“Docket No. 82-0284 SECRETARY OF LABOR, Complainant, v. ALL PURPOSE CRANE, INC., Respondent.OSHRC Docket No. 82-0284DECISIONBefore:\u00a0 BUCKLEY, Chairman, and WALL,Commissioner. BY THE COMMISSION:This case is before the Occupational Safety andHealth Review Commission under 29 U.S.C. ? 661(j), section 12(j) of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”).\u00a0 TheCommission is an adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration (\”OSHA\”).\u00a0 It was establishedto resolve disputes arising out of enforcement actions brought by the Secretary of Laborunder the Act and has no regulatory functions.\u00a0 See section 10(c) of the Act,29 U.S.C. ? 659(c).All Purpose Crane, Inc., was operating a crane on aconstruction site in Vero Beach, Florida, on Tuesday, December 29, 1981.\u00a0 The wireboom rope on the crane broke and the boom of the crane collapsed.\u00a0 OSHA investigatedthe accident the following day, December 30, 1981, and the Secretary of Labor issued acitation alleging that All Purpose Crane had violated a number of OSHA construction safetystandards.\u00a0 The citation was subsequently amended; item 3 of the amended citationalleged a violation of 29 C.F.R. ? 1926.550(a)(7)(1), which provides: \u00a0 \”Wirerope shall be taken out of service when any of the following conditions exist: (i) Inrunning ropes, six randomly distributed broken wires in one lay or three broken wires onone strand in one lay. . . .\” [[1]]\u00a0 A hearing was held before an administrativelaw judge, who found that the standard had been violated and affirmed item 3.\u00a0 Weconclude that the Secretary did not prove the standard was violated and vacate the item.IAlthough the Secretary’s citation alleged that theviolation occurred on December 30th, the day of the OSHA investigation, he attempted atthe hearing to prove that the violation occurred at some point before December 29th, theday of the accident.\u00a0 He focused primarily on December 24, when the crane operatorinspected the rope and would have been required by the standard to take it out of serviceif the wires were broken.\u00a0 There is no dispute that, when OSHA inspected the crane onthe day after the accident, there were a number of locations in the rope where there weresix broken wires in one lay or three broken wires in one strand.\u00a0 All Purpose Craneclaims, however, that the wires must have been broken in the accident due to the whippingof the broken rope through the sheaves.\u00a0 If this was so, then there is no basis toconclude that the crane operator should have found broken wires when he inspected the ropeon December 24, and thus no reason to hold the company in violation of the standard.\u00a0The issue litigated by the parties, then, is whether the Secretary has established by apreponderance of the evidence that these wires were broken when the crane operatorinspected the rope on December 24.The only witness who saw the rope before the accidentoccurred was the crane operator, Donald Hamilton.\u00a0 He testified that he had loweredthe boom of the crane and inspected the wire rope on December 24, the last day the cranewas used before the accident. On that date, he lightly wiped the entire rope with an oilyworkglove and visually inspected it for wear and for broken wires.\u00a0 He did not findenough broken wires to require that the rope be removed from use.The record suggests, however, that Hamilton’sinspection would not have disclosed breaks that may have existed in the wires.\u00a0 TheSecretary presented three expert witnesses who all testified that the proper way toinspect a wire rope is to remove all tension from it and to bend or \”flex\” it toreveal concealed breaks.\u00a0 One of these witnesses explained that, because of the way awire rope is manufactured, the wires would lie flat even if they were broken, and that,with a preformed woven rope like this one, it is necessary to flex the rope to cause theends of broken wires to \”pop up.\”\u00a0 Since Hamilton did not remove the weightfrom the boom rope and flex it, we accord limited weight to his testimony that the wireswere not broken before the accident.\u00a0 We must therefore look to the testimony ofother witnesses who addressed this question.The other witnesses all saw the wire rope for thefirst time after the accident.\u00a0 Three witnesses offered expert testimony on behalf ofthe Secretary that, in their opinion, some instances of six broken wires in one lay of therope and three broken wires in one strand in one lay existed before the accident.\u00a0The first of these, Frances L. Silverberg, was a safety specialist employed as acompliance officer by OSHA.\u00a0 He worked for ten years in the heavy constructionindustry, both using and supervising the use of cranes.\u00a0 He then served as a safetyinspector for the state of Florida, inspecting cranes, before he joined OSHA. \u00a0 Mr.Silverberg had inspected about 300 cranes and 100 crane accidents, of which 8 or 10involved a wire rope failure.\u00a0 He was accepted as an expert in crane inspection.The day after the accident, Mr. Silverberg went tothe construction site and inspected the wire rope that had broken.\u00a0 He also inspectedit three weeks later, on January 21, at All Purpose Crane’s yard.\u00a0 His inspectionsdisclosed that, on either side of the separation, there were \”many short pieces ofbroken wire.\”\u00a0 He concluded from his observations that there were \”a largenumber of broken wires\” in the rope before the accident, with several locationshaving either six broken wires in a lay or three broken wires in one strand in a lay, orboth.Another witness was Robert DeBenedictis, a crane andrigging safety consultant, who had also inspected the rope on behalf of Wireco, thecompany that apparently manufactured the wire rope.\u00a0 Mr. DeBenedictis had inspectedover 1000 cranes in his career and had supervised a group of inspectors who had inspectedover 40,000 cranes.\u00a0 He was accepted as an expert on cranes.\u00a0 Mr. DeBenedictisexplained that there are two different reasons why wires break:\u00a0 fatigue, andexcessive tension caused by overloading. He testified that the ends of wires that break asa result of fatigue look different from those that break from excessive tension.\u00a0 Mr.DeBenedictis described the differences in the appearance of each kind of break andintroduced documents to illustrate and amplify his explanation.\u00a0 He testified that,although a state court injunction prohibited him from flexing this rope[[2]] when heinspected it, he found numerous breaks that were caused by fatigue.\u00a0 Mr. DeBenedictisgave his opinion that, based on the number and the kind of breaks, he was reasonablycertain that the breaks existed before the rope parted on December 29 and that they wereof the number and location that would require the rope to be removed from service.The Secretary also called Larry D. Means as awitness.\u00a0 He is an engineer employed by Wireco.\u00a0 One of his duties is toinvestigate all accidents or failures involving ropes manufactured by Wireco; and he hasexamined \”hundreds, or maybe thousands\” of wire ropes.\u00a0 Mr. Means has hisbachelor’s degree in metallurgical engineering and has completed the course requirementsfor a master’s degree in that field.\u00a0 Like Mr. Silverberg, he examined the rope onthe day after the accident and again on January 21.\u00a0 As a result of his examination,he concluded that the rope was \”worn out\” before it broke.\u00a0 He testifiedthat the rope failed because the load on it was too great for its remaining strength.\u00a0 He found numerous broken wires in the rope, especially in the area near where therope parted.\u00a0 He said that he could tell whether a break was caused by fatigue or byexcessive tension, and he stated that he found both kinds of breaks in the rope.\u00a0 Mr.Means expressed the opinion that many of the wires had already been broken before theaccident.All Purpose Crane presented Robert Hochman, who holdsa Ph.D. in metallurgical engineering and is professor of metallurgy at the GeorgiaInstitute of Technology.\u00a0 Professor Hochman testified that, in addition to his dutieswith the college, he had also acted as an independent consultant for several years. \u00a0He had investigated between 400 and 500 metallurgical failures, including a number ofcrane collapses and six or eight wire rope failures.\u00a0 When he inspected the wirerope, the injunction was in effect, so he could not perform the extensive examination andtesting that he believed was necessary to determine the cause of the broken wires.Professor Hochman agreed with Mr. DeBenedictis thatit is possible to determine with some degree of accuracy the cause of a break by closelyexamining the broken end.\u00a0 In illustrating this point, he mentioned several causes ofbreaking not mentioned by either Mr. DeBenedictis or Mr. Means.\u00a0 He testified that hehad recently presented a report to a meeting in Paris dealing with the hydrogenembrittlement of metal and that some of the wires he examined could have broken becausethey had become embrittled.\u00a0 Professor Hochman had been able to photograph a few ofthe broken ends under high magnification, and he testified that the photographs showed abroad range in the types of fractures.\u00a0 He testified that one difficulty is that thewires might have been broken when the rope snapped.Professor Hochman testified that it is possible,through an in-depth spectrographic analysis, to pinpoint the nature and cause of many ofthe fractures.\u00a0 He testified, however, that it was not possible to determine when orwhy the breaks occurred without a more detailed analysis of the rope than he or any of theother witnesses was permitted to perform.\u00a0 It was his recommendation that aspectrographic analysis of the wires be done in order to disclose the cause of the brokenwires and thereby help to determine whether they broke before the accident or during it.Both Mr. DeBenedictis and one of the OSHA complianceofficers took measurements and noted the locations where the number of broken wiresexceeded the limits permitted by the standard.\u00a0 Their measurements showed that nearlyall the breaks were found within one thirty-foot length of the rope near the point offailure.\u00a0 In one of the two pieces of the rope, the broken wires were concentratedwithin eight feet of the break; in the adjoining piece, the broken wires were concentratedwithin about 21 feet of the break.\u00a0 The other witnesses generally concurred in thisdescription.\u00a0 Based on this concentration of broken wires in one part of the rope,Professor Hochman emphasized that there were a number of possible explanations for thiscondition, no one of which could be clearly established as the right one withoutadditional testing.\u00a0 When the rope parted, the ends were \”whipped\” throughthe crane’s sheaves; and Professor Hochman suggested that the wires may have broken whenthey banged against the crane’s metal framework or flexed around the sheaves at highspeed.\u00a0 He also pointed out the possibility that the portion of the rope in which thebreak occurred might have been weakened or embrittled, either during the manufacturingprocess or as a result of something that was done to it subsequently, such as exposure toa chemical or to the elements.\u00a0 Because of these uncertainties, Professor Hochmanadvocated spectrographic analysis of the wire rope.IIThe administrative law judge who heard the casedecided that Dr. Hochman’s \”opinion is entitled to considerable weight\”;nevertheless, he further decided that the opinion testimony of the Secretary’s threeexperts about breaks before the rope snapped is of \”greater value.\”\u00a0 AllPurpose Crane challenges this evaluation of the relative weight of the expert testimony.\u00a0 All Purpose Crane argues that, as its expert testified, without further analysis ofthe rope, one cannot find that the broken wires observed after the accident were notbroken as a result of the accident.\u00a0 All Purpose Crane relies on the fact that thebreaks were concentrated in the area of the separation to support its claim that thebreaks were caused by the whipping action through the sheaves when the rope snapped.The Secretary, on the other hand, argues that theadministrative law judge correctly found that the wires were broken before theaccident.\u00a0 He points to the opinion testimony of his witnesses and recites theircredentials as experts.\u00a0 The Secretary asserts that the judge’s decision involved hisfindings as to the relative credibility of the witnesses and that these findings shouldnot be disturbed.IIIThe Secretary has the burden of proving each elementof his case by a preponderance of the evidence.\u00a0 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).\u00a0 We find,on this record, that the Secretary has not carried that burden.\u00a0 After a carefulreview of the record, we simply cannot say that it is more likely than not that, beforethe accident, there were six broken wires in one lay of the rope or three broken wires inone strand in one layThe standard establishes specific numerical criteriafor when a wire rope must be removed from service.\u00a0 Conversely, the rope need not beremoved from service if there are fewer breaks than the number specified. \u00a0 Thus, awire rope can have a large number of broken wires and not be removed from service if thenumber of broken wires in any lay is less than six and the number in one strand in a layis less than three.The rope had a number of areas where there were morebroken wires than permitted, but they were found only after an accident in which the ropebroke and the broken ends were whipped through the sheaves at high speed.\u00a0 Theconcentration of broken wires in the vicinity of the break suggests that the whippingaction may have caused a number of the breaks.\u00a0 The problem before us is to determinewhether the numerical limits of the standard were exceeded before the accident.To resolve this problem, it would be necessary toexamine carefully one or more areas of the rope where the limits were exceeded after theaccident, to attempt to identify the cause of the various breaks, to determine how manywere caused by the accident, and thereby to infer how many were present before theaccident.\u00a0 The Secretary’s experts attempted to do this, but their task was made moredifficult by the state court injunction that prohibited any examination that would alterthe state of the rope.\u00a0 Nevertheless, they testified that they could tell that manyof the breaks were caused by fatigue rather than by overloading, and would have been therebefore the accident.\u00a0 The expert presented by All Purpose Crane, Professor Hochman,testified that such a cursory examination could not determine the cause of a break. \u00a0He stated that many factors, such as chemical embrittlement, could be a factor in thebreaks and that the cause of the breaks could not be determined without further testing.We find Hochman’s testimony persuasive in light ofhis extensive expertise in metallurgy.\u00a0 Moreover, an exhibit introduced by theSecretary indicates that the matter of determining the cause of breaks in wires isconsiderably more complex than the Secretary’s experts intimated.\u00a0 Ex. C-32 is apublication of the American Iron and Steel Institute entitled \”Wire Rope UsersManual.\”\u00a0 On page 59 of that publication, table 14, entitled \”DiagnosticGuide to Common Wire Rope Abuses,\” lists nine types of abuse that can lead to brokenwires:\u00a0 fatigue; tension; abrasion; cut, gouged or rough wire; torsion or twisting;mashing; corrosion; abrasion plus fatigue; and abrasion plus tension.\u00a0 For each typeof abuse it lists the physical appearance of the broken wire.\u00a0 The Secretary’sexperts considered only two of these possible sources of abuse:\u00a0 fatigue and tension.\u00a0 Any breaks caused by the rope’s whipping through the sheaves would apparently bethe result of one or more of the other types of abuse, which the Secretary’s experts didnot consider. This detracts considerably from their testimony that they coulddifferentiate from breaks caused by the accident and breaks existing before the accident.The Secretary characterizes the judge’s evaluation ofthe weight of the testimony as a credibility finding and argues that we should accept thatdetermination.\u00a0 It is true that, because the judge who tried the case has had theopportunity to observe the demeanor of the witnesses and to evaluate their credibility,the Commission will give deference to findings that are based on credibilitydeterminations.\u00a0 Okland Construction Co., 76 OSAHRC 30\/F4, 3 BNA OSHC 2023,1975-76 CCH OSHD ? 20,441 (No. 3395, 1976).\u00a0 Here, however the judge did not purportto base his decision on factors uniquely observable by him, such as demeanor. \u00a0 Hedid not state that he was making credibility findings; rather, he referred to the relativeweight and \”greater value\” of the testimony of the Secretary’s experts.\u00a0Here, we are in as good a position as the judge to evaluate the qualifications of theexperts and weigh their testimony in light of the other evidence of record.\u00a0Moreover, the judge’s decision did not come to grips with the most vital point ofProfessor Hochman’s testimony–that without the necessary in-depth analysis neither henor anybody else could determine what caused the wires to break.\u00a0 The Secretary’switnesses purported to be able to tell by merely looking at the broken ends whether theybroke before or after the accident, a claim which Professor Hochman described as\”presumptuous.\”\u00a0 Such testimony from an expert of Professor Hochman’sstature causes us to question how much weight can be accorded to the opinion testimony ofthe Secretary’s witnesses.\u00a0 It may be that they are correct; Professor Hochman didnot rule out that possibility.\u00a0 But we cannot say with any confidence either that thebreaks in the wire rope occurred before the accident or that they occurred during theaccident.\u00a0 Because we are at a loss to say which is the more likely course of events,we must conclude that the party who had the burden of proof has not carried it.We would comment that this was a difficult case,which we have decided solely on the preponderance of the evidence test. Weighing andreconciling conflicting opinion testimony from expert witnesses is never a simple task.\u00a0 Here, we were impressed by the candor of Professor Hochman, who did not attempt toconvince us that the wires could not possibly have been broken before the accident. \u00a0Instead, he explained that, because of the court’s injunction, he was not able to performthe necessary examination in order to make that determination.\u00a0 He explained how,without such an examination, one kind of break may be mistaken for another. His testimonyleads us to find that the other witnesses’ opinions were formed without adequate empiricaldata to draw definitive conclusions. Whether the examination suggested by Dr. Hochman wassubsequently performed for the civil litigation, we do not know.\u00a0 If it wasperformed, we have no information as to the results.\u00a0 The parties have informed usthat the litigation has been concluded in the civil suit, but neither party has eitherproffered information as to the outcome of that case or asked to reopen the record tosubmit more complete evidence.\u00a0 Under the circumstances, we can only adjudicate thiscase on the record compiled by the parties, however many questions we may have.After considering the evidence, we are not able tofind that it is more likely than not that the wires were broken before the accident; norcan we say with any confidence that they were not.\u00a0 Accordingly, we must hold thatthe party bearing the burden of proof, the Secretary, has failed to carry thatburden.\u00a0 The judge’s decision is therefore reversed as to item 3 of the amendedcitation:\u00a0 the item is vacated.\u00a0 In all other respects the judge’s decision isaffirmed.[[3]]FOR THE COMMISSION Ray H. Darling, Jr. Executive Secretary DATED:\u00a0 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. Department of Labor, Ft. Lauderdale, Florida, on behalf of complainant.Edward R. Nicklaus, Esquire, Dixon, Dixon, Hurst andNicklaus, Miami,Florida, on behalf of respondent.DECISION AND ORDERSPARKS, Judge:\u00a0 Three workers died in anaccident at the construction site of the Sea Cove Condominiums, Vero Beach, Florida, onDecember 29, 1981.\u00a0 The accident occurred with the breaking of the wire boom rope andthe collapse of the crane boom which was being used to lift buckets of concrete to afourth-floor pouring site.Following an inspection by OSHA, serious and otherthan serious citations were issued charging respondent with violating safety regulationsby overloading the crane, by failing to discard a defective wire rope and using adefective sling, failing to use \”U\” clamps, failing to keep proper inspectionrecords, and failing to have a properly charged fire extinguisher.Respondent disputes the factual allegations and legal conclusions urged by the Secretaryand adamantly contends the complainant failed to carry his burden of proof.Respondent argues that all observations, measurementsand photos were made 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 must show by a preponderance of the evidence that (1) the cited standardapplies, (2) there was a failure to comply with the cited standard, (3) employees hadaccess to the violative conditions, and (4) the cited employer either knew or could withthe exercise of reasonable diligence have known of the condition.\u00a0 Daniel InternationalCorp., 81 OSAHRC 71\/D6, 9 BNA OSHC 2027, 1981 CCH OSHD ? 25,813 (No. 76-181, 1981); UnionBoiler Co., __OSAHRC BNA OSHC __, 1980 CCH OSHD ? 24,178 (No. 79-232, Feb. 28,1983).A. OVERLOADING OF THE CRANEItem two of the amended serious citation alleged thatrespondent violated 29 C.F.R. ? 1926.550(a)(1)[[1\/]] by lifting loads which exceeded themanufacturer’s specifications by as much as 1,305 pounds.\u00a0 A metal plate attached tothe vehicle captioned \”Rated Crane Loads In LBS\” listed the maximum loads to belifted by the crane in various configurations (Ex. C-12).Measurements made by the OSHA compliance officers atthe area showed that pourings of concrete up to 121 feet had been made before the accident(Ex. C-4, C-6, C-19; Tr. 26, 54, 64-65, 84-85, 121-125, 206-207). \u00a0 Assuming theconcrete bucket held one cubic yard filled with regular concrete thereby weighingapproximately 4,305 pounds, the load capacity, as shown by the manufacturer’s chart, wasexceeded by 1,305 pounds (Ex. C-25; Tr. 154, 159, 205-207). \u00a0 Calculations were madebased upon differing assumptions regarding the weight of the load and the distance to becarried (Ex. C-23, C-26; Tr. 140-141).\u00a0 On cross-examination, Compliance OfficerBermudez acknowledged there had been no evidence the bucket was filled and, if theconcrete was as much as one foot from the top, would weigh approximately 2,000pounds.\u00a0 At that 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 measurethe weight or volume of concrete in the bucket on the last load but estimated the volumeby examining photographs of the concrete bucket.\u00a0 At the hearing, Roger Jeeves, theproject superintendent, estimated it was filled to within about four inches of the top(Ex. C-4; Tr. 27).\u00a0 He did not believe there was any over reaching of the crane’scapacity on the day of the accident (Tr. 29).\u00a0 The owner of the GRF Masonry Company,which was handling the concrete on the job, estimated the concrete was five to six inchesfrom the bottom of the crossbar on the last pour (Ex. C-8; Tr. 51-52).\u00a0 He testifiedit was customary for the buckets to be about three-quarters full (Tr. 53, 56).Billy Law, Jr., who was employed by the general contractor as the assistant superintendenton the project, was responsible for determining the moisture content of the concrete andwas actively involved in the concrete operations.\u00a0 He testified the buckets ofconcrete could not have been filled as about 50 buckets had already been poured and theywere working from the third or fourth truckload of concrete, each of which holds ten cubicyards (Tr. 72).\u00a0 The operating radius of the boom crane was measured at 105 feet andthe maximum distance to the last pour was 121 feet (Tr. 83-84, 121-123, 156, 239).Respondent strongly argues that the informationproduced by complainant was incompetent and inadequate to establish that the crane hadbeen overloaded (Resp. brief pp. 10-19).\u00a0 It points out that the compliance officerdid not measure the weight of the concrete in the actual bucket being used but measured asimilar bucket at the jobsite.\u00a0 (Tr. 134) and from Florida Bucket Company obtainedthe weight of the headache ball, sting, shackles and other assembly which he found tototal 375 pounds (Tr. 136-137).\u00a0 The weight of the concrete was obtained from RinkerMaterials which supplied the concrete on the day of the accident (Tr. 148).\u00a0 It wasfound to weigh 3,775 pounds per cubic yard (Tr. 147-149).\u00a0 Pearock concrete was foundto weigh 3,698 pounds according to information from Rinker Materials (Tr. 150).The Review Commission considered the gravity andquality of proof necessary to establish a violation in Ultimate Distribution Systems,Inc., 82 OSAHRC 22\/B12, 10 BNA OSHC 1568, 1982 CCH OSHD ? 26,011 (No. 79-1269, 1982),where it stated as follows: To prove a violation of section 5(a)(2) of the Act, 29 U.S.C. ? 654(a)(2), the Secretarymust show by a preponderance of the evidence that, among other things, the cited employerfailed to comply with a standard at its workplace.\u00a0 Olin Construction Co. v. OSHRC,525 F.2d 464 (2d Cir. 1975).\u00a0 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 of evidence which issufficient to convince the trier of the fact that the facts asserted by a proponent aremore probably true than false.\”The Secretary satisfies his burden of proof if therecord, when considered as a whole, contains preponderating evidence in support of hisallegations.\u00a0 See Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). \u00a0In addition to direct evidence, circumstantial and hearsay evidence are admissible inCommission proceedings and this evidence may he probative.\u00a0 E.g., ChicagoBridge & Iron Co., 74 OSAHRC 92\/A2, 2 BNA OSHC 1413, 1973-74 CCH OSHD ? 15,416(No. 224, 1974), aff’d, 535 F.2d 371 (7th Cir. 1974) (circumstantial evidenceadmissible); Hurlock Roofing Co., 79 OSAHRC 93\/A2, 7 BNA OSHC 1867, 1979 CCH OSHD? 24,006 (No. 14907, 1979) (hearsay evidence admissible).\u00a0 For example, in OklandConstruction Co., 76 OSAHRC 30\/F4, 3 BNA OSHC 2023, 1975-76 CCH OSHD ? 20,441 (No.3395, 1976), the Commission concluded that a judge properly entered findings that theSecretary established a violation based on inferences drawn by the judge fromcircumstantial evidence:\u00a0 noneyewitness testimony creating the reasonable inferencethat an employee fell from an unguarded beam.\u00a0 See generally 1 Jones onEvidence ? 1.3 at 4 (6th ed. 1972) (drawing reasonable inferences from circumstantialevidence).It is noted that the hearsay evidence of theSecretary was not rebutted by specific contradictory evidence.\u00a0 The evidence of theSecretary was sufficient to convince the undersigned that the facts asserted are\”more probably true than false.\”The preponderance of the evidence shows the concretebucket was usually filled about three-quarters full or about six inches below the crossbar(Tr. 27, 41, 51, 53, 56).Calculations prepared by Compliance Officer Bermudez show that the weight of the bucketfilled within six inches of the top with pearock concrete is 3,424 pounds including bucketand attachments.\u00a0 At that level, the bucket is slightly less than three-quartersfilled (Ex. C-26; Tr. 136-138, 150).\u00a0 As the maximum load recommended by themanufacturer at an operating radius of 110 feet is 3,000 pounds, the recommended maximumweight was consistently exceeded by more than 400 pounds (Ex. C-12, C-26; Tr. 206-207,209).\u00a0 There is creditable evidence of record that the bucket was filled within fourinches of the crossbar on the last lift which would yield a total weight of 3,760 or 760pounds above the maximum permitted by the manufacturer’s load chart if the boom was at the110-foot mark and an overload of more than 1,000 pounds at the 120-foot distance (Ex. C-8,C-26; Tr. 27, 51-52).Respondent’s crane operator had many years’experience as a crane operator.\u00a0 He claimed he always checked the manufacturer’schart before booming out and never overloaded the crane (Tr. 418-419, 425).\u00a0 Hetestified the buckets of concrete were from one-half to three-quarters full duringoperations (Tr. 424).\u00a0 He could not recall any of the readings on the rating chartbut insisted he stayed within the limits of the chart (Tr. 245).\u00a0 The tack ofspecific recall the operations on the day of the accident detracts from the weight to begiven his testimony.The weight of the probative evidence establishes thatrespondent exceeded the manufacturer’s rated capacity of the crane during operations ofDecember 29, 1981, and thereby violated 29 C.F.R. ? 1926.550(a).\u00a0 As death orserious injury could result, a serious violation has been established.Item 2(b) of the amended citation alleges that\”…’U’ clamp pins as specified by the manufacturer or equivalent locking pins werenot installed in order to prevent all four floats from sliding out from under theoutrigger beams.\”\u00a0 Photographs taken the day after the accident show that\”U\” clamps or other locking devices were not in place (Ex. C-13, C-14; Tr. 103).\u00a0 Respondent does not claim they were in place on that date but points out the cranewas not in operation at that time (Resp. brief p. 20).\u00a0 Mr. Bermudez acknowledgedthat respondent’s owner had told him the pins had to be removed so the crane could bemoved (Tr. 107-109).\u00a0 The crane operator testified the pins were removed only to movethe crane (Tr. 426-427).\u00a0 Complainant made no attempt to refute the contention thatthe pins had been taken out to move the crane.\u00a0 Complainant has not established by apreponderance of the evidence that the \”U\” clamps were missing while it was inoperation and employees were exposed to the hazard.\u00a0 The allegations must be vacated.B.DEFECTIVE WIRE ROPE SLINGItem one of the amended citation alleged a seriousviolation of 29 C.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 notinspect the wire sling on December 30, 1981, and does not know the condition of the ropeon that date (Tr. 178).\u00a0 The sling which was attached to the bucket of concrete wasnot examined until January 21, 1982 (Tr. 179).\u00a0 On the later date, he noticed 17broken wires and corrosion, but he also acknowledged the sling was in the respondent’syard at the time he examined it and he is not aware of the possible damage or corrosionwhich may have occurred subsequent to the accident (Tr. 182).\u00a0 In view of theinterval between the accident and the examination of the rope more than three weeks later,during which time the rope had been exposed to the weather, it is concluded that thecomplainant has failed to establish that the rope sling was in the defective conditionalleged while it was in use (Tr. 414).C.DEFECTIVE WIRE RUNNING ROPESItem three of the amended citation alleges thatrespondent violated 29 C.F.R. ? 1926.550(a)(7)(i)[[3\/]] in that the boom hoist cable hadseven areas which had six or more randomly distributed broken wires in one lay in bothdead and live ends, and had four areas containing three or more broken wires in one strandin one lay.The running rope used on the crane boom was 371 feetlong, 1\/2-inch, six by twenty-five Right Regular Lay IWRC Wire Construction with a ratedcapacity of 23,000 pounds (Tr. 184, 223, 265).\u00a0 The evidence clearly shows thatfollowing the accident, wire rope used on the crane was separated with many broken wiresincluding six or more randomly distributed broken wires in one lay and three broken wires,in one strand in one lay (Ex. C-15; C-16; Tr. 86, 90-91, 112-113).\u00a0 ComplianceOfficer Silverberg, who testified for complainant as an expert witness, described thecondition of the rope as follows (Tr. 240-241):… I found there was extreme deterioration of the wire rope in the break area andadjacent to it.\u00a0 There was a lot of rust in the valleys between the strands in therope; . . . there were dog legs in the rope and broken wire for … a length of abouttwenty-five feet from the break … and there were many short pieces of broken wire . . .. These wires were broken on both ends, the short pieces, and I did flex the rope in acouple of places, one relatively near the break area, and upon flexing the rope, manywires popped up out of the rope.* * *Q.\u00a0 Did the manner in which you flexed the wire rope break — does that type oftesting break the wires?A.\u00a0 No.\u00a0 I am nowhere near strong enough tobreak those wires.Most of the broken and frayed wires were found withina 30-foot length located on each side of the break point (Tr. 192-194, 362, 364). \u00a0The break point was approximately 84 feet from the \”dead\” end (Tr. 188).Mr. Robert De Benedictis, a crane consultant who wasa well-qualified expert witness, agreed that the proper way to inspect a wire rope is byflexing it thereby causing the broken ends to pop up (Tr. 269).\u00a0 During an inspectionof the rope, he also noted many broken wires, fatigue breaks and other defects (Ex. C-33through C-60; Tr. 270, 283-284, 292-309, 336-337).\u00a0 In his opinion, the defects wereso serious the rope should have been removed from service (Tr. 294, 308-309). \u00a0Further, he was of the opinion that had a competent inspection been performed prior to theaccident, the rope would have been removed from service (Tr. 310, 335).Mr. Larry Means, an employee of the ropemanufacturer, testified his inspection disclosed many broken ends caused by fatigue.\u00a0 In his opinion, the rope broke because it was overloaded for its remaining strength(Tr. 341-343).\u00a0 He agreed a competent inspection prior to the accident would haverevealed these conditions (Tr. 344-346).Respondent does not seriously dispute the findings concerning the condition of the ropeafter the accident but contends the evidence is insufficient to show the defects werepresent or were observable prior to the accident.Dr. Robert F. Hochman, Professor of Metallurgy atGeorgia Tech, agreed there were a number of brittle fractures, some shear fractures andsome tensile overload but was of the opinion that a definitive answer regarding the causeof the rope failure could be given only after further testing (Tr. 354-357).\u00a0 Heraised the possibility of possible defects arising from the manufacturing process (Tr.356-357) and considered the opinion that the break was caused by fatigue as\”presumptuous\” but did not rule out metal fatigue as the cause (Tr. 355-356,362).\u00a0 He acknowledged that fatigue is the highest potential cause of failure andalso noted the presence of rust on the rope (Tr. 364).\u00a0 In one important aspect, Dr.Hochman’s opinion varied from those of complainant’s experts.\u00a0 He testified therewould be no \”surety\” as to when the breaks in the wires occurred, especially inview of the extensive action of going through the sheaves at the time of the accident (Tr.354-355).Dr. Hochman’s opinion is entitled to considerableweight concerning the metallurgical properties of the rope and particularly concerningpossible manufacturing defects.\u00a0 He had not performed the extensive testing, however,which he felt was necessary to form firm conclusions regarding the causes of the failure.The opinions of Mr. DeBenedictis and ComplianceOfficer Silverberg are of greater value concerning the issues in this case because oftheir extensive experience involving cranes and wire rope.\u00a0 Based upon theirknowledge and experience, they were of the opinion that the defects in the rope werepresent prior to the accident and could have been discovered by a competent inspection(Tr. 243-244, 250-251, 310, 335).\u00a0 Accordingly, it is concluded that respondent knewor should have known or 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 ReviewCommission stated as follows: In determining whether an employer should have knownof a hazardous condition, the Commission has inquired as to whether the employer exercisedreasonable diligence to detect the condition.\u00a0 In exercising reasonable diligence anemployer is required to inspect and perform tests to discover safety-related defects inmaterial and equipment.\u00a0 Prestressed Systems, Inc., 81 OSAHRC, 43\/D5, 9 BNAOSHC 1864, 1981 CCH OSHD ? 25,358 (No. 16147, 1981).The testimony of the operator that he performed aninspection only three or four days prior to the accident at which time no broken wires ordefects were found is not convincing.\u00a0 Any inspection which failed to show theextensive defects was performed inadequately in that he failed to remove tension from therope while inspecting it and did not flex or closely observe the rope.\u00a0 The violationis serious as an accident resulting from such hazard would likely result in death orserious bodily injury.D.FAILURE TO MAINTAIN RECORDS OF MONTHLY INSPECTIONSOF CRANE AND ROPESItems 4(a) and 4(c) of the amended citation allegeviolations of 29 C.F.R. ? 1926.550(b)(2)[[4\/]] which, among other things, requiresinspections, testing and maintenance of all crawler, truck, or locomotive cranes asprescribed in ANSI B30.5-1968.\u00a0 The latter requires monthly inspection reports whichare written, dated and signed are readily available.Respondent’s records were requested by ComplianceOfficer Bermudez at the time of the inspection but were produced only shortly before thehearing (Ex. C-1).\u00a0 The record appears to be clean, neat and orderly. \u00a0 Thecrane operator testified he performed the required inspections and sent in the informationto respondent’s office where it was transcribed onto a permanent record (Ex. C-1; Tr.415).\u00a0 The records are not signed or dated nor were they readily available forinspection.\u00a0 A violation of the cited regulation is established.\u00a0 M & OSteel Erection, Inc., 79 OSAHRC 85\/F1, 7 BNA OSHC 2136, 1979 CCH OSHD ? 23,915 (No.78-5571).Although a serious violation was alleged, theevidence does not show that the failure to maintain records as required would result indeath or serious bodily injury.\u00a0 If complainant had sought to establish thatinspections were not performed, the weight of the evidence fails to sustain suchcontention.\u00a0 Items 4(a) and 4(b) are affirmed as other than serious violationswithout penalty.E. FAILURE TO HAVE PROPERLY CHARGED FIRE EXTINGUISHERThe other than serious citation charged a violationof 29 C.F.R. ? 1926.150(a)(4)[[5\/]] as the fire extinguisher in the cab of the crane wasnot charged.\u00a0 During his inspection, Compliance Officer Bermudez observed the fireextinguisher which indicated a discharged condition and was told it had been in thatcondition for some time (Ex. 14; Tr. 166-171).\u00a0 The reasonable inference to be drawnfrom the established facts is the fire extinguisher was not in a charged condition whilethe crane was in operation.\u00a0 The allegation is affirmed without penalty.Compliance Officer Bermudez also observed the swingradius of the crane was not barricaded as required by 29 C.F.R. ? 1926.550(a)(9) (Tr.92).\u00a0 In the amended citation, it is alleged to be a de minimisviolation without penalty.\u00a0 There is no evidence that the condition existed while thecrane was in operation or that employees were exposed to any hazard as a result of thecondition.\u00a0 The allegation is vacated.F.PENALTYIn determining the penalty, section 17(j) of the Actrequires that consideration be given to the gravity of the violation and the employer’ssize, good faith and history of previous violations.Serious violations by respondent have been found bythe overloading of the rated capacity of the crane and the use of defective runningropes.\u00a0 The gravity of the violations is very high and would likely result in deathor very serious injury should a collapse of the boom or fall of the load occur.The size, good faith and past history are mitigatingfactors.The Secretary proposes a penalty of $360 for each ofthe violations which is reasonable under the circumstances.FINDINGS OF FACT1.\u00a0 Respondent has a place of business and doesbusiness in Palm Bay, Florida, and at the times hereinafter mentioned, maintained aworkplace at 1700 South Ocean Drive, Vero Beach, Florida.2.\u00a0 Respondent engaged in the operation of acrane service, and used materials, supplies and equipment produced outside the State ofFlorida.3.\u00a0 Respondent was contracted by ProctorConstruction Company to provide crane services at the construction site of Sea ViewCondominium in Vero Beach, Florida.\u00a0 One of the cranes respondent provided was atruck crane, a P & H model 430 TC, serial number 29603.4.\u00a0 On or about December 24, 1981, the craneoperator lowered the boom of the aforesaid crane and inspected the crane and the boomhoist cable.\u00a0 At the time of the inspection, the boom hoist cable was still undertension as it supported the bale and sheave assembly and it was not possible to flex thecable to check for broken wires.5.\u00a0 The accepted method for proper and competentinspection of a wire rope, such as the boom hoist cable, requires that all tension beremoved from the rope, and that the rope cleaned, flexed, and closely inspected for brokenwires and other defects on all surfaces, including the crowns and valleys.6.\u00a0 On December 24, 1981, the boom hoist cablewas fatigued, and contained numerous instances of six or more randomly distributed brokenwires in one lay of the rope, three or more broken wires in one strand in one lay of therope and other defects.7.\u00a0 A complete and adequate inspection of theboom hoist cable on December 24, 1981, would have revealed the defects mentioned above,and would have caused the rope to be removed from service.8.\u00a0 The crane operator, who had found no defectsin the boom hoist cable, continued to use the crane with the defective wire rope.9.\u00a0 On December 29, 1981, respondent’s craneoperator failed to operate the crane within the specifications and limitations of themanufacturer’s load chart for the crane, in that he lifted loads substantially exceedingthe manufacturer’s recommendations.10.\u00a0 At the time of the inspection, the cranewas sitting without connecting the floats to the outriggers with \”U\” clamps toprevent their coming off of the outriggers, but it was not established that the crane hadbeen operated in that condition.11.\u00a0 The fire extinguisher located in the cab ofthe crane was in a discharged condition.12.\u00a0 Respondent failed to date, sign and haveavailable records of the inspection and maintenance of the crane, and the records of theinspection of each of the ropes used on the crane.13.\u00a0 Although respondent did not have in placeon December 30, 1981, a barricade to prevent workers from being crushed or struck withinthe swing radius of the crane, it was not established that the conditions existed whilethe crane was in operation.14.\u00a0 The 5\/8-inch wire rope sling showed signsof excessive wear, corrosion or defects during its inspection several weeks following theaccident, but the sling had been exposed to the weather and the evidence does notestablish that it was defective while in use.15.\u00a0 The conditions found in paragraphs six andnine above would likely result in death or serious injury.16.\u00a0 Penalties of $720 are reasonable andwarranted. CONCLUSIONS OF LAW1.\u00a0 Respondent violated the safety standard set forth at 29 C.F.R. ? 1926.550(a)(1)failing to comply with the manufacturer’s specifications and limitations applicable to theoperation of cranes.2.\u00a0 Respondent violated the safety standard setforth at 29 C.F.R. ? 1926.550(a)(7)(i) by failing to remove from service a wire rope withsix or more randomly distributed broken wires in one lay or three or more broken wires inone strand in one lay.3.\u00a0 Respondent violated the safety standard setforth 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 in service.4.\u00a0 Respondent did not violate the safetystandard set forth at 29 C.F.R. ? 1926.251(c)(4)(iv). 5.\u00a0 Respondent violated the safety standard setforth at 29 C.F.R. ? 1926.550(a)(4) in that it failed to maintain the crane’sfirefighting equipment in operating condition.6.\u00a0 Respondent did not violate the safetystandard set forth at 29 C.F.R. ? 1926.550(a)(9).7.\u00a0 The violations referred to in paragraphs oneand two are serious violations within the meaning of section 17(k) of the Act, but thosedescribed in paragraphs three and five are other than serious.8.\u00a0 Penalties of $720 are appropriate. ORDER1.\u00a0 Serious violations of 29 C.F.R. ? 1926.550(a)(1) and 29 C.F.R. ?1926.550(a)(7)(i) are affirmed.2.\u00a0 Other than serious violations of 29 C.F.R.? 1926.550(b)(2) and C.F.R. ? 1926.550(a)(4) are affirmed.3.\u00a0 Alleged violations of 29 C.F.R. ?1926.251(c)(4)(iv) and 29 C.F.R. ? 1926.550(a)(9) are vacated.4.\u00a0 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 make a complete spiralaround the core of the rope.[[2]] There was litigation in a state court relatingto the accident.\u00a0 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 amatter solely within the discretion of the Commissioners.\u00a0 29 C.F.R. ? 2200.91(a).When a judge’s decision is directed for review, the entire decision is before theCommission.\u00a0 Hamilton Die Cast, Inc., 86 OSAHRC, 12 BNA OSHC 1797, 1986 CCHOSHD ? 27,576 (No. 83-308).\u00a0 The Commission has the power, however, to exercise itsdiscretion and review only certain issues or items.\u00a0 Although All Purpose Craneraised several issues in its petition for review, the Commissioner who directed this casefor review exercised his discretion, specifying that the Commission would review only theissue addressed here.\u00a0 All Purpose Crane nevertheless presented arguments in itsbrief on other issues.\u00a0 Although we have the power to address these issues, we againexercise our discretion and review only the issue specified in the direction for review.[[1\/]] Section 1926.550(a)(1) of 29 C.F.R. provides:(a) General requirements.\u00a0 (1) Theemployer shall comply with the manufacturer’s specifications and limitations applicable tothe operation of any and all cranes and derricks.\u00a0 Where manufacturer’sspecifications are not available, the limitations assigned to the equipment shall be basedon the determinations of a qualified engineer competent in this field and suchdeterminations will be appropriately documented and recorded.\u00a0 Attachments used withcranes shall not exceed the capacity, rating, or scope recommended by the manufacturer.[[2\/]] Section 1926.251(c)(4)(iv) of 29 C.F.R.states:Wire rope shall not be used if, in any length ofeight diameters, the total 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 anyof the following conditions exist:(i) In running ropes, six randomly distributed broken wires in one lay or three brokenwires 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 shallmeet the applicable requirements for design, inspection, construction, testing,maintenance and operation as prescribed in the ANSI B30.5-1968, Safety Code for Crawler,Locomotive and Truck Cranes.[[5\/]] Section 1926.150(a)(4) of 29 C.F.R. provides:All firefighting equipment shall be periodicallyinspected and maintained in operating condition.\u00a0 Defective equipment shall beimmediately replaced.”