“SECRETARY OF LABOR,Complainant,v.ALL PURPOSE CRANE, INC.,Respondent.OSHRC Docket No. 82-0284_DECISION_Before: BUCKLEY, Chairman, and WALL, Commissioner.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”). It wasestablished to resolve disputes arising out of enforcement actionsbrought by the Secretary of Labor under the Act and has no regulatoryfunctions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).All Purpose Crane, Inc., was operating a crane on a construction site inVero Beach, Florida, on Tuesday, December 29, 1981. The wire boom ropeon the crane broke and the boom of the crane collapsed. OSHAinvestigated the accident the following day, December 30, 1981, and theSecretary of Labor issued a citation alleging that All Purpose Crane hadviolated a number of OSHA construction safety standards. The citationwas subsequently amended; item 3 of the amended citation alleged aviolation of 29 C.F.R. ? 1926.550(a)(7)(1), which provides: \”Wire ropeshall be taken out of service when any of the following conditionsexist: (i) In running ropes, six randomly distributed broken wires inone lay or three broken wires on one strand in one lay. . . .\” [[1]] Ahearing was held before an administrative law judge, who found that thestandard had been violated and affirmed item 3. We conclude that theSecretary did not prove the standard was violated and vacate the item.IAlthough the Secretary’s citation alleged that the violation occurred onDecember 30th, the day of the OSHA investigation, he attempted at thehearing to prove that the violation occurred at some point beforeDecember 29th, the day of the accident. He focused primarily onDecember 24, when the crane operator inspected the rope and would havebeen required by the standard to take it out of service if the wireswere broken. There is no dispute that, when OSHA inspected the crane onthe day after the accident, there were a number of locations in the ropewhere there were six broken wires in one lay or three broken wires inone strand. All Purpose Crane claims, however, that the wires must havebeen broken in the accident due to the whipping of the broken ropethrough the sheaves. If this was so, then there is no basis to concludethat the crane operator should have found broken wires when he inspectedthe rope on December 24, and thus no reason to hold the company inviolation of the standard. The issue litigated by the parties, then, iswhether the Secretary has established by a preponderance of the evidencethat these wires were broken when the crane operator inspected the ropeon December 24.The only witness who saw the rope before the accident occurred was thecrane operator, Donald Hamilton. He testified that he had lowered theboom of the crane and inspected the wire rope on December 24, the lastday the crane was used before the accident. On that date, he lightlywiped the entire rope with an oily workglove and visually inspected itfor wear and for broken wires. He did not find enough broken wires torequire that the rope be removed from use.The record suggests, however, that Hamilton’s inspection would not havedisclosed breaks that may have existed in the wires. The Secretarypresented three expert witnesses who all testified that the proper wayto inspect a wire rope is to remove all tension from it and to bend or\”flex\” it to reveal concealed breaks. One of these witnesses explainedthat, because of the way a wire rope is manufactured, the wires wouldlie flat even if they were broken, and that, with a preformed woven ropelike this one, it is necessary to flex the rope to cause the ends ofbroken wires to \”pop up.\” Since Hamilton did not remove the weight fromthe boom rope and flex it, we accord limited weight to his testimonythat the wires were not broken before the accident. We must thereforelook to the testimony of other witnesses who addressed this question.The other witnesses all saw the wire rope for the first time after theaccident. Three witnesses offered expert testimony on behalf of theSecretary that, in their opinion, some instances of six broken wires inone lay of the rope and three broken wires in one strand in one layexisted before the accident. The first of these, Frances L. Silverberg,was a safety specialist employed as a compliance officer by OSHA. Heworked for ten years in the heavy construction industry, both using andsupervising the use of cranes. He then served as a safety inspector forthe state of Florida, inspecting cranes, before he joined OSHA. Mr.Silverberg had inspected about 300 cranes and 100 crane accidents, ofwhich 8 or 10 involved a wire rope failure. He was accepted as anexpert in crane inspection.The day after the accident, Mr. Silverberg went to the construction siteand inspected the wire rope that had broken. He also inspected it threeweeks later, on January 21, at All Purpose Crane’s yard. Hisinspections disclosed that, on either side of the separation, there were\”many short pieces of broken wire.\” He concluded from his observationsthat there were \”a large number of broken wires\” in the rope before theaccident, with several locations having either six broken wires in a layor three broken wires in one strand in a lay, or both.Another witness was Robert DeBenedictis, a crane and rigging safetyconsultant, who had also inspected the rope on behalf of Wireco, thecompany that apparently manufactured the wire rope. Mr. DeBenedictishad inspected over 1000 cranes in his career and had supervised a groupof inspectors who had inspected over 40,000 cranes. He was accepted asan expert on cranes. Mr. DeBenedictis explained that there are twodifferent reasons why wires break: fatigue, and excessive tensioncaused by overloading. He testified that the ends of wires that break asa result of fatigue look different from those that break from excessivetension. Mr. DeBenedictis described the differences in the appearanceof each kind of break and introduced documents to illustrate and amplifyhis explanation. He testified that, although a state court injunctionprohibited him from flexing this rope[[2]] when he inspected it, hefound numerous breaks that were caused by fatigue. Mr. DeBenedictisgave his opinion that, based on the number and the kind of breaks, hewas reasonably certain that the breaks existed before the rope parted onDecember 29 and that they were of the number and location that wouldrequire the rope to be removed from service.The Secretary also called Larry D. Means as a witness. He is anengineer employed by Wireco. One of his duties is to investigate allaccidents or failures involving ropes manufactured by Wireco; and he hasexamined \”hundreds, or maybe thousands\” of wire ropes. Mr. Means hashis bachelor’s degree in metallurgical engineering and has completed thecourse requirements for a master’s degree in that field. Like Mr.Silverberg, he examined the rope on the day after the accident and againon January 21. As a result of his examination, he concluded that therope was \”worn out\” before it broke. He testified that the rope failedbecause the load on it was too great for its remaining strength. Hefound numerous broken wires in the rope, especially in the area nearwhere the rope parted. He said that he could tell whether a break wascaused by fatigue or by excessive tension, and he stated that he foundboth kinds of breaks in the rope. Mr. Means expressed the opinion thatmany of the wires had already been broken before the accident.All Purpose Crane presented Robert Hochman, who holds a Ph.D. inmetallurgical engineering and is professor of metallurgy at the GeorgiaInstitute of Technology. Professor Hochman testified that, in additionto his duties with the college, he had also acted as an independentconsultant for several years. He had investigated between 400 and 500metallurgical failures, including a number of crane collapses and six oreight wire rope failures. When he inspected the wire rope, theinjunction was in effect, so he could not perform the extensiveexamination and testing that he believed was necessary to determine thecause of the broken wires.Professor Hochman agreed with Mr. DeBenedictis that it is possible todetermine with some degree of accuracy the cause of a break by closelyexamining the broken end. In illustrating this point, he mentionedseveral causes of breaking not mentioned by either Mr. DeBenedictis orMr. Means. He testified that he had recently presented a report to ameeting in Paris dealing with the hydrogen embrittlement of metal andthat some of the wires he examined could have broken because they hadbecome embrittled. Professor Hochman had been able to photograph a fewof the broken ends under high magnification, and he testified that thephotographs showed a broad range in the types of fractures. Hetestified that one difficulty is that the wires might have been brokenwhen the rope snapped.Professor Hochman testified that it is possible, through an in-depthspectrographic analysis, to pinpoint the nature and cause of many of thefractures. He testified, however, that it was not possible to determinewhen or why the breaks occurred without a more detailed analysis of therope than he or any of the other witnesses was permitted to perform. Itwas his recommendation that a spectrographic analysis of the wires bedone in order to disclose the cause of the broken wires and thereby helpto determine whether they broke before the accident or during it.Both Mr. DeBenedictis and one of the OSHA compliance officers tookmeasurements and noted the locations where the number of broken wiresexceeded the limits permitted by the standard. Their measurementsshowed that nearly all the breaks were found within one thirty-footlength of the rope near the point of failure. In one of the two piecesof the rope, the broken wires were concentrated within eight feet of thebreak; in the adjoining piece, the broken wires were concentrated withinabout 21 feet of the break. The other witnesses generally concurred inthis description. Based on this concentration of broken wires in onepart of the rope, Professor Hochman emphasized that there were a numberof possible explanations for this condition, no one of which could beclearly established as the right one without additional testing. Whenthe rope parted, the ends were \”whipped\” through the crane’s sheaves;and Professor Hochman suggested that the wires may have broken when theybanged against the crane’s metal framework or flexed around the sheavesat high speed. He also pointed out the possibility that the portion ofthe rope in which the break occurred might have been weakened orembrittled, either during the manufacturing process or as a result ofsomething that was done to it subsequently, such as exposure to achemical or to the elements. Because of these uncertainties, ProfessorHochman advocated spectrographic analysis of the wire rope.IIThe administrative law judge who heard the case decided that Dr.Hochman’s \”opinion is entitled to considerable weight\”; nevertheless, hefurther decided that the opinion testimony of the Secretary’s threeexperts about breaks before the rope snapped is of \”greater value.\” AllPurpose Crane challenges this evaluation of the relative weight of theexpert testimony. All Purpose Crane argues that, as its experttestified, without further analysis of the rope, one cannot find thatthe broken wires observed after the accident were not broken as a resultof the accident. All Purpose Crane relies on the fact that the breakswere concentrated in the area of the separation to support its claimthat the breaks were caused by the whipping action through the sheaveswhen the rope snapped.The Secretary, on the other hand, argues that the administrative lawjudge correctly found that the wires were broken before the accident. He points to the opinion testimony of his witnesses and recites theircredentials as experts. The Secretary asserts that the judge’s decisioninvolved his findings as to the relative credibility of the witnessesand that these findings should not be disturbed.IIIThe Secretary has the burden of proving each element of his case by apreponderance of the evidence. _Astra Pharmaceutical_ _Products, Inc_.,9 BNA OSHC 2126, 2129, 1981 CCH OSHD ? 25,578, pp. 31,899-900 (No.78-6247, 1981), _aff’d in pertinent_ _part_, 681 F.2d 69 (1st Cir.1982). We find, on this record, that the Secretary has not carried thatburden. After a careful review of the record, we simply cannot say thatit is more likely than not that, before the accident, there were sixbroken wires in one lay of the rope or three broken wires in one strandin one layThe standard establishes specific numerical criteria for when a wirerope must be removed from service. Conversely, the rope need not beremoved from service if there are fewer breaks than the numberspecified. Thus, a wire rope can have a large number of broken wiresand not be removed from service if the number of broken wires in any layis less than six and the number in one strand in a lay is less than three.The rope had a number of areas where there were more broken wires thanpermitted, but they were found only after an accident in which the ropebroke and the broken ends were whipped through the sheaves at highspeed. The concentration of broken wires in the vicinity of the breaksuggests that the whipping action may have caused a number of thebreaks. The problem before us is to determine whether the numericallimits of the standard were exceeded before the accident.To resolve this problem, it would be necessary to examine carefully oneor more areas of the rope where the limits were exceeded after theaccident, to attempt to identify the cause of the various breaks, todetermine how many were caused by the accident, and thereby to infer howmany were present before the accident. The Secretary’s expertsattempted to do this, but their task was made more difficult by thestate court injunction that prohibited any examination that would alterthe state of the rope. Nevertheless, they testified that they couldtell that many of the breaks were caused by fatigue rather than byoverloading, and would have been there before the accident. The expertpresented by All Purpose Crane, Professor Hochman, testified that such acursory examination could not determine the cause of a break. Hestated that many factors, such as chemical embrittlement, could be afactor in the breaks and that the cause of the breaks could not bedetermined without further testing.We find Hochman’s testimony persuasive in light of his extensiveexpertise in metallurgy. Moreover, an exhibit introduced by theSecretary indicates that the matter of determining the cause of breaksin wires is considerably more complex than the Secretary’s expertsintimated. Ex. C-32 is a publication of the American Iron and SteelInstitute entitled \”Wire Rope Users Manual.\” On page 59 of thatpublication, table 14, entitled \”Diagnostic Guide to Common Wire RopeAbuses,\” lists nine types of abuse that can lead to broken wires: fatigue; tension; abrasion; cut, gouged or rough wire; torsion ortwisting; mashing; corrosion; abrasion plus fatigue; and abrasion plustension. For each type of abuse it lists the physical appearance of thebroken wire. The Secretary’s experts considered only two of thesepossible sources of abuse: fatigue and tension. Any breaks caused bythe rope’s whipping through the sheaves would apparently be the resultof one or more of the other types of abuse, which the Secretary’sexperts did not consider. This detracts considerably from theirtestimony that they could differentiate from breaks caused by theaccident and breaks existing before the accident.The Secretary characterizes the judge’s evaluation of the weight of thetestimony as a credibility finding and argues that we should accept thatdetermination. It is true that, because the judge who tried the casehas had the opportunity to observe the demeanor of the witnesses and toevaluate their credibility, the Commission will give deference tofindings that are based on credibility determinations. _OklandConstruction Co_., 76 OSAHRC 30\/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD ?20,441 (No. 3395, 1976). Here, however the judge did not purport tobase his decision on factors uniquely observable by him, such asdemeanor. He did not state that he was making credibility findings;rather, he referred to the relative weight and \”greater value\” of thetestimony of the Secretary’s experts. Here, we are in as good aposition as the judge to evaluate the qualifications of the experts andweigh their testimony in light of the other evidence of record. Moreover, the judge’s decision did not come to grips with the most vitalpoint of Professor Hochman’s testimony–that without the necessaryin-depth analysis _neither he nor anybody else_ could determine whatcaused the wires to break. The Secretary’s witnesses purported to beable to tell by merely looking at the broken ends whether they brokebefore or after the accident, a claim which Professor Hochman describedas \”presumptuous.\” Such testimony from an expert of Professor Hochman’sstature causes us to question how much weight can be accorded to theopinion testimony of the Secretary’s witnesses. It may be that they arecorrect; Professor Hochman did not rule out that possibility. But wecannot say with any confidence either that the breaks in the wire ropeoccurred before the accident or that they occurred during the accident. Because we are at a loss to say which is the more likely course ofevents, we must conclude that the party who had the burden of proof hasnot carried it.We would comment that this was a difficult case, which we have decidedsolely on the preponderance of the evidence test. Weighing andreconciling conflicting opinion testimony from expert witnesses is nevera simple task. Here, we were impressed by the candor of ProfessorHochman, who did not attempt to convince us that the wires could notpossibly have been broken before the accident. Instead, he explainedthat, because of the court’s injunction, he was not able to perform thenecessary examination in order to make that determination. He explainedhow, without such an examination, one kind of break may be mistaken foranother. His testimony leads us to find that the other witnesses’opinions were formed without adequate empirical data to draw definitiveconclusions.Whether the examination suggested by Dr. Hochman was subsequentlyperformed for the civil litigation, we do not know. If it wasperformed, we have no information as to the results. The parties haveinformed us that the litigation has been concluded in the civil suit,but neither party has either proffered information as to the outcome ofthat case or asked to reopen the record to submit more completeevidence. Under the circumstances, we can only adjudicate this case onthe record compiled by the parties, however many questions we may have.After considering the evidence, we are not able to find that it is morelikely than not that the wires were broken before the accident; nor canwe say with any confidence that they were not. Accordingly, we musthold that the party bearing the burden of proof, the Secretary, hasfailed to carry that burden. The judge’s decision is therefore reversedas to item 3 of the amended citation: the item is vacated. In allother respects the judge’s decision is affirmed.[[3]]FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: April 14, 1987————————————————————————SECRETARY OF LABOR,Complainant,v.ALL PURPOSE CRANE, INC.,Respondent.OSHRC Docket No. 82-0284APPEARANCES:Stephen Alan Clark, Esquire, Office of the Solicitor, U. S. Departmentof Labor, Ft. Lauderdale, Florida, on behalf of complainant.Edward R. Nicklaus, Esquire, Dixon, Dixon, Hurst and Nicklaus, Miami,Florida, on behalf of respondent._DECISION AND ORDER_SPARKS, Judge: Three workers died in an accident at the constructionsite of the Sea Cove Condominiums, Vero Beach, Florida, on December 29,1981. The accident occurred with the breaking of the wire boom rope andthe collapse of the crane boom which was being used to lift buckets ofconcrete to a fourth-floor pouring site.Following an inspection by OSHA, serious and other than seriouscitations were issued charging respondent with violating safetyregulations by overloading the crane, by failing to discard a defectivewire rope and using a defective sling, failing to use \”U\” clamps,failing to keep proper inspection records, and failing to have aproperly charged fire extinguisher.Respondent disputes the factual allegations and legal conclusions urgedby the Secretary and adamantly contends the complainant failed to carryhis burden of proof.Respondent argues that all observations, measurements and photos weremade after the accident which greatly altered the condition of the wirerope and other circumstances.To prove a violation of section 5(a)(2) of the Act, the Secretary mustshow by a preponderance of the evidence that (1) the cited standardapplies, (2) there was a failure to comply with the cited standard, (3)employees had access to the violative conditions, and (4) the citedemployer either knew or could with the exercise of reasonable diligencehave known of the condition. _Daniel_ _International Corp_., 81 OSAHRC71\/D6, 9 BNA OSHC 2027, 1981 CCH OSHD ? 25,813 (No. 76-181, 1981);_Union Boiler_ _Co_., __OSAHRC BNA OSHC __, 1980 CCH OSHD ? 24,178 (No.79-232, Feb. 28, 1983).A._OVERLOADING OF THE CRANE_Item two of the amended serious citation alleged that respondentviolated 29 C.F.R. ? 1926.550(a)(1)[[1\/]] by lifting loads whichexceeded the manufacturer’s specifications by as much as 1,305 pounds. A metal plate attached to the vehicle captioned \”Rated Crane Loads InLBS\” listed the maximum loads to be lifted by the crane in variousconfigurations (Ex. C-12).Measurements made by the OSHA compliance officers at the area showedthat pourings of concrete up to 121 feet had been made before theaccident (Ex. C-4, C-6, C-19; Tr. 26, 54, 64-65, 84-85, 121-125,206-207). Assuming the concrete bucket held one cubic yard filled withregular concrete thereby weighing approximately 4,305 pounds, the loadcapacity, as shown by the manufacturer’s chart, was exceeded by 1,305pounds (Ex. C-25; Tr. 154, 159, 205-207). Calculations were made basedupon differing assumptions regarding the weight of the load and thedistance to be carried (Ex. C-23, C-26; Tr. 140-141). Oncross-examination, Compliance Officer Bermudez acknowledged there hadbeen no evidence the bucket was filled and, if the concrete was as muchas one foot from the top, would weigh approximately 2,000 pounds. Atthat distance, the crane will support a load of 2,636-1\/2 pounds andwould not be overloaded (Tr. 210-212).The compliance officers apparently did not measure the weight or volumeof concrete in the bucket on the last load but estimated the volume byexamining photographs of the concrete bucket. At the hearing, RogerJeeves, the project superintendent, estimated it was filled to withinabout four inches of the top (Ex. C-4; Tr. 27). He did not believethere was any over reaching of the crane’s capacity on the day of theaccident (Tr. 29). The owner of the GRF Masonry Company, which washandling the concrete on the job, estimated the concrete was five to sixinches from the bottom of the crossbar on the last pour (Ex. C-8; Tr.51-52). He testified it was customary for the buckets to be aboutthree-quarters full (Tr. 53, 56).Billy Law, Jr., who was employed by the general contractor as theassistant superintendent on the project, was responsible for determiningthe moisture content of the concrete and was actively involved in theconcrete operations. He testified the buckets of concrete could nothave been filled as about 50 buckets had already been poured and theywere working from the third or fourth truckload of concrete, each ofwhich holds ten cubic yards (Tr. 72). The operating radius of the boomcrane was measured at 105 feet and the maximum distance to the last pourwas 121 feet (Tr. 83-84, 121-123, 156, 239).Respondent strongly argues that the information produced by complainantwas incompetent and inadequate to establish that the crane had beenoverloaded (Resp. brief pp. 10-19). It points out that the complianceofficer did not measure the weight of the concrete in the actual bucketbeing used but measured a similar bucket at the jobsite. (Tr. 134) andfrom Florida Bucket Company obtained the weight of the headache ball,sting, shackles and other assembly which he found to total 375 pounds(Tr. 136-137). The weight of the concrete was obtained from RinkerMaterials which supplied the concrete on the day of the accident (Tr.148). It was found to weigh 3,775 pounds per cubic yard (Tr. 147-149). Pearock concrete was found to weigh 3,698 pounds according toinformation from Rinker Materials (Tr. 150).The Review Commission considered the gravity and quality of proofnecessary to establish a violation in _Ultimate Distribution_ _Systems,Inc_., 82 OSAHRC 22\/B12, 10 BNA OSHC 1568, 1982 CCH OSHD ? 26,011 (No.79-1269, 1982), where it stated as follows:To prove a violation of section 5(a)(2) of the Act, 29 U.S.C. ?654(a)(2), the Secretary must show by a preponderance of the evidencethat, among other things, the cited employer failed to comply with astandard at its workplace. _Olin Construction Co. v._ _OSHRC_, 525 F.2d464 (2d Cir. 1975). Under _Astra Pharmaceutical Products, Inc_., 81OSAHRC 79\/D10, 9 BNA OSHC 2126, 2131 n. 17, 1981 CCH OSHD ? 25,578 at p.31,901 N. 17 (No. 78-6247, 1981), _appeal filed,_ No. 81-1672 (1st Cir.Sept. 23, 1981), a \”preponderance of the evidence\” is \”that quantum ofevidence which is sufficient to convince the trier of the fact that thefacts asserted by a proponent are more probably true than false.\”The Secretary satisfies his burden of proof if the record, whenconsidered as a whole, contains preponderating evidence in support ofhis allegations. See _Universal Camera Corp. v. NLRB_, 340 U.S. 474(1951). In addition to direct evidence, circumstantial and hearsayevidence are admissible in Commission proceedings and this evidence mayhe probative. _E.g_., _Chicago Bridge & Iron Co_., 74 OSAHRC 92\/A2, 2BNA OSHC 1413, 1973-74 CCH OSHD ? 15,416 (No. 224, 1974), _aff’d_, 535F.2d 371 (7th Cir. 1974) (circumstantial evidence admissible); _HurlockRoofing Co_., 79 OSAHRC 93\/A2, 7 BNA OSHC 1867, 1979 CCH OSHD ? 24,006(No. 14907, 1979) (hearsay evidence admissible). For example, in_Okland Construction Co_., 76 OSAHRC 30\/F4, 3 BNA OSHC 2023, 1975-76 CCHOSHD ? 20,441 (No. 3395, 1976), the Commission concluded that a judgeproperly entered findings that the Secretary established a violationbased on inferences drawn by the judge from circumstantial evidence: noneyewitness testimony creating the reasonable inference that anemployee fell from an unguarded beam. See _generally_ 1 _Jones onEvidence_ ? 1.3 at 4 (6th ed. 1972) (drawing reasonable inferences fromcircumstantial evidence).It is noted that the hearsay evidence of the Secretary was not rebuttedby specific contradictory evidence. The evidence of the Secretary wassufficient to convince the undersigned that the facts asserted are \”moreprobably true than false.\”The preponderance of the evidence shows the concrete bucket was usuallyfilled about three-quarters full or about six inches below the crossbar(Tr. 27, 41, 51, 53, 56).Calculations prepared by Compliance Officer Bermudez show that theweight of the bucket filled within six inches of the top with pearockconcrete is 3,424 pounds including bucket and attachments. At thatlevel, the bucket is slightly less than three-quarters filled (Ex. C-26;Tr. 136-138, 150). As the maximum load recommended by the manufacturerat an operating radius of 110 feet is 3,000 pounds, the recommendedmaximum weight was consistently exceeded by more than 400 pounds (Ex.C-12, C-26; Tr. 206-207, 209). There is creditable evidence of recordthat the bucket was filled within four inches of the crossbar on thelast lift which would yield a total weight of 3,760 or 760 pounds abovethe maximum permitted by the manufacturer’s load chart if the boom wasat the 110-foot mark and an overload of more than 1,000 pounds at the120-foot distance (Ex. C-8, C-26; Tr. 27, 51-52).Respondent’s crane operator had many years’ experience as a craneoperator. He claimed he always checked the manufacturer’s chart beforebooming out and never overloaded the crane (Tr. 418-419, 425). Hetestified the buckets of concrete were from one-half to three-quartersfull during operations (Tr. 424). He could not recall any of thereadings on the rating chart but insisted he stayed within the limits ofthe chart (Tr. 245). The tack of specific recall the operations on theday of the accident detracts from the weight to be given his testimony.The weight of the probative evidence establishes that respondentexceeded the manufacturer’s rated capacity of the crane duringoperations of December 29, 1981, and thereby violated 29 C.F.R. ?1926.550(a). As death or serious injury could result, a seriousviolation has been established.Item 2(b) of the amended citation alleges that \”…’U’ clamp pins asspecified by the manufacturer or equivalent locking pins were notinstalled in order to prevent all four floats from sliding out fromunder the outrigger beams.\” Photographs taken the day after theaccident show that \”U\” clamps or other locking devices were not in place(Ex. C-13, C-14; Tr. 103). Respondent does not claim they were inplace on that date but points out the crane was not in operation at thattime (Resp. brief p. 20). Mr. Bermudez acknowledged that respondent’sowner had told him the pins had to be removed so the crane could bemoved (Tr. 107-109). The crane operator testified the pins were removedonly to move the crane (Tr. 426-427). Complainant made no attempt torefute the contention that the pins had been taken out to move thecrane. Complainant has not established by a preponderance of theevidence that the \”U\” clamps were missing while it was in operation andemployees were exposed to the hazard. The allegations must be vacated.B._DEFECTIVE WIRE ROPE SLING_Item one of the amended citation alleged a serious violation of 29C.F.R. ? 1926.251(c)(4)(iv)[[2\/]] in that the wire rope sling showedsigns of excessive wear, corrosion, or defect.Compliance Officer Bermudez acknowledged he did not inspect the wiresling on December 30, 1981, and does not know the condition of the ropeon that date (Tr. 178). The sling which was attached to the bucket ofconcrete was not examined until January 21, 1982 (Tr. 179). On thelater date, he noticed 17 broken wires and corrosion, but he alsoacknowledged the sling was in the respondent’s yard at the time heexamined it and he is not aware of the possible damage or corrosionwhich may have occurred subsequent to the accident (Tr. 182). In viewof the interval between the accident and the examination of the ropemore than three weeks later, during which time the rope had been exposedto the weather, it is concluded that the complainant has failed toestablish that the rope sling was in the defective condition allegedwhile it was in use (Tr. 414).C._DEFECTIVE WIRE RUNNING ROPES_Item three of the amended citation alleges that respondent violated 29C.F.R. ? 1926.550(a)(7)(i)[[3\/]] in that the boom hoist cable had sevenareas which had six or more randomly distributed broken wires in one layin both dead and live ends, and had four areas containing three or morebroken wires in one strand in one lay.The running rope used on the crane boom was 371 feet long, 1\/2-inch, sixby twenty-five Right Regular Lay IWRC Wire Construction with a ratedcapacity of 23,000 pounds (Tr. 184, 223, 265). The evidence clearlyshows that following the accident, wire rope used on the crane wasseparated with many broken wires including six or more randomlydistributed broken wires in one lay and three broken wires, in onestrand in one lay (Ex. C-15; C-16; Tr. 86, 90-91, 112-113). ComplianceOfficer Silverberg, who testified for complainant as an expert witness,described the condition of the rope as follows (Tr. 240-241):… I found there was extreme deterioration of the wire rope in thebreak area and adjacent to it. There was a lot of rust in the valleysbetween the strands in the rope; . . . there were dog legs in the ropeand broken wire for … a length of about twenty-five feet from thebreak … and there were many short pieces of broken wire . . . . Thesewires were broken on both ends, the short pieces, and I did flex therope in a couple of places, one relatively near the break area, and uponflexing the rope, many wires popped up out of the rope.* * *Q. Did the manner in which you flexed the wire rope break — does thattype of testing break the wires?A. No. I am nowhere near strong enough to break those wires.Most of the broken and frayed wires were found within a 30-foot lengthlocated on each side of the break point (Tr. 192-194, 362, 364). Thebreak point was approximately 84 feet from the \”dead\” end (Tr. 188).Mr. Robert De Benedictis, a crane consultant who was a well-qualifiedexpert witness, agreed that the proper way to inspect a wire rope is byflexing it thereby causing the broken ends to pop up (Tr. 269). Duringan inspection of the rope, he also noted many broken wires, fatiguebreaks and other defects (Ex. C-33 through C-60; Tr. 270, 283-284,292-309, 336-337). In his opinion, the defects were so serious the ropeshould have been removed from service (Tr. 294, 308-309). Further, hewas of the opinion that had a competent inspection been performed priorto the accident, the rope would have been removed from service (Tr. 310,335).Mr. Larry Means, an employee of the rope manufacturer, testified hisinspection disclosed many broken ends caused by fatigue. In hisopinion, the rope broke because it was overloaded for its remainingstrength (Tr. 341-343). He agreed a competent inspection prior to theaccident would have revealed these conditions (Tr. 344-346).Respondent does not seriously dispute the findings concerning thecondition of the rope after the accident but contends the evidence isinsufficient to show the defects were present or were observable priorto the accident.Dr. Robert F. Hochman, Professor of Metallurgy at Georgia Tech, agreedthere were a number of brittle fractures, some shear fractures and sometensile overload but was of the opinion that a definitive answerregarding the cause of the rope failure could be given only afterfurther testing (Tr. 354-357). He raised the possibility of possibledefects arising from the manufacturing process (Tr. 356-357) andconsidered the opinion that the break was caused by fatigue as\”presumptuous\” but did not rule out metal fatigue as the cause (Tr.355-356, 362). He acknowledged that fatigue is the highest potentialcause of failure and also noted the presence of rust on the rope (Tr.364). In one important aspect, Dr. Hochman’s opinion varied from thoseof complainant’s experts. He testified there would be no \”surety\” as towhen the breaks in the wires occurred, especially in view of theextensive action of going through the sheaves at the time of theaccident (Tr. 354-355).Dr. Hochman’s opinion is entitled to considerable weight concerning themetallurgical properties of the rope and particularly concerningpossible manufacturing defects. He had not performed the extensivetesting, however, which he felt was necessary to form firm conclusionsregarding the causes of the failure.The opinions of Mr. DeBenedictis and Compliance Officer Silverberg areof greater value concerning the issues in this case because of theirextensive experience involving cranes and wire rope. Based upon theirknowledge and experience, they were of the opinion that the defects inthe rope were present prior to the accident and could have beendiscovered by a competent inspection (Tr. 243-244, 250-251, 310, 335). Accordingly, it is concluded that respondent knew or should have knownor the conditions which required the wire rope to be removed fromservice pursuant to 29 C.F.R. ? 1926.550(a)(7)(i).In _Union Boiler Co_., _supra_, the Review Commission stated as follows:In determining whether an employer should have known of a hazardouscondition, the Commission has inquired as to whether the employerexercised reasonable diligence to detect the condition. In exercisingreasonable diligence an employer is required to inspect and performtests to discover safety-related defects in material and equipment. _Prestressed Systems, Inc_., 81 OSAHRC, 43\/D5, 9 BNA OSHC 1864, 1981 CCHOSHD ? 25,358 (No. 16147, 1981).The testimony of the operator that he performed an inspection only threeor four days prior to the accident at which time no broken wires ordefects were found is not convincing. Any inspection which failed toshow the extensive defects was performed inadequately in that he failedto remove tension from the rope while inspecting it and did not flex orclosely observe the rope. The violation is serious as an accidentresulting from such hazard would likely result in death or seriousbodily injury.D._FAILURE TO MAINTAIN RECORDS OF MONTHLY INSPECTIONS OF CRANE AND ROPES_Items 4(a) and 4(c) of the amended citation allege violations of 29C.F.R. ? 1926.550(b)(2)[[4\/]] which, among other things, requiresinspections, testing and maintenance of all crawler, truck, orlocomotive cranes as prescribed in ANSI B30.5-1968. The latter requiresmonthly inspection reports which are written, dated and signed arereadily available.Respondent’s records were requested by Compliance Officer Bermudez atthe time of the inspection but were produced only shortly before thehearing (Ex. C-1). The record appears to be clean, neat and orderly. The crane operator testified he performed the required inspections andsent in the information to respondent’s office where it was transcribedonto a permanent record (Ex. C-1; Tr. 415). The records are not signedor dated nor were they readily available for inspection. A violation ofthe cited regulation is established. _M & O Steel Erection, Inc_., 79OSAHRC 85\/F1, 7 BNA OSHC 2136, 1979 CCH OSHD ? 23,915 (No. 78-5571).Although a serious violation was alleged, the evidence does not showthat the failure to maintain records as required would result in deathor serious bodily injury. If complainant had sought to establish thatinspections were not performed, the weight of the evidence fails tosustain such contention. Items 4(a) and 4(b) are affirmed as other thanserious violations without penalty.E._FAILURE TO HAVE PROPERLY CHARGED FIRE EXTINGUISHER_The other than serious citation charged a violation of 29 C.F.R. ?1926.150(a)(4)[[5\/]] as the fire extinguisher in the cab of the cranewas not charged. During his inspection, Compliance Officer Bermudezobserved the fire extinguisher which indicated a discharged conditionand was told it had been in that condition for some time (Ex. 14; Tr.166-171). The reasonable inference to be drawn from the establishedfacts is the fire extinguisher was not in a charged condition while thecrane was in operation. The allegation is affirmed without penalty.Compliance Officer Bermudez also observed the swing radius of the cranewas not barricaded as required by 29 C.F.R. ? 1926.550(a)(9) (Tr. 92). In the amended citation, it is alleged to be a _de_ _minimis_ violationwithout penalty. There is no evidence that the condition existed whilethe crane was in operation or that employees were exposed to any hazardas a result of the condition. The allegation is vacated.F._PENALTY_In determining the penalty, section 17(j) of the Act requires thatconsideration be given to the gravity of the violation and theemployer’s size, good faith and history of previous violations.Serious violations by respondent have been found by the overloading ofthe rated capacity of the crane and the use of defective running ropes. The gravity of the violations is very high and would likely result indeath or very serious injury should a collapse of the boom or fall ofthe load occur.The size, good faith and past history are mitigating factors.The Secretary proposes a penalty of $360 for each of the violationswhich is reasonable under the circumstances._FINDINGS OF FACT_1. Respondent has a place of business and does business in Palm Bay,Florida, and at the times hereinafter mentioned, maintained a workplaceat 1700 South Ocean Drive, Vero Beach, Florida.2. Respondent engaged in the operation of a crane service, and usedmaterials, supplies and equipment produced outside the State of Florida.3. Respondent was contracted by Proctor Construction Company to providecrane services at the construction site of Sea View Condominium in VeroBeach, Florida. One of the cranes respondent provided was a truckcrane, a P & H model 430 TC, serial number 29603.4. On or about December 24, 1981, the crane operator lowered the boomof the aforesaid crane and inspected the crane and the boom hoistcable. At the time of the inspection, the boom hoist cable was stillunder tension as it supported the bale and sheave assembly and it wasnot possible to flex the cable to check for broken wires.5. The accepted method for proper and competent inspection of a wirerope, such as the boom hoist cable, requires that all tension be removedfrom the rope, and that the rope cleaned, flexed, and closely inspectedfor broken wires and other defects on all surfaces, including the crownsand valleys.6. On December 24, 1981, the boom hoist cable was fatigued, andcontained numerous instances of six or more randomly distributed brokenwires in one lay of the rope, three or more broken wires in one strandin one lay of the rope and other defects.7. A complete and adequate inspection of the boom hoist cable onDecember 24, 1981, would have revealed the defects mentioned above, andwould have caused the rope to be removed from service.8. The crane operator, who had found no defects in the boom hoistcable, continued to use the crane with the defective wire rope.9. On December 29, 1981, respondent’s crane operator failed to operatethe crane within the specifications and limitations of themanufacturer’s load chart for the crane, in that he lifted loadssubstantially exceeding the manufacturer’s recommendations.10. At the time of the inspection, the crane was sitting withoutconnecting the floats to the outriggers with \”U\” clamps to prevent theircoming off of the outriggers, but it was not established that the cranehad been operated in that condition.11. The fire extinguisher located in the cab of the crane was in adischarged condition.12. Respondent failed to date, sign and have available records of theinspection and maintenance of the crane, and the records of theinspection of each of the ropes used on the crane.13. Although respondent did not have in place on December 30, 1981, abarricade to prevent workers from being crushed or struck within theswing radius of the crane, it was not established that the conditionsexisted while the crane was in operation.14. The 5\/8-inch wire rope sling showed signs of excessive wear,corrosion or defects during its inspection several weeks following theaccident, but the sling had been exposed to the weather and the evidencedoes not establish that it was defective while in use.15. The conditions found in paragraphs six and nine above would likelyresult in death or serious injury.16. Penalties of $720 are reasonable and warranted._CONCLUSIONS OF LAW_1. Respondent violated the safety standard set forth at 29 C.F.R. ?1926.550(a)(1) failing to comply with the manufacturer’s specificationsand limitations applicable to the operation of cranes.2. Respondent violated the safety standard set forth at 29 C.F.R. ?1926.550(a)(7)(i) by failing to remove from service a wire rope with sixor more randomly distributed broken wires in one lay or three or morebroken wires in one strand in one lay.3. Respondent violated the safety standard set forth at 29 C.F.R. ?1926.550(b)(2) by failing to date, sign and have available properinspection and maintenance records of the crane and its wire ropes inservice.4. Respondent did not violate the safety standard set forth at 29C.F.R. ? 1926.251(c)(4)(iv).5. Respondent violated the safety standard set forth at 29 C.F.R. ?1926.550(a)(4) in that it failed to maintain the crane’s firefightingequipment in operating condition.6. Respondent did not violate the safety standard set forth at 29C.F.R. ? 1926.550(a)(9).7. The violations referred to in paragraphs one and two are seriousviolations within the meaning of section 17(k) of the Act, but thosedescribed in paragraphs three and five are other than serious.8. Penalties of $720 are appropriate._ORDER_1. Serious violations of 29 C.F.R. ? 1926.550(a)(1) and 29 C.F.R. ?1926.550(a)(7)(i) are affirmed.2. Other than serious violations of 29 C.F.R. ? 1926.550(b)(2) andC.F.R. ? 1926.550(a)(4) are affirmed.3. Alleged violations of 29 C.F.R. ? 1926.251(c)(4)(iv) and 29 C.F.R. ?1926.550(a)(9) are vacated.4. Penalties of $720 are assessed.Dated this 21st day of April, 1983.JOE D. SPARKSJudgeFOOTNOTES:[[1]] A lay is the distance along the rope that one strand takes to makea complete spiral around the core of the rope.[[2]] There was litigation in a state court relating to the accident. That court had entered an injunction prohibiting any inspection ortesting that would alter the state of the rope.[[3]] Whether to review a judge’s decision is a matter solely within thediscretion of the Commissioners. 29 C.F.R. ? 2200.91(a). When a judge’sdecision is directed for review, the entire decision is before theCommission. _Hamilton Die Cast, Inc_., 86 OSAHRC, 12 BNA OSHC 1797,1986 CCH OSHD ? 27,576 (No. 83-308). The Commission has the power,however, to exercise its discretion and review only certain issues oritems. Although All Purpose Crane raised several issues in its petitionfor review, the Commissioner who directed this case for review exercisedhis discretion, specifying that the Commission would review only theissue addressed here. All Purpose Crane nevertheless presentedarguments in its brief on other issues. Although we have the power toaddress these issues, we again exercise our discretion and review onlythe issue specified in the direction for review.[[1\/]] Section 1926.550(a)(1) of 29 C.F.R. provides:(a) _General requirements_. (1) The employer shall comply with themanufacturer’s specifications and limitations applicable to theoperation of any and all cranes and derricks. Where manufacturer’sspecifications are not available, the limitations assigned to theequipment shall be based on the determinations of a qualified engineercompetent in this field and such determinations will be appropriatelydocumented and recorded. Attachments used with cranes shall not exceedthe capacity, rating, or scope recommended by the manufacturer.[[2\/]] Section 1926.251(c)(4)(iv) of 29 C.F.R. states:Wire rope shall not be used if, in any length of eight diameters, thetotal number of visible broken wires exceeds 10 percent of the totalnumber of wires, or if the rope shows other signs of excessive wear,corrosion, or defect.[[3\/]] Section 1926.550(a)(7)(i) of 29 C.F.R. provides:(7) Wire rope shall be taken out of service when any of the followingconditions exist:(i) In running ropes, six randomly distributed broken wires in one layor three broken wires in one strand in one lay;[[4\/]] Section 1926.550(b)(2) of 29 C.F.R. states:All crawler, truck, or locomotive cranes in use shall meet theapplicable requirements for design, inspection, construction, testing,maintenance and operation as prescribed in the ANSI B30.5-1968, SafetyCode for Crawler, Locomotive and Truck Cranes.[[5\/]] Section 1926.150(a)(4) of 29 C.F.R. provides:All firefighting equipment shall be periodically inspected andmaintained in operating condition. Defective equipment shall beimmediately replaced.”