SECRETARY OF LABOR,

Complainant,

v.

ARCHER-WESTERN CONTRACTORS, LTD,
and GILBERT CORP of DELAWARE,
a JOINT VENTURE,

Respondent.

OSHRC Docket No. 87-1067

_DECISION _

Before: FOULKE, Chairman, and WISEMAN, Commissioner.

BY THE COMMISSION:

This case involves the collapse of a Manitowac 4000-W tower crane at a
construction site in West Palm Beach, Florida on April 28, 1987. As a
result of that collapse and a subsequent inspection by the Occupational
Safety and Health Administration ("OSHA"), the Joint Venture of
Archer-Western Contractors, Ltd. and Gilbert Corporation of Delaware
(hereinafter "the Joint Venture" or "Respondent") was issued two
citations, each of which alleged several violations of the Occupational
Safety and Health Act, 29 U.S.C. §§ 651-678 ("the Act") . Two items are
before the Commission on review: citation 2, item 2 alleging a willful
violation of 29 CFR § 1926.550(a)(1) for exceeding the lifting capacity
of the crane; and Citation 1, item 1 alleging a serious violation of 29
C.F.R. § 1926.21(b)(2) for failing to instruct employees in the
recognition and avoidance of unsafe conditions.[[1/]]

Administrative Law Judge Joseph D. Sparks affirmed both violations and
assessed the penalties proposed by the Secretary. Respondent filed a
Petition for Discretionary Review that was granted by the Commission.
For reasons that follow, we affirm the willful violation of §
1926.550(a)(1) and vacate the item alleging noncompliance with §
1926.21(b)(2).

A. The Crane Collapse--29 CFR § 1926.550(a)(1)

The Joint Venture was engaged in the construction of a terminal at the
Palm Beach International Airport, and had contracted with Construction
Equipment International (CEI) to provide the necessary cranes and
operators. The contract did not require CEI to provide any other
personnel or equipment, such as signalmen or rigging.

On April 28, 1987, the Joint Venture decided to lift a Burke core form
from stairwell number four. Cement is poured into a core form to
construct a stairwell. The Burke form at stairwell four measured 15 by
27 feet and was from 9-14 feet high. CEI operator James Earl Dickey was
operating the Manitowac 4000-W crane that was to make the lift. The
crane had a tower attachment of 133 feet, 160 feet of working boom and a
40-foot jib. Dickey was concerned that the form exceeded the capacity of
the crane. He told one of  Respondent's foremen, David Stuart, that the
crane's capacity was 14,800-14,900 pounds and asked for the weight of
the form. Stuart estimated the form to weigh 16-17,000 pounds. Because
the form exceeded the capacity of the crane, Dickey refused to make the
lift. Stuart then went to CEI lead operator Rodney Walters to inform him
of Dickey's refusal. He also informed Walters that CEI had made the lift
before. Walters told Stuart that they were not going to make any more
questionable lifts. Stuart then reported the situation to Respondent's
project manager Paul Payne and engineer Joseph Appleton. Payne and
Appleton were under the impression that the Manitowac 4000 had lifted
the Burke form before and questioned why the lift could not be made
again. Payne told Stuart that it was important to make the lift. He
ordered Stuart to get the form ready and stand by. Payne called Michael
Lothian, a general manager at CEI headquarters in Tampa, and asked him
to explain why CEI was refusing to make the lift.

Lothian explained that, based on their operator's previous experience in
lifting the form, CEI believed that the form's weight exceeded the
capacity of the crane. Payne ended the telephone conversation and
recalculated the weight to be 15-16,000 pounds. He then telephoned
Lothian and told him of this new calculation, that the form weighed
15,300 pounds. Lothian pointed out that, according to the load chart,
the weight was well in excess of the crane's capacity. Payne replied
that it was only 1300 pounds over the capacity and asked what was wrong
with making the lift. Lothian pointed out that to the weight of the form
must be added the 1000-pound ball, and the weight of the wire rope and
other rigging. Lothian told Payne that if the weight of 15,300 pounds
did not include those items, the lift could exceed the capacity of the
crane by as much as 20%.

Lothian testified that he told Payne that the discussion was not
necessary because there was another crane at the site, a Manitowac 3900,
capable of handling the load. Lothian stated that after he explained
that the other crane would have to be rerigged to make the lift, Payne
complained that it was a lot of work "for one lousy pick," but he
finally agreed to it.

Payne's version of the conversation varies from Lothian's in important
respects. Payne testified that Lothian told him that the jib capacity
was not high enough to make the lift and that it would have to be
rerigged to make the lift. Thus, while Lothian testified that he told
Payne that the Manitowac 4000 was incapable of making the lift under any
circumstance, Payne apparently believed that the crane could make the
lift if it were properly rerigged.

Payne testified that immediately after this conversation with Lothian,
he told his foreman, Thomas Link, not to make the lift with the
Manitowac 4000 until it was rerigged. Link agreed not to make the lift.
However, Stuart, a foreman who worked for Link, testified that Link
ordered him to have the crane readied for the the lift. Link did not
order the crane rerigged. When CEI head operator Walters learned that
the lift was to be made, he told Link that he thought the form weighed
over 18,000 pounds and that he would not allow the lift until he had
authority from his superiors in Tampa. After calling Tampa, Walters
suggested to Link that there was an "out." Walters said that Tampa
agreed to allow the lift if Link or another member of Respondent's
management would certify that the form weighed 12-14,000 lbs. and
provide a release of liability. [[2/]] Link took out a piece of note
paper, wrote "STAIR #4 12,000 PDS T. Link" and handed it to Walters.
Link then ordered foreman Stuart to get things ready and to tell the
operator to make the lift. Crane operator Dickey continued to protest
that the lift was unsafe. Finally, Dickey agreed to make the lift,
although he continued to maintain he was being forced into it.
Respondent's safety manager Ford, after talking to Stuart and Dickey,
instructed employees not to ride the form during the lift.

Respondent's employees loosened the jacks holding the form. Stuart then
signaled Dickey to make the lift. The form rose for 10-15 seconds, then
dropped back on the jacks. The lifting beam struck the top of the form.
Metal and debris began to fall as the jib and boom of the crane
collapsed. Employees ducked and ran into the building to avoid the
falling debris.

Payne testified that, after the accident, he asked Link why he
authorized the lift. According to Payne, Link admitted his error. He
told Payne that because they had previously made a similar lift, he
believed they could make this lift. Payne testified that because he
authorized the lift, Link was terminated for insubordination on May 12,
1987, two weeks after the lift.

Judge Sparks found that the evidence was undisputed that the maximum
lifting capacity of the crane was 14,000 pounds and that the weight of
the load was at least 20,000 pounds. He affirmed a willful violation of
29 C.F.R. §1926.550(a)(1) [[3/]] and assessed the $10,000 proposed
penalty. The judge specifically rejected  Respondent's contention that
it was not responsible for the violation because it was only the lessor
of the crane. He noted that contractors were absolved of responsibility
for crane related violations only when the lessor relied on the
expertise of the crane operator. Here, the judge found, Respondent did
not rely on the operator's expertise. Rather, contrary to the advice of
the operator and with full knowledge that the lift exceeded the capacity
of the crane, Respondent insisted that the overweight lift be made. He
concluded that Respondent was directly responsible for the violation.

Judge Sparks also discredited Payne's testimony that Link authorized the
lift in direct violation of his specific orders. The judge found it
highly unlikely that foreman Link would have ordered the lift against
Project Manager Payne's orders and against the advice of all crane
operators. He further noted that other supervisory personnel were aware
that the load exceeded the crane's capacity, yet allowed the lift to be
made.

B.

Respondent first argues that the evidence did not establish the lifting
capacity of the crane.[[4/]] It claims that the only evidence cited by
the judge in support of his finding that the lift capacity of the crane
was 14,000 pounds was a Manitowac chart for tower cranes with tower
attachments between 163-213 feet in height. However, the actual height
of the tower used in the lift was 133 feet. There is no evidence,
Respondent continues, which suggests that the chart applies to the 133
foot tower. Respondent concludes that the Secretary's failure to
establish the manufacturer's rated load capacity for the tower crane
requires that the citation be vacated. This argument is rejected.

As Respondent properly notes, the load charts introduced into evidence
do not directly address the particular configuration of the crane at the
time it made the ill-fated lift. The chart covers cranes with towers of
163 to 213 feet, and boom lengths of 150 feet. The crane in use,
however, had a 133-foot tower and a 160-foot boom. For those dimensions,
the chart does list the maximum lift capacity with a 40-foot jib to be
14,000 pounds. The maximum lift capacity listed for the crane is 20,000
pounds with a 30-foot jib. The load chart also states that when
determining the load all blocks, hooks, weight balls, slings, hoist
lines, etc. are to be considered part of the load.

A load chart cannot always be relied on to set limits for every possible
configuration of a crane. Therefore, when no specifically applicable
limits are included on a load chart, the employer is expected to make a
reasonable estimate of the limits of the crane from the capacities set
forth in the load chart. _See Towne Construction Co. v.OSHRC_, 847 F.2d
1087 (6th Cir. 1988).

The standard requires that when no load specifications are available,
the limitations shall be determined by a competent engineer. [[5/]]
Although not qualified at the hearing as "competent engineers," the CEI
operators who were most familiar with the crane repeatedly warned that
the load exceeded the crane's capacity. These warnings put Respondent on
notice that, if it were going to make the lift, it had to take effective
steps to determine with certainty if the weight was within the crane's
capacity.

Although the evidence does not establish the precise capacity of the
crane, we find that the evidence overwhelmingly establishes that the
load exceeded the manufacturer's specifications and limitations in
violation of § 1926.550(a)(1). The evidence established that: the
maximum listed capacity for the crane with a 40-foot jib is 14,000
pounds; all reasonable estimates of the weight of the load were
substantially in excess of 14,000 pounds; no competent engineers were
assigned to determine whether the crane was capable of lifting a load in
excess of 14,000 pounds; CEI operators repeatedly warned that the load
exceeded the capacity of the crane; the Secretary's crane expert
testified that the load exceeded the crane's capacity; and when the lift
was made, the crane collapsed.

C.

Respondent next argues that the citation should be dismissed because the
lift was the result of unpreventable supervisory misconduct on the part
of its foreman, Tom Link. Respondent contends that the evidence
demonstrates that CEI's Lothian told Payne that the Manitowac 4000 crane
could make the lift if it was rerigged and that Payne subsequently
ordered Link not to make the lift until the crane could be rerigged. In
authorizing the lift, Respondent contends that Link directly disobeyed
Project Manager Payne's order not to make the lift until the crane was
rerigged, for which he was terminated. Respondent contends that, by
discrediting Payne's account on the basis that he found it "highly
unlikely that Link would have ordered the lift in contravention of
instructions from Payne and against the advice of all crane operators,"
the judge substituted his own subjective belief for the undisputed
record evidence that Link was insubordinate. Respondent also argues that
the judge's conclusion that other Joint Venture supervisors were aware
that the lift was being made, yet did nothing to stop it, is not
supported by the record.

The Commission is normally reluctant to disturb a judge's credibility
finding. _Kent Nowlin Construction Company, Inc.,_ 8 BNA OSHC 1286, 1980
CCH OSHD ¶ 24,459 (No. 76-191 and 76-192, 1980); _Otis Elevator Co_., 8
BNA OSHC 1019, 1980 CCH OSHD ¶ 24,236 (No. 14899, 1980), _appeal
withdrawn_, No. 80-470 (2d Cir. May 15, 1980); _C. Kaufman, Inc_., 6 BNA
OSHC 1295, 1977-78 CCH OSHD ¶ 22,481 (No. 14281, 1977), This deference
is granted because it is the judge who has had heard the witnesses and
observed their demeanor. _C. Kaufman, Inc._, 6 BNA OSHC at 1297, 1977-78
CCH OSHD at pp. 27,099. Here, however, the judge did not make the type
of credibility finding to which we ordinarily defer. It was not based on
the traditional weighing of conflicting testimony, but rather on his
subjective assessment of the probability of events. Indeed, there was no
evidence to contradict Payne's testimony that he ordered Link not to
make the lift.

However, even accepting at face value Payne's testimony regarding his
orders to Link, the overwhelming weight of the evidence still supports
the testimony of CEI's manager in Tampa, Lothian, that he told Payne
that the crane could not make the lift and that the Manitowac 3900
should be used. The evidence is also clear that Payne was anxious to
make the lift and did not want to take the time to move the Manitowac
3900 crane and prepare it for the lift. According to Lothian, Payne was
very agitated when he spoke to him about the unwillingness of CEI's
operators to pick up the stairwell form. Even after Lothian explained
that the weight of the stairwell was above the limit of the crane, Payne
argued for the lift on the grounds that the stairwell was "only" 1300
pounds above the limit. When told that there was a crane at the worksite
capable of handling the load, Payne told Lothian that getting the other
crane ready was a lot of work "for one lousy pick." We therefore find
that the evidence establishes that Payne knew that his decision to make
the lift with a rerigged Manitowac 4000 crane was contrary to the
express warnings conveyed to him and his supervisors by Lothian and the
CEI operators.

Moreover, even though Payne instructed Link not to make the lift until
the crane was rerigged, the evidence established that the load would
still have exceeded the capacity of the crane, even if the crane were
rerigged. Although rerigging the crane might have increased the capacity
of the crane, Respondent was amply informed by the CEI operators of
their concern that, even after being rerigged, the crane was not capable
of making the lift and that another crane was available at the site that
could safely make the lift. An unpreventable misconduct defense will not
be established where the employer's instructions were insufficient to
eliminate the hazard even if the employee had complied with those
instructions. _Brown and Root, Inc._, 8 BNA OSHC 1055, 1060, 1980 CCH
OSHD ¶ 24,275 at p. 29,570 (No.76-3942, 1980); _See also Eddy's Bakeries
Company_, 9 BNA 2147, 2151, 1981 BNA OSHC ¶ 25,604 at pp. 31,940 (No.
77-1084, 1981) (Workrule that fails to abate hazard, even when
adequately implemented, does not fulfill employer's duty under section
5(a) (1)). Here, Link disobeyed a direct order, but the order itself
required a violation of the standard.

Even if Payne had believed that the Manitowac 4000 crane could
successfully make the lift, Link's disobedience would still not relieve
the Joint Venture of responsibility for the overweight lift. When an
employer raises the affirmative defense of unpreventable employee
misconduct, the employer must demonstrate that the actions of the
employee were a departure from a uniformly and effectively communicated
and enforced workrule. When the alleged misconduct is that of a
supervisory employee, the employer must also establish that it took all
feasible steps to prevent the accident, including adequate instruction
and supervision of its employee. _Daniel International Co. v. OSHRC,_
683 F.2d 361, 364 (11th Cir., 1982); _Daniel Construction Co._, 10 BNA
OSHC 1549, 1552, 1982 CCH OSHD ¶ 26,027 at pp. 32,672 (No. 16265, 1982).
Where a supervisory employee is involved, 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. Id. A supervisor's involvement in the
misconduct is strong evidence that the employer's safety program was
lax. Id Here, Link's involvement in the lift was consistent with Payne's
strong interest in having the lift made.

In addition, we agree with the judge's finding that other supervisory
personnel allowed the lift to be made despite their knowledge that the
load exceeded the crane's capacity. The evidence establishes that the
lift was made in full view of Respondent's Safety Director Ford. Ford
was not involved in the decision regarding the use of the crane, but he
had previously been informed by CEI crane operator Shurtleff that the
Burke form was too heavy a load for the crane. Moreover, assuming,
_arguendo_, that Ford was not aware of the dispute over the lift, the
failure of the safety official on the site to be informed and consulted
about the dispute over the safety of the lift strongly suggests that the
Joint Venture failed to implement a safety program that emphasized the
importance and priority of safety. We therefore conclude that Respondent
failed to establish the affirmative defense of unpreventable employee
misconduct.

D.

The Joint Venture next argues that it should not be held liable for any
violation involving the operation of the crane because it was entitled
to rely on the expertise of CEI when deciding whether to make the lift.
It claims that under the rental agreement, CEI was to provide a
"qualified operator," "operate the equipment in a professional and safe
manner" and "be the sole operator of this equipment." The Joint-Venture
contends that it was the responsibility of the crane operator to operate
the crane in a safe manner and to ensure that the crane was not
overloaded. Respondent claims that the judge erred by not considering
the lease agreement, the history of negotiation it had with CEI and
CEI's own policy of holding its operators responsible for crane safety.
Respondent further submits that CEI lead operator Walters authorized the
lift after operator Dickey refused to make the lift and other CEI
operators agreed that it should not be made. Finally, Respondent argues
that the judge erred by excluding proffered testimony establishing that
the lift was authorized by a CEI supervisor in Tampa.

Respondent's arguments are without merit. When an employer contracts
with a specialist, the employer is justified in relying upon the
specialist to protect against hazards related to the specialist's
expertise, as long as the reliance is reasonable and the employer has no
reason to foresee that the work will be performed unsafely. _Sasser
Electric & Manufacturing Co_., 11 BNA OSHC 2133, 1984-85 CCH OSHD ¶
26,982 (No. 82-178, 1984), _aff'd,_ No. 84-1961 (4th Cir. 1985).

_Sasser_ does not support Respondent's contention that it should not be
held liable for the unsafe lift. Having hired CEI to operate the cranes,
the Joint Venture could have properly relied upon the CEI operators to
determine when a load exceeded the capacity of the crane and not to
exceed those limits. Here, however, the Joint Venture obviously exerted
pressure on the operators to ignore their judgment and raise a load that
they had warned exceeded the crane's limits. Respondent did not rely on
the expertise of the crane operator. Instead, it ignored and tried to
countermand it. Rather than showing that it could not have foreseen that
the work would be performed in an unsafe manner, the evidence
establishes that the Joint Venture was fully aware that the lift was
unsafe and that it actually insisted that the lift be made despite the
hazard. Given these facts, the allocation of responsibility under the
contract has no real relevance. Regardless of CEI's contractual
responsibilities, the critical fact is that the Joint Venture prevailed
upon the operator to ignore his best judgment and proceed with the
lift.[[6/]]

Having found no merit in any of Respondent's defenses to the alleged
violation, we find that the Secretary established that the Joint Venture
violated 29 C.F.R. §1926.550(a)(1).

E.

Finally, the Joint Venture argues that the Judge erred by affirming the
violation as willful. According to Respondent, orders given to Link not
to authorize the lift until the crane was rerigged establishes that the
Joint Venture was concerned with employee safety.

To establish that a violation was willful, the Secretary must prove that
the violation was committed with intentional disregard of the Act's
requirements or plain indifference to worker's safety. _R.D. Anderson
Construction Co.,_ 12 BNA OSHC 1665, 1669, 1986-87 CCH OSHD ¶ 27,500 at
pp. 35,641 (No. 81-1469, 1986); _D.A.L. Caruso, Inc.,_ 11 BNA OSHC 2138,
1984 CCH OSHD ¶ 26,985 (No. 79-5676, 1984).

We find that the record supports the ALJ's conclusion that the Joint
Venture intentionally disregarded the requirement that lifts not exceed
a crane's capacity and that it was indifferent to employee safety. Both
Payne and Link expressed considerable displeasure and frustration over
the operator's refusal to make the lift. Despite numerous warnings by
the operator that the load exceeded the capacity of the crane, Payne and
Link made repeated demands on the CEI operators to make the lift. Even
when informed by CEI manager Lothian that the lift could be made safely
by another crane elsewhere on the site, Payne's concern was that
preparing a new crane was a lot of effort for "one lousy lift." The lift
was finally made when Link, contrary to what he plainly knew to be the
facts, wrote and signed a "release" falsely attesting that the weight of
the form was within the crane's capacity.

Respondent would have us view Payne's order to Link not to make the lift
until the crane was rerigged as a good faith effort at compliance. In
certain cases, we found that a willful charge is not justified if an
employer has made such efforts to comply with a standard or to eliminate
a hazard even though the employer's efforts are not entirely effective
or complete. _Keco Industries, Inc_.,13 BNA OSHC 1161, 1169, 1986-87 CCH
OSHD ¶ 27,860 at pp. 36,478 (No. 81-263, 1987). Here, however, we find
that Payne's directive to Link did not constitute a good faith effort to
comply with the Act. Payne had been repeatedly warned that the crane was
not capable of lifting the form, and was specifically told by Lothian
that, even after rerigging, the crane could not handle the load.
Accordingly, we affirm the judge's finding that the violation was
willful.[[7/]]

At the hearing Respondent stipulated that if a violation were found, the
penalty proposed by the Secretary was appropriate. Accordingly, we
affirm the judge's assessment of the $10,000 proposed penalty.

_Adequacy of Respondent's Safety Program-29 C.F.R. § 1926.21(b)(2)_[[8/]]

Respondent was issued a citation alleging a serious violation of 29
C.F.R. § 1926.21(b)(2) on the grounds that it failed to provide safety
training or instruction to its West Palm Beach employees in several
areas of crane safety. The citation alleged that Respondent failed to
instruct employees in:

a. Proper hand, flag and radio signaling of cranes;
b. How to properly rig a crane, including calculation of weight, types
and components of rigging, and designation of a competent person to be
in charge of critical lifts; and
c. Understanding manufacturer's specifications for proper use of cranes
including maximum loads at various configurations.

The judge affirmed the violation and assessed a $1,000 penalty. We
reverse the judge and vacate the item.

The evidence establishes that the Joint Venture held safety meetings
approximately once a week. The meetings were not held on any regular
schedule. Rather, safety director Ford would contact the foreman who
would set up a time, usually during a break. The meetings would last
approximately 15 minutes. At these meetings, which were usually led by
safety director Ford, the employees would discuss various problems.
Crane safety was among the subjects discussed, and included such topics
as flying loads over people's heads, use of the horn, and signaling.
Weekly safety meeting reports for the period between October 10, 1986
and the collapse on April 28, 1987 show that aspects of crane safety
were frequently discussed. Although he conducted the majority of the
safety meetings, Ford admitted that he was not involved with either
crane operations or the rigging on the cranes. In addition, Ford
testified that, before becoming the safety official for the Joint
Venture, his safety training had consisted of a correspondence course
and on the job training. Another significant component of Ford's safety
training was his reading of the OSHA Handbook and brochures.

OSHA compliance officer Corey Neale was qualified by the judge as an
expert on cranes. Based on employee interviews and observations during
the walkaround, Neale concluded that the Joint Venture's employees were
not properly trained in crane safety. Among those interviewed was
foreman David Stuart, who was fired after the accident. Stuart told
Neale that he never had any training in rigging and that the Joint
Venture never held any classes explaining signaling, flagging, working
loads or which types of chokers to use. Employees who worked on the day
of the collapse also told Neale that they never received any training in
rigging or hand signals. Regarding rigging, Neale testified that the
employees told him that "You just watch somebody and you go out and you
do it." In addition, the employees told him that they tried to get a
foreman to give the signals when one was available.

Foreman Stuart testified that Ford occasionally passed out safety sheets
for employees to read, sign and return, but he could not recall
attending safety meetings. Although Stuart testified that he did not
attend any safety meetings in April of 1987, he could not explain why
his signature appeared on the safety meeting minutes of April 17 and 24.

Jerry Freeman, a crane operator with 31 years experience, who worked for
CEI at the Palm Beach Airport Project from December 1986 to April 1987,
testified that Archer-Western employees provided the hooking or rigging
on the loads and that they did a good job. According to Freeman, the
employees followed directions well. He testified that he was very
particular about his rigging, and that the Joint Venture employees were
able to rig his crane the way he wanted. In addition, Freeman testified
that the Joint Venture provided very good signalmen and that he never
had any problems in that regard. CEI crane operator Shurtleff also
testified that he was supplied with adequate signalmen.

Although the judge found that the Joint Venture held regular safety
meetings, he concluded that the evidence established that the training
was inadequate. The judge found the safety training in rigging and crane
operation inadequate based on the "ample" record of safety violations
committed by the Joint Venture's employees. Of particular importance was
"the ease with which the supervisory personnel committed or condoned the
violations; they participated in the lift knowing the weight was
excessive, and they were aware that their employees were riding the
loads." He concluded that the benefit of any safety training given by
Respondent was nullified by the failure of supervisory personnel to
either enforce it, or follow it themselves.

Respondent argues that the judge ignored testimony that established that
its safety sessions provided employees with extensive training on crane
safety, signaling and rigging. It also claims that the judge's finding
was contrary to the testimony of CEI's crane operator's that the rigging
and signaling were adequate.

The Secretary contends that Respondent's lack of safety training
regarding rigging and crane operations establishes the violation. The
Secretary notes that even though Respondent had five large cranes at the
worksite, it could not produce any employees at the hearing who were
knowledgeable in the rigging and operation of cranes. Interviews with
employees confirmed that they knew little or nothing about rigging and
crane procedures.

The duties imposed by 29 C.F.R. § 1926.21(b)(2) are satisfied when the
employer instructs its employees about the hazards they may encounter on
the job and about the regulations applicable to those hazards. _Dravo
Engineers and Constructors_, 11 BNA 2010, 2011-2, 1984-85 CCH OSHD ¶
26,930 (No. 81-748, 1984); _Sawnee Electric Membership Corporation_, 5
BNA 1059, 1977-78 CCH OSHD ¶ 21,560 (No. 10277, 1977). The evidence
establishes that the Joint-Venture held regular safety meetings and that
at those meetings some aspects of crane safety were discussed. Most of
the discussions of crane safety, however, were concerned with the
hazards of swinging loads over the heads of employees. According to
these minutes, only minimal attention was paid to rigging, signaling, or
the importance of observing manufacturer's specifications. Moreover, the
meetings were conducted by safety director Ford, who had minimal safety
qualifications in general and virtually none regarding cranes.

While the minutes did not establish that employees were adequately
trained in all phases of crane operations, the uncontested testimony of
CEI operators Freeman and Shurtleff established that Respondent's
employees were, in fact, adequately trained in signaling and rigging.
The most damaging evidence against Respondent was given by former
foreman Stuart. However, because Stuart's employment was terminated by
Respondent and he could not remember attending safety meetings for which
he signed the minutes, the weight of his testimony must be considered
diminished. Therefore, although the meeting minutes did not show that
Respondent's employees received significant training, the performance of
those employees establishes that they were trained in rigging and signaling.

The Secretary also alleged that the employees were not trained in
understanding manufacturer's specifications for proper use of cranes
including the lifting of maximum loads at various configurations. The
record establishes, however, that Respondent relied on the crane
operators, employees of CEI, to determine the load capacities of the
cranes. Although Respondent has a duty to its own employees, even when
it relies on a specialist such as CEI, _see Sasser Electric &
Manufacturing Co.,_ 11 BNA at 2136, 1984-85 CCH OSHD at p. 34,684, we
cannot fault Respondent for failing to instruct its employees in matters
that fall within the expertise of CEI's crane operators, when it
reasonably relies on that expertise. _Id._

Contrary to the judge's finding, the insistence by Respondent's
supervisory personnel that the stairway form be lifted, while indicative
of a general disregard for employee safety, was not the result of a lack
of training in the determination of crane capacities. Respondent's
supervisors were adequately warned that the crane lacked the proper
capacity by the CEI operators, whose job it was to make such
determinations. We therefore conclude that the Secretary failed to
establish that Respondent violated 29 C.F.R. § 1926.21(b)(2).

Accordingly, the judge's finding of a willful violation of 29 C.F.R. §
1926.550(a)(1) is affirmed and a $10,000 penalty is assessed. The
judge's finding of a serious violation of 29 C.F.R. § 1926.21(b)(2) is
reversed and the item is vacated.

Edwin G. Foulke, Jr.
Chairman

Donald G. Wiseman
Commissioner

Dated: April 30, 1991

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

SECRETARY OF LABOR,

Complainant,

v.

ARCHER-WESTERN CONTRACTORS,
LTD., and GILBERT
CORPORATION OF DELAWARE,
INC., A Joint Venture,

Respondent.

OSHRC Docket No. 87-1067

APPEARANCES:

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

James E. Moye, Esquire, Hansell and Post, Atlanta, Georgia, and John
O'Rourke, Esquire, O'Brien, O'Rourke, Hogan and McNulty, Chicago,
Illinois, on behalf of
respondent.

_DECISION AND ORDER_

SPARKS, Judge: Respondent, Archer-Western Contractors, Limited, and
Gilbert Corporation of Delaware, Incorporated, a Joint Venture, ("Joint
Venture") is the prime contractor for the construction of the new
airport terminal at West Palm Beach, Florida. It contests two citations
issued to it by the Secretary of Labor on June 25, 1987, under the
Occupational Safety and Health Act of 1970 ("Act"), following a crane
accident at the project. Citation Number One is a two-item serious
citation for the violation of 29 C.F.R. § 1926.21(b)(2) for failure to
instruct employees in the recognition and avoidance of unsafe
conditions, and 29 C.F.R. § 1926.550(a)(9) for failure to barricade the
swing radii of various cranes' rotating superstructures. [[1]] Citation
Number Two is a three-item willful citation for the violation of 29
C.F.R. § 1926.251(c)(1) for using inadequate rigging, 29 C.F.R. §
1926.550(a) for exceeding the lift capacity of a crane, and 29 C.F.R. §
1926.550(b)(2) for allowing employees to ride the loads of cranes.

The parties stipulated at the hearing that, if Joint Venture were found
to be in violation of any of the items of the serious citation, the
penalty for each item would be in the amount proposed in the Secretary's
citation. The parties further stipulated that, if Joint Venture were
found in violation of any of the items of the willful citation, the
penalty for each item would be $10,000. If a willful violation were
reduced to a serious violation, the penalty would be $1,000 for each
item (Tr. 566-567).

At the beginning of the hearing, the Secretary offered into evidence the
depositions of Michael Lothian (Ex. C-1; Tr. 43), Roger Weir (Ex. C-2;
Tr. 44), Rodney Walters (Ex. C-3; Tr. 45), and John McDonald, Jr. (Ex.
C-4; Tr. 47). It was ruled that evidence relating to events occurring
after April 28, 1987, (other than observations made by the OSHA
Compliance Officer during his May inspection) would be inadmissible (Tr.
37). Accordingly, the parties were permitted to withdraw the depositions
and delete that testimony pertaining to events occurring subsequent to
April 28. After the hearing, the parties submitted each deposition in
two volumes: the first volume containing the testimony to be received
into evidence and the second volume containing proffered testimony
relating to post-April 28 events. The parties also submitted portions of
the depositions that were objected to on other grounds. Those portions
are hereby admitted into evidence.

_FACTS _

Joint Venture is a partnership formed by Archer-Western Contractors,
Limited, and Gilbert Corporation of Delaware, Incorporated, for the
airport terminal project. Archer-Western owns a 60 percent controlling
interest in the partnership and is the managing partner (Ex. C-9,
deposition pp. 12, 43; C-9 Exhibit 1).

The instant case arises from Joint Venture's contract to construct a
terminal at the international airport in West Palm Beach, Florida. The
work site was on 30 to 40 acres of land. The buildings would cover
approximately 1,500,000 square feet.

The plans called for a three-story terminal with four levels of parking
above it, and three concourses (Tr. 845).

For the project, Joint Venture decided against using its own cranes and
employees as crane operators. Instead, Joint Venture contracted with
Construction Equipment International, Inc., ("CEI") to provide cranes
and crane operators (Tr. 396-398). On January 20, 1987, a written
agreement encompassing the equipment lease between Joint Venture and CEI
was signed. The lease provides in pertinent part: "Lessor and its
employee/operator will be sole operator of this equipment, and all such
operations are under Lessee's exclusive jurisdiction, supervision, and
control" (Ex. R-13). Under the agreement, CEI supplied Joint Venture
with five cranes: two Manitowoc 4000-W cranes, a Manitowoc 3900
conventional crane, and two Tadano hydraulic cranes. CEI did not provide
rigging, riggers or signalmen (Tr. 396-398, 371).

On April 28, 1987, Joint Venture instructed CEI that it needed the Burke
form lifted from stairwell number four (Tr. 304). The Burke form is a
core form used for the stairwell. It measures 15 by 27 feet and can
reach a maximum height of 14 feet (Tr. 53). The Burke form at stairwell
four was nine feet high (Tr. 66).

CEI operator James Earl Dickey was operating a Manitowoc 4000-W crane,
which is a 150-ton crane with a 133-foot tower, 160 feet of working
boom, and a 40-foot jib (Tr. 132, 660). A lifting beam was hooked to the
crane and the beam was then hooked to the Burke form. Laborers worked
with crowbars and a sledgehammer to loosen the form from the stairwell
(Tr. 319). As Dickey applied pressure to lift the form, the boom of the
crane collapsed (Tr. 324).

OSHA Compliance Officer Corey Neale arrived at the work site on May 5,
1987, to conduct an investigation of the collapse (Tr. 488). When he
arrived, the collapsed tower crane had been removed (Tr. 492). As a
result of Neale's investigation, Joint Venture was cited for several
safety violations.

I
_WILLFUL CITATION TWO, ITEM ONE_
_EXCEEDING THE RIGGING CAPACITY_

Item One, Willful Citation Two,[[2]] charges respondent with violating
29 C.F.R. § 1926.251(c)(1) which provides as follows:

Tables H-3 through H-14 shall be used to determine the safe working
loads of various sizes and classifications of improved plow steel wire
rope and wire rope slings with various types of terminals. For sizes,
classifications, and grades not included in these tables, the safe
working load recommended by the manufacturer for specific, identifiable
products shall be followed, provided that a safety factor of not less
than 5 is maintained.

The Secretary's witness, Dennis O'Rourke of National Crane Services, was
qualified as an expert in safety with specialization in cranes and
rigging (Tr. 169, 172). O'Rourke stated that the upper slings used to
connect the crane hook to the lifting beam should have been one inch in
diameter in order to comply with the standard (Tr. 190). Joint Venture's
expert, Don Markwardt, calculated that a 7/8-inch diameter wire rope
sling would comply with the standard (Tr. 760-769). The Secretary
contends Joint Venture violated § 1926.251(c)(1) by using a sling that
was 5/8-inch in diameter. The Secretary failed to prove this fact at the
hearing.

Of the witnesses who testified regarding the rigging, none of them could
say with certainty what the diameter of the sling rope was. CEI operator
Shurtleff testified he had no idea what size rope was used for the lift
(Tr. 161). Joint Venture foreman David Stuart testified he was uncertain
of the diameter of the spreaders used to make the lift (Tr. 311).

The only witness who actually measured the spreaders, Corey Neale, gave
contradictory testimony. At the hearing, Neale stated the spreader was
fiber core, not wire core. In his deposition, he stated it was
independent wire rope (IWRC) (Tr. 598). The citation stated it was IWRC
(Tr. 599). At the hearing, Neale stated the spreader was swaged (Tr.
500). In his deposition, he stated it was manufacture spliced (Tr. 600)
Neale initially stated in his deposition that the spreader above the
beam was 7/8 inch in diameter (Tr. 595). At the hearing, he was certain
that the spreader was 5/8-inch diameter (Tr. 593).

Neale stated he only measured one of the three spreaders and that one
spreader measured 5/8 inch in diameter. Because they "all looked the
same," he did not measure the other spreaders (Tr. 593-594). It is
undisputed that 7/8-inch slings were available on the work site (Tr.
160). In sum, the Secretary failed to prove by a preponderance of the
evidence that Joint Venture was using inadequate rigging.

_WILLFUL CITATION TWO, ITEM TWO_
_EXCEEDING THE BOOM CAPACITY_

Item Two, Willful Citation Two, [[3]] charges respondent with violating
29 C.F.R. § 1926.550(a)(1) which provides as follows:

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

It is undisputed that the maximum lifting capacity of the Manitowac boom
was 14,000 pounds (Ex. C-1, Lothian deposition Vol. II, p. 40; C-3,
Walters deposition p. 95; Tr. 178, 179-182). The evidence clearly
establishes that the weight of the load lifted was at least 20,000
pounds. Henry Siegel, the district manager of Burke Company, calculated
the weight of the Burke form to be approximately 20,000 pounds (Tr. 55).
CEI operator Walter Shurtleff lifted the form after the collapse with
his Tadano 45-ton crane, which was equipped with a load cell that
enabled it to weigh loads. He and Michael Lothian, CEI's regional
manager, calculated the form to weigh 20,000 pounds (Tr. 84-85).

Although the events leading up to the boom collapse are in some dispute,
the most credible testimony established the following:

Ed Payne was the project manager for Joint Venture at the West Palm
Beach work site (Tr. 361). Prior to April 28, Payne had understood the
weight of the Burke form to be between 12,000 and 14,000 pounds (Tr. 375).

David Stuart was the carpenter foreman for Joint Venture at the time of
the collapse (Tr. 294). He testified that on April 28, Joint Venture
superintendent Tom Link instructed him to raise the form on stairwell
four.[[4]] Stuart asked CEI operator Dickey to make the lift (Tr. 306).
Dickey initially refused to make the lift because he thought the form
exceeded his crane's capacity. Stuart informed CEI's lead operator
Rodney Walters that Dickey refused to make the lift (Tr. 307). Stuart
also informed Payne and Joint Venture engineer Joseph Appleton that
Dickey would not make the lift. Appleton then calculated the weight of
the Burke form to be 17,000 pounds. Payne than stated, "They've made
that lift before, and we have to have that form lifted today. It's
important that we get it done" (Tr. 309).

Payne called CEI's Michael Lothian in Tampa and asked, "What the hell is
the matter with your guys? What is this shit about your guys not picking
this form?" (Ex. C-1, deposition Vol. II, pp. 182-183). Lothian told
Payne that the form was in excess of the crane's capacity. Lothian
pointed out that there was another crane on the work site capable of
handling the pick (Ex. C-1, deposition Vol. II, pp. 39-40).

About 2:00 that afternoon, Stuart accompanied Tom Link to see Rodney
Walters about the lift. Stuart testified regarding the meeting (Tr.
315-317):

The head operator (Walters) explained that he wasn't going to make the
lift or tell that man (Dickey) to make the lift until he had authority
from his supervisors. He suggested, however, that there was an out.
That's exactly what he said--that there was an "out"--if Archer chose to
exercise it. . . . He said if Archer would sign a waiver or a release of
liability, that they would go ahead and make the lift. . . . Tom Link
said, "Is that all I have to do?" Then, he grabbed a three by five
notepad out of my pocket and my pen, and he wrote on it, "This form
weighs," something or other, but it was well under the limit. I think he
wrote "12,000 pounds" on it is what I saw. Then, I saw him sign it, and
he handed it and he said, "Here is your release. Go ahead and make the
lift."

In fact, what Link wrote was (Ex. C-3, Exhibit B):

STAIR #4
12,000 pds.
T. Link

Joint Venture's safety official, Burt Ford, was told by Dickey that no
one should ride the form while he was making the lift (Tr. 905).
(Laborers working to loosen the form from the stairwell walls would
sometimes stand on the form while doing so [Tr. 302]). Ford instructed
Stuart not to let anyone ride the form (Tr. 407). Two Joint Venture
carpenters refused to work on the form while the lift was being made
(Tr. 284, 318). As Dickey attempted to lift the form, the boom collapsed.

Regarding the duty of the general contractor on a multi employer work
site, the Review Commission in _Grossman Steel & Aluminum Corp.,_ 76
OSAHRC 54/D9, 4 BNA OSHC 1185, 1188, 1975-1976 CCH OSHD ¶ 20,691 (No.
12775, 1975), held as follows:

.  .  .the general contractor normally has responsibility to assure that
the other contractors fulfill their obligations with respect to employee
safety which affect the entire site. The general contractor is well
situated to obtain abatement of hazards, either through its own
resources or through its supervisory role with respect to other
contractors. It is therefore reasonable to expect the general contractor
to assure compliance with the standards insofar as all employees on the
site are affected. Thus, we will hold the general contractor responsible
for violations it could reasonably have been expected to prevent or
abate by reason of its supervisory capacity.

Therefore, respondent as general contractor may be held responsible for
the hazardous conditions due to its "supervisory capacity." Moreover, in
this case, based upon the findings of creditable evidence, Joint Venture
is responsible because it created and controlled the hazard found in
violation of the Act. _Red Lobster Inns of America, Inc,_ 80 OSAHRC
73/A14, 8 BNA OSHC 1762, 1980 CCH OSHD ¶ 24,635 (No. 76-4754, 1980).

Joint Venture's overriding argument is that all of the alleged
violations are crane-related, it relied upon the expertise of the crane
operator, and thus CEI, and not Joint Venture, bears the responsibility
for any violation. Respondent relies upon _Sasser Service, Division of
Sasser Electric Co.,_ 84 OSAHRC 37/C6, 11 BNA OSHC 2133, 1984-1985 CCH
OSHD ¶ 26,982 (No. 82-178, 1984)_Current Builders, Inc.,_ 84 OSAHRC
15/C7, 11 BNA OSHC 1949, 1984-1985 CCH OSHD ¶ 26,888 (No. 83-994, 1984),
and other similar cases (respondent's brief pp. 19-22) which absolve the
contractor of responsibility for the violative conditions caused by a
leased crane and operator when the lessor has relied upon the expertise
of the crane operator. The cases are inapposite to the instant case,
however, because Joint venture did not rely on the expertise of CEI and
the crane operator; but, contrary to their advice, insisted that the
overweight lift be made. Joint Venture's managers supervised the lift
knowing that the weight of the Burke form exceeded the capacity of the
crane. Respondent, therefore, created and controlled and was directly
responsible for the violation.[[5]] _Red Lobster Inns of America,
Inc_.,_supra_. In making this argument, Joint Venture ignores the degree
to which it controlled and supervised the operation of the cranes. The
contract between the companies gave Joint Venture "exclusive
jurisdiction, supervision, and control" of the crane operations, and the
record demonstrates that Joint Venture fully exercised its contractual
rights.

Dickey was a reluctant operator ordered against his better judgment to
make a lift he and everyone else knew was unsafe. When Lothian informed
Payne that the form exceeded the crane's capacity, Joint Venture's
project manager retorted that the form was "only" 1,300 pounds over its
capacity (Ex. C-1 deposition Vol. II, p. 40).

Joint Venture also claims unpreventable supervisory misconduct on the
part of Superintendent Tom Link in authorizing the lift, but the
creditable evidence of record does not establish that defense. Moreover,
while it is true Link gave written authorization for the lift, other
Joint venture supervisors were aware the lift was being made, and did
nothing to stop it. Foreman Stuart, who witnessed the "out" offered by
Walters, actually signaled Dickey to bring the form up as it was pried
loose from the stairwell walls (Tr. 324). Ford, who was in charge of
safety for Joint Venture, was told by Dickey that the lift was not safe.
Ford's only action was to agree to tell his employees not to ride the
form during the lift. Project Manager Payne, when told the lift exceeded
the crane's capacity, did not halt the lift but instead insisted the
lift had to be made that day and placed an angry phone call to Lothian.[[6]]

The record supports the conclusion that there was a concerted effort on
the part of Joint Venture's supervisory personnel to get the lift made
on April 28 despite their specific knowledge that the form exceeded the
crane's capacity in violation of 29 C.F.R. § 1926.550(a)(1).

The Secretary alleges that the violation was willful. "A violation is
willful if it was committed voluntarily with either an intentional
disregard for the requirements of the Act or with plain indifference to
employee safety." _A. C. Dellovade. Inc_., ___OSAHRC___, 13 BNA OSHC
1017, 1987 CCH OSHD ¶ 27,786, p. 36,341 (No. 83-1189, 1987).

As further evidence of the willful nature of the violation alleged in
Citation Number Two, Item Two, the Secretary offered evidence of
Archer-Western's previous experience with cranes. In 1986 and 1987,
Archer-Western had several projects underway in south Florida (Ex. C-9,
deposition p. 17). Among these projects was the Sunny Isles Bascule
Bridge in North Miami Beach. Archer-Western was hired to remove an
existing bridge and to construct a pair of bascule bridges over the
intercostal waterway (Tr. 822). At the start of the project,
Archer-Western owned two small hydraulic cranes and purchased three more
cranes. Archer-Western hired its own crane operators (Tr. 823-824).

On December 2, 1986, Daniel Newburn, an employee of Archer-Western, was
helping a crane operator to unload machinery from a truck. Newburn was
on the around unhitching the crane cables when the operator moved too
close to an energized power line. Electricity arced from the power line
to the crane cable, and down the crane cable to the crane hook that
Newburn was holding. Newburn died by electrocution (Ex. C-9, deposition
p. 23; C-9 exhibits 5, 10). The fatality prompted an OSHA investigation
by Compliance Officer John McDonald, Jr., that resulted in three
citations (Ex. C-4; Tr. 7).

Joint Venture manifested an intentional disregard for the requirements
of the Act in this instance. As previously stated above, after being
specifically informed several times the load was in excess of the
manufacturer's specifications, Joint Venture insisted that the lift be
made that day. The facts were clearly presented to management and it
intentionally and voluntarily chose to disregard the obvious hazard to
its employees. From its previous experience on the Sunny Isles Project,
Archer-Western was well aware of the hazards presented by crane
operations. As managing partner of the joint venture, such knowledge is
imputed to respondent; but, even without the previous experience at
Sunny Isles, the record shows that the management of Joint Venture
intentionally, voluntarily, and with full knowledge that the weight of
the Burke form exceeded the capacity of the crane, insisted that the
lift be made. Accordingly, Joint Venture subjugated employee safety in
the interests of expediency. Joint Venture was in willful violation of
29 C.F.R. § 1926.550(a)(1). _Georgia Electric Co. v. Marshall_, 595 F.2d
309 (5th Cir. 1979).

WILLFUL CITATION TWO, ITEM THREE
_TRANSPORTING PERSONNEL ON CRANES_

Item Three, Willful Citation Two,[[7]] charges respondent with violating
29 C.F.R. § 1926.550(b)(2) which provides as follows:

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

ANSI B30.5-1968, § 5-3.2.3-e states that, "the operator shall not hoist,
lower, swing, or travel while anyone is on the load or hook."

The cranes at the work site were used to lift concrete buckets for
pouring columns. It is undisputed that one of the buckets was modified
with a platform attachment which enabled a worker to ride with the
bucket (Tr. 340-341). Payne and Ford were both aware of the bucket's use
(Tr. 45, 700). The bucket had been modified by Rodney Walters, the CEI
foreman (Tr. 152-153, 451).

Neale testified that, based on employee interviews, he determined that
employees sometimes rode the Burke forms (Tr. 559-562). Stuart testified
that, while workers were prying loose the forms from the walls, they
would stand on the forms. When the form would break loose, the form
would rise four to six feet due to the cable tension, then settle back
down. The worker would ride the form as it rose and lowered (Tr. 302).

Joint Venture argues that the ANSI standard is directed at the crane
operator and not at the employees riding the loads. In support of this
argument, Joint Venture cites _Havens Steel Co_., 78 OSAHRC 53/C11, 6
BNA OSHC 1740, 1978 CCH OSHD ¶ 20,775 (No. 15538, 1978). In _Havens_,
two construction workers rode "on a headache ball at the end of a
hoisting rope of a Link- Belt crane used and controlled by Havens.
Inasmuch as Havens clearly controlled the crane, however, it was under a
duty to operate the crane in conformity with the standards even if such
compliance would have protected only employees of the contractor at this
multiple-employee construction worksite." (Id. at 1741). This case does
not help Joint Venture. Like Havens, Joint Venture used and controlled
the CEI cranes.

Joint Venture also advances an infeasibility defense with regard to men
riding the concrete bucket. Joint Venture bases this defense on Payne's
testimony that the concrete columns could not be poured unless an
employee was allowed to ride with the bucket because "you have to be
opening the bucket and closing it so that the concrete doesn't come back
up in elephant trunk and close up and then you get buried in the
concrete and you can't get it out" (Tr. 703). Payne's testimony is not
sufficient to establish infeasibility. Payne testified that he never
watched the operation of the crane. He generally performed his duties in
his office in the trailer compound (Tr. 367-369). His testimony standing
alone is insufficient to support Joint Venture's claim of infeasibility.
Employees could have possibly used ladders to reach the work site or a
concrete pump could be used. Joint Venture showed plain indifference to
the requirements of the Act with regard to its employees riding the
concrete bucket and the Burke forms. In this instance, it is noted that
the concrete buckets were modified by an employee of CEI to permit
employees to ride on it. There were representations by CEI personnel
that the work could be performed in that manner. Although Joint Venture
knew or should have known of the hazardous conditions which constituted
a serious violation of 29 C.F.R. § 1926.550(b)(2), the evidence does not
show the violation was intentional and without regard for employee
safety so as to constitute a willful violation within the meaning of the
Act.

II
SERIOUS CITATION ONE, ITEM TWO
_BARRICADING THE CRANES_

Item Two, Serious Citation One, [[8]] charges respondent with violating
29 C.F.R. § 1926.550(a)(9) which provides as follows:

Accessible areas within the swing radius of the rear of the rotating
superstructure of the crane, either permanently or temporarily mounted,
shall be barricaded in such a manner as to prevent an employee from
being struck or crushed by the crane.

Neale stated that "Every day I was on the site, I observed cranes
working without any barricade of any kind. . ." (Tr. 549).

Neale also testified that this violation was easily observable by Joint
Venture's management personnel: "With the size of the cranes out there
and the number of them on that site, the only way you couldn't be aware
of it is if you were totally blind" (Tr. 550).

Joint Venture argues once again that it was CEI's responsibility to
comply with the applicable standard. Once again, Joint Venture ignores
its degree of control over the work site. It was Joint Venture who
exercised control over the work site and it was Joint Venture's
responsibility to protect the employees by barricading the cranes'
superstructures. _Grossman Steel & Aluminum Corp.,_ _supra._

Joint Venture also argues that Neale failed to show that employees were
exposed to any danger from the rotating superstructure. This argument is
without merit.

[T]he likelihood of an employee moving into the swing radius of the
crane, when viewed at the time of the violation, is not diminished by
the _post hoc_ observation that no one did enter the area of danger.
Such after-the-fact analysis would impede, rather than further the
congressional goal of accident prevention embedded in the Act.

_Williams Enterprises, Inc_., 79 OSAHRC 4/B5, 7 BNA OSHC 1015, 1979 CCH
OSHD ¶ 23,279, pp. 28,155-28,156 (No. 14748, 1978).

Joint Venture was in serious violation of 29 C.F.R. § 1926.550(b)(2).

SERIOUS CITATION ONE, ITEM ONE
_SAFETY TRAINING_

Item One, Serious Citation One,[[9]] which charges respondent with
violating 29 C.F.R. § 1926.21(b)(2) which provides as follows:

The employer shall instruct each employee in the recognition and
avoidance of unsafe conditions and the regulations applicable to his
work environment to control or eliminate any hazards or other exposure
to illness or injury.

Joint Venture presented evidence of regular safety meetings (Ex. R-4).
This evidence is overshadowed, however, by the ample record of safety
violations committed by Joint Venture's employees. Particularly telling
is the ease with which the supervisory personnel committed or condoned
the violations; they participated in the lift knowing the weight was
excessive, and they were aware that their employees were riding the loads.

Because the behavior of supervisory personnel sets an example at the
workplace, an employer has--if anything--a _heightened_ duty to ensure
the proper conduct of such personnel. Second, the fact that a foreman
would feel free to breach a company safety policy is strong evidence
that implementation of the policy was lax. (Emphasis in original.)

_National Realty & Construction Co. v. OSHRC, _489 F.2d 1257, 1267, fn.
38 (D. C. Cir. 1973).

Especially significant was the lack of safety training regarding rigging
and the operations involving cranes.

Any safety training Joint Venture's employees were given was
counteracted by the failure of the supervisory personnel to enforce it,
or to follow it themselves. Joint Venture was in serious violation of §
1926.21(b)(2).

The foregoing decision constitutes findings of fact within the meaning
of the Federal Rules of Civil Procedure.

_ADDITIONAL FINDINGS OF FACT_

1. Archer-Western Contractors, Limited, and Gilbert Corporation of
Delaware formed a partnership known as Archer-Western Contractors,
Limited, and Gilbert Corporation of Delaware, a Joint Venture. Joint
Venture, in which Archer-Western is the managing partner with a 60
percent share of the partnership, contracted to build the new terminal
at the Palm Beach International Airport in Palm Beach County, Florida.

2. The airport project is a 30-40 acre site with buildings encompassing
about 1,500,000 square feet including a three-story terminal with four
levels of parking above the terminal and three concourses (two 2-level
concourses and one single-level concourse).

3. Joint Venture did not own any of the cranes used at the airport project.

4. Joint Venture did not employ any of the crane operators at the
airport project.

5. Joint Venture rented cranes with operators from Construction
Equipment International ("CEI"), one of the largest crane companies with
over 100 available cranes in Florida alone.

6. CEI is a wholly-owned subsidiary of Combustion Engineering, Inc., and
specializes in supplying manned and maintained cranes.

7. Under this arrangement, CEI supplied Joint Venture with five cranes,
two Manitowoc 4000-W tower cranes, a Manitowoc 3900 conventional crane
and two Tadano hydraulic cranes.

8. Stairwell No. 4 was being built with a Burke form, which was
approximately 15 feet by 27 feet by 9 feet. It consisted of outer
portions, which are not relevant to this action, and the inner
four-sided form. This four-sided Burke form weighed approximately 20,000
pounds.

9. The Burke forms used at the airport project had two walkway
platforms, one three feet from the top and the other three feet from the
bottom.

10. The walkway platforms had guardrails.

11. The customary method of removing the Burke forms was to remove the
taper ties out of the concrete while the form was still connected to the
wall by jacks.

12. The form would then be stripped away from the wall, a method during
which employees physically rode the load for a short amount of time as
the form dropped one to two inches.

13. On April 28, 1987, respondent's management, knowing that the Burke
form exceeded the capacity of the Manitowoc 4000-W tower crane, ordered
the crane company to lift the Burke form.

14. Crane Operator Dickey initially refused to make the lift, stating
that the load exceeded the lifting capacity of his crane.

15. Lead Crane Operator Walters suggested that superintendent Link had a
"way out" to get the lift if Link would state in writing that the form
weighed only 12,000 pounds.

16. Superintendent Link made a written note that the form-weighed 12,000
pounds and authorized the lift through the jib of Dickey's Manitowoc
4000-W tower crane.

17. Joint Venture did not use the Manitowoc 4000-W tower crane to make
the lift which had adequate capacity and was available at the site.

18. Link and Walters instructed Dickey to make the lift.

19. Joint Venture's management, including Foreman Dave Stuart, Project
Superintendent Tom Link and Safety Official Burt Ford were aware of the
hazardous situation at Stairwell No. 4 on April 28, 1987.

20. As a direct result of the actions by Joint Venture's management
personnel, the Manitowoc 4000-W tower crane collapsed, dropping metal
beams and parts near Joint Venture's employees working in the area.

21. On May 8, 1987, none of the cranes operating at the workplace had
the swing radius of the superstructure guarded or barricaded in any way
to prevent Joint Venture's employees from being struck or crushed.

22. The lifting beam used by the Manitowoc 4000-W tower crane which
collapsed on April 28, 1987, was supplied to Joint Venture by the Burke
Company.

23. Henry Siegel, a Burke Company representative, provided a Burke
Company diagram of the lifting beam which showed 7/8-inch slings or
spreaders above the beam.

24. Frederick Popovic, a structural engineer with the consulting firm of
Wiss, Janney, Elstner, Associates, Inc., in Northbrook, Illinois,
inspected the airport site after the boom collapsed. Mr. Popovic
inspected the lifting beam, measured the dimensions of all the plates to
the beams and measured the distance between the lift points on the beam.

25. The distance between the lift points on the beam was 11 feet.

26. OSHA Inspector Neale did not measure the distance between the lift
points on the beam.

27. OSHA Inspector Neale did not weigh the lifting beam.

28. OSHA Inspector Neale based his calculations for the total weight of
the lift on the weight of the lifting beam provided on the general Burke
Company diagram.

29. OSHA Inspector Neale did not measure the angle from the spreader to
the lifting beam but rather used a "rule of thumb" of a 45 degree angle.

30. Joint Venture's crane expert, Donald Markwardt, calculated the angle
between the lifting beam and the spreaders based on 11 feet between the
lift points on the beam as measured by Mr. Popovic and 20 feet as the
length of each spreader.

31. The vertical spreader angle on the spreader above the lifting beam
was 16 degrees.

32. The spreader used by the Manitowoc 4000-W tower crane which
collapsed on April 28, 1987, was independent wire rope core.

33. OSHA Inspector Neale did not measure the rigging length used by the
Manitowoc 4000-W tower crane which collapsed on April 28, 1987.

34. OSHA Inspector Neale did not record the length of the spreaders used
by the Manitowoc 4000-W tower crane on April 28, 1987.

35. OSHA Inspector Neale measured the diameter of only one of the
spreaders used by the Manitowoc 4000-W tower crane which collapsed on
April 28, 1987.

36. Seven-eighths inch diameter spreaders were regularly used on the
Manitowoc 4000-W tower cranes at the airport project.

37. A special mancage-type platform was attached to the concrete bucket
used while pouring concrete columns.

38. This platform attachment had guardrails.

39. The platform attachment was used to lift personnel attached to the
platform with safety lines and lanyard lines.

40. CEI Lead Operator Walters made the platform attachment used on the
concrete bucket.

41. CEI Lead Operator Walters told Project manager Payne that he had
used similar attachments on other jobs and that this was the best way to
pour the concrete columns.

42. The height of the columns was 21 feet and the concrete bucket had to
be raised 18 feet above the column.

43. Death or serious injury would likely result from the violative
conditions described above.

44. Archer-Western Contractors, Ltd. ("Archer-Western") is the general
contractor for the Sunny Isles project.

45. Archer-Western purchased the cranes used at the Sunny isles project.

46. The Sunny Isles project is located on Sunny Isles Boulevard and
intercostal waterway, Route 826 in North Miami Beach.

47. The project is approximately a mile long and runs from the west side
of the intercostal waterway to the east side over the intercostal and up
to Route 81A or Collins Avenue at the ocean.

48. The project involves the construction of two bridges, each
approximately 1300 feet long, and the removal of the existing bridge and
roadwork.

49. At the Sunny Isles project, Archer-Western owned two small Grove
rough terrain cranes, one 150-ton crawler crane and two 60-ton crawlers.

50. On December 3, 1986, an Archer-Western employee was electrocuted
when a crane got too close to electrical wires while it was unloading
from a truck.

51. The employee's death resulted in a citation from OSHA.

52. In an attempt to abate the citation, Archer-Western requested a
safety presentation by the OSHA office.

53. The presentation was held on December 11, 1986.

54. Archer-Western also requested the State of Florida to conduct a mock
inspection of the Sunny Isles project.

55. On February 10, 1986, the OSHA inspector returned for a follow-up
inspection and noted that the problems at Sunny Isles were "fully abated."

_CONCLUSIONS OF LAW_

1. Respondent, at all times material to this proceeding, was engaged in
a business affecting commerce within the meaning of section 3(5) of the
Occupational Safety and Health Act of 1970 ("Act").

2. Respondent, 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. Respondent was in willful violation of 29 C.F.R. § 1926.550(a)(1) for
exceeding the lift capacity of a crane's boom, resulting in the boom's
collapse. Respondent was aware of the load's excessive weight yet
ordered the lift to go forward.

4. Respondent was not in willful. violation of 29 C.F.R. §
1926.251(c)(1) for exceeding the lift capacity of a crane's rigging. The
Secretary failed to prove that inadequate rigging was used.

5. Respondent was in serious violation of 29 C.F.R. § 1926.550(b)(2) for
allowing employees to ride the loads of cranes. Respondent was aware
that employees were riding Burke forms and in a modified concrete bucket.

6. Respondent was in serious violation of 29 C.F.R. § 1926.550(a)(9) for
failing to barricade the swing radius of a crane's rotating superstructure.

7. Respondent was in serious violation of 29 C.F.R. §1926.21(b)(2) for
failing to instruct its employees in the recognition and avoidance of
unsafe conditions.

_ORDER_
It is ORDERED:

1. That Citation Number Two, Item one, which alleges a willful violation
of 29 C.F.R. § 1926.251(c)(1), is vacated.

2. That Citation Number Two, Item Two, which alleges a willful violation
of 29 C.F.R. § 1926.550(a)(1), is affirmed and a penalty of $10,000 is
assessed.

3. That Citation Number Two, Item Three, which a willful violation of 29
C.F.R. § 1926.550(b)(2), is affirmed as a serious violation and a
penalty of $1,000 is assessed.

4. That Citation Number One, Item One, which alleges a serious violation
of 29 C.F.R. § 1926.21(b)(2), is affirmed and a penalty of $1,000 is
assessed.

5. That Citation Number One, Item Two, which alleges a serious violation
of 29 C.F.R. § 1926.550(a)(9), is affirmed and a penalty of $1,000 is
assessed.

6. That Citation Number One, Item Three, which alleges a serious
violation of 29 C.F.R. § 1926.550(b)(2), is vacated.

Dated this 3rd day of November, 1988

JOE D. SPARKS
Judge


FOOTNOTES:


[[1/]]Neither party took exception to the judge's disposition of the
other items and they are not before us on review.

[[2/]]The record does not indicate whether CEI was trying to ensure that
the form did not exceed the lift capacity of the crane or merely to
protect itself from liability.

[[3/]] The standard states:

§1926.550 _Cranes and derrick._

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

[[4/]]The Secretary argues that under Commission rule 92(c), 29 C.F.R. §
2200.92(c) the Commission is precluded from considering the issue
because it was not raised before the judge. The argument is without
merit. The matter was clearly raised in Respondent's post-hearing brief
before the judge. It is, therefore, properly before the Commission.

[[5/]] Respondent argues that, under the cited standard, only when an
applicable load chart is unavailable may the Secretary adduce the
testimony of "competent engineers" to establish the capacity of the
crane. Because the Secretary failed to prove the unavailability of an
applicable load chart, Respondent claims that she could not present
expert testimony on the crane's capacity.

This argument is rejected. The cited standard imposes a duty on an
employer to comply with the crane manufacturer's specifications and
limitations. When a load chart is unavailable, the employee is obliged
to use a competent engineer to determine the capacity of the crane.
However, the duties imposed on the employer by the standard do not limit
the methods the Secretary relies on to establish that the employer
failed to comply with this obligation.

[[6/]] Respondent's culpability does not necessarily excuse CEI for its
responsibility in this matter. Under pressure from the Joint Venture,
CEI's operator made the lift with full knowledge that the form exceeded
the lift capacity of the crane. However, the record does not reveal
whether CEI was cited for any possible violation.

[[7/]]Respondent also argues that the judge erred by relying in part
upon another crane accident for his finding that the violation was
willful. In that incident, an Archer-Western employee was electrocuted
when a crane hit an overhead power line. Even though Gilbert was not
part of that project, the judge found Archer-Western's previous
experience to be imputable to the Joint Venture because Archer-Western
was the Joint-Venture's managing partner. Given our finding that events
at the site of the accident were sufficient to establish that the
violation was willful, it is unnecessary for us to decide whether the
judge properly relied, in part, on the Sunny Isles Project incident.

[[8/]] The standard states:

§1926.21 _Safety training and education._

(b) _Employer responsibility._

(2) The employer shall instruct each employee in the recognition and
avoidance of unsafe conditions and the regulations applicable to his
work environment to control or eliminate any hazards or other exposure
to illness or injury.

 

[[1]] A third item, 29 C.F.R. §1926.550(b)(2) for failure to provide
signal men for moving cranes carrying loads, was the subject of a motion
to dismiss made by Joint Venture at the close of the Secretary's case.
The motion was taken under advisement (Tr. 630-631). Subsequently, the
Secretary withdrew the item in her posthearing brief (Secretary's brief,
pp. 2-3). Accordingly, the third item of Citation Number One is
dismissed and will not be considered in this decision.

[[2]] Willful Citation Two, Item One, alleges the following violation:

29 CFR 1926.251(c)(1): Single leg and two (2) leg bridle slings were
used in excess of safe walking loads as determined by Tables H-3 through
H-14:

(a) On or before April 28, 1987, at the West Palm Beach International
Airport Project, stairwell #4. A lifting beam used to raise "Burke
Forms" weighing approximately 20,000 lbs. was attached to the crane hook
by a 5/8" diameter I.W.R.C. two (2) legged bridle sling, with a S.W.L.
of 9600 # (by table H-8). The lifting beam was then attached to the
"Burke Form" by four (4) 5/8" diameter. I.W.R.C. single leg slings with
a S.W.L. of approximately 8800#. (Table H-3). (S.W.L. limited to 2 leg
sling maximum.

[[3]] Willful Citation Two, Item Two, alleges the following violation:

29 CFR 1926.550(a)(1): The employer did not comply with the
manufacturer's specifications and limitations applicable to the
operation of cranes or derricks:

(a) On or before April 28, 1987, at the West Palm Beach International
Airport Project, stairwell #4. A Manitowoc 4000-W tower crane was loaded
in excess of the manufacturers rated capacity for the 40-0' jib.

[[4]] Foreman Stuart's testimony was unequivocal as follows (Tr. 304-305):

BY MR. CLARK:
Q. Were you at the airport workplace on April 28, 1987?
A. Yes, sir.
Q. What were your duties on that date?
A. I was foreman at the time.
Q. And, what specific assignments were you given for that date?
A. To raise the form at Stairwell Number 4.
Q. When were you given that assignment?
A. That morning.
Q. Who told you that you should raise the form in Stairwell Number 4?
A. The superintendent, Tom Link.
Q. About what time was that?
A. The first thing that morning; about between 7:00 and 7:30.

[[5]] No attempt is made to determine whether CEI also violated the
standard as it was not charged by the citation at issue.

[[6]] Payne testified that, after speaking with Lothian, he instructed
Link not to make the lift using Dickey's crane (Tr. 379). In view of the
serious concerns discussed previously, this testimony is not deemed
credible as it is highly unlikely that Link would have ordered the lift
in contravention of instructions from Payne and against the advice of
all crane operators.

[[7]] Willful Citation Two, Item Three, alleges the following violation:

29 C.F.R 1926.550(b)(2): Section 5-3.2.3.e. American National Standards
Institute, B30.5-1968, Safety code for Crawler Locomotive and truck
cranes, as adopted by 29 CFR 1926.550(b)(2):

(a) Crane operators were permitted to Hoist lower swing, or travel,
while employees were on the load or hook: On a before April 18, 1987, at
the West Palm Beach International Airport Project, employees were
permitted to ride "Burke forms" and "Concrete Buckets" while they were
raised to working locations, 20- 0 to 50-0' height, by mobile cranes.

[[8]] Serious Citation One, Item Two, alleges the following violation:

29 CFR 1926.550(a)(9): Accessible areas within the swing radius of the
rear of the rotating superstructure of cranes were not barricaded in
such a manner as to prevent employees from being struck or crushed by
the crane:

(a) On or about May 5, 1987, at the terminal building north and south
sides, a Manitowoc 4000-W Tower Crane, did not have the area between the
counter-weight swing radius and scaffolding, Porti-Potti, form work and
other building material protected.

[[9]] Serious Citation One, Item One, alleges the following violation:

29 CFR 1926.21(b)(2): The employer did not instruct each employee in the
recognition and avoidance of unsafe conditions and the regulations
applicable to his work environment to control or eliminate any hazards
or other exposure to illness or injury:

(a) On or about May 5, 1987, at the West Palm Beach International
Airport, employees were not given safety training or instructions,
including but not limited to the following:

I.
A. Hand and radio signaling of the Cranes. 1. Proper signals, and radio
procedures.
B. Flagging cranes when they are relocating or travelling.
1. Proper signals and precautions.

II.
A. Proper and accepted industry practices rigging material to be hoisted
by a crane.
1. How to properly calculate or determine material weights.
2. What size and type rigging hardware, and components to use for
various lifts.
3. How to find S.W.L. of components: 4. Who is designated competent
person charge of critical lifts, and has authority to abort improperly
rigged lifts:

III.
A. Accepted manufacturers specifications recommendations for proper use
of crane and their components.
1. Maximum loads allowed at various radiuses with different crane
configurations, such as:
a.towers
b.jibs
c.conventional booms
d. Hydro-cranes.