“SECRETARY OF LABOR,Complainant,v.ARCHER-WESTERN CONTRACTORS, LTD,and GILBERT CORP of DELAWARE,a JOINT VENTURE,Respondent.OSHRC Docket No. 87-1067_DECISION _Before: FOULKE, Chairman, and WISEMAN, Commissioner.BY THE COMMISSION:This case involves the collapse of a Manitowac 4000-W tower crane at aconstruction site in West Palm Beach, Florida on April 28, 1987. As aresult of that collapse and a subsequent inspection by the OccupationalSafety and Health Administration (\”OSHA\”), the Joint Venture ofArcher-Western Contractors, Ltd. and Gilbert Corporation of Delaware(hereinafter \”the Joint Venture\” or \”Respondent\”) was issued twocitations, each of which alleged several violations of the OccupationalSafety and Health Act, 29 U.S.C. ?? 651-678 (\”the Act\”) . Two items arebefore the Commission on review: citation 2, item 2 alleging a willfulviolation of 29 CFR ? 1926.550(a)(1) for exceeding the lifting capacityof the crane; and Citation 1, item 1 alleging a serious violation of 29C.F.R. ? 1926.21(b)(2) for failing to instruct employees in therecognition and avoidance of unsafe conditions.[[1\/]]Administrative Law Judge Joseph D. Sparks affirmed both violations andassessed the penalties proposed by the Secretary. Respondent filed aPetition for Discretionary Review that was granted by the Commission.For reasons that follow, we affirm the willful violation of ?1926.550(a)(1) and vacate the item alleging noncompliance with ?1926.21(b)(2).A. The Crane Collapse–29 CFR ? 1926.550(a)(1)The Joint Venture was engaged in the construction of a terminal at thePalm Beach International Airport, and had contracted with ConstructionEquipment International (CEI) to provide the necessary cranes andoperators. The contract did not require CEI to provide any otherpersonnel or equipment, such as signalmen or rigging.On April 28, 1987, the Joint Venture decided to lift a Burke core formfrom stairwell number four. Cement is poured into a core form toconstruct a stairwell. The Burke form at stairwell four measured 15 by27 feet and was from 9-14 feet high. CEI operator James Earl Dickey wasoperating the Manitowac 4000-W crane that was to make the lift. Thecrane had a tower attachment of 133 feet, 160 feet of working boom and a40-foot jib. Dickey was concerned that the form exceeded the capacity ofthe crane. He told one of Respondent’s foremen, David Stuart, that thecrane’s capacity was 14,800-14,900 pounds and asked for the weight ofthe form. Stuart estimated the form to weigh 16-17,000 pounds. Becausethe form exceeded the capacity of the crane, Dickey refused to make thelift. Stuart then went to CEI lead operator Rodney Walters to inform himof Dickey’s refusal. He also informed Walters that CEI had made the liftbefore. Walters told Stuart that they were not going to make any morequestionable lifts. Stuart then reported the situation to Respondent’sproject manager Paul Payne and engineer Joseph Appleton. Payne andAppleton were under the impression that the Manitowac 4000 had liftedthe Burke form before and questioned why the lift could not be madeagain. Payne told Stuart that it was important to make the lift. Heordered Stuart to get the form ready and stand by. Payne called MichaelLothian, a general manager at CEI headquarters in Tampa, and asked himto explain why CEI was refusing to make the lift.Lothian explained that, based on their operator’s previous experience inlifting the form, CEI believed that the form’s weight exceeded thecapacity of the crane. Payne ended the telephone conversation andrecalculated the weight to be 15-16,000 pounds. He then telephonedLothian and told him of this new calculation, that the form weighed15,300 pounds. Lothian pointed out that, according to the load chart,the weight was well in excess of the crane’s capacity. Payne repliedthat it was only 1300 pounds over the capacity and asked what was wrongwith making the lift. Lothian pointed out that to the weight of the formmust be added the 1000-pound ball, and the weight of the wire rope andother rigging. Lothian told Payne that if the weight of 15,300 poundsdid not include those items, the lift could exceed the capacity of thecrane by as much as 20%.Lothian testified that he told Payne that the discussion was notnecessary because there was another crane at the site, a Manitowac 3900,capable of handling the load. Lothian stated that after he explainedthat the other crane would have to be rerigged to make the lift, Paynecomplained that it was a lot of work \”for one lousy pick,\” but hefinally agreed to it.Payne’s version of the conversation varies from Lothian’s in importantrespects. Payne testified that Lothian told him that the jib capacitywas not high enough to make the lift and that it would have to bererigged to make the lift. Thus, while Lothian testified that he toldPayne that the Manitowac 4000 was incapable of making the lift under anycircumstance, Payne apparently believed that the crane could make thelift if it were properly rerigged.Payne testified that immediately after this conversation with Lothian,he told his foreman, Thomas Link, not to make the lift with theManitowac 4000 until it was rerigged. Link agreed not to make the lift.However, Stuart, a foreman who worked for Link, testified that Linkordered him to have the crane readied for the the lift. Link did notorder the crane rerigged. When CEI head operator Walters learned thatthe lift was to be made, he told Link that he thought the form weighedover 18,000 pounds and that he would not allow the lift until he hadauthority from his superiors in Tampa. After calling Tampa, Walterssuggested to Link that there was an \”out.\” Walters said that Tampaagreed to allow the lift if Link or another member of Respondent’smanagement would certify that the form weighed 12-14,000 lbs. andprovide a release of liability. [[2\/]] Link took out a piece of notepaper, wrote \”STAIR #4 12,000 PDS T. Link\” and handed it to Walters.Link then ordered foreman Stuart to get things ready and to tell theoperator to make the lift. Crane operator Dickey continued to protestthat the lift was unsafe. Finally, Dickey agreed to make the lift,although he continued to maintain he was being forced into it.Respondent’s safety manager Ford, after talking to Stuart and Dickey,instructed employees not to ride the form during the lift.Respondent’s employees loosened the jacks holding the form. Stuart thensignaled Dickey to make the lift. The form rose for 10-15 seconds, thendropped back on the jacks. The lifting beam struck the top of the form.Metal and debris began to fall as the jib and boom of the cranecollapsed. Employees ducked and ran into the building to avoid thefalling debris.Payne testified that, after the accident, he asked Link why heauthorized the lift. According to Payne, Link admitted his error. Hetold Payne that because they had previously made a similar lift, hebelieved they could make this lift. Payne testified that because heauthorized the lift, Link was terminated for insubordination on May 12,1987, two weeks after the lift.Judge Sparks found that the evidence was undisputed that the maximumlifting capacity of the crane was 14,000 pounds and that the weight ofthe load was at least 20,000 pounds. He affirmed a willful violation of29 C.F.R. ?1926.550(a)(1) [[3\/]] and assessed the $10,000 proposedpenalty. The judge specifically rejected Respondent’s contention thatit was not responsible for the violation because it was only the lessorof the crane. He noted that contractors were absolved of responsibilityfor crane related violations only when the lessor relied on theexpertise of the crane operator. Here, the judge found, Respondent didnot rely on the operator’s expertise. Rather, contrary to the advice ofthe operator and with full knowledge that the lift exceeded the capacityof the crane, Respondent insisted that the overweight lift be made. Heconcluded that Respondent was directly responsible for the violation.Judge Sparks also discredited Payne’s testimony that Link authorized thelift in direct violation of his specific orders. The judge found ithighly unlikely that foreman Link would have ordered the lift againstProject Manager Payne’s orders and against the advice of all craneoperators. He further noted that other supervisory personnel were awarethat the load exceeded the crane’s capacity, yet allowed the lift to bemade.B.Respondent first argues that the evidence did not establish the liftingcapacity of the crane.[[4\/]] It claims that the only evidence cited bythe judge in support of his finding that the lift capacity of the cranewas 14,000 pounds was a Manitowac chart for tower cranes with towerattachments between 163-213 feet in height. However, the actual heightof the tower used in the lift was 133 feet. There is no evidence,Respondent continues, which suggests that the chart applies to the 133foot tower. Respondent concludes that the Secretary’s failure toestablish the manufacturer’s rated load capacity for the tower cranerequires that the citation be vacated. This argument is rejected.As Respondent properly notes, the load charts introduced into evidencedo not directly address the particular configuration of the crane at thetime it made the ill-fated lift. The chart covers cranes with towers of163 to 213 feet, and boom lengths of 150 feet. The crane in use,however, had a 133-foot tower and a 160-foot boom. For those dimensions,the chart does list the maximum lift capacity with a 40-foot jib to be14,000 pounds. The maximum lift capacity listed for the crane is 20,000pounds with a 30-foot jib. The load chart also states that whendetermining the load all blocks, hooks, weight balls, slings, hoistlines, etc. are to be considered part of the load.A load chart cannot always be relied on to set limits for every possibleconfiguration of a crane. Therefore, when no specifically applicablelimits are included on a load chart, the employer is expected to make areasonable estimate of the limits of the crane from the capacities setforth in the load chart. _See Towne Construction Co. v.OSHRC_, 847 F.2d1087 (6th Cir. 1988).The standard requires that when no load specifications are available,the limitations shall be determined by a competent engineer. [[5\/]]Although not qualified at the hearing as \”competent engineers,\” the CEIoperators who were most familiar with the crane repeatedly warned thatthe load exceeded the crane’s capacity. These warnings put Respondent onnotice that, if it were going to make the lift, it had to take effectivesteps to determine with certainty if the weight was within the crane’scapacity.Although the evidence does not establish the precise capacity of thecrane, we find that the evidence overwhelmingly establishes that theload exceeded the manufacturer’s specifications and limitations inviolation of ? 1926.550(a)(1). The evidence established that: themaximum listed capacity for the crane with a 40-foot jib is 14,000pounds; all reasonable estimates of the weight of the load weresubstantially in excess of 14,000 pounds; no competent engineers wereassigned to determine whether the crane was capable of lifting a load inexcess of 14,000 pounds; CEI operators repeatedly warned that the loadexceeded the capacity of the crane; the Secretary’s crane experttestified that the load exceeded the crane’s capacity; and when the liftwas made, the crane collapsed.C.Respondent next argues that the citation should be dismissed because thelift was the result of unpreventable supervisory misconduct on the partof its foreman, Tom Link. Respondent contends that the evidencedemonstrates that CEI’s Lothian told Payne that the Manitowac 4000 cranecould make the lift if it was rerigged and that Payne subsequentlyordered Link not to make the lift until the crane could be rerigged. Inauthorizing the lift, Respondent contends that Link directly disobeyedProject Manager Payne’s order not to make the lift until the crane wasrerigged, for which he was terminated. Respondent contends that, bydiscrediting Payne’s account on the basis that he found it \”highlyunlikely that Link would have ordered the lift in contravention ofinstructions from Payne and against the advice of all crane operators,\”the judge substituted his own subjective belief for the undisputedrecord evidence that Link was insubordinate. Respondent also argues thatthe judge’s conclusion that other Joint Venture supervisors were awarethat the lift was being made, yet did nothing to stop it, is notsupported by the record.The Commission is normally reluctant to disturb a judge’s credibilityfinding. _Kent Nowlin Construction Company, Inc.,_ 8 BNA OSHC 1286, 1980CCH OSHD ? 24,459 (No. 76-191 and 76-192, 1980); _Otis Elevator Co_., 8BNA OSHC 1019, 1980 CCH OSHD ? 24,236 (No. 14899, 1980), _appealwithdrawn_, No. 80-470 (2d Cir. May 15, 1980); _C. Kaufman, Inc_., 6 BNAOSHC 1295, 1977-78 CCH OSHD ? 22,481 (No. 14281, 1977), This deferenceis granted because it is the judge who has had heard the witnesses andobserved their demeanor. _C. Kaufman, Inc._, 6 BNA OSHC at 1297, 1977-78CCH OSHD at pp. 27,099. Here, however, the judge did not make the typeof credibility finding to which we ordinarily defer. It was not based onthe traditional weighing of conflicting testimony, but rather on hissubjective assessment of the probability of events. Indeed, there was noevidence to contradict Payne’s testimony that he ordered Link not tomake the lift.However, even accepting at face value Payne’s testimony regarding hisorders to Link, the overwhelming weight of the evidence still supportsthe testimony of CEI’s manager in Tampa, Lothian, that he told Paynethat the crane could not make the lift and that the Manitowac 3900should be used. The evidence is also clear that Payne was anxious tomake the lift and did not want to take the time to move the Manitowac3900 crane and prepare it for the lift. According to Lothian, Payne wasvery agitated when he spoke to him about the unwillingness of CEI’soperators to pick up the stairwell form. Even after Lothian explainedthat the weight of the stairwell was above the limit of the crane, Payneargued for the lift on the grounds that the stairwell was \”only\” 1300pounds above the limit. When told that there was a crane at the worksitecapable of handling the load, Payne told Lothian that getting the othercrane ready was a lot of work \”for one lousy pick.\” We therefore findthat the evidence establishes that Payne knew that his decision to makethe lift with a rerigged Manitowac 4000 crane was contrary to theexpress warnings conveyed to him and his supervisors by Lothian and theCEI operators.Moreover, even though Payne instructed Link not to make the lift untilthe crane was rerigged, the evidence established that the load wouldstill have exceeded the capacity of the crane, even if the crane werererigged. Although rerigging the crane might have increased the capacityof the crane, Respondent was amply informed by the CEI operators oftheir concern that, even after being rerigged, the crane was not capableof making the lift and that another crane was available at the site thatcould safely make the lift. An unpreventable misconduct defense will notbe established where the employer’s instructions were insufficient toeliminate the hazard even if the employee had complied with thoseinstructions. _Brown and Root, Inc._, 8 BNA OSHC 1055, 1060, 1980 CCHOSHD ? 24,275 at p. 29,570 (No.76-3942, 1980); _See also Eddy’s BakeriesCompany_, 9 BNA 2147, 2151, 1981 BNA OSHC ? 25,604 at pp. 31,940 (No.77-1084, 1981) (Workrule that fails to abate hazard, even whenadequately implemented, does not fulfill employer’s duty under section5(a) (1)). Here, Link disobeyed a direct order, but the order itselfrequired a violation of the standard.Even if Payne had believed that the Manitowac 4000 crane couldsuccessfully make the lift, Link’s disobedience would still not relievethe Joint Venture of responsibility for the overweight lift. When anemployer raises the affirmative defense of unpreventable employeemisconduct, the employer must demonstrate that the actions of theemployee were a departure from a uniformly and effectively communicatedand enforced workrule. When the alleged misconduct is that of asupervisory employee, the employer must also establish that it took allfeasible steps to prevent the accident, including adequate instructionand supervision of its employee. _Daniel International Co. v. OSHRC,_683 F.2d 361, 364 (11th Cir., 1982); _Daniel Construction Co._, 10 BNAOSHC 1549, 1552, 1982 CCH OSHD ? 26,027 at pp. 32,672 (No. 16265, 1982).Where a supervisory employee is involved, the proof of unpreventableemployee misconduct is more rigorous and the defense is more difficultto establish since it is the supervisor’s duty to protect the safety ofemployees under his supervision. Id. A supervisor’s involvement in themisconduct is strong evidence that the employer’s safety program waslax. Id Here, Link’s involvement in the lift was consistent with Payne’sstrong interest in having the lift made.In addition, we agree with the judge’s finding that other supervisorypersonnel allowed the lift to be made despite their knowledge that theload exceeded the crane’s capacity. The evidence establishes that thelift was made in full view of Respondent’s Safety Director Ford. Fordwas not involved in the decision regarding the use of the crane, but hehad previously been informed by CEI crane operator Shurtleff that theBurke form was too heavy a load for the crane. Moreover, assuming,_arguendo_, that Ford was not aware of the dispute over the lift, thefailure of the safety official on the site to be informed and consultedabout the dispute over the safety of the lift strongly suggests that theJoint Venture failed to implement a safety program that emphasized theimportance and priority of safety. We therefore conclude that Respondentfailed to establish the affirmative defense of unpreventable employeemisconduct.D.The Joint Venture next argues that it should not be held liable for anyviolation involving the operation of the crane because it was entitledto rely on the expertise of CEI when deciding whether to make the lift.It claims that under the rental agreement, CEI was to provide a\”qualified operator,\” \”operate the equipment in a professional and safemanner\” and \”be the sole operator of this equipment.\” The Joint-Venturecontends that it was the responsibility of the crane operator to operatethe crane in a safe manner and to ensure that the crane was notoverloaded. Respondent claims that the judge erred by not consideringthe lease agreement, the history of negotiation it had with CEI andCEI’s own policy of holding its operators responsible for crane safety.Respondent further submits that CEI lead operator Walters authorized thelift after operator Dickey refused to make the lift and other CEIoperators agreed that it should not be made. Finally, Respondent arguesthat the judge erred by excluding proffered testimony establishing thatthe lift was authorized by a CEI supervisor in Tampa.Respondent’s arguments are without merit. When an employer contractswith a specialist, the employer is justified in relying upon thespecialist to protect against hazards related to the specialist’sexpertise, as long as the reliance is reasonable and the employer has noreason to foresee that the work will be performed unsafely. _SasserElectric & Manufacturing Co_., 11 BNA OSHC 2133, 1984-85 CCH OSHD ?26,982 (No. 82-178, 1984), _aff’d,_ No. 84-1961 (4th Cir. 1985)._Sasser_ does not support Respondent’s contention that it should not beheld liable for the unsafe lift. Having hired CEI to operate the cranes,the Joint Venture could have properly relied upon the CEI operators todetermine when a load exceeded the capacity of the crane and not toexceed those limits. Here, however, the Joint Venture obviously exertedpressure on the operators to ignore their judgment and raise a load thatthey had warned exceeded the crane’s limits. Respondent did not rely onthe expertise of the crane operator. Instead, it ignored and tried tocountermand it. Rather than showing that it could not have foreseen thatthe work would be performed in an unsafe manner, the evidenceestablishes that the Joint Venture was fully aware that the lift wasunsafe and that it actually insisted that the lift be made despite thehazard. Given these facts, the allocation of responsibility under thecontract has no real relevance. Regardless of CEI’s contractualresponsibilities, the critical fact is that the Joint Venture prevailedupon the operator to ignore his best judgment and proceed with thelift.[[6\/]]Having found no merit in any of Respondent’s defenses to the allegedviolation, we find that the Secretary established that the Joint Ventureviolated 29 C.F.R. ?1926.550(a)(1).E.Finally, the Joint Venture argues that the Judge erred by affirming theviolation as willful. According to Respondent, orders given to Link notto authorize the lift until the crane was rerigged establishes that theJoint Venture was concerned with employee safety.To establish that a violation was willful, the Secretary must prove thatthe violation was committed with intentional disregard of the Act’srequirements or plain indifference to worker’s safety. _R.D. AndersonConstruction Co.,_ 12 BNA OSHC 1665, 1669, 1986-87 CCH OSHD ? 27,500 atpp. 35,641 (No. 81-1469, 1986); _D.A.L. Caruso, Inc.,_ 11 BNA OSHC 2138,1984 CCH OSHD ? 26,985 (No. 79-5676, 1984).We find that the record supports the ALJ’s conclusion that the JointVenture intentionally disregarded the requirement that lifts not exceeda crane’s capacity and that it was indifferent to employee safety. BothPayne and Link expressed considerable displeasure and frustration overthe operator’s refusal to make the lift. Despite numerous warnings bythe operator that the load exceeded the capacity of the crane, Payne andLink made repeated demands on the CEI operators to make the lift. Evenwhen informed by CEI manager Lothian that the lift could be made safelyby another crane elsewhere on the site, Payne’s concern was thatpreparing a new crane was a lot of effort for \”one lousy lift.\” The liftwas finally made when Link, contrary to what he plainly knew to be thefacts, wrote and signed a \”release\” falsely attesting that the weight ofthe form was within the crane’s capacity.Respondent would have us view Payne’s order to Link not to make the liftuntil the crane was rerigged as a good faith effort at compliance. Incertain cases, we found that a willful charge is not justified if anemployer has made such efforts to comply with a standard or to eliminatea hazard even though the employer’s efforts are not entirely effectiveor complete. _Keco Industries, Inc_.,13 BNA OSHC 1161, 1169, 1986-87 CCHOSHD ? 27,860 at pp. 36,478 (No. 81-263, 1987). Here, however, we findthat Payne’s directive to Link did not constitute a good faith effort tocomply with the Act. Payne had been repeatedly warned that the crane wasnot capable of lifting the form, and was specifically told by Lothianthat, even after rerigging, the crane could not handle the load.Accordingly, we affirm the judge’s finding that the violation waswillful.[[7\/]]At the hearing Respondent stipulated that if a violation were found, thepenalty proposed by the Secretary was appropriate. Accordingly, weaffirm the judge’s assessment of the $10,000 proposed penalty._Adequacy of Respondent’s Safety Program-29 C.F.R. ? 1926.21(b)(2)_[[8\/]]Respondent was issued a citation alleging a serious violation of 29C.F.R. ? 1926.21(b)(2) on the grounds that it failed to provide safetytraining or instruction to its West Palm Beach employees in severalareas of crane safety. The citation alleged that Respondent failed toinstruct employees in:a. Proper hand, flag and radio signaling of cranes;b. How to properly rig a crane, including calculation of weight, typesand components of rigging, and designation of a competent person to bein charge of critical lifts; andc. Understanding manufacturer’s specifications for proper use of cranesincluding maximum loads at various configurations.The judge affirmed the violation and assessed a $1,000 penalty. Wereverse the judge and vacate the item.The evidence establishes that the Joint Venture held safety meetingsapproximately once a week. The meetings were not held on any regularschedule. Rather, safety director Ford would contact the foreman whowould set up a time, usually during a break. The meetings would lastapproximately 15 minutes. At these meetings, which were usually led bysafety director Ford, the employees would discuss various problems.Crane safety was among the subjects discussed, and included such topicsas flying loads over people’s heads, use of the horn, and signaling.Weekly safety meeting reports for the period between October 10, 1986and the collapse on April 28, 1987 show that aspects of crane safetywere frequently discussed. Although he conducted the majority of thesafety meetings, Ford admitted that he was not involved with eithercrane operations or the rigging on the cranes. In addition, Fordtestified that, before becoming the safety official for the JointVenture, his safety training had consisted of a correspondence courseand on the job training. Another significant component of Ford’s safetytraining was his reading of the OSHA Handbook and brochures.OSHA compliance officer Corey Neale was qualified by the judge as anexpert on cranes. Based on employee interviews and observations duringthe walkaround, Neale concluded that the Joint Venture’s employees werenot properly trained in crane safety. Among those interviewed wasforeman David Stuart, who was fired after the accident. Stuart toldNeale that he never had any training in rigging and that the JointVenture never held any classes explaining signaling, flagging, workingloads or which types of chokers to use. Employees who worked on the dayof the collapse also told Neale that they never received any training inrigging or hand signals. Regarding rigging, Neale testified that theemployees told him that \”You just watch somebody and you go out and youdo it.\” In addition, the employees told him that they tried to get aforeman to give the signals when one was available.Foreman Stuart testified that Ford occasionally passed out safety sheetsfor employees to read, sign and return, but he could not recallattending safety meetings. Although Stuart testified that he did notattend any safety meetings in April of 1987, he could not explain whyhis signature appeared on the safety meeting minutes of April 17 and 24.Jerry Freeman, a crane operator with 31 years experience, who worked forCEI at the Palm Beach Airport Project from December 1986 to April 1987,testified that Archer-Western employees provided the hooking or riggingon the loads and that they did a good job. According to Freeman, theemployees followed directions well. He testified that he was veryparticular about his rigging, and that the Joint Venture employees wereable to rig his crane the way he wanted. In addition, Freeman testifiedthat the Joint Venture provided very good signalmen and that he neverhad any problems in that regard. CEI crane operator Shurtleff alsotestified that he was supplied with adequate signalmen.Although the judge found that the Joint Venture held regular safetymeetings, he concluded that the evidence established that the trainingwas inadequate. The judge found the safety training in rigging and craneoperation inadequate based on the \”ample\” record of safety violationscommitted by the Joint Venture’s employees. Of particular importance was\”the ease with which the supervisory personnel committed or condoned theviolations; they participated in the lift knowing the weight wasexcessive, and they were aware that their employees were riding theloads.\” He concluded that the benefit of any safety training given byRespondent was nullified by the failure of supervisory personnel toeither enforce it, or follow it themselves.Respondent argues that the judge ignored testimony that established thatits safety sessions provided employees with extensive training on cranesafety, signaling and rigging. It also claims that the judge’s findingwas contrary to the testimony of CEI’s crane operator’s that the riggingand signaling were adequate.The Secretary contends that Respondent’s lack of safety trainingregarding rigging and crane operations establishes the violation. TheSecretary notes that even though Respondent had five large cranes at theworksite, it could not produce any employees at the hearing who wereknowledgeable in the rigging and operation of cranes. Interviews withemployees confirmed that they knew little or nothing about rigging andcrane procedures.The duties imposed by 29 C.F.R. ? 1926.21(b)(2) are satisfied when theemployer instructs its employees about the hazards they may encounter onthe job and about the regulations applicable to those hazards. _DravoEngineers and Constructors_, 11 BNA 2010, 2011-2, 1984-85 CCH OSHD ?26,930 (No. 81-748, 1984); _Sawnee Electric Membership Corporation_, 5BNA 1059, 1977-78 CCH OSHD ? 21,560 (No. 10277, 1977). The evidenceestablishes that the Joint-Venture held regular safety meetings and thatat those meetings some aspects of crane safety were discussed. Most ofthe discussions of crane safety, however, were concerned with thehazards of swinging loads over the heads of employees. According tothese minutes, only minimal attention was paid to rigging, signaling, orthe importance of observing manufacturer’s specifications. Moreover, themeetings were conducted by safety director Ford, who had minimal safetyqualifications in general and virtually none regarding cranes.While the minutes did not establish that employees were adequatelytrained in all phases of crane operations, the uncontested testimony ofCEI operators Freeman and Shurtleff established that Respondent’semployees were, in fact, adequately trained in signaling and rigging.The most damaging evidence against Respondent was given by formerforeman Stuart. However, because Stuart’s employment was terminated byRespondent and he could not remember attending safety meetings for whichhe signed the minutes, the weight of his testimony must be considereddiminished. Therefore, although the meeting minutes did not show thatRespondent’s employees received significant training, the performance ofthose employees establishes that they were trained in rigging and signaling.The Secretary also alleged that the employees were not trained inunderstanding manufacturer’s specifications for proper use of cranesincluding the lifting of maximum loads at various configurations. Therecord establishes, however, that Respondent relied on the craneoperators, employees of CEI, to determine the load capacities of thecranes. Although Respondent has a duty to its own employees, even whenit relies on a specialist such as CEI, _see Sasser Electric &Manufacturing Co.,_ 11 BNA at 2136, 1984-85 CCH OSHD at p. 34,684, wecannot fault Respondent for failing to instruct its employees in mattersthat fall within the expertise of CEI’s crane operators, when itreasonably relies on that expertise. _Id._Contrary to the judge’s finding, the insistence by Respondent’ssupervisory personnel that the stairway form be lifted, while indicativeof a general disregard for employee safety, was not the result of a lackof training in the determination of crane capacities. Respondent’ssupervisors were adequately warned that the crane lacked the propercapacity by the CEI operators, whose job it was to make suchdeterminations. We therefore conclude that the Secretary failed toestablish that Respondent violated 29 C.F.R. ? 1926.21(b)(2).Accordingly, the judge’s finding of a willful violation of 29 C.F.R. ?1926.550(a)(1) is affirmed and a $10,000 penalty is assessed. Thejudge’s finding of a serious violation of 29 C.F.R. ? 1926.21(b)(2) isreversed and the item is vacated.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: April 30, 1991————————————————————————SECRETARY OF LABOR,Complainant,v.ARCHER-WESTERN CONTRACTORS,LTD., and GILBERTCORPORATION OF DELAWARE,INC., A Joint Venture,Respondent.OSHRC Docket No. 87-1067APPEARANCES:Stephen Alan Clark, Esquire, Office of the Solicitor, U. S. Departmentof Labor, Fort Lauderdale, Florida, on behalf of complainant.James E. Moye, Esquire, Hansell and Post, Atlanta, Georgia, and JohnO’Rourke, Esquire, O’Brien, O’Rourke, Hogan and McNulty, Chicago,Illinois, on behalf ofrespondent._DECISION AND ORDER_SPARKS, Judge: Respondent, Archer-Western Contractors, Limited, andGilbert Corporation of Delaware, Incorporated, a Joint Venture, (\”JointVenture\”) is the prime contractor for the construction of the newairport terminal at West Palm Beach, Florida. It contests two citationsissued to it by the Secretary of Labor on June 25, 1987, under theOccupational Safety and Health Act of 1970 (\”Act\”), following a craneaccident at the project. Citation Number One is a two-item seriouscitation for the violation of 29 C.F.R. ? 1926.21(b)(2) for failure toinstruct employees in the recognition and avoidance of unsafeconditions, and 29 C.F.R. ? 1926.550(a)(9) for failure to barricade theswing radii of various cranes’ rotating superstructures. [[1]] CitationNumber Two is a three-item willful citation for the violation of 29C.F.R. ? 1926.251(c)(1) for using inadequate rigging, 29 C.F.R. ?1926.550(a) for exceeding the lift capacity of a crane, and 29 C.F.R. ?1926.550(b)(2) for allowing employees to ride the loads of cranes.The parties stipulated at the hearing that, if Joint Venture were foundto be in violation of any of the items of the serious citation, thepenalty for each item would be in the amount proposed in the Secretary’scitation. The parties further stipulated that, if Joint Venture werefound in violation of any of the items of the willful citation, thepenalty for each item would be $10,000. If a willful violation werereduced to a serious violation, the penalty would be $1,000 for eachitem (Tr. 566-567).At the beginning of the hearing, the Secretary offered into evidence thedepositions of Michael Lothian (Ex. C-1; Tr. 43), Roger Weir (Ex. C-2;Tr. 44), Rodney Walters (Ex. C-3; Tr. 45), and John McDonald, Jr. (Ex.C-4; Tr. 47). It was ruled that evidence relating to events occurringafter April 28, 1987, (other than observations made by the OSHACompliance Officer during his May inspection) would be inadmissible (Tr.37). Accordingly, the parties were permitted to withdraw the depositionsand delete that testimony pertaining to events occurring subsequent toApril 28. After the hearing, the parties submitted each deposition intwo volumes: the first volume containing the testimony to be receivedinto evidence and the second volume containing proffered testimonyrelating to post-April 28 events. The parties also submitted portions ofthe depositions that were objected to on other grounds. Those portionsare hereby admitted into evidence._FACTS _Joint Venture is a partnership formed by Archer-Western Contractors,Limited, and Gilbert Corporation of Delaware, Incorporated, for theairport terminal project. Archer-Western owns a 60 percent controllinginterest in the partnership and is the managing partner (Ex. C-9,deposition pp. 12, 43; C-9 Exhibit 1).The instant case arises from Joint Venture’s contract to construct aterminal at the international airport in West Palm Beach, Florida. Thework site was on 30 to 40 acres of land. The buildings would coverapproximately 1,500,000 square feet.The plans called for a three-story terminal with four levels of parkingabove it, and three concourses (Tr. 845).For the project, Joint Venture decided against using its own cranes andemployees as crane operators. Instead, Joint Venture contracted withConstruction Equipment International, Inc., (\”CEI\”) to provide cranesand crane operators (Tr. 396-398). On January 20, 1987, a writtenagreement encompassing the equipment lease between Joint Venture and CEIwas signed. The lease provides in pertinent part: \”Lessor and itsemployee\/operator will be sole operator of this equipment, and all suchoperations are under Lessee’s exclusive jurisdiction, supervision, andcontrol\” (Ex. R-13). Under the agreement, CEI supplied Joint Venturewith five cranes: two Manitowoc 4000-W cranes, a Manitowoc 3900conventional crane, and two Tadano hydraulic cranes. CEI did not providerigging, riggers or signalmen (Tr. 396-398, 371).On April 28, 1987, Joint Venture instructed CEI that it needed the Burkeform lifted from stairwell number four (Tr. 304). The Burke form is acore form used for the stairwell. It measures 15 by 27 feet and canreach a maximum height of 14 feet (Tr. 53). The Burke form at stairwellfour was nine feet high (Tr. 66).CEI operator James Earl Dickey was operating a Manitowoc 4000-W crane,which is a 150-ton crane with a 133-foot tower, 160 feet of workingboom, and a 40-foot jib (Tr. 132, 660). A lifting beam was hooked to thecrane and the beam was then hooked to the Burke form. Laborers workedwith crowbars and a sledgehammer to loosen the form from the stairwell(Tr. 319). As Dickey applied pressure to lift the form, the boom of thecrane collapsed (Tr. 324).OSHA Compliance Officer Corey Neale arrived at the work site on May 5,1987, to conduct an investigation of the collapse (Tr. 488). When hearrived, the collapsed tower crane had been removed (Tr. 492). As aresult of Neale’s investigation, Joint Venture was cited for severalsafety violations.I_WILLFUL CITATION TWO, ITEM ONE__EXCEEDING THE RIGGING CAPACITY_Item One, Willful Citation Two,[[2]] charges respondent with violating29 C.F.R. ? 1926.251(c)(1) which provides as follows:Tables H-3 through H-14 shall be used to determine the safe workingloads of various sizes and classifications of improved plow steel wirerope and wire rope slings with various types of terminals. For sizes,classifications, and grades not included in these tables, the safeworking load recommended by the manufacturer for specific, identifiableproducts shall be followed, provided that a safety factor of not lessthan 5 is maintained.The Secretary’s witness, Dennis O’Rourke of National Crane Services, wasqualified as an expert in safety with specialization in cranes andrigging (Tr. 169, 172). O’Rourke stated that the upper slings used toconnect the crane hook to the lifting beam should have been one inch indiameter in order to comply with the standard (Tr. 190). Joint Venture’sexpert, Don Markwardt, calculated that a 7\/8-inch diameter wire ropesling would comply with the standard (Tr. 760-769). The Secretarycontends Joint Venture violated ? 1926.251(c)(1) by using a sling thatwas 5\/8-inch in diameter. The Secretary failed to prove this fact at thehearing.Of the witnesses who testified regarding the rigging, none of them couldsay with certainty what the diameter of the sling rope was. CEI operatorShurtleff testified he had no idea what size rope was used for the lift(Tr. 161). Joint Venture foreman David Stuart testified he was uncertainof the diameter of the spreaders used to make the lift (Tr. 311).The only witness who actually measured the spreaders, Corey Neale, gavecontradictory testimony. At the hearing, Neale stated the spreader wasfiber core, not wire core. In his deposition, he stated it wasindependent wire rope (IWRC) (Tr. 598). The citation stated it was IWRC(Tr. 599). At the hearing, Neale stated the spreader was swaged (Tr.500). In his deposition, he stated it was manufacture spliced (Tr. 600)Neale initially stated in his deposition that the spreader above thebeam was 7\/8 inch in diameter (Tr. 595). At the hearing, he was certainthat the spreader was 5\/8-inch diameter (Tr. 593).Neale stated he only measured one of the three spreaders and that onespreader measured 5\/8 inch in diameter. Because they \”all looked thesame,\” he did not measure the other spreaders (Tr. 593-594). It isundisputed that 7\/8-inch slings were available on the work site (Tr.160). In sum, the Secretary failed to prove by a preponderance of theevidence that Joint Venture was using inadequate rigging._WILLFUL CITATION TWO, ITEM TWO__EXCEEDING THE BOOM CAPACITY_Item Two, Willful Citation Two, [[3]] charges respondent with violating29 C.F.R. ? 1926.550(a)(1) which provides as follows:The employer shall comply with the manufacturer’s specifications andlimitations applicable to the operation of any and all cranes andderricks. Where manufacturer’s specifications are not available, thelimitations assigned to the equipment shall be based on thedetermination of a qualified engineer competent in this field and suchdeterminations will be appropriately documented and recorded.Attachments used with cranes shall not exceed the capacity, rating, orscope recommended by the manufacturer.It is undisputed that the maximum lifting capacity of the Manitowac boomwas 14,000 pounds (Ex. C-1, Lothian deposition Vol. II, p. 40; C-3,Walters deposition p. 95; Tr. 178, 179-182). The evidence clearlyestablishes that the weight of the load lifted was at least 20,000pounds. Henry Siegel, the district manager of Burke Company, calculatedthe weight of the Burke form to be approximately 20,000 pounds (Tr. 55).CEI operator Walter Shurtleff lifted the form after the collapse withhis Tadano 45-ton crane, which was equipped with a load cell thatenabled it to weigh loads. He and Michael Lothian, CEI’s regionalmanager, calculated the form to weigh 20,000 pounds (Tr. 84-85).Although the events leading up to the boom collapse are in some dispute,the most credible testimony established the following:Ed Payne was the project manager for Joint Venture at the West PalmBeach work site (Tr. 361). Prior to April 28, Payne had understood theweight of the Burke form to be between 12,000 and 14,000 pounds (Tr. 375).David Stuart was the carpenter foreman for Joint Venture at the time ofthe collapse (Tr. 294). He testified that on April 28, Joint Venturesuperintendent Tom Link instructed him to raise the form on stairwellfour.[[4]] Stuart asked CEI operator Dickey to make the lift (Tr. 306).Dickey initially refused to make the lift because he thought the formexceeded his crane’s capacity. Stuart informed CEI’s lead operatorRodney Walters that Dickey refused to make the lift (Tr. 307). Stuartalso informed Payne and Joint Venture engineer Joseph Appleton thatDickey would not make the lift. Appleton then calculated the weight ofthe Burke form to be 17,000 pounds. Payne than stated, \”They’ve madethat lift before, and we have to have that form lifted today. It’simportant that we get it done\” (Tr. 309).Payne called CEI’s Michael Lothian in Tampa and asked, \”What the hell isthe matter with your guys? What is this shit about your guys not pickingthis form?\” (Ex. C-1, deposition Vol. II, pp. 182-183). Lothian toldPayne that the form was in excess of the crane’s capacity. Lothianpointed out that there was another crane on the work site capable ofhandling the pick (Ex. C-1, deposition Vol. II, pp. 39-40).About 2:00 that afternoon, Stuart accompanied Tom Link to see RodneyWalters about the lift. Stuart testified regarding the meeting (Tr.315-317):The head operator (Walters) explained that he wasn’t going to make thelift or tell that man (Dickey) to make the lift until he had authorityfrom his supervisors. He suggested, however, that there was an out.That’s exactly what he said–that there was an \”out\”–if Archer chose toexercise it. . . . He said if Archer would sign a waiver or a release ofliability, that they would go ahead and make the lift. . . . Tom Linksaid, \”Is that all I have to do?\” Then, he grabbed a three by fivenotepad out of my pocket and my pen, and he wrote on it, \”This formweighs,\” something or other, but it was well under the limit. I think hewrote \”12,000 pounds\” on it is what I saw. Then, I saw him sign it, andhe handed it and he said, \”Here is your release. Go ahead and make thelift.\”In fact, what Link wrote was (Ex. C-3, Exhibit B):STAIR #412,000 pds.T. LinkJoint Venture’s safety official, Burt Ford, was told by Dickey that noone should ride the form while he was making the lift (Tr. 905).(Laborers working to loosen the form from the stairwell walls wouldsometimes stand on the form while doing so [Tr. 302]). Ford instructedStuart not to let anyone ride the form (Tr. 407). Two Joint Venturecarpenters refused to work on the form while the lift was being made(Tr. 284, 318). As Dickey attempted to lift the form, the boom collapsed.Regarding the duty of the general contractor on a multi employer worksite, the Review Commission in _Grossman Steel & Aluminum Corp.,_ 76OSAHRC 54\/D9, 4 BNA OSHC 1185, 1188, 1975-1976 CCH OSHD ? 20,691 (No.12775, 1975), held as follows:. . .the general contractor normally has responsibility to assure thatthe other contractors fulfill their obligations with respect to employeesafety which affect the entire site. The general contractor is wellsituated to obtain abatement of hazards, either through its ownresources or through its supervisory role with respect to othercontractors. It is therefore reasonable to expect the general contractorto assure compliance with the standards insofar as all employees on thesite are affected. Thus, we will hold the general contractor responsiblefor violations it could reasonably have been expected to prevent orabate by reason of its supervisory capacity.Therefore, respondent as general contractor may be held responsible forthe hazardous conditions due to its \”supervisory capacity.\” Moreover, inthis case, based upon the findings of creditable evidence, Joint Ventureis responsible because it created and controlled the hazard found inviolation of the Act. _Red Lobster Inns of America, Inc,_ 80 OSAHRC73\/A14, 8 BNA OSHC 1762, 1980 CCH OSHD ? 24,635 (No. 76-4754, 1980).Joint Venture’s overriding argument is that all of the allegedviolations are crane-related, it relied upon the expertise of the craneoperator, and thus CEI, and not Joint Venture, bears the responsibilityfor any violation. Respondent relies upon _Sasser Service, Division ofSasser Electric Co.,_ 84 OSAHRC 37\/C6, 11 BNA OSHC 2133, 1984-1985 CCHOSHD ? 26,982 (No. 82-178, 1984)_Current Builders, Inc.,_ 84 OSAHRC15\/C7, 11 BNA OSHC 1949, 1984-1985 CCH OSHD ? 26,888 (No. 83-994, 1984),and other similar cases (respondent’s brief pp. 19-22) which absolve thecontractor of responsibility for the violative conditions caused by aleased crane and operator when the lessor has relied upon the expertiseof the crane operator. The cases are inapposite to the instant case,however, because Joint venture did not rely on the expertise of CEI andthe crane operator; but, contrary to their advice, insisted that theoverweight lift be made. Joint Venture’s managers supervised the liftknowing that the weight of the Burke form exceeded the capacity of thecrane. Respondent, therefore, created and controlled and was directlyresponsible for the violation.[[5]] _Red Lobster Inns of America,Inc_.,_supra_. In making this argument, Joint Venture ignores the degreeto which it controlled and supervised the operation of the cranes. Thecontract between the companies gave Joint Venture \”exclusivejurisdiction, supervision, and control\” of the crane operations, and therecord demonstrates that Joint Venture fully exercised its contractualrights.Dickey was a reluctant operator ordered against his better judgment tomake a lift he and everyone else knew was unsafe. When Lothian informedPayne that the form exceeded the crane’s capacity, Joint Venture’sproject manager retorted that the form was \”only\” 1,300 pounds over itscapacity (Ex. C-1 deposition Vol. II, p. 40).Joint Venture also claims unpreventable supervisory misconduct on thepart of Superintendent Tom Link in authorizing the lift, but thecreditable evidence of record does not establish that defense. Moreover,while it is true Link gave written authorization for the lift, otherJoint venture supervisors were aware the lift was being made, and didnothing to stop it. Foreman Stuart, who witnessed the \”out\” offered byWalters, actually signaled Dickey to bring the form up as it was priedloose from the stairwell walls (Tr. 324). Ford, who was in charge ofsafety for Joint Venture, was told by Dickey that the lift was not safe.Ford’s only action was to agree to tell his employees not to ride theform during the lift. Project Manager Payne, when told the lift exceededthe crane’s capacity, did not halt the lift but instead insisted thelift had to be made that day and placed an angry phone call to Lothian.[[6]]The record supports the conclusion that there was a concerted effort onthe part of Joint Venture’s supervisory personnel to get the lift madeon April 28 despite their specific knowledge that the form exceeded thecrane’s capacity in violation of 29 C.F.R. ? 1926.550(a)(1).The Secretary alleges that the violation was willful. \”A violation iswillful if it was committed voluntarily with either an intentionaldisregard for the requirements of the Act or with plain indifference toemployee safety.\” _A. C. Dellovade. Inc_., ___OSAHRC___, 13 BNA OSHC1017, 1987 CCH OSHD ? 27,786, p. 36,341 (No. 83-1189, 1987).As further evidence of the willful nature of the violation alleged inCitation Number Two, Item Two, the Secretary offered evidence ofArcher-Western’s previous experience with cranes. In 1986 and 1987,Archer-Western had several projects underway in south Florida (Ex. C-9,deposition p. 17). Among these projects was the Sunny Isles BasculeBridge in North Miami Beach. Archer-Western was hired to remove anexisting bridge and to construct a pair of bascule bridges over theintercostal waterway (Tr. 822). At the start of the project,Archer-Western owned two small hydraulic cranes and purchased three morecranes. Archer-Western hired its own crane operators (Tr. 823-824).On December 2, 1986, Daniel Newburn, an employee of Archer-Western, washelping a crane operator to unload machinery from a truck. Newburn wason the around unhitching the crane cables when the operator moved tooclose to an energized power line. Electricity arced from the power lineto the crane cable, and down the crane cable to the crane hook thatNewburn was holding. Newburn died by electrocution (Ex. C-9, depositionp. 23; C-9 exhibits 5, 10). The fatality prompted an OSHA investigationby Compliance Officer John McDonald, Jr., that resulted in threecitations (Ex. C-4; Tr. 7).Joint Venture manifested an intentional disregard for the requirementsof the Act in this instance. As previously stated above, after beingspecifically informed several times the load was in excess of themanufacturer’s specifications, Joint Venture insisted that the lift bemade that day. The facts were clearly presented to management and itintentionally and voluntarily chose to disregard the obvious hazard toits employees. From its previous experience on the Sunny Isles Project,Archer-Western was well aware of the hazards presented by craneoperations. As managing partner of the joint venture, such knowledge isimputed to respondent; but, even without the previous experience atSunny Isles, the record shows that the management of Joint Ventureintentionally, voluntarily, and with full knowledge that the weight ofthe Burke form exceeded the capacity of the crane, insisted that thelift be made. Accordingly, Joint Venture subjugated employee safety inthe interests of expediency. Joint Venture was in willful violation of29 C.F.R. ? 1926.550(a)(1). _Georgia Electric Co. v. Marshall_, 595 F.2d309 (5th Cir. 1979).WILLFUL CITATION TWO, ITEM THREE_TRANSPORTING PERSONNEL ON CRANES_Item Three, Willful Citation Two,[[7]] charges respondent with violating29 C.F.R. ? 1926.550(b)(2) which provides as follows: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.ANSI B30.5-1968, ? 5-3.2.3-e states that, \”the operator shall not hoist,lower, swing, or travel while anyone is on the load or hook.\”The cranes at the work site were used to lift concrete buckets forpouring columns. It is undisputed that one of the buckets was modifiedwith a platform attachment which enabled a worker to ride with thebucket (Tr. 340-341). Payne and Ford were both aware of the bucket’s use(Tr. 45, 700). The bucket had been modified by Rodney Walters, the CEIforeman (Tr. 152-153, 451).Neale testified that, based on employee interviews, he determined thatemployees sometimes rode the Burke forms (Tr. 559-562). Stuart testifiedthat, while workers were prying loose the forms from the walls, theywould stand on the forms. When the form would break loose, the formwould rise four to six feet due to the cable tension, then settle backdown. The worker would ride the form as it rose and lowered (Tr. 302).Joint Venture argues that the ANSI standard is directed at the craneoperator and not at the employees riding the loads. In support of thisargument, Joint Venture cites _Havens Steel Co_., 78 OSAHRC 53\/C11, 6BNA OSHC 1740, 1978 CCH OSHD ? 20,775 (No. 15538, 1978). In _Havens_,two construction workers rode \”on a headache ball at the end of ahoisting rope of a Link- Belt crane used and controlled by Havens.Inasmuch as Havens clearly controlled the crane, however, it was under aduty to operate the crane in conformity with the standards even if suchcompliance would have protected only employees of the contractor at thismultiple-employee construction worksite.\” (Id. at 1741). This case doesnot help Joint Venture. Like Havens, Joint Venture used and controlledthe CEI cranes.Joint Venture also advances an infeasibility defense with regard to menriding the concrete bucket. Joint Venture bases this defense on Payne’stestimony that the concrete columns could not be poured unless anemployee was allowed to ride with the bucket because \”you have to beopening the bucket and closing it so that the concrete doesn’t come backup in elephant trunk and close up and then you get buried in theconcrete and you can’t get it out\” (Tr. 703). Payne’s testimony is notsufficient to establish infeasibility. Payne testified that he neverwatched the operation of the crane. He generally performed his duties inhis office in the trailer compound (Tr. 367-369). His testimony standingalone is insufficient to support Joint Venture’s claim of infeasibility.Employees could have possibly used ladders to reach the work site or aconcrete pump could be used. Joint Venture showed plain indifference tothe requirements of the Act with regard to its employees riding theconcrete bucket and the Burke forms. In this instance, it is noted thatthe concrete buckets were modified by an employee of CEI to permitemployees to ride on it. There were representations by CEI personnelthat the work could be performed in that manner. Although Joint Ventureknew or should have known of the hazardous conditions which constituteda serious violation of 29 C.F.R. ? 1926.550(b)(2), the evidence does notshow the violation was intentional and without regard for employeesafety so as to constitute a willful violation within the meaning of theAct.IISERIOUS CITATION ONE, ITEM TWO_BARRICADING THE CRANES_Item Two, Serious Citation One, [[8]] charges respondent with violating29 C.F.R. ? 1926.550(a)(9) which provides as follows:Accessible areas within the swing radius of the rear of the rotatingsuperstructure of the crane, either permanently or temporarily mounted,shall be barricaded in such a manner as to prevent an employee frombeing struck or crushed by the crane.Neale stated that \”Every day I was on the site, I observed cranesworking without any barricade of any kind. . .\” (Tr. 549).Neale also testified that this violation was easily observable by JointVenture’s management personnel: \”With the size of the cranes out thereand the number of them on that site, the only way you couldn’t be awareof it is if you were totally blind\” (Tr. 550).Joint Venture argues once again that it was CEI’s responsibility tocomply with the applicable standard. Once again, Joint Venture ignoresits degree of control over the work site. It was Joint Venture whoexercised control over the work site and it was Joint Venture’sresponsibility to protect the employees by barricading the cranes’superstructures. _Grossman Steel & Aluminum Corp.,_ _supra._Joint Venture also argues that Neale failed to show that employees wereexposed to any danger from the rotating superstructure. This argument iswithout merit.[T]he likelihood of an employee moving into the swing radius of thecrane, when viewed at the time of the violation, is not diminished bythe _post hoc_ observation that no one did enter the area of danger.Such after-the-fact analysis would impede, rather than further thecongressional goal of accident prevention embedded in the Act._Williams Enterprises, Inc_., 79 OSAHRC 4\/B5, 7 BNA OSHC 1015, 1979 CCHOSHD ? 23,279, pp. 28,155-28,156 (No. 14748, 1978).Joint Venture was in serious violation of 29 C.F.R. ? 1926.550(b)(2).SERIOUS CITATION ONE, ITEM ONE_SAFETY TRAINING_Item One, Serious Citation One,[[9]] which charges respondent withviolating 29 C.F.R. ? 1926.21(b)(2) which provides as follows:The employer shall instruct each employee in the recognition andavoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazards or other exposureto illness or injury.Joint Venture presented evidence of regular safety meetings (Ex. R-4).This evidence is overshadowed, however, by the ample record of safetyviolations committed by Joint Venture’s employees. Particularly tellingis the ease with which the supervisory personnel committed or condonedthe violations; they participated in the lift knowing the weight wasexcessive, and they were aware that their employees were riding the loads.Because the behavior of supervisory personnel sets an example at theworkplace, an employer has–if anything–a _heightened_ duty to ensurethe proper conduct of such personnel. Second, the fact that a foremanwould feel free to breach a company safety policy is strong evidencethat implementation of the policy was lax. (Emphasis in original.)_National Realty & Construction Co. v. OSHRC, _489 F.2d 1257, 1267, fn.38 (D. C. Cir. 1973).Especially significant was the lack of safety training regarding riggingand the operations involving cranes.Any safety training Joint Venture’s employees were given wascounteracted by the failure of the supervisory personnel to enforce it,or to follow it themselves. Joint Venture was in serious violation of ?1926.21(b)(2).The foregoing decision constitutes findings of fact within the meaningof the Federal Rules of Civil Procedure._ADDITIONAL FINDINGS OF FACT_1. Archer-Western Contractors, Limited, and Gilbert Corporation ofDelaware formed a partnership known as Archer-Western Contractors,Limited, and Gilbert Corporation of Delaware, a Joint Venture. JointVenture, in which Archer-Western is the managing partner with a 60percent share of the partnership, contracted to build the new terminalat the Palm Beach International Airport in Palm Beach County, Florida.2. The airport project is a 30-40 acre site with buildings encompassingabout 1,500,000 square feet including a three-story terminal with fourlevels of parking above the terminal and three concourses (two 2-levelconcourses and one single-level concourse).3. Joint Venture did not own any of the cranes used at the airport project.4. Joint Venture did not employ any of the crane operators at theairport project.5. Joint Venture rented cranes with operators from ConstructionEquipment International (\”CEI\”), one of the largest crane companies withover 100 available cranes in Florida alone.6. CEI is a wholly-owned subsidiary of Combustion Engineering, Inc., andspecializes in supplying manned and maintained cranes.7. Under this arrangement, CEI supplied Joint Venture with five cranes,two Manitowoc 4000-W tower cranes, a Manitowoc 3900 conventional craneand two Tadano hydraulic cranes.8. Stairwell No. 4 was being built with a Burke form, which wasapproximately 15 feet by 27 feet by 9 feet. It consisted of outerportions, which are not relevant to this action, and the innerfour-sided form. This four-sided Burke form weighed approximately 20,000pounds.9. The Burke forms used at the airport project had two walkwayplatforms, one three feet from the top and the other three feet from thebottom.10. The walkway platforms had guardrails.11. The customary method of removing the Burke forms was to remove thetaper ties out of the concrete while the form was still connected to thewall by jacks.12. The form would then be stripped away from the wall, a method duringwhich employees physically rode the load for a short amount of time asthe form dropped one to two inches.13. On April 28, 1987, respondent’s management, knowing that the Burkeform exceeded the capacity of the Manitowoc 4000-W tower crane, orderedthe crane company to lift the Burke form.14. Crane Operator Dickey initially refused to make the lift, statingthat the load exceeded the lifting capacity of his crane.15. Lead Crane Operator Walters suggested that superintendent Link had a\”way out\” to get the lift if Link would state in writing that the formweighed only 12,000 pounds.16. Superintendent Link made a written note that the form-weighed 12,000pounds and authorized the lift through the jib of Dickey’s Manitowoc4000-W tower crane.17. Joint Venture did not use the Manitowoc 4000-W tower crane to makethe lift which had adequate capacity and was available at the site.18. Link and Walters instructed Dickey to make the lift.19. Joint Venture’s management, including Foreman Dave Stuart, ProjectSuperintendent Tom Link and Safety Official Burt Ford were aware of thehazardous situation at Stairwell No. 4 on April 28, 1987.20. As a direct result of the actions by Joint Venture’s managementpersonnel, the Manitowoc 4000-W tower crane collapsed, dropping metalbeams and parts near Joint Venture’s employees working in the area.21. On May 8, 1987, none of the cranes operating at the workplace hadthe swing radius of the superstructure guarded or barricaded in any wayto prevent Joint Venture’s employees from being struck or crushed.22. The lifting beam used by the Manitowoc 4000-W tower crane whichcollapsed on April 28, 1987, was supplied to Joint Venture by the BurkeCompany.23. Henry Siegel, a Burke Company representative, provided a BurkeCompany diagram of the lifting beam which showed 7\/8-inch slings orspreaders above the beam.24. Frederick Popovic, a structural engineer with the consulting firm ofWiss, Janney, Elstner, Associates, Inc., in Northbrook, Illinois,inspected the airport site after the boom collapsed. Mr. Popovicinspected the lifting beam, measured the dimensions of all the plates tothe beams and measured the distance between the lift points on the beam.25. The distance between the lift points on the beam was 11 feet.26. OSHA Inspector Neale did not measure the distance between the liftpoints on the beam.27. OSHA Inspector Neale did not weigh the lifting beam.28. OSHA Inspector Neale based his calculations for the total weight ofthe lift on the weight of the lifting beam provided on the general BurkeCompany diagram.29. OSHA Inspector Neale did not measure the angle from the spreader tothe lifting beam but rather used a \”rule of thumb\” of a 45 degree angle.30. Joint Venture’s crane expert, Donald Markwardt, calculated the anglebetween the lifting beam and the spreaders based on 11 feet between thelift points on the beam as measured by Mr. Popovic and 20 feet as thelength of each spreader.31. The vertical spreader angle on the spreader above the lifting beamwas 16 degrees.32. The spreader used by the Manitowoc 4000-W tower crane whichcollapsed on April 28, 1987, was independent wire rope core.33. OSHA Inspector Neale did not measure the rigging length used by theManitowoc 4000-W tower crane which collapsed on April 28, 1987.34. OSHA Inspector Neale did not record the length of the spreaders usedby the Manitowoc 4000-W tower crane on April 28, 1987.35. OSHA Inspector Neale measured the diameter of only one of thespreaders used by the Manitowoc 4000-W tower crane which collapsed onApril 28, 1987.36. Seven-eighths inch diameter spreaders were regularly used on theManitowoc 4000-W tower cranes at the airport project.37. A special mancage-type platform was attached to the concrete bucketused while pouring concrete columns.38. This platform attachment had guardrails.39. The platform attachment was used to lift personnel attached to theplatform with safety lines and lanyard lines.40. CEI Lead Operator Walters made the platform attachment used on theconcrete bucket.41. CEI Lead Operator Walters told Project manager Payne that he hadused similar attachments on other jobs and that this was the best way topour the concrete columns.42. The height of the columns was 21 feet and the concrete bucket had tobe raised 18 feet above the column.43. Death or serious injury would likely result from the violativeconditions described above.44. Archer-Western Contractors, Ltd. (\”Archer-Western\”) is the generalcontractor for the Sunny Isles project.45. Archer-Western purchased the cranes used at the Sunny isles project.46. The Sunny Isles project is located on Sunny Isles Boulevard andintercostal waterway, Route 826 in North Miami Beach.47. The project is approximately a mile long and runs from the west sideof the intercostal waterway to the east side over the intercostal and upto Route 81A or Collins Avenue at the ocean.48. The project involves the construction of two bridges, eachapproximately 1300 feet long, and the removal of the existing bridge androadwork.49. At the Sunny Isles project, Archer-Western owned two small Groverough terrain cranes, one 150-ton crawler crane and two 60-ton crawlers.50. On December 3, 1986, an Archer-Western employee was electrocutedwhen a crane got too close to electrical wires while it was unloadingfrom a truck.51. The employee’s death resulted in a citation from OSHA.52. In an attempt to abate the citation, Archer-Western requested asafety presentation by the OSHA office.53. The presentation was held on December 11, 1986.54. Archer-Western also requested the State of Florida to conduct a mockinspection of the Sunny Isles project.55. On February 10, 1986, the OSHA inspector returned for a follow-upinspection and noted that the problems at Sunny Isles were \”fully abated.\”_CONCLUSIONS OF LAW_1. Respondent, at all times material to this proceeding, was engaged ina business affecting commerce within the meaning of section 3(5) of theOccupational Safety and Health Act of 1970 (\”Act\”).2. Respondent, at all times material to this proceeding, was subject tothe requirements of the Act and the standards promulgated thereunder.The Commission has jurisdiction of the parties and of the subject matter.3. Respondent was in willful violation of 29 C.F.R. ? 1926.550(a)(1) forexceeding the lift capacity of a crane’s boom, resulting in the boom’scollapse. Respondent was aware of the load’s excessive weight yetordered the lift to go forward.4. Respondent was not in willful. violation of 29 C.F.R. ?1926.251(c)(1) for exceeding the lift capacity of a crane’s rigging. TheSecretary failed to prove that inadequate rigging was used.5. Respondent was in serious violation of 29 C.F.R. ? 1926.550(b)(2) forallowing employees to ride the loads of cranes. Respondent was awarethat employees were riding Burke forms and in a modified concrete bucket.6. Respondent was in serious violation of 29 C.F.R. ? 1926.550(a)(9) forfailing to barricade the swing radius of a crane’s rotating superstructure.7. Respondent was in serious violation of 29 C.F.R. ?1926.21(b)(2) forfailing to instruct its employees in the recognition and avoidance ofunsafe conditions._ORDER_It is ORDERED:1. That Citation Number Two, Item one, which alleges a willful violationof 29 C.F.R. ? 1926.251(c)(1), is vacated.2. That Citation Number Two, Item Two, which alleges a willful violationof 29 C.F.R. ? 1926.550(a)(1), is affirmed and a penalty of $10,000 isassessed.3. That Citation Number Two, Item Three, which a willful violation of 29C.F.R. ? 1926.550(b)(2), is affirmed as a serious violation and apenalty of $1,000 is assessed.4. That Citation Number One, Item One, which alleges a serious violationof 29 C.F.R. ? 1926.21(b)(2), is affirmed and a penalty of $1,000 isassessed.5. That Citation Number One, Item Two, which alleges a serious violationof 29 C.F.R. ? 1926.550(a)(9), is affirmed and a penalty of $1,000 isassessed.6. That Citation Number One, Item Three, which alleges a seriousviolation of 29 C.F.R. ? 1926.550(b)(2), is vacated.Dated this 3rd day of November, 1988JOE D. SPARKSJudgeFOOTNOTES:[[1\/]]Neither party took exception to the judge’s disposition of theother items and they are not before us on review.[[2\/]]The record does not indicate whether CEI was trying to ensure thatthe form did not exceed the lift capacity of the crane or merely toprotect itself from liability.[[3\/]] The standard states:?1926.550 _Cranes and derrick._(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.[[4\/]]The Secretary argues that under Commission rule 92(c), 29 C.F.R. ?2200.92(c) the Commission is precluded from considering the issuebecause it was not raised before the judge. The argument is withoutmerit. The matter was clearly raised in Respondent’s post-hearing briefbefore the judge. It is, therefore, properly before the Commission.[[5\/]] Respondent argues that, under the cited standard, only when anapplicable load chart is unavailable may the Secretary adduce thetestimony of \”competent engineers\” to establish the capacity of thecrane. Because the Secretary failed to prove the unavailability of anapplicable load chart, Respondent claims that she could not presentexpert testimony on the crane’s capacity.This argument is rejected. The cited standard imposes a duty on anemployer to comply with the crane manufacturer’s specifications andlimitations. When a load chart is unavailable, the employee is obligedto use a competent engineer to determine the capacity of the crane.However, the duties imposed on the employer by the standard do not limitthe methods the Secretary relies on to establish that the employerfailed to comply with this obligation.[[6\/]] Respondent’s culpability does not necessarily excuse CEI for itsresponsibility in this matter. Under pressure from the Joint Venture,CEI’s operator made the lift with full knowledge that the form exceededthe lift capacity of the crane. However, the record does not revealwhether CEI was cited for any possible violation.[[7\/]]Respondent also argues that the judge erred by relying in partupon another crane accident for his finding that the violation waswillful. In that incident, an Archer-Western employee was electrocutedwhen a crane hit an overhead power line. Even though Gilbert was notpart of that project, the judge found Archer-Western’s previousexperience to be imputable to the Joint Venture because Archer-Westernwas the Joint-Venture’s managing partner. Given our finding that eventsat the site of the accident were sufficient to establish that theviolation was willful, it is unnecessary for us to decide whether thejudge properly relied, in part, on the Sunny Isles Project incident.[[8\/]] The standard states:?1926.21 _Safety training and education._(b) _Employer responsibility._(2) The employer shall instruct each employee in the recognition andavoidance of unsafe conditions and the regulations applicable to hiswork environment to control or eliminate any hazards or other exposureto illness or injury. [[1]] A third item, 29 C.F.R. ?1926.550(b)(2) for failure to providesignal men for moving cranes carrying loads, was the subject of a motionto dismiss made by Joint Venture at the close of the Secretary’s case.The motion was taken under advisement (Tr. 630-631). Subsequently, theSecretary withdrew the item in her posthearing brief (Secretary’s brief,pp. 2-3). Accordingly, the third item of Citation Number One isdismissed and will not be considered in this decision.[[2]] Willful Citation Two, Item One, alleges the following violation:29 CFR 1926.251(c)(1): Single leg and two (2) leg bridle slings wereused in excess of safe walking loads as determined by Tables H-3 throughH-14:(a) On or before April 28, 1987, at the West Palm Beach InternationalAirport Project, stairwell #4. A lifting beam used to raise \”BurkeForms\” weighing approximately 20,000 lbs. was attached to the crane hookby a 5\/8\” diameter I.W.R.C. two (2) legged bridle sling, with a S.W.L.of 9600 # (by table H-8). The lifting beam was then attached to the\”Burke Form\” by four (4) 5\/8\” diameter. I.W.R.C. single leg slings witha S.W.L. of approximately 8800#. (Table H-3). (S.W.L. limited to 2 legsling maximum.[[3]] Willful Citation Two, Item Two, alleges the following violation:29 CFR 1926.550(a)(1): The employer did not comply with themanufacturer’s specifications and limitations applicable to theoperation of cranes or derricks:(a) On or before April 28, 1987, at the West Palm Beach InternationalAirport Project, stairwell #4. A Manitowoc 4000-W tower crane was loadedin excess of the manufacturers rated capacity for the 40-0′ jib.[[4]] Foreman Stuart’s testimony was unequivocal as follows (Tr. 304-305):BY MR. CLARK:Q. Were you at the airport workplace on April 28, 1987?A. Yes, sir.Q. What were your duties on that date?A. I was foreman at the time.Q. And, what specific assignments were you given for that date?A. To raise the form at Stairwell Number 4.Q. When were you given that assignment?A. That morning.Q. Who told you that you should raise the form in Stairwell Number 4?A. The superintendent, Tom Link.Q. About what time was that?A. The first thing that morning; about between 7:00 and 7:30.[[5]] No attempt is made to determine whether CEI also violated thestandard as it was not charged by the citation at issue.[[6]] Payne testified that, after speaking with Lothian, he instructedLink not to make the lift using Dickey’s crane (Tr. 379). In view of theserious concerns discussed previously, this testimony is not deemedcredible as it is highly unlikely that Link would have ordered the liftin contravention of instructions from Payne and against the advice ofall crane operators.[[7]] Willful Citation Two, Item Three, alleges the following violation:29 C.F.R 1926.550(b)(2): Section 5-3.2.3.e. American National StandardsInstitute, B30.5-1968, Safety code for Crawler Locomotive and truckcranes, as adopted by 29 CFR 1926.550(b)(2):(a) Crane operators were permitted to Hoist lower swing, or travel,while employees were on the load or hook: On a before April 18, 1987, atthe West Palm Beach International Airport Project, employees werepermitted to ride \”Burke forms\” and \”Concrete Buckets\” while they wereraised to working locations, 20- 0 to 50-0′ height, by mobile cranes.[[8]] Serious Citation One, Item Two, alleges the following violation:29 CFR 1926.550(a)(9): Accessible areas within the swing radius of therear of the rotating superstructure of cranes were not barricaded insuch a manner as to prevent employees from being struck or crushed bythe crane:(a) On or about May 5, 1987, at the terminal building north and southsides, a Manitowoc 4000-W Tower Crane, did not have the area between thecounter-weight swing radius and scaffolding, Porti-Potti, form work andother building material protected.[[9]] Serious Citation One, Item One, alleges the following violation:29 CFR 1926.21(b)(2): The employer did not instruct each employee in therecognition and avoidance of unsafe conditions and the regulationsapplicable to his work environment to control or eliminate any hazardsor other exposure to illness or injury:(a) On or about May 5, 1987, at the West Palm Beach InternationalAirport, employees were not given safety training or instructions,including but not limited to the following:I.A. Hand and radio signaling of the Cranes. 1. Proper signals, and radioprocedures.B. Flagging cranes when they are relocating or travelling.1. Proper signals and precautions.II.A. Proper and accepted industry practices rigging material to be hoistedby a crane.1. How to properly calculate or determine material weights.2. What size and type rigging hardware, and components to use forvarious lifts.3. How to find S.W.L. of components: 4. Who is designated competentperson charge of critical lifts, and has authority to abort improperlyrigged lifts:III.A. Accepted manufacturers specifications recommendations for proper useof crane and their components.1. Maximum loads allowed at various radiuses with different craneconfigurations, such as:a.towersb.jibsc.conventional boomsd. Hydro-cranes.”