheel mounted crane is mounted on a base or
platform equipped with axles and rubber-tired wheels for travel.   The
tower crane has no such methods for travel even though it sits on a
railroad track.  Section 1910.180 is deemed inapplicable to crane
numbers 1 through 6 used by Tampa Shipyards.  They do not have the "same
fundamental characteristics" specified for cranes under § 1910.180(b).

_Serious Citation_

The serious citation issued on March 3, 1986, alleges that Tampa
Shipyards violated section 5(a)(1) by allowing tower cranes to be
operated by "employee(s) who were not qualified by extensive knowledge,
training and experience."  Tampa Shipyards argues that "[t]here are
specific OSHA standards regulating the qualification of crane operators,
29 C.F.R. §§ 1915.117 (b)-(d), § 1910.179(b) (8) and § 1910.180(b)
(3)."  Assuming _arguendo_ that the cited standards apply to tower
cranes, they contain no specific provisions concerning the
qualifications for crane operators alluded to by the Secretary.[[10/]]
Since there are no specific standards applicable, the Secretary may rely
on section 5(a)(1) if the facts support such determination.

The burden is on the Secretary to prove all elements of a section
5(a)(1) violation.   _Cerro Metal Products Division, Marmon Group,
Inc.,_ 86 OSAHRC _______, 12 BNA OSHC 1821, 1822, 1986 CCH OSHD ¶ 27,579
(No. 78-5159, 1986), _appeal_ _filed_, July 7, 1986 (3d Cir., No.
86-3397), withdrawn July 31, 1986.  In order to establish such a
violation, the Secretary must prove: (1) the employer failed to render
its workplace free of a hazard, (2) the hazard was recognized either by
the cited employer or generally within the employer's industry, (3) the
hazard was causing or was likely to cause death or serious physical
harm, and (4) there was a feasible means by which the employer could
have eliminated or materially reduced the hazard.  _Phillips Petroleum
Co._, 84 OSAHRC 2/E7, 11 BNA OSHC 1776, 1779, 1984 CCH OSHD ¶ 26,783
(No. 78-1816, 1984), _aff'd_, F.2d ___, 1985 CCH OSHD ¶ 27,428 (10th
Cir. 1985).

Tampa Shipyards contends that the evidence is insufficient to sustain
the allegation that the operators were not qualified.  It has an
unwritten program of on-the-job training for crane operators which was
found lacking by the Secretary (Tr. 55-57, 60-61, 163-164, 483-484, 490,
589, 591, 647).  A considerable number of deficiencies was determined in
the training program.  This type of evidence does not establish that a
particular individual is unqualified to perform the duties of a crane
operator.  One of the obvious abatement methods for unqualified
operators may be a written training program and proper supervision;
however, the hazard is still the use of unqualified operators.  It is
not the lack of a proper training program and supervision that
constitutes the hazard.  There is no evidence to indicate any particular
crane operator was unqualified.  There is also no evidence establishing
how the operators as a group or individually were unqualified.

Most of the operators testifying in this case had considerable years of
experience operating a crane.  While some of them received their
training at Tampa Shipyards, others were trained through the union
apprentice program or by other employers.  Crane operator Johnnie Lee
testified that he had been a crane operator for 20 years prior to
working for Tampa Shipyards (Tr. 233).  Crane operator Charles Christie
had completed five years of union apprenticeship before commencing work
at Tampa Shipyards (Tr. 730).  Each of the crane operators testifying in
this matter believed that he and the other operators were fully
qualified to operate the cranes to which he had been assigned.  (Tr.
192, 233, 416-418, 535-536, 633-634, 698, 701, 702, 704, 729, 736). 
There is evidence to indicate that Caulley and Morgan were both
qualified operators (Tr. 112-113, 654-655, 703-704).  There is no
discrete evidence to the contrary. Counsel for the Secretary stipulated
that Caulley was qualified (Tr. 702-703).

Burkhart testified that Tampa Shipyards needed to develop an outline as
to what has to be taught to a crane operator and a system of formal
evaluation to determine if an operator is qualified (Tr. 943).  He
noticed a deficiency in the "training of operators on some of the
procedures and theories so that all the operators are operating in the
same framework" (Tr. 942-943).  Even if there were deficiencies in the
training program, the deficiencies do not _per_ _se_ establish any
particular operator to be unqualified.  This is especially true since
many of the operators had years of experience as crane operators with
other employers or had gone through the union apprentice program for
Crane operators.  Tampa Shipyards secured crane operators from the union
hall (Tr. 480).  While Burkhart testified concerning qualification of
crane operators, he conceded that he could not identify any unqualified
crane operator at Tampa shipyards (Tr. 1019-1020).   While section
4-3.1.2, of ANSI B30.4-1973 states that "[o]perators shall be required
to pass a practical operating examination," no evidence was introduced
to show that any crane operator working for Tampa Shipyards failed to
pass such an examination.

Tampa Shipyards was not cited for deficiencies in its training program. 
The issue for decision involves the qualifications of the crane
operators.   The Secretary has failed to meet its burden on the issue. 
The alleged section 5(a)(1) violation is vacated.

_Willful Citation_

Item one of the willful citation alleges a violation of section 5(a)(1)
for hoisting loads in excess of the manufacturer's recommendation. 
There is no dispute over the fact that crane number 6 was involved in a
lift of at least 33 tons [[11/]] at a boom angle which gave the crane a
lifting capacity of 21 tons.  Tampa Shipyards concedes that "[t]here
seems to be no question that Caulley and Morgan were wrong in making
this lift at the boom angle they selected" (Brief, pg. 20).

An eyewitness and participant in the lift, Wendell Croft, testified to
the facts surrounding the lift.  His testimony is undisputed.  As rigger
Ieaderman for the second shift, he received the turnover sheet from the
day shift Ieaderman as to what was expected to be completed that
evening.  He was told by Joe Seither, the day shift leaderman, to set
the 0-1 section on the bow of a ship under construction (Tr. 105-106).  
He was not given any instructions as to how the lift was to be made (Tr.
106).   He understood the load weighed 33 tons.  This weight was
recorded on his paperwork (Tr. 106, 112, 132).  He told William Caulley,
leaderman of the crane operators, and James Morgan, [[12/]] the crane
operator, what the load weighed (Tr. 106, 112, 113, 142).  The three of
them discussed the load that evening (Tr. 106-107).   Croft assigned two
riggers, Michael Sicich and Ezekial Bains, to assist in hooking up the
load and receiving it on the bow (Tr. 107, 141-142, 145).

After discussing the lift and assigning riggers to assist, Croft went
the supervisor's office.  He returned to the crane site when they were
really to make the lift and was in radio communication with CauIley. 
There was concern over the weight of the load to be lifted (Tr. 108). 
Caulley had the boom angle of the crane set for a 21-ton lift.  Caulley,
Croft and Morgan were aware that a lift of 33 tons was being attempted
(Tr. 108).  Croft agreed to watch the rollers of the cab and to notify
Caulley by radio if the rollers commenced to raise off the turntable
(Tr. 107, 122, 144).   Caulley lifted the load a height of approximately
6 to 18 inches and held it while Croft observed that the wheels were
firmly on the turntable (Tr. 108, 114).  The load was then lifted to a
height of 10 feet above the dry dock and held for approximately 90
seconds to make sure the crane would handle the load (Tr. 109, 114,
115).  The wheels remained on the turntable, and Caulley indicated he
was going to place the load.  He commenced swinging the load to the
north and the wheels started to rise from the tracks.   Croft told him
that the wheels were coming up.  As the load was being swung
horizontally to the north, the crane toppled (Tr. 109, 115). [[13/]]

The accident occurred around 6:15 p.m. on October 4, 1985, a Friday. 
Immediately after the accident, Tampa Shipyards employees commenced
investigating to ascertain the cause of the accident.  The safety
director, Searle Walton, [[14/]] testified that he arrived at the yard
within a half hour of the accident and that employees had already
commenced the investigation.  The investigation continued late into the
night (Tr. 427).  Searle continued the investigation through Saturday
and Sunday (Tr. 430).   On Monday, October 7, OSHA inspectors arrived to
commence an investigation (Tr. 430).  The company investigation ceased
while OSHA personnel were conducting their inspection (Tr. 430, 435). 
When the company initiated its investigation, there was concern that the
accident may have been caused by a crane failure (Tr. 434, 435).

After a few hours of investigation, company officials concluded that
there was not a crane failure but that the accident was caused by the
way the load was lifted (Tr. 435, 542).  The boom angle and the weight
of the 0-1 section were not compatible to make a safe lift (Tr. 435-436,
542, 543).  The lift was not beyond the 40-ton capacity of the crane but
was beyond the capacity for the particular boom angle at which the load
was being lifted (Tr. 436).  Morgan and Caulley were lifting a load
thought to weigh 33 tons with a boom angle set for a safe lift of 21
tons.  When the Iift was made, Caulley, Morgan and Croft were aware that
they were lifting at least 33 tons with the crane set at a boom angle to
pick up 21 tons (Tr. 108).  Croft acknowledged that the boom angle
resulted in an overload of the crane (Tr. 108).

Tampa Shipyards argues that there can be no section 5(a)(1) violation
because specific standards apply to the undisputed facts.  Reference is
made to §§ 1915.111(b), 1915.115(c)(2), 1915.116(b), 1915.117(a),
1918.51(a), 1910.179(b)(5), (m) and (n), and 1910.180(h) (Brief,
pg.19).  Part 1915 sets forth safety and health standards specifically
applicable to shipyard employment but, as previously discussed, contains
no provisions applicable to the conditions cited in this case.  Part
1918 applies to longshoring and is not applicable to the operations
conducted by Tampa Shipyards involving shipbuilding and repair. Sections
1910.179 and 1910.180, for reasons previously discussed, are
inapplicable to the allegation since those sections do not apply to
tower cranes.

There is no dispute over the fact that the lift attempted by Caulley and
Morgan on October 4, 1985, exceeded the manufacturer's recommended load
capacity.  The Secretary contends that this was a recognized hazard. 
The evidence fully supports this determination.  Utilizing a crane to
hoist loads in excess of the crane manufacturer's recommendation is a
hazard of common knowledge to those who operate or are familiar with the
operation of cranes. The hazard was so recognized by officials of Tampa
Shipyards and its crane operators.  The crane operators, in general,
recognized that the crane's rated load capacity should always be
observed (Tr. 51, 251, 567-570, 598, 637, 769).  Crane operator Barry
Sims stated: "It's general knowledge don't overload a crane"(Tr. 705). 
The president of Tampa Shipyards, Ralph Arselmi, recognized the hazard
by personally advising the crane operators that cranes should never be
overloaded (Tr. 188-190, 263, 347, 705, 771).   Respondent's safety
director, Searle Walton, acknowledged that the boom angle and weight
lifted were not compatible with a safe lift (Tr. 436).  He would not
permit someone to make a lift that he knew was an overload; however, he
also pointed out that he is not consulted by the crane operator when a
lift is being made (Tr. 558).  Burkhart testified that the lifting of
loads in excess of the rated load capacity is a hazard (Tr. 944-945) and
should never be done (Tr. 853).  There was general agreement among all
witnesses that lifting loads in excess of the crane's rated load
capacity presents a hazard.  This type of workplace hazard is also
recognized by section 4-3.2.1a of ANSI B30.4-1973 and promulgated
standards applicable to other types of cranes and is specifically
prohibited. [[15/]]

Two employees in the crane and an unknown number of employees on the
ground were exposed to the recognized hazard.  The evidence fully
supports the additional two elements necessary to establish a section
5(a)(1) violation.  The overloading of a crane can cause it to overturn
and result in death or serious physical harm to employees.  This is
especially true where the crane sits on an 80-foot tower.  The safety
program of Tampa Shipyards with respect to enforcement of crane safety
procedures was somewhat lax.   The safety program for crane operators
was oral (Tr. 476-477, 480).  There was no written rule regarding
overloading of cranes.  There is no evidence that training among
operators was consistent or that all necessary elements for a successful
safety program were included.  The hazard can be abated by utilizing
consistent and detailed safety instructions, better communication of
those instructions to employees, better supervision of employees and
uniform enforcement.  Tampa Shipyards was deficient in all these areas
with respect to its crane operators.

Tampa Shipyards argues that it had no knowledge of the overload
condition and that the condition was not reasonably foreseeable (Brief,
pgs. 20-21).   It points out that Caulley and Morgan were qualified
crane operators with many years of experience in crane operations. 
Neither of them had ever been involved in an accident.  It is further
argued that there is no evidence showing Tampa Shipyards was aware that
either Caulley or Morgan had lifted a load in excess of a crane's rated
load capacity (Brief, pg. 21).  It points out that eight full-time
safety specialists are employed to search for unsafe conditions and that
the safety director would fire any supervisor who tried to make any
operator hoist an overload.  The statement by the safety director that
he would be fired if be did not fire the supervisor (Tr. 559) is
hypothetical and meaningless since be concedes that he is not consulted
about lifts (Tr. 558) and that if he does not know about a situation, he
does not get involved (Tr. 559).

While Tampa Shipyards argues that it had no knowledge of the overload,
it is an undisputed fact that William Caulley, leaderman for the crane
operators, and Wendell Croft, leaderman for the riggers, were both aware
of the overlift and, in fact, were both directly involved in making the
lift.  They were both employed by Tampa Shipyards as leadermen, and
their supervisor was Elwell Rhoden, general superintendent for Tampa
Shipyards (Tr. 201-202, 1108).  Unlike other crafts, there was no
foreman between them and the general superintendent (Tr. 1108).  The
argument that Croft and Caulley were not part of management and their
knowledge imputable to Tampa Shipyards ignores reality.  If they were
not part of management for supervision purposes, then Tampa Shipyards
had insufficient supervision of crane operators and riggers.  The only
person with supervision over Caulley and Croft was the general
superintendent.  In commenting on the duties of the general
superintendent, counsel for respondent stated (Tr. 71):

MR. MORAN: WelI, Your Honor, this is a mammoth operation.   There are
probably 25, maybe a hundred cranes there.  This testimony presumes that
he knows every lift made by every crane for every man on every day of
the operation.   _This man is the general superintendent.  He is not
involved in the operations.   He sits in an office._  (Underlining added)

The duties of the general superintendent are too large to allow him to
do any significant direct supervision of crane operators and riggers.

The evidence is clear that crane operators and rigger leadermen were
part of the supervision team of Tampa Shipyard.  Sections 1 and 2 of
Article 7 of the agreement between Tampa Shipyards and the Tampa Metal
Trades Council, which represents several different unions with workers
employed at Tampa Shipyards, makes the following statement concerning
leadermen (Ex. 3):

SECTION 1.--_Leadermen are the first line of supervision_ and are
responsible to higher supervision for the progress and execution of the
work.   Leadermen do not have the right to hire or discharge employees
under their jurisdiction, but may make recommendations to higher
supervision concerning disciplinary actions and promotions of
employees.  It is further agreed that no interference will be exercised
by any Unions or their officials with respect to the supervisory
functions of any leaderman.  It is recognized by the Company that
leadermen are bargaining unit employees covered [sic] by the terms and
conditions of this agreement. (Emphasis added)

SECTION 2.--_It is the intent of management that an employee will
normally have only one direct craft leaderman at a time from whom he
shall take direction and be responsible, and with whom he will initially
raise requests, complaints, or questions concerning his work_.  However,
this does not excuse an employee from taking directions from any
supervisor in cases of emergency or compelling production situations. 
In such situations, the workmen's leaderman will be immediately
notified. (Emphasis added)

Searle Walton, safety manager for Tampa Shipyards, testified that the
company generally followed Section 2 of Article 7 (Tr. 575-576).  
Respondent's director of Iabor relations, George Turner, testified that
the foreman over the crane operator leadermen and rigger leaderman had
not been replaced and that the leadermen in those two crafts take
supervision directly from the general superintendent (Tr. 1108, 1111). 
While the crane and rigger leadermen are part of the bargaining unit,
Turner indicated that the company was trying to remove them from the
bargaining unit and include them as part of management (Tr. 1106-1107,
1109).  Removing them from the bargaining unit would give them authority
to answer grievances, to adjust grievances and to effect discipline
directly (Tr. 1110).  They do not presently have such authority.

General superintendent Rhoden testified that the leaderman is in charge
of the lift that has been assigned to him.  The day leaderman turns over
the orders to lift to the night leaderman (Tr. 35, 42).  A leaderman has
between 5 and 14 employees under his supervision (Tr. 104-105).  Crane
operators Screws, Tucker, Sims and Heisserer testified that the
leaderman was the immediate supervisor who told them what to do (Tr.
177, 199, 201, 206, 602, 713, 746-747).  The leaderman is the person who
goes to the next line of supervision, which in the case of crane
operators and riggers was the general superintendent (Tr. 1152).  The
crane operator and rigger leadermen were the immediate supervisors of
members of their group.  Where leadermen have exercised substantial
authority over the work being performed, they have been deemed to be
supervisory employees.  _Todd Shipyards Corporation_, 84 OSAHRC 39/A2,
11 BNA OSHC 2177, 1984 CCH OSHD ¶ 27,001 (No. 77-1598, 1984), _appeal
dismissed_ in unpublished opinion (9th Cir. 1985, No. 84-7643).  In view
of their particular responsibilities, Caulley and Croft are held to be
supervisors and their knowledge attributable to Tampa Shipyards.

The facts are undisputed that Caulley, Morgan and Croft were all aware
that the lift involved at least 33 tons and that the boom angle was set
for a lift of 21 tons. In order to prevail on the defense that the
violation resulted from employee conduct which was not reasonably
foreseeable, Tampa Shipyards must show that it "has established
workrules designed to prevent the violation, has adequately communicated
workrules to its employees, has taken steps to discover violations of
the rules, and has effectively enforced the rules in the event of
infractions."   _Jones & Laughlin Steel Corp._, 82 OSAHRC 34/A2, 10 BNA
OSHC 1778, 1782, 1982 CCH OSHD ¶ 26,128 (No. 76-2636, 1982).

The employee handbook (Ex. 13) utilized by Tampa Shipyards contains a
small section on crane safety.  It does not contain a workrule to
prevent the violation in issue.  No evidence was introduced by Tampa
Shipyards to show that it had a written rule prohibiting the use of a
crane in making an overlift. There was adequate evidence to show that
such a rule existed and had been orally communicated to most crane
operators who testified.  In any event, the crane operators recognized
such a rule as a matter of common sense.  Since there is no requirement
that the rule must be written, the first element has been established.

There has been an inadequate showing that Tampa Shipyards took
reasonable steps to enforce the rule.  The fact that it had eight
full-time safety specialists does not reveal its enforcement procedure. 
There is no evidence as to how the rule was reinforced upon the minds of
the crane operators or how violations were detected.  Walton
acknowledged that his department was not consulted on lifts (Tr.
558-559).  He had no way of determining whether the lifts were being
properly made until a mishap occurred.   The only realistic enforcement
of the rule had to be through supervisors who were familiar with the
lifts being undertaken.  While Caulley and Croft were acting in a
supervisory capacity, there is no evidence of steps taken to enforce the
rule against overlifts.  The record contains several instances of
previous overlifts.[[16/]] Most of the overlifts occurred because of a
lack of determining the weight of an object before it was lifted [[17/]]
(Tr. 180, 183-184, 593, 723-724).

The knowledge of Caulley and Croft of the violation is imputed to Tampa
Shipyards for the purpose of providing employer knowledge of the
violations unless it "establishes that it took all necessary precautions
to prevent the violation[s], including adequate instruction and
supervision of the two leadermen.  _Daniel Construction Company_, 82
OSAHRC 23/A2, 10 BNA OSHC 1549, 1552, 1982 CCH OSHD ¶ 26,027, p. 32,672
(No. 16265, 1982).  The fact that supervisors were involved in the
misconduct is strong evidence that Tampa Shipyards was lax.  _Daniel
Construction Company_, _supra_; United Geophysical Corp., 81 OSAHRC
77/D6, 9 BNA OSHC 2117, 2123, 1981 CCH OSHD ¶ 25,579, p. 31,907 (No.
78-6265, 1981), _aff'd_ in unpublished opinion (5th Cir. 1982, No.
81-4342), "[w]here a supervisory employee is involved in the violation
the proof of unpreventable employee misconduct is more rigorous and the
defense is more difficult to establish since it is the supervisor's duty
to protect the safety of employees under his supervision."   _Daniel
Construction Company_, _supra_, 10 BNA OSHC at 1552, 1982 CCH OSHD at p.
32,672.  _See also Floyd S. Pike Electrical Contractor, Inc.,_ 78 OSAHRC
50/E1, 6 BNA OSHC 1675, 1978 CCH OSHD ¶ 22,805 (No. 3069, 1978).  Tampa
Shipyards has failed to establish that Croft and Caulley were adequately
trained or supervised with regard to safety matters.  In addition,
instances of previous overloads are too numerous to conclude that safety
procedures were effectively enforced to prevent overloads from occurring
at the workplace.

While Walton testified that Tampa Shipyards had an oral safety policy
for crane employees, the extent of this policy is unknown.  There were
obvious problems concerning procedures used in determining the weight of
objects being lifted.   There is considerable evidence concerning
overlifts which resulted from ignorance as to the weight of the object
to be lifted.  Crane operator Hansen testified that the weight of the
load was usually furnished to the crane operators by the department for
whom they were making the lift (Tr. 592).  Crane operator Lee testified
that the rigger informs the operator as to the weight of the load (Tr.
251).  Any well developed policy for preventing crane overlifts has to
include procedures for accurately determining weights of the objects to
be lifted. Tampa Shipyards has not shown that it had a clearly defined
policy in this regard, and there is no evidence that such a policy was
enforced if it did exist.  Advising crane operators not to make overload
lifts is a useless gesture if action is not undertaken to insure they
have accurate information as to the weight of the object to be lifted. 
The alleged violation is sustained.

_Nature of Violation_

The Secretary alleges that the violation was willful. "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."  _Asbestos
Textile Company,_ _Inc._, 84 OSAHRC 48/B12, 12 BNA OSHC 1062, 1063, 1984
CCH OSHD ¶ 24,763 (No. 79-3831, 1984).  Caulley and Morgan were aware
that the boom angle of the crane was set to make a safe lift of 21
tons.  They were told the 0-1 section weighed 33 tons.  In spite of
these facts, they commenced to lift and swing the load in total
disregard of the manufacturer's rated load capacity.   They knowingly
tried to swing and place the load.  A willful violation has been
established.

_Penalty Determination_

A penalty must be determined for the violation.  Pursuant to section
17(j) of the Act, the Commission must 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).   Caulley, Croft and Morgan had knowledge that the
piece to be lifted weighed at least 33 tons.  They knew the rated load
capacity of the crane at its boom angle at the time of the lift was 21
tons.  They chose to ignore the facts.  The gravity is considered
severe.  The cab of the crane was 80 feet in the air.  A penalty of
$8,000 is assessed for the violation.

_Item Two_

Item two of the willful citation alleges that on October 4, 1985, and at
other times, the weight of loads was not determined and the operators
were not notified of the weight prior to hoisting.  The description of
the alleged violation raises two specific acts of omission: (1) the
weight of loads was not determined, and (2) the operator was not
notified of the weights prior to hoisting.  Tampa Shipyards argues that
the same standards it referenced as applicable to item one are also
applicable to item two.   According to Tampa Shipyards, the "cited
condition is virtually indistinguishable from item 1 of this citation"
(Brief. pg. 32).

Rhoden testified that Tampa Shipyards had a policy of determining the
weight of loads before they made a lift (Tr. 47).  According to him, the
weight is determined by the use of a dynamometer (Tr. 47).  He testified
(Tr. 49):

A. When they've got a section that they are concerned with, they put the
dynamometer on it, and that's the leaderman of that particular
department who puts the dynamometer on it with the operators and the
other riggers with him and determines the weight.

The number three crane has a load indicator, but it was not operational
at the time the lift in issue was made on October 4 (Tr. 47, 235, 240).

Tampa Shipyards argues that the Secretary produced no evidence to prove
that the weight of the 0-1 section was not determined or that the
operator was not notified of the weight prior to hoisting (Brief, pg.
33).  In view of the discrepancies in the weight the operators were told
and the actual weight of the 0-1 section, it is clear that such an
argument must be rejected.  While Croft testified that his paperwork
showed the 0-1 section weighed 33 tons, there is no evidence as to how
that figure was determined. The same section had been lifted by crane
number 3 around 9:00 a.m. to 10:00 a.m. on the morning of October 4. 
Crane operator Joseph Mossey testified that he was told by the rigger
that the section weighed 30 tons (Tr. 733-734).   He did not weigh the
section (Tr. 733).  He set his boom at 32 tons to make the lift (Tr.
733-734).  No evidence was presented by Tampa Shipyards to show how the
weight of the 0-1 section was supposedly determined or even if it had
been determined prior to the accident.  The weight of the section was
determined after the accident to be 38.099 tons (Tr. 1132).

Burkhart testified that the failure to determine the weight of loads
before lifting them could constitute a hazard (Tr. 945).  This is
particularly true on heavy loads that have the potential to exceed the
crane's rated load capacity for a particular boom angle.  Failure to
accurately determine the weight of a load can lead to overlifts.  While
Rhoden stated Tampa Shipyards had a policy of determining the weight of
loads being lifted, the extent of that policy is unknown.

Tampa Shipyards had no written procedures for determining the weight of
loads to be lifted by cranes.  If the oral policy was communicated to
employees, it was not very well followed.  There is no evidence as to
how the policy was orally communicated to all employees or what attempts
were made to enforce it. The evidence discloses numerous instances where
lifts were made when the crane operator did not know the weight of the
load or the weight given to him was erroneous (Tr. 168, 592-593, 596,
667-672, 723-724, 745).  The policy had little substance.

Tampa Shipyards argues that this condition, i.e., failure to determine
the weight of the load, is indistinguishable from item one concerning
the allegation that the rated load capacity of the cranes was exceeded. 
There is merit to this argument.  The hazard presented to employees for
failing to weigh a load, if one exists, is the overload of the crane. 
There is no hazard present in an unweighed load that is less than the
rated load capacity of the crane. The weight of the load must be known
if an overload is to be avoided. The objective of weighing a load is to
avoid an overload. Determining the weight of the object to be lifted is
one of the procedures necessary in the abatement process of preventing
overloads. It is part of the information essential to preventing
overloads and cannot be cited as a separate violation. The alleged
violation is vacated.

_Item Three_

Item three alleges that "[o]n or about October 4, 1985, and at other
times, operation of tower crane(s) were permitted with known hazardous
defects in numerous functional operating mechanisms, control systems,
and clutches."  Tampa Shipyards submits that the "cited conditions are
regulated by the OSHA standards codified at 29 C.F.R. §§ 1910.179(j),
1910.179(1), 1910.180(d)( 3) and (4), 1910.180(f), 1915.111(a),
1915.115(a), 1915.116(k) and 1915.117(a)" (Brief, pgs. 41-42).  As
previously pointed out, § 1910.179 and § 1910.180 are inapplicable to
tower cranes.   Those provisions of Part 1915 referred to by Tampa
Shipyards are not applicable to the conditions alleged in the citation.

Several operators testified that they used a piece of wood behind the
crane friction levers to prevent them from disengaging. [[18/]]  This
applied only to cranes 4, 5 and 6 (Tr. 628).  Crane operator Sims
testified that while he used a piece of wood, he did not think there was
anything wrong with the lever.   He testified that some of the operators
used the piece of wood and some did not use it.  He thought it was safer
to use the piece of wood (Tr. 679-680, 708-709).   He has not used a
piece of wood since October 4, 1985 (Tr. 680).  Crane operator Don
Heisserer testified that he did not use the piece of wood but
acknowledged that some operators used it (Tr. 744-745).  Burkhart
testified that the use of the piece of wood indicated that the normal
locking device was not functioning properly (Tr. 921).  In his opinion,
the cranes should not have been operated in that condition (Tr.
921-922).  Sims thought the friction levers were designed to be easily
disengaged (Tr. 679).  Burkhart testified that the levers "are designed
to be operated with relative ease but when you pull them into detent,
they should stay there for the normal operation of the crane" (Tr. 923).

There is no substantive evidence to support the conclusion that the
cranes had defective friction levers during the time period relevant to
this proceeding. Hansen testified that he had trouble in 1980, 1981 and
1982 (Tr. 607).   He testified that he reported the problems with the
different cranes, and they were fixed within a period of time (Tr.
629-632).  Mossey testified that he had used a piece of wood but did not
state that he had any trouble with the friction lever disengaging (Tr.
735).  Sims testified that he used a piece of wood but did not state
when or if he had trouble with the friction lever (Tr. 674).  Christie
testified that he used a piece of wood but did not state when or if he
had trouble with the friction lever (Tr. 725-729).  It appears the piece
of wood was being used by some operators as a precaution against a
problem they believe had existed in the past.  Charles Dowless, the
plant manager, testified that if the friction lever jumped out while the
crane was traveling, it would be of particular concern to the crane
operator (Tr. 1134).   He had no knowledge of seeing such a condition
reported for repair (Tr. 1135).   Burkhart's assumption that the
friction lever was defective because a piece of wood was used was based
on a practice that evolved from past difficulties with the friction
lever.  The preponderance of the evidence does not support the
allegation the friction levers were defective at the time of the
inspection.  There is also insufficient evidence to conclude that
management officials were aware that the piece of wood was being used by
the crane operators.

Evidence was presented with respect to defective limit switches and an
emergency shutoff switch.  No evidence of the specific nature of the
alleged limit switch problem or how long it existed was presented. 
Hansen testified that he had problems with limit switches on cranes 4, 5
and 6 and that they were fixed (Tr. 632).   He had a problem on crane
number 1 that was not fixed, but the crane was removed from service in
1984 (Tr. 633).  The problem occurred in 1980 and 1981 (Tr. 633).   He
stated that he had problems with the emergency shutoff switches on
cranes 4 and 5 (Tr. 634).  A switch was placed on crane number 4, and he
was not aware if the switch had been fixed on crane number 5 (Tr.
634-636).  He believed there was no emergency shutoff switch on crane
number 5 in October, 1985 (Tr. 603).  There was no evidence that anyone
of authority for Tampa Shipyards was aware of the defects or that they
were not fixed once they were reported.

The Secretary includes the fact that the load indicator in crane number
3 was inoperable for a period of time in late September and October,
1985, as a defect.  However, his own expert, Matthew Burkhart, made it
clear that the fact that the load indicator was not operable was not a
hazard to the operation of the crane (Tr. 946-947).  The crane operator
can compensate for the inoperable load indicator by having the weight of
loads determined by other means (Tr. 946).  No evidence was presented
which showed any risk to the mechanical operation of the crane resulting
from the claimed defect.  No evidence was presented that load indicators
were required on cranes.

The other alleged defects are reflected on craft turnover forms entered
into evidence as Exhibit 14.  The forms cover the period from September
3, 1985, to October 4, 1985 (Tr. 466).  These forms were turned over by
the first shift leaderman to the second shift leaderman.  The first
shift recorded on the form what they wanted the second shift to do (Tr.
465, 1144).  The forms indicate that maintenance items were recorded by
the second shift.  A copy was sent to the maintenance department to
indicate the need for repair (Tr. 1144).  The Secretary points to
several of these items and charges that the cranes were operated with
known defects.  While the forms indicate some need for repairs, there is
no evidence that the cranes were operated under unsafe conditions. There
is no evidence that the repairs were not made within a short or
reasonable period of time.  All the forms show is that at a particular
period of time maintenance was needed.  There is no evidence to indicate
what was done once the item was noted on the form.  The listing of a
problem on the form does not per se prove that the crane was operated
with such a defect.   The allegations were based on Burkhart's opinion
as to what he thought was meant by the entries on the craft turnover
sheets.  Burkhart assumed hazards existed as a result of the entries on
the sheets (Tr. 1023).  He had no knowledge that the cranes were
operated with hazardous defects.

A company that operates as many cranes as Tampa Shipyards will certainly
experience a number of maintenance problems over a period of time. 
Simply because a limit switch, emergency shutoff switch or other
mechanical items become broken or inoperative does not establish a
violation.  There is no evidence that any item reported was not
eventually repaired once it was reported.  There is also no evidence
that Tampa Shipyards required its crane operators to operate cranes with
hazardous conditions or that the cranes in issue were operated with
hazardous defects.  Crane operator James Screws testified (Tr. 191):

Q.  If you don't find anything properly working, do you know what to do?

A.  Yes, sir.  You report it and don't run the crane if it is something
that is unsafe until the problem is checked into.

The alleged violation is vacated.

_Item Four_

Item four alleges that "[o]n or about October 4, 1985, and at other
times, tower crane(s) were operated without conducting frequent and
complete periodic inspections to insure safe operations."  Tampa
Shipyards argues that "[t]here are a number of OSHA standards regulating
the inspection and maintenance of cranes which would preempt this §
654(a)(1) charge," citing 29 C.F.R. §§ 1910.179(j)(1)(ii), (j)(2),
(j)(3), 1910.179(1), 1910.180(d)(3) and (4), 1910.180(f), 1915.111(a),
1915.113(b), 1915.114(b), 1915.115(a)(1), and 1915.181 (Brief, pg. 52). 
It further argues that item four is no different from the allegations of
item three and is multiplicious.  Sections 1910.179 and 1910.180 and
Part 1915 are inapplicable for the reasons previously stated.

The Secretary argues that Tampa Shipyards lacks an effective inspection
schedule for daily, weekly, monthly and quarterly inspections.  He
submits that there is no policy as to who is in charge of conducting
inspections and that this results at times in inspections being made by
"whoever is available."    He states that "[W]hile some operators
conduct 'inspections' of their own, there are no guidelines as to what
to inspect or when to inspect" (Brief, pg. 8).

Frequent and periodic inspections for tower cranes are required by
section 4-2.1 of ANSI B30.4-1973, _Portal, Tower and Pillar Cranes_. 
Crane standards, particularly §§ 1910.179 and 1910.180, generally
require frequent and periodic inspections.  Frequent inspections are
required to be made from daily to monthly intervals, while periodic
inspections must be made from 1 to 12-month intervals.[[19]]  Interval
of inspections are dependent upon the degree of exposure to wear,
deterioration or malfunction of the critical components of the crane. 
Assuming frequent and periodic inspections are required, the
preponderance of the evidence supports the determination that Tampa
Shipyards was in compliance.  The evidence fails to show that daily,
frequent or periodic inspections were not conducted.

Crane operator James Screws, when asked if he knew how cranes were
inspected, testified that he had a crane report that is filled out once
a month (Tr. 169).  According to him, the operators are supposed to fill
out the reports but that sometimes the leaderman fill them out (Tr.
169).  Daily checks are made by operators (Tr. 169, 191, 727).  Crane
operator Johnnie Lee testified he was not aware of crane inspections but
that the maintenance people might have conducted inspections (Tr. 234).
  Crane operator Charles Christie testified that he did not know who
checked the cranes but that he checked his crane daily before he
commenced his shift (Tr. 727).   While the crane operators appeared to
know little about inspections performed by others, there was no evidence
that any of them neglected to do their own inspection on a daily or
frequent basis.

Rhoden testified that Tampa Shipyards has a maintenance program that
includes crane inspections (Tr. 62-63).  The plant engineer, Charles
Dowless, testified that crane inspections are performed once a month
(Tr. 1126). No one person performs the inspections.  Inspections are
performed by the maintenance foreman, assistant supervisor, or whoever
is available (Tr. 1126).  Copies of the monthly forms used were placed
into evidence as Exhibits 22 and C. They show inspections of listed
items (checklist) for cranes that were conducted for a specific month. 
The form contains the heading:

*TAMPA SHIPYARDS INCORPORATED
MAINTENANCE DEPARTMENT
MONTHLY CRANE CONDITION INSPECTION*

The inspection forms show that some of the inspections were performed by
a crane operator leaderman (Ex. 22; Tr. 1140).  Dowless further
testified that the cranes were serviced at least once a month and more
often if the frequency of operation so requires (Tr. 1142-1143).  The
cranes are usually also looked over during the servicing (Tr. 1142).

The allegation pertains to the failure to conduct frequent and complete
periodic inspections.  The record shows that periodic inspections were
made by some individual on a monthly basis.  While the individual making
the inspections may have varied from month to month, the Secretary did
not offer evidence to indicate that any particular crane was not
inspected.  There is no support in law for the position that one
particular individual must do the inspection.  The Secretary further
failed to show that the monthly inspection form, which contains a list
of several items to be inspected, was deficient in any manner.

The Secretary acknowledges that "[T]here is evidence that some operators
made inspections of the cranes which they operated" (Brief, pg. 18).   
In an equally true manner, it can be stated that the evidence fails to
show any operator that did not make a daily inspection of his crane. 
The argument is made that there were no guidelines by which these
inspections were conducted.  Burkhart testified that he saw no daily
inspection checklists (Tr. 939) and that, in his opinion, written
checklists were needed (Tr. 1014-1015).[[20/]]  No evidence was offered
to indicate what items should be included on a written checklist or that
the operators failed to check any of the items that might be included on
such a checklist.

Tampa Shipyards lacks a cohesive and detailed policy of conducting
inspections.   However, it is charged with not "conducting frequent and
complete periodic inspections."  While inspection procedures may have
been slipshod, frequent and periodic inspections were made by employees
of Tampa Shipyards. No evidence was introduced to reflect that those
inspections were incomplete or deficient in any manner.  The alleged
violation is vacated.

_Docket No. 86-0469_

On January 29, 1986, employees of Tampa Shipyards were welding in a room
approximately 30 feet by 45 feet on the deck level of the vessel _Robert
G. Matthiesen_.  The welding took place in the "fan" room where the
ship's air conditioning was located (Tr. 1087).  During the welding
operations, a fire and explosion occurred that resulted in three persons
being burned.  At the time of the explosion, six employees of Tampa
Shipyards were in the room.  An employee of a subcontractor was also in
the room.   An investigation of the accident by Compliance Officer Fred
Carpenter disclosed that a can of paint thinner in the room had been
ignited when a welder's rod touched it while the welder was crawling
around in the room.

The citation issued on March 14, 1986, as a result of the fire and
explosion, cited alleged violations of three standards.  During the
hearing, the Secretary withdrew item two of the citation (Tr.
1068-1069).  Items one and three remain in issue. Item one alleges a
violation of 29 C.F.R. § 1910.106 (e)(2)(iv)(d) because "paint thinner
was drawn from or poured from the original containers."   Item three
alleges a violation of 29 C.F.R. § 1915.52(b)(2) for failure to have a
suitable fire extinguishing equipment available in work areas where
weIding, cutting or heating operations were being performed.

_Item One_

Tampa Shipyards argues that the Secretary failed to establish
noncompliance with 29 C.F. R. § 1910.106(e)(2)(iv)(d).[[21/]]  It
submits the standard "regulates only a specified activity: the manner,
or method, by which certain liquids may be 'drawn from' or 'transferred
into' containers" (Brief, pg. 82).  There is no evidence that the paint
thinner had been drawn from or transferred into the particular can found
in the room.  The testimony of Compliance Officer Carpenter indicates
that the can of paint thinner was cited for a violation because it was
not in a safety can (Tr. 1075-1076).

There is no dispute over the fact that paint thinner was in the can. 
The can was not a safety can. It contained a label indicating the
contents were flammable. The can was sitting in the room.  There is no
evidence to indicate that Tampa Shipyards had transferred the paint
thinner into the can.  The thinner was probably in the same can in which
it was purchased by Tampa Shipyards.  The can was similar to that in
which paint thinner is sold (Exs. 20, 21; Tr. 1074).

The Secretary's brief does not comment on the applicability of 29 C.F.R.
§ 1910.106(e)(2)(iv)(d) to the facts in issue.  His brief simply makes
the assumption that the standard is applicable.  Why the Secretary
believes the standard is applicable to the facts of this case is
unknown.  As pointed out by respondent, the "standard is specifically
limited in scope and application to those portion [_sic_] of an
'industrial plant' where the use and handling of flammable or
combustible liquids is only incidental to the plant's principal
business" (Brief, pg. 83).  The alleged violation occurred on a ship.

In order to prove a violation of a standard, the Secretary must show
that the cited standard applies to the cited condition.  _Clement Food
Company_, 84 OSAHRC 26/A2, 11 BNA OSHC 2120, 2123, 1984-85 CCH OSHD ¶
26,972 (No. 80-607, 1984).  The Secretary has failed to show how the
standard is applicable to the facts.  The alleged violation is vacated.

Even if the standard was applicable, the Secretary has failed to
establish that respondent had actual or constructive knowledge of the
condition.  Compliance Officer Carpenter testified that he did not know
who put the paint thinner can in the room, that there was no reason for
it to be there, and that he did not know who knew it was there (Tr.
1089).   The can was similar to cans of mastic in the room, and it was
not readily discernable by anyone as containing paint thinner (Tr.
1076-1077).  Carpenter conceded that the cans blended together and that
"nobody noticed the distinct difference between them which was not very
great" (Tr. 1077).  He further stated (Tr. 1090):

As I said, nobody knew before the explosion that it was there.  It was
only afterwards that they realized they had seen it.

_Item Three_

The Secretary alleges a violation of 29 C.F.R. § 1910.2(b)(2) [[22/]]
because there was allegedly no firefighting equipment in the immediate
vicinity of the fire. The standard requires suitable fire extinguishing
equipment be available in the work area and maintained in a state of
readiness for instant use.

Compliance Officer Carpenter arrived at the jobsite on January 30, the
day following the accident. He went to the room where the fire had
occurred.  There were fire extinguishers in the room when he arrived at
the site (Tr. 1077).   His investigation disclosed that there was no
fire extinguisher in the room at the time the fire commenced (Tr.
1078-1079).  Two fire extinguishers were located over 25 feet from the
room.  The fire extinguishers were not in sight but were located behind
closed doors.  The employees had no indication of where they were
located (Tr. 1079). One of the fire extinguishers was located inside of
the stairs on the next deck; the second extinguisher was on the same
deck inside a door that led to the engine room (Tr. 1079). At the time
of the fire, employees had difficulty in locating fire extinguishers.  
They had to use insulating material to smother the flames (Tr. 1080).
The fire hose in the area of the room had been removed the previous day
in order to paint the deck (Tr. 1079, 1089).  The nearest hose was on
the other side of the ship. It was not hooked up (Tr. 1079-1080).

The standard requires that suitable fire extinguishing equipment be
available in the work area "in a state of readiness for instant use." 
The standard makes reference to "suitable fire extinguishing
equipment."  While the standard does not state what precise equipment is
required for firefighting purposes, it is clear that some fire
extinguishing equipment is required.  Since there was no fire
extinguishing equipment located in the work area, it is unnecessary to
define or interpret what is suitable fire extinguishing equipment.

Tampa Shipyards argues that the evidence does not include any
clarification of what was meant by the terms "immediate vicinity" or
"instant use."  The standard does not use the words "immediate
vicinity."  The equipment is required to be immediately available in the
work area.  The work area is construed to be the room in which the
welding operation was being performed.  The fire extinguishers were
located at least 25 feet from the room in which the work was being
performed.  The violation has been established.

_Nature of Violation_

The Secretary contends that the violation of 29 C.F.R. § 1915.52(b)(2)
is serious within the meaning of section 17(k) of the Act. Under section
17(k) of the Act, a serious violation exists where there is a
substantial probability that death or serious physical harm could result
from the condition and the employer has knowledge of the condition, or
could have discovered the violation with the exercise of reasonable
diligence.  The Secretary need not prove that an accident is probable;
it is sufficient if an accident is possible and its probable result
would be serious injury or death.  _Brown & Root, Inc., Power Plant
Division_, 80 OSAHRC 17/B8, 8 BNA OSHC 1055, 1980 CCH OSHD ¶ 24,275 (No.
76-3942, 1980); _Niagara Mohawk Power Corp.,_ 79 OSAHRC 36/A2, 7 BNA
OSHC 1447, 1979 CCH OSHD ¶ 23,670 (No. 76-2414, 1979).

The Secretary must further prove that the employer knew or with the
exercise of reasonable diligence should have known of the existence of
the violation. The knowledge element is directed to the physical
conditions which constitute a violation of section 5 of the Act.  
_Southwestern Acoustics and Specialty, Inc.,_ 77 OSAHRC 25/E7, 5 BNA
OSHC 1091, 1977-78 CCH OSHD ¶ 21,582 (No. 12174, 1977).  It is difficult
for an employer to prevail on the defense that he had no knowledge of
the violation since he has an obligation to inspect the work area, to
anticipate hazards to which employees may be exposed, and to take
measures to prevent their occurrence.  _Frank Swidzinski Co.,_ 81 OSAHRC
4/E14, 9 BNA OSHC 1230, 1981 CCH OSHD ¶ 25,129 (No. 76-4627, 1981);
Automatic Sprinkler Corp. of America, 80 OSAHRC 47/E4, 8 BNA OSHC 1385,
1980 CCH OSHD ¶ 24,495 (No. 76-5089, 1980).  Had Tampa Shipyards
inspected for suitable fire extinguishing equipment in the room prior to
commencing work, it would have discovered its noncompliance with the
standard.  It should also have known that the fire hoses in the area had
been removed the previous day in order to paint the deck.  Since
suitable fire equipment was unavailable, employees had to use insulating
material to smother the flames.   The violation was serious since a fire
in the room could and did result in the burning of employees.

_Penalty Determination_

A penalty must be determined for the violation of § 1915.52(b)(2) since
it has been classified as a serious 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).

Tampa Shipyards exposed six of its employees and an employee of a
subcontractor to welding operations in a room approximately 30 feet by
45 feet without providing for suitable fire extinguishing equipment. 
Employees had been working in the room for several hours prior to the
explosion and fire (Tr. 1081). At the time of the fire, Tampa Shipyards
employed in excess of 800 employees (Tr. 1082).  A penalty of $800 is
assessed for the violation.

_FINDINGS OF FACT_

1.  Respondent is a corporation engaged in shipbuilding and repair at a
place of business located at 1130 McCloskey Boulevard, Tampa, Florida
(Tr. 1084).

2.  On October 4, 1985, crane number 6 fell onto the number 2 dry dock
(Tr. 36, 41-42).  The accident occurred around 6:15 p.m. (Tr. 429).  The
crane fell during a lift of an 0-1 section at a boom angle with a rated
load capacity of 21 tons (Tr. 108, 113, 143).

3.  The crane sat on a turntable on top of an 80-foot tower. Rollers
underneath the cab rotated on the turntable to allow the crane to
pivot.  The tower sat on a gantry that moved along rails (Ex. 12; Tr.
173, 710, 850, 1117).

4.  CompIiance Officer SaIvatore Jimenez commenced an investigation of
the accident on October 7, 1985 (Tr. 430, 530).

5.  After the accident, the 0-1 section wreckage was cut into three
pieces and weighed by Charles Dowless, plant engineer.  The combined
weight of the three pieces was 38.099 tons (Tr. 165, 509, 1112, 1132,
1143).  At the time of the lift, the 0-1 section was believed to weigh
33 tons (Tr. 106).

6.  James Morgan was the operator of crane number 6 at the time of the
lift.   William Caulley was the leaderman for crane operators.  He was
in the crane with Morgan at the time of the lift (Tr. 42, 260, 564, 565,
655-656). Caulley and Morgan were informed by Wendell Croft, the rigger
leaderman, that the 0-1 section weighed 33 tons (Tr. 106-107).

7.  Caulley usually went up in the crane with the operator when a heavy
or maximum lift was to be made (Tr. 118, 656, 661-662, 666-667).  There
was concern over the weight of the load to be lifted (Tr. 108).

8.  Caulley, Morgan and Croft were all aware that the lift involved at
least 33 tons and that the boom angle was set for a lift of 21 tons (Tr.
106-107).

9.  The accident occurred because the boom angle of the crane and the
amount of weight being lifted were not compatible for a safe lift (Tr.
435, 436, 532).

10.  Crane operator leadermen and rigger leadermen perform supervisory
duties at Tampa Shipyards.  There is no foremen between them and the
general superintendent (Ex. 3; Tr. 201-202, 1108).  They are assigned
between 5 and 14 employees under their supervision and are the immediate
supervisor of those employees (Tr. 104-105, 177, 199, 201, 206, 602,
713, 746-747).

11.  The manufacturer of a crane rates the load capacity of a crane at
various boom angles (Tr. 854).  The operator makes the decision as to
what boom angle is necessary to handle a load (Tr. 555-557, 769, 984-985).

12.  When the operator is given the weight of a lift, he is expected to
set the boom angle at the necessary angle in order to make a lift (Tr. 558).

13.  The crane operator has the authority to refuse to make a lift if he
considers the lift to be an overload (Tr. 262, 566, 567, 637).

14.  Crane number 6 had a rated lifting or load capacity of 40 tons (Tr.
46, 50, 113, 508).  This means that the crane could lift loads up to 40
tons with the proper boom angle (Tr. 50).

15.  As the boom angle increases, the load lifting capacity decreases
(Tr. 46, 50).   The safe lifting range for a load depends on the boom
angle and the weight (Tr. 53).

16.  An overload occurs when the load is more than the boom angle
indicates as being the maximum safe load at that angle (Tr. 53).

17.  One of the job responsibilities of the rigger leaderman is to
calculate the weight to be lifted by the crane (Tr. 135, 316).  The
crane operator is told the weight (Tr. 135, 249-250).  Riggers have in
the past been misinformed as to the accurate weight (Tr. 252).

18.  The president of Tampa Shipyards informed crane operators that he
did not want the cranes overloaded (Tr. 188-190, 263, 347, 705,
770-771).  He further informed them that if anyone ordered them to make
an overlift that they could come to him (Tr. 354).

19.  Tampa Shipyards trains its crane operators by on-the-job training.
  Generally, they work as an oiler in the shipyard for a period of three
years and then are trained by the crane operators (Tr. 55-56, 60-61,
163-164, 268-269, 483-484, 589, 591, 645-647, 653, 683-684).  The
general superintendent, leaderman and operators determine when an oiler
is ready to become an operator (Tr. 57).

20.  There have been overlifts made on previous occasions by employees
of Tampa Shipyards.  Most of the overlifts occurred because of a lack of
determining the weight of an object before it was lifted (Tr. 167-168,
173-174, 178, 183-185, 593, 723-724, 745-746, 766-768).

21.  Tampa Shipyards has a crane inspection program.  Frequent and
periodic inspections of cranes were conducted by Tampa Shipyards (Exs.
22, C; Tr. 62-63, 169, 191, 234, 727, 1126).

22.  Tampa Shipyards has an unwritten safety policy (Tr. 476-477, 480). 
It employs a safety director with a staff of eight people (Tr. 501).

23.  In April, 1978, Tampa Shipyards was cited for violations pertaining
to cranes 1 through 6 under 29 C.F.R. § 1910.179 (Tr. 891-898).

24.  On January 30, 1986, Compliance Officer Fred G. Carpenter conducted
an investigation of a fire occurring on the premises of Tampa Shipyards
on January 29, 1986 (Tr. 1069).

25.  The fire and explosion occurred in a room on the vessel Robert G.
Matthiesen.   A can of paint thinner in the room had been ignited and
exploded when a welder's rod touched the can when he was crawling around
in the space (Ex. 19, 20; Tr. 1071-1073, 1085).  The paint thinner had a
flash point of 73 degrees (Tr. 1073).

26.  At the time of the fire and explosion, six employees of Tampa
Shipyards were in the room.  An employee of a subcontractor was also in
the room (Tr. 1077, 1080).   They had been working in the room for
several hours prior to the fire (Tr. 1081).

27.  The employee of the subcontractor and two employees of Tampa
Shipyards were seriously burned (Tr. 1077).

28.  Two fire extinguishers were located approximately 25 feet from the
room but were behind closed doors.  One fire extinguisher was located on
the next deck inside the stairs.  The second fire extinguisher was on
the same deck as the work area but inside a door that led to the engine
room (Tr. 1079).

29.  At the time of the fire, employees were unable to locate the fire
extinguishers (Tr. 1080).  They used insulating material to smother the
flames on the employees (Tr. 1080).

30.  The fire hoses had been removed from the vicinity of the work area
in order to paint the deck and were not hooked up at the time of the
fire.  The nearest hose was on the other side of the ship.  It was not
connected to a water source (Tr. 1079-1080, 1088-1089, 1094).

31.  The label on the can of paint thinner indicated the contents were
flammable (Tr. 1074).

32.  The can which the thinner was found was not a safety can.  It was a
single-layered can (Tr. 1075).

33.  The white metal can which contained the paint thinner looked
similar to three cans of mastic that were in the room.  It was difficult
to notice the differences between the cans (Tr. 1076-1077).

34.  At the time of the fire and explosion, employees were not aware
that the can contained paint thinner (Tr. 1088).  Employees had observed
the can but confused it with the mastic cans in the room (Tr. 1088).

35.  None of the employees in the room were doing any kind of work that
would require the use of paint thinner (Tr. 1088).  There was no known
reason as to why the paint thinner can should have been in the room (Tr.
1089).

_CONCLUSIONS OF LAW_

1.  Tampa Shipyards, at all times material to this proceeding, was
engaged in a business within the meaning of section 3(5) of the Act.

2.  Tampa Shipyards, at all times material to this proceeding, was
subject to the requirements of the Act and the standards promulgated
thereunder.  The Commission has jurisdiction of the parties and of the
subject matter.

3.  Cranes 1 through 6 are tower cranes.  There are no standards
applicable to tower cranes which regulate the specific type of conduct
for which Tampa Shipyards was cited.

4.  The secretary has failed to meet his burden of proof in establishing
a violation of section 5(a)(1) for allegedly allowing unqualified crane
operators to operate tower cranes located in the shipyard.  The alleged
violation and proposed penalty are vacated.

5.  Tampa Shipyards was in violation of section 5(a)(1) for lifting
loads with tower cranes in excess of the crane manufacturer's
recommended load capacity. The violation was wiIIfull.  A penalty of
$8,000 is assessed for the violation .

6.  Tampa Shipyards is not in violation of section 5(a)(1) for failing
to determine the weight of loads prior to hoisting.  The need to
determine the weight of a load is part of the procedure essential to
avoiding overloads.  The alleged violation and proposed penalty are vacated.

7.  The Secretary has failed to meet his burden of proof in establishing
a violation of section 5(a)(1) for allegedly allowing tower cranes to be
operated with known hazardous defects.  The alleged violation and
proposed penalty are vacated.

8.  Tampa Shipyards was not in violation of section 5(a)(1) for
allegedly allowing tower cranes to be operated without conducting
frequent and complete periodic inspections to ensure safe operation. 
Frequent and periodic inspections were made by employees of Tampa
Shipyards.  The alleged violation and proposed penalty are vacated.

9.  Tampa Shipyards was not in violation of 29 C.F.R.§
1910.106(e)(2)(iv)(d).   The Secretary failed to meet his burden in
establishing the applicability of § 1910.106(e)(2)(iv)(d).  The proposed
penalty is vacated.

10.  Tampa Shipyards was in violation of 29 C.F.R § 1915.52 (b)(2) for
failure to have fire extinguishing equipment available in a work area
where welding was being performed.  The violation was serious.  A
penalty of $800 is assessed for the violation.

_ORDER_

Based upon the foregoing findings of fact and conclusions of law, it is

ORDERED:

(1) That the serious citation issued to Tampa Shipyards on March 3,
1986, and the penalty proposed for the alleged violation are vacated;

(2) That items 2, 3 and 4 set forth in the willful citation issued to
Tampa Shipyards on March 3, 1986, and the penalties proposed for the
alleged violations are vacated;

(3) That item 1 of the willful citation issued to Tampa Shipyards on
March 3, 1986, is affirmed and a penalty of $8,000 assessed for the
violation;

(4) That items one and two of the serious citation issued to Tampa
Shipyards on March 14, 1986, and the penalties proposed for the alleged
violations are vacated; and

(5) That item three of the serious citation issued to Tampa Shipyards on
March 14, 1986, and the penalty proposed for the violation are affirmed.

JAMES D. BURROUGHS

Judge

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

FOOTNOTES:

[[1]] That section provides:

Each employer.... shall furnish to each of his employees employment and
a place of employment which are free from recognized hazards that are
causing or are likely to cause death or serious physical harm to his
employees.

[[2]] The crane involved in the accident is one of six tower cranes at
this location.   A tower crane consists of a rotating superstructure,
made up of operating machinery, cab and boom, that rests on a circular
track atop a tower that sits on rails.   The tower of crane no. 6 was 80
feet high.

[[3]] The only alleged violation on review is the hoisting of the load
that led to the accident on October 4, 1995.  The judge struck from the
record evidence of overlifts that occurred after that date.  The alleged
overlifts that occurred before that date, which are discussed below, am
relevant to whether Tampa had the requisite knowledge of the violative
conditions on October 4, 1985, and whether the alleged violation willful.

[[4]] The direction for review specified only these issues, all of which
involve only Docket No. 86-0360.  Despite this limitation, Tampa's
briefs on review address a number of other issues that it raised in its
petition for review but that are not within the scope of the direction
for review, including arguments involving Docket No. 86-0469.   In her
brief, the Secretary stated that she would not address these issues
because they were not "fairly within the direction for review."

In its reply brief, Tampa argues that the Commission must address all
material issues presented on the record, regardless of whether they fall
within the scope of the direction for review.  The Commission does have
jurisdiction over all the items and issues in a case that it directs for
review.  Hamilton Die Cast, Inc., 12 BNA OSHC 1797, 1800, 1986-87 CCH
OSHD ¶ 27,576, p. 35,822 (No. 83-308, 1986).  However, the Commission
also has discretion to limit the scope of its review.  E.g., Bay State
Refining Co., 15 BNA OSHC 1471, 1476, 1992 CCH OSHD ¶ 29,579, p. 40,025
(No. 88-1731, 1992).  See 29 U.S.C. § 661(j).  Ordinarily the Commission
does not decide issues that are not directed for review.  29 C.F.R. §§
2200.92(c), 93(a).  We find no reason to depart from that policy here. 
The only objections that Tampa raised to the judge's decision that have
sufficient support to merit review are those directed for review.  
Accordingly, we do not address the arguments by Tampa that are outside
the scope of the direction for review.  Because no issue involving
Docket No. 86-469 is within the scope of the direction for review, that
case is now a final order of the Commission.

[[5]] Crane operator Ashmore testified that a safety book for crane
operators was kept on crane no. 3.  However, the record indicates that
the book was not required reading, and was not a regular part of any
safety program for Tampa's crane operators.   Further, crane no. 3, to
which that book related, was manufactured by a different manufacturer
than the other crane at issue here.  Moreover, there was no testimony as
to the contents of the safety book, or whether it covered all the safety
precautions necessary to prevent the kind of overlifts that occurred on
Tampa's worksite.

[[6]] Tampa asserts that it "has eight full-time safety
specialists...who search for conditions that may be unsafe[.]"  However,
that figure included paramedics and first aid personnel.  The evidence
indicates that none of its safety personnel took the initiative to
inspect cranes unless a safety problem was reported to them.  For
example, crane operator Christie testified that "[t]hey report what I
report to them, sir.  That's all I've seen done."

[[7]] Rhoden testified that when an operator told him that a
near-capacity lift would be attempted, he consulted with the operator
about the load and even "had the president of the company out there,"
and that be never knowingly overloaded a crane.   However, such
consultations did not constitute a monitoring system.  In a satisfactory
monitoring system, Tampa's superintendents would make active attempts to
detect hazardous lifts that had not been brought to their attention by
operators in advance.

[[8]] As Tampa notes, Burkart acknowledged that he could not state how
many supervisors and how much monitoring would be required at its
worksite without knowing the number of employees Tampa bad there, and
the number and timing of lifts that it made.  He did not have that
information.  However, be testified that Tampa would be able to
determine how many supervisors and how much monitoring would be
required, because it had the necessary information.

[[9]] Tampa argues that the Secretary submitted evidence, an this and
other issues, that varied from her counsel's responses to its
pre-hearing interrogatories.  It seems to argue that, as a result, the
Commission should rely on those answers to interrogatories and not on
the sworn evidence submitted at the bearing.  However, Tampa does not
cite any objections it made to the introduction of the evidence.  The
proper time to object to the introduction of evidence, on the ground
that it is inconsistent with answers to interrogatories, is at the
hearing.  Power Fuels, Inc., 14 BNA OSHC 2209, 2214, 1991 CCH OSHD ¶
29,304, p. 39,347 (No. 85-166, 1991), and cases cited therein.  Even
where answers to interrogatories are stipulated into evidence, as here,
they generally have no binding effect if they are contradicted by other
evidence introduced at the hearing.  Id.  The mere fact that certain
evidence submitted by the Secretary at the hearing varied from her
answers to interrogatories is no basis for failing to consider the
evidence, or for failing to give it appropriate weight.

[[10]] Article 7 of the union contract provided:

SECTION 1. - Leadermen are the first line of supervision and are
responsible to higher supervision for the progress and execution of the
work.   Leadermen do not have the right to hire or discharge employees
under their jurisdiction, but may make recommendations to higher
supervision concerning disciplinary actions and promotions of
employees.  It is further agreed that no interference will be exercised
by any Unions or their officials with respect to the supervisory
functions of any leaderman.  It is recognized by the Company that
leadermen are bargaining unit employees covered by the terms and
conditions of this agreement.

SECTION 2. - It is the intent of management that an employee will
normally have only one direct craft leaderman at a time from whom he
shall take direction and be responsible, and with whom he will initially
raise requests, complaints, or questions concerning his work.

[[11]] Tampa's assertion that Sims did not know whether "anyone in the
company" knew about the overlifts is incorrect.  Sims specifically
testified that leadermen were supervisors for the company.

[[12]] Ashmore joined Tampa in August 1980.

[[13]] Crane operator Johnnie Lee explained why the cranes could not be
operated safely with the rollers off the turntable:

When that roller comes off that turntable, it's right under that
counterweight, and you have lost the ability of the counterweight more
or less.   When that roller comes off there, your counterweight is
already off set.

[[14]] There was hearsay testimony to the contrary, but it was not
substantiated.   Mechanic Don Leske testified that when he reported the
overlift to the garage foreman, a few weeks before the fatal accident,
as discussed above, the foreman told him that the crane was designed to
operate with the rollers off the turntable.  Leske then testified that
he would have to take the foreman's word for it, because the foreman is
supposed to know this kind of thing.  However, Leske later testified
that he still didn't believe that the crane was designed that way.  The
garage foreman did not testify, and Tampa presented no other evidence
that the cranes were designed to operate safely with the rollers off the
turntable.  The testimony of Burkart and of the crane operators clearly
established that the cranes were not designed to operate in that manner.

[[15]] Tampa's counsel represented that crane nos. 1 and 2 were not in
operation at all during 1985.

[[16]] It can also be argued that Tampa acted with conscious disregard
for the general duty clause.  It it did, that would be an independent
ground for finding the violation willful under Williams Enterp., supra
p.12.  Tampa apparently was aware, long before the accident, of the
general duty imposed by section 5(a)(1) of the Act.   That provision had
been brought up by a Commission judge in a previous decision apparently
involving the same company.  Tampa Ship Repair and Dry Dock Co., 79
OSAHRC 52/A2, A14 (No. 78-1907, 1979).  (There, section 5(a)(1) was
referred to in the judge's decision regarding proof of a repeated
violation.  The section was cited merely as "section 5(a) of the Act,"
but, in context, the judge was clearly referencing section 5(a)(1).)

Tampa has argued vigorously that section 5(a)(1) does not cover the
particular violation involved here.  However, it was aware that, as a
general matter, it was required to free the workplace, to the extent
feasible of recognized hazards that were likely to cause serious
physical harm.  Thus, it could be argued that Tampa showed conscious
disregard for whether its actions violated section 5(a)(1).

[[17]] Tampa has not asserted or shown that a willful violation is
precluded here by any reasonable belief on its part that it was in
compliance with § 5(a)(1). Cf., Williams Enterp., 13 BNA OSHC at 1259,
1986-87 CCH OSHD at p.36,591 (employer may defend on grounds that it
believed in reasonable good faith the violative conditions conformed to
requirements of cited provision).

[[1/]] OSHA Instruction STD.2, issued November 4, 1985, identified
general industry safety and health standards (29 C.F.R. Part 1910)
having applicability to shipyard work.  Appendix A identifies general
industry standards applicable to shipyard work.  Included among the
identified standards are 29 C.F.R. §§ 1910.179 and 1910.180 pertaining
to cranes.

[[2/]] Defined by section 4-0.2 of ANSI B30.4-1981 as "[A] movable
structure frame consisting of columns and bracing capable of supporting
a crane with its working and dynamic loads."

[[3/]] A trolley is defined at § 1910.179(a)(63) as follows:

(63) The "trolley" is the unit which travels on the bridge rails and
carries the hoisting mechanism

[[4/]] Section 1910.179(a)(64) states:

(64) "Trolley travel" means the trolley movement at right angles to the
crane runway.

[[5/]] Section 1910.180(b)(1) provides:

(b) General requirements--(1) Application.  This section applies to
crawler cranes, locomotive cranes, wheel mounted cranes of both truck
and self-propelled wheel type, and any variations thereof which retain
the same fundamental characteristics.  This section includes only cranes
of the above types, which are basically powered by internal combustion
engines or electric motors and which utilize drums and ropes. Cranes
designed for railway and automobile wreck clearances are excepted.  The
requirements of this section are applicable only to machines when used
as lifting cranes.

[[6/]] Section 1910.180(a)(1) states:

(1) A "crawler crane" consists of a rotating superstructure with
powerplant, operating machinery, and boom, mounted on a base, equipped
with crawler treads for travel.  Its function is to hoist and swing
loads at various radii.

[[7/]] Section 1910.180(a)(2) states:

(2) A "locomotive crane" consists of a rotating superstructure with
powerplant, operating machinery and boom, mounted on a base or car
equipped for travel on railroad track.  It may be self-propelled or
propelled by an outside source.  Its function is to hoist and swing
loads at various radii.

[[8/]] Section 1910.180(a)(3) states:

(3) A "truck crane" consists of a rotating superstructure with
powerplant, operating machinery and boom, mounted on an automotive truck
equipped with a powerplant for travel.  Its function is to hoist and
swing loads at various radii.

[[9/]] Section 1910.180(a)(4) states:

(4) A "wheel mounted crane" (wagon crane) consists of a rotating
superstructure with powerplant, operating machinery and boom, mounted on
a base or platform equipped with axles and rubber-tired wheels for
travel.  The base is usually propelled by the engine in the
superstructure, but it may be equipped with a separate engine controlled
from the superstructure.  Its function is to hoist and swing loads at
various radii.

[[10/]] Sections 1910.179(b)(8) and 1910.180(b)(3) are identical and
provide as follows:
Designated personnel--Only designated personnel shall be permitted to
operate a crane covered by this section.

The Secretary made no allegation that someone other than designated
personnel were allowed to operate cranes.

Sections 1915.117(b)-(d) provide as follows:

(b) Only those employees who understand the signs, notices, and
operating instructions, and are familiar with the signal code in use,
shall be permitted to operate a crane, winch, or other power operated
hoisting apparatus.

(c) No employee known to have defective uncorrected eyesight or hearing,
or to be suffering from heart disease, epilepsy, or similar ailments
which may suddenly incapacitate him, shall be permitted to operate a
crane, winch or other power operated hoisting apparatus.

(d) No minor under eighteen (18) years of age shall be employed in
occupations involving the operation of any power-driven hoisting
apparatus or assisting in such operations by work such as hooking on,
loading slings, rigging gear, etc.

The Secretary does not contend that crane operators did not understand
the signs, notices, and operating instructions for cranes, were under 18
or had any physical impairment.

[[11/]] Wendell Croft, the leaderman rigger for the second shift,
testified that his paperwork listed the weight as 33 tons (Tr. 106,
133-135).  After the accident, the wreckage was cut into three sections
and weighed.  The three sections weighed 38.099 tons (Tr. 509. 1132).

[[12/]] Caulley and Morgan were experienced crane operators.  Each of
them had considerable years of experience in operating cranes (Tr. 112,
113). Caulley had a policy of assisting operators on lifts approaching
the maximum of the rated load limits of a crane (Tr. 118, 656, 661-662,
666-667).

[[13/]] The crane was more stable in a direction along the longer axis
or down the rails.   When the load was raised, it was over the northeast
corner of the support structure to the line of the rails.  This is one
of the more stable configurations for the crane.  While the crane was
overloaded, it was able to sustain the weight while the boom was in that
configuration.  As the load was swung from the longer axis, the lifting
capacity diminished.  The lifting capacity is not the same throughout
the 360-degree radius (Tr. 877-880, 882-883).

[[14/]] As safety director, Searle takes the lead in investigating
accidents that occur in the shipyard (Tr. 428, 505).  He took the lead
in investigating the October 4 accident (Tr. 428, 521).

[[15/]] Section 4-3.2.1a of ANSI B30.4-1973, applicable to tower cranes,
states that no crane shall be loaded beyond the rated load, except for
test purposes.  See 29 C.F.R. § 1910.179(n)(1) and 29 C.F.R. §
1910.180(h) which state that no crane shall be loaded beyond the rated load.

[[16/]] See testimony of crane operators Douglas Tucker (Tr. 580), Barry
Sims (Tr. 706), Don Heisserer (Tr. 745-746, 766, 767-768), and James
Screws (Tr. 167-168, 173-174, 178, 185).  The operators could tell there
was an overload because wheels of the crane raised off the turntable.
This condition is an indication of an overload (Tr. 169, 174, 232-233,
657, 710, 746, 767, 874-875).

[[17/]] An overload lift can occur in either of two ways.  In one
situation the operator lifts a heavy load without knowing the weight,
and this could result in an overload.  A guess can easily be wrong. The
second way occurs when the operator is aware the weight exceeds the
rated load but goes ahead and makes the lift (Tr. 859).

[[18/]] See the testimony of crane operator Joseph Mossey (Tr. 735), Lee
Hansen (Tr. 609, 610, 627, 628, 630), Barry Sims (Tr. 674, 708) and
Charles Christie (Tr. 725-729).

[[19/ ]] See 29 C.F.R § 1910.179(j)(1)(ii), 29 C.F.R. § 1910.180(d)(2),
and section 4-2.1 of ANSI B30.4-1973, Portal, Tower and Pillar Cranes.

[[20/]] Section 4-2.1 of ANSI B30.4-1973, Portal, Tower and Pillar
Cranes, lists items of tower cranes that are subject to frequent and
periodic inspections. The standard does not specify that there must be a
written checklist, although this is one way of assisting the person
making the inspection to be certain something is not overlooked during
an inspection.

[[21/]] Section 1910.106(e)(2)(iv)(d) states:

(d) Flammable or combustible liquids shall be drawn from or transferred
into vessels, containers, or portable tanks within a building only
through a closed piping system, from safety cans, by means of a device
drawing through the top, or from a container or portable tanks by
gravity through an approved self-closing valve.  Transferring by means
of air pressure on the container or portable tanks shall be prohibited.

[[22/]] Section 1915.52(b)(2) states:

(2) Suitable fire extinguishing equipment shall be immediately available
in the work area and shall be maintained in a state of readiness for
instant use.  In addition, when hot work is being performed aboard a
vessel and pressure is not available on the vessel's fire system, an
auxiliary supply of water shall be made available where practicable,
consistent with avoiding freezing of the lines or hose.