“Docket No. 87-1067 SECRETARY OF LABOR,Complainant,v.ARCHER-WESTERN CONTRACTORS, LTD,and GILBERT CORP of DELAWARE,a JOINT VENTURE,Respondent.OSHRC Docket No. 87-1067DECISION Before: FOULKE, Chairman, and WISEMAN, Commissioner.BY THE COMMISSION:This case involves the collapse of a Manitowac 4000-W tower crane at a constructionsite in West Palm Beach, Florida on April 28, 1987. As a result of that collapse and asubsequent inspection by the Occupational Safety and Health Administration(\”OSHA\”), the Joint Venture of Archer-Western Contractors, Ltd. and GilbertCorporation of Delaware (hereinafter \”the Joint Venture\” or\”Respondent\”) was issued two citations, each of which alleged several violationsof the Occupational Safety and Health Act, 29 U.S.C. ?? 651-678 (\”the Act\”) .Two items are before the Commission on review: citation 2, item 2 alleging a willfulviolation of 29 CFR ? 1926.550(a)(1) for exceeding the lifting capacity of the crane; andCitation 1, item 1 alleging a serious violation of 29 C.F.R. ? 1926.21(b)(2) for failingto instruct employees in the recognition and avoidance of unsafe conditions.[[1\/]]Administrative Law Judge Joseph D. Sparks affirmed both violations and assessed thepenalties proposed by the Secretary. Respondent filed a Petition for Discretionary Reviewthat was granted by the Commission. For reasons that follow, we affirm the willfulviolation 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 ofa terminal at the Palm Beach International Airport, and had contracted with ConstructionEquipment International (CEI) to provide the necessary cranes and operators. The contractdid not require CEI to provide any other personnel or equipment, such as signalmen orrigging.On April 28, 1987, the Joint Venture decided to lift a Burke core form from stairwellnumber four. Cement is poured into a core form to construct a stairwell. The Burke form atstairwell four measured 15 by 27 feet and was from 9-14 feet high. CEI operator James EarlDickey was operating the Manitowac 4000-W crane that was to make the lift. The crane had atower attachment of 133 feet, 160 feet of working boom and a 40-foot jib. Dickey wasconcerned that the form exceeded the capacity of the crane. He told one of\u00a0Respondent’s foremen, David Stuart, that the crane’s capacity was 14,800-14,900 pounds andasked for the weight of the form. Stuart estimated the form to weigh 16-17,000 pounds.Because the form exceeded the capacity of the crane, Dickey refused to make the lift.Stuart then went to CEI lead operator Rodney Walters to inform him of Dickey’s refusal. Healso informed Walters that CEI had made the lift before. Walters told Stuart that theywere not going to make any more questionable lifts. Stuart then reported the situation toRespondent’s project manager Paul Payne and engineer Joseph Appleton. Payne and Appletonwere under the impression that the Manitowac 4000 had lifted the Burke form before andquestioned why the lift could not be made again. Payne told Stuart that it was importantto make the lift. He ordered Stuart to get the form ready and stand by. Payne calledMichael Lothian, a general manager at CEI headquarters in Tampa, and asked him to explainwhy CEI was refusing to make the lift.Lothian explained that, based on their operator’s previous experience in lifting theform, CEI believed that the form’s weight exceeded the capacity of the crane. Payne endedthe telephone conversation and recalculated the weight to be 15-16,000 pounds. He thentelephoned Lothian and told him of this new calculation, that the form weighed 15,300pounds. Lothian pointed out that, according to the load chart, the weight was well inexcess of the crane’s capacity. Payne replied that it was only 1300 pounds over thecapacity and asked what was wrong with making the lift. Lothian pointed out that to theweight of the form must 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 pounds did not includethose items, the lift could exceed the capacity of the crane by as much as 20%.Lothian testified that he told Payne that the discussion was not necessary becausethere was another crane at the site, a Manitowac 3900, capable of handling the load.Lothian stated that after he explained that the other crane would have to be rerigged tomake the lift, Payne complained that it was a lot of work \”for one lousy pick,\”but he finally agreed to it.Payne’s version of the conversation varies from Lothian’s in important respects.Payne testified that Lothian told him that the jib capacity was not high enough to makethe lift and that it would have to be rerigged to make the lift. Thus, while Lothiantestified that he told Payne that the Manitowac 4000 was incapable of making the liftunder any circumstance, Payne apparently believed that the crane could make the lift if itwere properly rerigged.Payne testified that immediately after this conversation with Lothian, he told hisforeman, Thomas Link, not to make the lift with the Manitowac 4000 until it was rerigged.Link agreed not to make the lift. However, Stuart, a foreman who worked for Link,testified that Link ordered him to have the crane readied for the the lift. Link did notorder the crane rerigged. When CEI head operator Walters learned that the lift was to bemade, he told Link that he thought the form weighed over 18,000 pounds and that he wouldnot allow the lift until he had authority from his superiors in Tampa. After callingTampa, Walters suggested to Link that there was an \”out.\” Walters said thatTampa agreed to allow the lift if Link or another member of Respondent’s management wouldcertify that the form weighed 12-14,000 lbs. and provide a release of liability. [[2\/]]Link took out a piece of note paper, wrote \”STAIR #4 12,000 PDS T. Link\” andhanded 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 protest that the lift wasunsafe. Finally, Dickey agreed to make the lift, although he continued to maintain he wasbeing forced into it. Respondent’s safety manager Ford, after talking to Stuart andDickey, instructed employees not to ride the form during the lift.Respondent’s employees loosened the jacks holding the form. Stuart then signaledDickey to make the lift. The form rose for 10-15 seconds, then dropped back on the jacks.The lifting beam struck the top of the form. Metal and debris began to fall as the jib andboom of the crane collapsed. Employees ducked and ran into the building to avoid thefalling debris.Payne testified that, after the accident, he asked Link why he authorized the lift.According to Payne, Link admitted his error. He told Payne that because they hadpreviously made a similar lift, he believed they could make this lift. Payne testifiedthat because he authorized the lift, Link was terminated for insubordination on May 12,1987, two weeks after the lift.Judge Sparks found that the evidence was undisputed that the maximum lifting capacityof the crane was 14,000 pounds and that the weight of the load was at least 20,000 pounds.He affirmed a willful violation of 29 C.F.R. ?1926.550(a)(1) [[3\/]] and assessed the$10,000 proposed penalty. The judge specifically rejected\u00a0 Respondent’s contentionthat it was not responsible for the violation because it was only the lessor of the crane.He noted that contractors were absolved of responsibility for crane related violationsonly when the lessor relied on the expertise of the crane operator. Here, the judge found,Respondent did not rely on the operator’s expertise. Rather, contrary to the advice of theoperator and with full knowledge that the lift exceeded the capacity of the crane,Respondent insisted that the overweight lift be made. He concluded that Respondent wasdirectly responsible for the violation.Judge Sparks also discredited Payne’s testimony that Link authorized the lift indirect violation of his specific orders. The judge found it highly unlikely that foremanLink would have ordered the lift against Project Manager Payne’s orders and against theadvice of all crane operators. He further noted that other supervisory personnel wereaware that the load exceeded the crane’s capacity, yet allowed the lift to be made.B.Respondent first argues that the evidence did notestablish the lifting capacity of the crane.[[4\/]] It claims that the only evidence citedby the judge in support of his finding that the lift capacity of the crane was 14,000pounds was a Manitowac chart for tower cranes with tower attachments between 163-213 feetin height. However, the actual height of the tower used in the lift was 133 feet. There isno evidence, Respondent continues, which suggests that the chart applies to the 133 foottower. Respondent concludes that the Secretary’s failure to establish the manufacturer’srated load capacity for the tower crane requires that the citation be vacated. Thisargument is rejected.As Respondent properly notes, the load charts introduced into evidence do notdirectly address the particular configuration of the crane at the time it made theill-fated lift. The chart covers cranes with towers of 163 to 213 feet, and boom lengthsof 150 feet. The crane in use, however, had a 133-foot tower and a 160-foot boom. Forthose 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 20,000 pounds with a30-foot jib. The load chart also states that when determining the load all blocks, hooks,weight balls, slings, hoist lines, etc. are to be considered part of the load.A load chart cannot always be relied on to set limits for every possibleconfiguration of a crane. Therefore, when no specifically applicable limits are includedon a load chart, the employer is expected to make a reasonable estimate of the limits ofthe crane from the capacities set forth in the load chart. See Towne Construction Co.v.OSHRC, 847 F.2d 1087 (6th Cir. 1988).The standard requires that when no load specifications are available, the limitationsshall be determined by a competent engineer. [[5\/]] Although not qualified at the hearingas \”competent engineers,\” the CEI operators who were most familiar with thecrane repeatedly warned that the load exceeded the crane’s capacity. These warnings putRespondent on notice 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’s capacity. Although the evidence does not establish the precise capacity of the crane, we findthat the evidence overwhelmingly establishes that the load exceeded the manufacturer’sspecifications and limitations in violation of ? 1926.550(a)(1). The evidence establishedthat: the maximum listed capacity for the crane with a 40-foot jib is 14,000 pounds; allreasonable estimates of the weight of the load were substantially in excess of 14,000pounds; no competent engineers were assigned to determine whether the crane was capable oflifting a load in excess of 14,000 pounds; CEI operators repeatedly warned that the loadexceeded the capacity of the crane; the Secretary’s crane expert testified that the loadexceeded the crane’s capacity; and when the lift was made, the crane collapsed. C.Respondent next argues that the citation should bedismissed because the lift was the result of unpreventable supervisory misconduct on thepart of its foreman, Tom Link. Respondent contends that the evidence demonstrates thatCEI’s Lothian told Payne that the Manitowac 4000 crane could make the lift if it wasrerigged and that Payne subsequently ordered Link not to make the lift until the cranecould be rerigged. In authorizing the lift, Respondent contends that Link directlydisobeyed Project Manager Payne’s order not to make the lift until the crane was rerigged,for which he was terminated. Respondent contends that, by discrediting Payne’s account onthe basis that he found it \”highly unlikely that Link would have ordered the lift incontravention of instructions from Payne and against the advice of all craneoperators,\” the judge substituted his own subjective belief for the undisputed recordevidence that Link was insubordinate. Respondent also argues that the judge’s conclusionthat other Joint Venture supervisors were aware that the lift was being made, yet didnothing to stop it, is not supported by the record.The Commission is normally reluctant to disturb ajudge’s credibility finding. Kent Nowlin Construction Company, Inc., 8 BNA OSHC1286, 1980 CCH OSHD ? 24,459 (No. 76-191 and 76-192, 1980); Otis Elevator Co., 8BNA OSHC 1019, 1980 CCH OSHD ? 24,236 (No. 14899, 1980), appeal withdrawn, No.80-470 (2d Cir. May 15, 1980); C. Kaufman, Inc., 6 BNA OSHC 1295, 1977-78 CCH OSHD? 22,481 (No. 14281, 1977), This deference is granted because it is the judge who has hadheard the witnesses and observed their demeanor. C. Kaufman, Inc., 6 BNA OSHC at1297, 1977-78 CCH OSHD at pp. 27,099. Here, however, the judge did not make the type ofcredibility finding to which we ordinarily defer. It was not based on the traditionalweighing of conflicting testimony, but rather on his subjective assessment of theprobability of events. Indeed, there was no evidence to contradict Payne’s testimony thathe ordered Link not to make the lift.However, even accepting at face value Payne’stestimony regarding his orders to Link, the overwhelming weight of the evidence stillsupports the testimony of CEI’s manager in Tampa, Lothian, that he told Payne that thecrane could not make the lift and that the Manitowac 3900 should be used. The evidence isalso clear that Payne was anxious to make the lift and did not want to take the time tomove the Manitowac 3900 crane and prepare it for the lift. According to Lothian, Payne wasvery agitated when he spoke to him about the unwillingness of CEI’s operators to pick upthe stairwell form. Even after Lothian explained that the weight of the stairwell wasabove the limit of the crane, Payne argued for the lift on the grounds that the stairwellwas \”only\” 1300 pounds above the limit. When told that there was a crane at theworksite capable of handling the load, Payne told Lothian that getting the other craneready was a lot of work \”for one lousy pick.\” We therefore find that theevidence establishes that Payne knew that his decision to make the lift with a reriggedManitowac 4000 crane was contrary to the express warnings conveyed to him and hissupervisors by Lothian and the CEI operators.Moreover, even though Payne instructed Link not tomake the lift until the crane was rerigged, the evidence established that the load wouldstill have exceeded the capacity of the crane, even if the crane were rerigged. Althoughrerigging the crane might have increased the capacity of the crane, Respondent was amplyinformed by the CEI operators of their concern that, even after being rerigged, the cranewas not capable of making the lift and that another crane was available at the site thatcould safely make the lift. An unpreventable misconduct defense will not be establishedwhere the employer’s instructions were insufficient to eliminate the hazard even if theemployee had complied with those instructions. Brown and Root, Inc., 8 BNA OSHC1055, 1060, 1980 CCH OSHD ? 24,275 at p. 29,570 (No.76-3942, 1980); See also Eddy’sBakeries Company, 9 BNA 2147, 2151, 1981 BNA OSHC ? 25,604 at pp. 31,940 (No.77-1084, 1981) (Workrule that fails to abate hazard, even when adequately implemented,does not fulfill employer’s duty under section 5(a) (1)). Here, Link disobeyed a directorder, but the order itself required a violation of the standard.Even if Payne had believed that the Manitowac 4000crane could successfully make the lift, Link’s disobedience would still not relieve theJoint Venture of responsibility for the overweight lift. When an employer raises theaffirmative defense of unpreventable employee misconduct, the employer must demonstratethat the actions of the employee were a departure from a uniformly and effectivelycommunicated and enforced workrule. When the alleged misconduct is that of a supervisoryemployee, the employer must also establish that it took all feasible steps to prevent theaccident, including adequate instruction and supervision of its employee. DanielInternational Co. v. OSHRC, 683 F.2d 361, 364 (11th Cir., 1982); DanielConstruction Co., 10 BNA OSHC 1549, 1552, 1982 CCH OSHD ? 26,027 at pp. 32,672 (No.16265, 1982). Where a supervisory employee is involved, the proof of unpreventableemployee misconduct is more rigorous and the defense is more difficult to establish sinceit is the supervisor’s duty to protect the safety of employees under his supervision. Id.A supervisor’s involvement in the misconduct is strong evidence that the employer’s safetyprogram was lax. 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 thatother supervisory personnel allowed the lift to be made despite their knowledge that theload exceeded the crane’s capacity. The evidence establishes that the lift was made infull view of Respondent’s Safety Director Ford. Ford was not involved in the decisionregarding the use of the crane, but he had previously been informed by CEI crane operatorShurtleff that the Burke form was too heavy a load for the crane. Moreover, assuming, arguendo,that Ford was not aware of the dispute over the lift, the failure of the safety officialon the site to be informed and consulted about the dispute over the safety of the liftstrongly suggests that the Joint Venture failed to implement a safety program thatemphasized the importance and priority of safety. We therefore conclude that Respondentfailed to establish the affirmative defense of unpreventable employee misconduct.D.The Joint Venture next argues that it should not beheld liable for any violation 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 thatunder the rental agreement, CEI was to provide a \”qualified operator,\”\”operate the equipment in a professional and safe manner\” and \”be the soleoperator of this equipment.\” The Joint-Venture contends that it was theresponsibility of the crane operator to operate the crane in a safe manner and to ensurethat the crane was not overloaded. Respondent claims that the judge erred by notconsidering the lease agreement, the history of negotiation it had with CEI and CEI’s ownpolicy of holding its operators responsible for crane safety. Respondent further submitsthat CEI lead operator Walters authorized the lift after operator Dickey refused to makethe lift and other CEI operators agreed that it should not be made. Finally, Respondentargues that the judge erred by excluding proffered testimony establishing that the liftwas authorized by a CEI supervisor in Tampa.Respondent’s arguments are without merit. When anemployer contracts with a specialist, the employer is justified in relying upon thespecialist to protect against hazards related to the specialist’s expertise, as long asthe reliance is reasonable and the employer has no reason to foresee that the work will beperformed unsafely. Sasser Electric & Manufacturing Co., 11 BNA OSHC 2133,1984-85 CCH OSHD ? 26,982 (No. 82-178, 1984), aff’d, No. 84-1961 (4th Cir. 1985).Sasser does not support Respondent’scontention that it should not be held liable for the unsafe lift. Having hired CEI tooperate 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 to exceed those limits.Here, however, the Joint Venture obviously exerted pressure on the operators to ignoretheir judgment and raise a load that they had warned exceeded the crane’s limits.Respondent did not rely on the expertise of the crane operator. Instead, it ignored andtried to countermand it. Rather than showing that it could not have foreseen that the workwould be performed in an unsafe manner, the evidence establishes that the Joint Venturewas fully aware that the lift was unsafe and that it actually insisted that the lift bemade despite the hazard. Given these facts, the allocation of responsibility under thecontract has no real relevance. Regardless of CEI’s contractual responsibilities, thecritical fact is that the Joint Venture prevailed upon the operator to ignore his bestjudgment and proceed with the lift.[[6\/]]Having found no merit in any of Respondent’s defensesto the alleged violation, 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 Judgeerred by affirming the violation as willful. According to Respondent, orders given to Linknot to authorize the lift until the crane was rerigged establishes that the Joint Venturewas concerned with employee safety.To establish that a violation was willful, theSecretary must prove that the violation was committed with intentional disregard of theAct’s requirements or plain indifference to worker’s safety. R.D. Anderson ConstructionCo., 12 BNA OSHC 1665, 1669, 1986-87 CCH OSHD ? 27,500 at pp. 35,641 (No. 81-1469,1986); D.A.L. Caruso, Inc., 11 BNA OSHC 2138, 1984 CCH OSHD ? 26,985 (No. 79-5676,1984).We find that the record supports the ALJ’s conclusionthat the Joint Venture intentionally disregarded the requirement that lifts not exceed acrane’s capacity and that it was indifferent to employee safety. Both Payne and Linkexpressed considerable displeasure and frustration over the operator’s refusal to make thelift. Despite numerous warnings by the operator that the load exceeded the capacity of thecrane, Payne and Link made repeated demands on the CEI operators to make the lift. Evenwhen informed by CEI manager Lothian that the lift could be made safely by another craneelsewhere on the site, Payne’s concern was that preparing a new crane was a lot of effortfor \”one lousy lift.\” The lift was finally made when Link, contrary to what heplainly knew to be the facts, wrote and signed a \”release\” falsely attestingthat the weight of the form was within the crane’s capacity.Respondent would have us view Payne’s order to Linknot to make the lift until the crane was rerigged as a good faith effort at compliance. Incertain cases, we found that a willful charge is not justified if an employer has madesuch efforts to comply with a standard or to eliminate a hazard even though the employer’sefforts are not entirely effective or complete. Keco Industries, Inc.,13 BNA OSHC1161, 1169, 1986-87 CCH OSHD ? 27,860 at pp. 36,478 (No. 81-263, 1987). Here, however, wefind that Payne’s directive to Link did not constitute a good faith effort to comply withthe Act. Payne had been repeatedly warned that the crane was not capable of lifting theform, and was specifically told by Lothian that, even after rerigging, the crane could nothandle the load. Accordingly, we affirm the judge’s finding that the violation waswillful.[[7\/]]At the hearing Respondent stipulated that if aviolation were found, the penalty proposed by the Secretary was appropriate. Accordingly,we affirm the judge’s assessment of the $10,000 proposed penalty.Adequacy of Respondent’s Safety Program-29 C.F.R.? 1926.21(b)(2)[[8\/]]Respondent was issued a citation alleging a seriousviolation of 29 C.F.R. ? 1926.21(b)(2) on the grounds that it failed to provide safetytraining or instruction to its West Palm Beach employees in several areas of crane safety.The citation alleged that Respondent failed to instruct employees in:a. Proper hand, flag and radio signaling of cranes;b. How to properly rig a crane, including calculation of weight, types and components ofrigging, and designation of a competent person to be in charge of critical lifts; andc. Understanding manufacturer’s specifications for proper use of cranes including maximumloads at various configurations.The judge affirmed the violation and assessed a$1,000 penalty. We reverse the judge and vacate the item.The evidence establishes that the Joint Venture heldsafety meetings approximately once a week. The meetings were not held on any regularschedule. Rather, safety director Ford would contact the foreman who would set up a time,usually during a break. The meetings would last approximately 15 minutes. At thesemeetings, which were usually led by safety director Ford, the employees would discussvarious 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 meetingreports for the period between October 10, 1986 and the collapse on April 28, 1987 showthat aspects of crane safety were frequently discussed. Although he conducted the majorityof the safety meetings, Ford admitted that he was not involved with either craneoperations or the rigging on the cranes. In addition, Ford testified that, before becomingthe safety official for the Joint Venture, his safety training had consisted of acorrespondence course and on the job training. Another significant component of Ford’ssafety training was his reading of the OSHA Handbook and brochures.OSHA compliance officer Corey Neale was qualified bythe judge as an expert on cranes. Based on employee interviews and observations during thewalkaround, Neale concluded that the Joint Venture’s employees were not properly trainedin crane safety. Among those interviewed was foreman David Stuart, who was fired after theaccident. Stuart told Neale that he never had any training in rigging and that the JointVenture never held any classes explaining signaling, flagging, working loads or whichtypes of chokers to use. Employees who worked on the day of the collapse also told Nealethat they never received any training in rigging or hand signals. Regarding rigging, Nealetestified that the employees told him that \”You just watch somebody and you go outand you do it.\” In addition, the employees told him that they tried to get a foremanto give the signals when one was available.Foreman Stuart testified that Ford occasionallypassed out safety sheets for employees to read, sign and return, but he could not recallattending safety meetings. Although Stuart testified that he did not attend any safetymeetings in April of 1987, he could not explain why his signature appeared on the safetymeeting minutes of April 17 and 24.Jerry Freeman, a crane operator with 31 yearsexperience, who worked for CEI at the Palm Beach Airport Project from December 1986 toApril 1987, testified that Archer-Western employees provided the hooking or rigging on theloads and that they did a good job. According to Freeman, the employees followeddirections well. He testified that he was very particular about his rigging, and that theJoint Venture employees were able to rig his crane the way he wanted. In addition, Freemantestified that the Joint Venture provided very good signalmen and that he never had anyproblems in that regard. CEI crane operator Shurtleff also testified that he was suppliedwith adequate signalmen.Although the judge found that the Joint Venture heldregular safety meetings, he concluded that the evidence established that the training wasinadequate. The judge found the safety training in rigging and crane operation inadequatebased on the \”ample\” record of safety violations committed by the JointVenture’s employees. Of particular importance was \”the ease with which thesupervisory personnel committed or condoned the violations; they participated in the liftknowing the weight was excessive, and they were aware that their employees were riding theloads.\” He concluded that the benefit of any safety training given by Respondent wasnullified by the failure of supervisory personnel to either enforce it, or follow itthemselves.Respondent argues that the judge ignored testimonythat established that its safety sessions provided employees with extensive training oncrane safety, signaling and rigging. It also claims that the judge’s finding was contraryto the testimony of CEI’s crane operator’s that the rigging and signaling were adequate.The Secretary contends that Respondent’s lack ofsafety training regarding rigging and crane operations establishes the violation. TheSecretary notes that even though Respondent had five large cranes at the worksite, itcould not produce any employees at the hearing who were knowledgeable in the rigging andoperation of cranes. Interviews with employees confirmed that they knew little or nothingabout rigging and crane procedures.The duties imposed by 29 C.F.R. ? 1926.21(b)(2) aresatisfied when the employer instructs its employees about the hazards they may encounteron the job and about the regulations applicable to those hazards. Dravo Engineers andConstructors, 11 BNA 2010, 2011-2, 1984-85 CCH OSHD ? 26,930 (No. 81-748, 1984); SawneeElectric Membership Corporation, 5 BNA 1059, 1977-78 CCH OSHD ? 21,560 (No. 10277,1977). The evidence establishes that the Joint-Venture held regular safety meetings andthat at those meetings some aspects of crane safety were discussed. Most of thediscussions of crane safety, however, were concerned with the hazards of swinging loadsover the heads of employees. According to these minutes, only minimal attention was paidto rigging, signaling, or the importance of observing manufacturer’s specifications.Moreover, the meetings were conducted by safety director Ford, who had minimal safetyqualifications in general and virtually none regarding cranes.While the minutes did not establish that employeeswere adequately trained in all phases of crane operations, the uncontested testimony ofCEI operators Freeman and Shurtleff established that Respondent’s employees were, in fact,adequately trained in signaling and rigging. The most damaging evidence against Respondentwas given by former foreman Stuart. However, because Stuart’s employment was terminated byRespondent and he could not remember attending safety meetings for which he signed theminutes, the weight of his testimony must be considered diminished. Therefore, althoughthe meeting minutes did not show that Respondent’s employees received significanttraining, the performance of those employees establishes that they were trained in riggingand signaling.The Secretary also alleged that the employees werenot trained in understanding manufacturer’s specifications for proper use of cranesincluding the lifting of maximum loads at various configurations. The record establishes,however, that Respondent relied on the crane operators, employees of CEI, to determine theload capacities of the cranes. Although Respondent has a duty to its own employees, evenwhen it relies on a specialist such as CEI, see Sasser Electric & ManufacturingCo., 11 BNA at 2136, 1984-85 CCH OSHD at p. 34,684, we cannot fault Respondent forfailing to instruct its employees in matters that fall within the expertise of CEI’s craneoperators, when it reasonably relies on that expertise. Id.Contrary to the judge’s finding, the insistence byRespondent’s supervisory personnel that the stairway form be lifted, while indicative of ageneral disregard for employee safety, was not the result of a lack of training in thedetermination of crane capacities. Respondent’s supervisors were adequately warned thatthe crane lacked the proper capacity by the CEI operators, whose job it was to make suchdeterminations. We therefore conclude that the Secretary failed to establish thatRespondent violated 29 C.F.R. ? 1926.21(b)(2).Accordingly, the judge’s finding of a willfulviolation of 29 C.F.R. ? 1926.550(a)(1) is affirmed and a $10,000 penalty is assessed.The judge’s finding of a serious violation of 29 C.F.R. ? 1926.21(b)(2) is reversed andthe item is vacated.Edwin G. Foulke, Jr.ChairmanDonald G. WisemanCommissionerDated: April 30, 1991SECRETARY 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. Department of Labor, Fort Lauderdale, Florida, on behalf of complainant.James E. Moye, Esquire, Hansell and Post, Atlanta, Georgia, and John O’Rourke,Esquire, O’Brien, O’Rourke, Hogan and McNulty, Chicago, Illinois, on behalf of respondent.DECISION AND ORDERSPARKS, Judge: Respondent, Archer-WesternContractors, Limited, and Gilbert Corporation of Delaware, Incorporated, a Joint Venture,(\”Joint Venture\”) is the prime contractor for the construction of the newairport terminal at West Palm Beach, Florida. It contests two citations issued to it bythe Secretary of Labor on June 25, 1987, under the Occupational Safety and Health Act of1970 (\”Act\”), following a crane accident at the project. Citation Number One isa two-item serious citation for the violation of 29 C.F.R. ? 1926.21(b)(2) for failure toinstruct employees in the recognition and avoidance of unsafe conditions, and 29 C.F.R. ?1926.550(a)(9) for failure to barricade the swing radii of various cranes’ rotatingsuperstructures. [[1]] Citation Number Two is a three-item willful citation for theviolation of 29 C.F.R. ? 1926.251(c)(1) for using inadequate rigging, 29 C.F.R. ?1926.550(a) for exceeding the lift capacity of a crane, and 29 C.F.R. ? 1926.550(b)(2)for allowing employees to ride the loads of cranes.The parties stipulated at the hearing that, if JointVenture were found to 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’s citation. Theparties further stipulated that, if Joint Venture were found in violation of any of theitems of the willful citation, the penalty for each item would be $10,000. If a willfulviolation were reduced to a serious violation, the penalty would be $1,000 for each item(Tr. 566-567).At the beginning of the hearing, the Secretaryoffered into evidence the depositions of Michael Lothian (Ex. C-1; Tr. 43), Roger Weir(Ex. C-2; Tr. 44), Rodney Walters (Ex. C-3; Tr. 45), and John McDonald, Jr. (Ex. C-4; Tr.47). It was ruled that evidence relating to events occurring after April 28, 1987, (otherthan observations made by the OSHA Compliance Officer during his May inspection) would beinadmissible (Tr. 37). Accordingly, the parties were permitted to withdraw the depositionsand delete that testimony pertaining to events occurring subsequent to April 28. After thehearing, the parties submitted each deposition in two volumes: the first volume containingthe testimony to be received into evidence and the second volume containing profferedtestimony relating to post-April 28 events. The parties also submitted portions of thedepositions that were objected to on other grounds. Those portions are hereby admittedinto evidence.FACTS Joint Venture is a partnership formed byArcher-Western Contractors, Limited, and Gilbert Corporation of Delaware, Incorporated,for the airport terminal project. Archer-Western owns a 60 percent controlling interest inthe partnership and is the managing partner (Ex. C-9, deposition pp. 12, 43; C-9 Exhibit1).The instant case arises from Joint Venture’s contractto construct a terminal at the international airport in West Palm Beach, Florida. The worksite was on 30 to 40 acres of land. The buildings would cover approximately 1,500,000square feet.The plans called for a three-story terminal with four levels of parking above it, andthree concourses (Tr. 845).For the project, Joint Venture decided against usingits own cranes and employees as crane operators. Instead, Joint Venture contracted withConstruction Equipment International, Inc., (\”CEI\”) to provide cranes and craneoperators (Tr. 396-398). On January 20, 1987, a written agreement encompassing theequipment lease between Joint Venture and CEI was signed. The lease provides in pertinentpart: \”Lessor and its employee\/operator will be sole operator of this equipment, andall such operations are under Lessee’s exclusive jurisdiction, supervision, andcontrol\” (Ex. R-13). Under the agreement, CEI supplied Joint Venture with fivecranes: two Manitowoc 4000-W cranes, a Manitowoc 3900 conventional crane, and two Tadanohydraulic cranes. CEI did not provide rigging, riggers or signalmen (Tr. 396-398, 371).On April 28, 1987, Joint Venture instructed CEI thatit needed the Burke form lifted from stairwell number four (Tr. 304). The Burke form is acore form used for the stairwell. It measures 15 by 27 feet and can reach a maximum heightof 14 feet (Tr. 53). The Burke form at stairwell four was nine feet high (Tr. 66).CEI operator James Earl Dickey was operating aManitowoc 4000-W crane, which is a 150-ton crane with a 133-foot tower, 160 feet ofworking boom, and a 40-foot jib (Tr. 132, 660). A lifting beam was hooked to the crane andthe beam was then hooked to the Burke form. Laborers worked with crowbars and asledgehammer to loosen the form from the stairwell (Tr. 319). As Dickey applied pressureto lift the form, the boom of the crane collapsed (Tr. 324).OSHA Compliance Officer Corey Neale arrived at thework 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 a result of Neale’sinvestigation, Joint Venture was cited for several safety violations.IWILLFUL CITATION TWO, ITEM ONEEXCEEDING THE RIGGING CAPACITYItem One, Willful Citation Two,[[2]] chargesrespondent with violating 29 C.F.R. ? 1926.251(c)(1) which provides as follows:Tables H-3 through H-14 shall be used to determine the safe working loads of varioussizes and classifications of improved plow steel wire rope and wire rope slings withvarious types of terminals. For sizes, classifications, and grades not included in thesetables, the safe working load recommended by the manufacturer for specific, identifiableproducts shall be followed, provided that a safety factor of not less than 5 ismaintained.The Secretary’s witness, Dennis O’Rourke of NationalCrane Services, was qualified as an expert in safety with specialization in cranes andrigging (Tr. 169, 172). O’Rourke stated that the upper slings used to connect the cranehook to the lifting beam should have been one inch in diameter in order to comply with thestandard (Tr. 190). Joint Venture’s expert, Don Markwardt, calculated that a 7\/8-inchdiameter wire rope sling would comply with the standard (Tr. 760-769). The Secretarycontends Joint Venture violated ? 1926.251(c)(1) by using a sling that was 5\/8-inch indiameter. The Secretary failed to prove this fact at the hearing.Of the witnesses who testified regarding the rigging,none of them could say with certainty what the diameter of the sling rope was. CEIoperator Shurtleff testified he had no idea what size rope was used for the lift (Tr.161). Joint Venture foreman David Stuart testified he was uncertain of the diameter of thespreaders used to make the lift (Tr. 311).The only witness who actually measured the spreaders,Corey Neale, gave contradictory testimony. At the hearing, Neale stated the spreader wasfiber core, not wire core. In his deposition, he stated it was independent wire rope(IWRC) (Tr. 598). The citation stated it was IWRC (Tr. 599). At the hearing, Neale statedthe spreader was swaged (Tr. 500). In his deposition, he stated it was manufacture spliced(Tr. 600) Neale initially stated in his deposition that the spreader above the beam was7\/8 inch in diameter (Tr. 595). At the hearing, he was certain that the spreader was5\/8-inch diameter (Tr. 593).Neale stated he only measured one of the threespreaders and that one spreader measured 5\/8 inch in diameter. Because they \”alllooked the same,\” 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, theSecretary failed to prove by a preponderance of the evidence that Joint Venture was usinginadequate rigging.WILLFUL CITATION TWO, ITEM TWOEXCEEDING THE BOOM CAPACITYItem Two, Willful Citation Two, [[3]] chargesrespondent with violating 29 C.F.R. ? 1926.550(a)(1) which provides as follows:The employer shall comply with the manufacturer’s specifications and limitationsapplicable to the operation of any and all cranes and derricks. Where manufacturer’sspecifications are not available, the limitations assigned to the equipment shall be basedon the determination of a qualified engineer competent in this field and suchdeterminations will be appropriately documented and recorded. Attachments used with cranesshall not exceed the capacity, rating, or scope recommended by the manufacturer.It is undisputed that the maximum lifting capacity ofthe Manitowac boom was 14,000 pounds (Ex. C-1, Lothian deposition Vol. II, p. 40; C-3,Walters deposition p. 95; Tr. 178, 179-182). The evidence clearly establishes that theweight of the load lifted was at least 20,000 pounds. Henry Siegel, the district managerof Burke Company, calculated the weight of the Burke form to be approximately 20,000pounds (Tr. 55). CEI operator Walter Shurtleff lifted the form after the collapse with hisTadano 45-ton crane, which was equipped with a load cell that enabled it to weigh loads.He and Michael Lothian, CEI’s regional manager, calculated the form to weigh 20,000 pounds(Tr. 84-85).Although the events leading up to the boom collapseare in some dispute, the most credible testimony established the following:Ed Payne was the project manager for Joint Venture atthe West Palm Beach 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 JointVenture at the time of the collapse (Tr. 294). He testified that on April 28, JointVenture superintendent Tom Link instructed him to raise the form on stairwell four.[[4]]Stuart asked CEI operator Dickey to make the lift (Tr. 306). Dickey initially refused tomake the lift because he thought the form exceeded his crane’s capacity. Stuart informedCEI’s lead operator Rodney Walters that Dickey refused to make the lift (Tr. 307). Stuartalso informed Payne and Joint Venture engineer Joseph Appleton that Dickey would not makethe lift. Appleton then calculated the weight of the Burke form to be 17,000 pounds. Paynethan stated, \”They’ve made that lift before, and we have to have that form liftedtoday. It’s important that we get it done\” (Tr. 309).Payne called CEI’s Michael Lothian in Tampa andasked, \”What the hell is the matter with your guys? What is this shit about your guysnot picking this form?\” (Ex. C-1, deposition Vol. II, pp. 182-183). Lothian toldPayne that the form was in excess of the crane’s capacity. Lothian pointed out that therewas another crane on the work site capable of handling the pick (Ex. C-1, deposition Vol.II, pp. 39-40).About 2:00 that afternoon, Stuart accompanied TomLink to see Rodney Walters about the lift. Stuart testified regarding the meeting (Tr.315-317):The head operator (Walters) explained that he wasn’tgoing to make the lift 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 hesaid–that there was an \”out\”–if Archer chose to exercise it. . . . He said ifArcher would sign a waiver or a release of liability, that they would go ahead and makethe lift. . . . Tom Link said, \”Is that all I have to do?\” Then, he grabbed athree by five notepad 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 he wrote\”12,000 pounds\” on it is what I saw. Then, I saw him sign it, and he handed itand he said, \”Here is your release. Go ahead and make the lift.\”In fact, what Link wrote was (Ex. C-3, Exhibit B):STAIR #412,000 pds.T. LinkJoint Venture’s safety official, Burt Ford, was toldby Dickey that no one should ride the form while he was making the lift (Tr. 905).(Laborers working to loosen the form from the stairwell walls would sometimes stand on theform while doing so [Tr. 302]). Ford instructed Stuart not to let anyone ride the form(Tr. 407). Two Joint Venture carpenters refused to work on the form while the lift wasbeing made (Tr. 284, 318). As Dickey attempted to lift the form, the boom collapsed.Regarding the duty of the general contractor on amulti employer work site, the Review Commission in Grossman Steel & Aluminum Corp.,76 OSAHRC 54\/D9, 4 BNA OSHC 1185, 1188, 1975-1976 CCH OSHD ? 20,691 (No. 12775, 1975),held as follows:.\u00a0 .\u00a0 .the general contractor normally hasresponsibility to assure that the other contractors fulfill their obligations with respectto employee safety which affect the entire site. The general contractor is well situatedto obtain abatement of hazards, either through its own resources or through itssupervisory role with respect to other contractors. It is therefore reasonable to expectthe general contractor to assure compliance with the standards insofar as all employees onthe site are affected. Thus, we will hold the general contractor responsible forviolations it could reasonably have been expected to prevent or abate by reason of itssupervisory capacity.Therefore, respondent as general contractor may beheld responsible for the hazardous conditions due to its \”supervisory capacity.\”Moreover, in this case, based upon the findings of creditable evidence, Joint Venture isresponsible because it created and controlled the hazard found in violation of the Act. RedLobster Inns of America, Inc, 80 OSAHRC 73\/A14, 8 BNA OSHC 1762, 1980 CCH OSHD ?24,635 (No. 76-4754, 1980).Joint Venture’s overriding argument is that all of the alleged violations arecrane-related, it relied upon the expertise of the crane operator, and thus CEI, and notJoint Venture, bears the responsibility for any violation. Respondent relies upon SasserService, Division of Sasser Electric Co., 84 OSAHRC 37\/C6, 11 BNA OSHC 2133, 1984-1985CCH OSHD ? 26,982 (No. 82-178, 1984) Current Builders, Inc., 84 OSAHRC 15\/C7, 11BNA OSHC 1949, 1984-1985 CCH OSHD ? 26,888 (No. 83-994, 1984), and other similar cases(respondent’s brief pp. 19-22) which absolve the contractor of responsibility for theviolative conditions caused by a leased crane and operator when the lessor has relied uponthe expertise of the crane operator. The cases are inapposite to the instant case,however, because Joint venture did not rely on the expertise of CEI and the craneoperator; but, contrary to their advice, insisted that the overweight lift be made. JointVenture’s managers supervised the lift knowing that the weight of the Burke form exceededthe capacity of the crane. 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 degree to which it controlled andsupervised the operation of the cranes. The contract between the companies gave JointVenture \”exclusive jurisdiction, supervision, and control\” of the craneoperations, and the record demonstrates that Joint Venture fully exercised its contractualrights.Dickey was a reluctant operator ordered against hisbetter judgment to make a lift he and everyone else knew was unsafe. When Lothian informedPayne that the form exceeded the crane’s capacity, Joint Venture’s project managerretorted that the form was \”only\” 1,300 pounds over its capacity (Ex. C-1deposition Vol. II, p. 40).Joint Venture also claims unpreventable supervisorymisconduct on the part of Superintendent Tom Link in authorizing the lift, but thecreditable evidence of record does not establish that defense. Moreover, while it is trueLink gave written authorization for the lift, other Joint venture supervisors were awarethe lift was being made, and did nothing to stop it. Foreman Stuart, who witnessed the\”out\” offered by Walters, actually signaled Dickey to bring the form up as itwas pried loose from the stairwell walls (Tr. 324). Ford, who was in charge of safety forJoint Venture, was told by Dickey that the lift was not safe. Ford’s only action was toagree to tell his employees not to ride the form during the lift. Project Manager Payne,when told the lift exceeded the crane’s capacity, did not halt the lift but insteadinsisted the lift had to be made that day and placed an angry phone call to Lothian.[[6]]The record supports the conclusion that there was a concerted effort on the part of JointVenture’s supervisory personnel to get the lift made on April 28 despite their specificknowledge that the form exceeded the crane’s capacity in violation of 29 C.F.R. ?1926.550(a)(1).The Secretary alleges that the violation was willful.\”A violation is willful if it was committed voluntarily with either an intentionaldisregard for the requirements of the Act or with plain indifference to employeesafety.\” A. C. Dellovade. Inc., ___OSAHRC___, 13 BNA OSHC 1017, 1987 CCH OSHD? 27,786, p. 36,341 (No. 83-1189, 1987).As further evidence of the willful nature of theviolation alleged in Citation Number Two, Item Two, the Secretary offered evidence ofArcher-Western’s previous experience with cranes. In 1986 and 1987, Archer-Western hadseveral projects underway in south Florida (Ex. C-9, deposition p. 17). Among theseprojects was the Sunny Isles Bascule Bridge in North Miami Beach. Archer-Western was hiredto remove an existing bridge and to construct a pair of bascule bridges over theintercostal waterway (Tr. 822). At the start of the project, Archer-Western owned twosmall hydraulic cranes and purchased three more cranes. Archer-Western hired its own craneoperators (Tr. 823-824).On December 2, 1986, Daniel Newburn, an employee of Archer-Western, was helping a craneoperator to unload machinery from a truck. Newburn was on the around unhitching the cranecables when the operator moved too close to an energized power line. Electricity arcedfrom the power line to the crane cable, and down the crane cable to the crane hook thatNewburn was holding. Newburn died by electrocution (Ex. C-9, deposition p. 23; C-9exhibits 5, 10). The fatality prompted an OSHA investigation by Compliance Officer JohnMcDonald, Jr., that resulted in three citations (Ex. C-4; Tr. 7).Joint Venture manifested an intentional disregard forthe requirements of the Act in this instance. As previously stated above, after beingspecifically informed several times the load was in excess of the manufacturer’sspecifications, Joint Venture insisted that the lift be made that day. The facts wereclearly presented to management and it intentionally and voluntarily chose to disregardthe obvious hazard to its employees. From its previous experience on the Sunny IslesProject, Archer-Western was well aware of the hazards presented by crane operations. Asmanaging partner of the joint venture, such knowledge is imputed to respondent; but, evenwithout the previous experience at Sunny Isles, the record shows that the management ofJoint Venture intentionally, voluntarily, and with full knowledge that the weight of theBurke form exceeded the capacity of the crane, insisted that the lift be made.Accordingly, Joint Venture subjugated employee safety in the interests of expediency.Joint Venture was in willful violation of 29 C.F.R. ? 1926.550(a)(1). Georgia ElectricCo. v. Marshall, 595 F.2d 309 (5th Cir. 1979).WILLFUL CITATION TWO, ITEM THREE TRANSPORTING PERSONNEL ON CRANESItem Three, Willful Citation Two,[[7]] chargesrespondent with violating 29 C.F.R. ? 1926.550(b)(2) which provides as follows: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.ANSI B30.5-1968, ? 5-3.2.3-e states that, \”theoperator shall not hoist, lower, swing, or travel while anyone is on the load orhook.\”The cranes at the work site were used to lift concrete buckets for pouring columns. It isundisputed that one of the buckets was modified with a platform attachment which enabled aworker to ride with the bucket (Tr. 340-341). Payne and Ford were both aware of thebucket’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 that employees sometimes rode the Burke forms (Tr. 559-562). Stuarttestified that, while workers were prying loose the forms from the walls, they would standon the forms. When the form would break loose, the form would rise four to six feet due tothe cable tension, then settle back down. The worker would ride the form as it rose andlowered (Tr. 302).Joint Venture argues that the ANSI standard isdirected at the crane operator and not at the employees riding the loads. In support ofthis argument, Joint Venture cites Havens Steel Co., 78 OSAHRC 53\/C11, 6 BNA OSHC1740, 1978 CCH OSHD ? 20,775 (No. 15538, 1978). In Havens, two constructionworkers rode \”on a headache ball at the end of a hoisting rope of a Link- Belt craneused and controlled by Havens. Inasmuch as Havens clearly controlled the crane, however,it was under a duty to operate the crane in conformity with the standards even if suchcompliance would have protected only employees of the contractor at this multiple-employeeconstruction worksite.\” (Id. at 1741). This case does not help Joint Venture. LikeHavens, Joint Venture used and controlled the CEI cranes.Joint Venture also advances an infeasibility defensewith regard to men riding the concrete bucket. Joint Venture bases this defense on Payne’stestimony that the concrete columns could not be poured unless an employee was allowed toride with the bucket because \”you have to be opening the bucket and closing it sothat the concrete doesn’t come back up in elephant trunk and close up and then you getburied in the concrete and you can’t get it out\” (Tr. 703). Payne’s testimony is notsufficient to establish infeasibility. Payne testified that he never watched the operationof the crane. He generally performed his duties in his office in the trailer compound (Tr.367-369). His testimony standing alone is insufficient to support Joint Venture’s claim ofinfeasibility. Employees could have possibly used ladders to reach the work site or aconcrete pump could be used. Joint Venture showed plain indifference to the requirementsof the Act with regard to its employees riding the concrete bucket and the Burke forms. Inthis instance, it is noted that the concrete buckets were modified by an employee of CEIto permit employees to ride on it. There were representations by CEI personnel that thework could be performed in that manner. Although Joint Venture knew or should have knownof the hazardous conditions which constituted a serious violation of 29 C.F.R. ?1926.550(b)(2), the evidence does not show the violation was intentional and withoutregard for employee safety so as to constitute a willful violation within the meaning ofthe Act.IISERIOUS CITATION ONE, ITEM TWO BARRICADING THE CRANESItem Two, Serious Citation One, [[8]] chargesrespondent with violating 29 C.F.R. ? 1926.550(a)(9) which provides as follows:Accessible areas within the swing radius of the rearof the rotating superstructure of the crane, either permanently or temporarily mounted,shall be barricaded in such a manner as to prevent an employee from being struck orcrushed by the crane.Neale stated that \”Every day I was on the site,I observed cranes working without any barricade of any kind. . .\” (Tr. 549).Neale also testified that this violation was easilyobservable by Joint Venture’s management personnel: \”With the size of the cranes outthere and the number of them on that site, the only way you couldn’t be aware of it is ifyou were totally blind\” (Tr. 550).Joint Venture argues once again that it was CEI’sresponsibility to comply with the applicable standard. Once again, Joint Venture ignoresits degree of control over the work site. It was Joint Venture who exercised control overthe work site and it was Joint Venture’s responsibility to protect the employees bybarricading the cranes’ superstructures. Grossman Steel & Aluminum Corp., supra.Joint Venture also argues that Neale failed to showthat employees were exposed to any danger from the rotating superstructure. This argumentis without merit.[T]he likelihood of an employee moving into the swingradius of the crane, when viewed at the time of the violation, is not diminished by the posthoc observation that no one did enter the area of danger. Such after-the-fact analysiswould impede, rather than further the congressional goal of accident prevention embeddedin the Act.Williams Enterprises, Inc., 79 OSAHRC 4\/B5, 7BNA OSHC 1015, 1979 CCH OSHD ? 23,279, pp. 28,155-28,156 (No. 14748, 1978). Joint Venture was in serious violation of 29 C.F.R. ? 1926.550(b)(2).SERIOUS CITATION ONE, ITEM ONESAFETY TRAININGItem One, Serious Citation One,[[9]] which chargesrespondent with violating 29 C.F.R. ? 1926.21(b)(2) which provides as follows:The employer shall instruct each employee in therecognition and avoidance of unsafe conditions and the regulations applicable to his workenvironment to control or eliminate any hazards or other exposure to illness or injury.Joint Venture presented evidence of regular safetymeetings (Ex. R-4). This evidence is overshadowed, however, by the ample record of safetyviolations committed by Joint Venture’s employees. Particularly telling is the ease withwhich the supervisory personnel committed or condoned the violations; they participated inthe lift knowing the weight was excessive, and they were aware that their employees wereriding the loads.Because the behavior of supervisory personnel sets anexample at the workplace, an employer has–if anything–a heightened duty to ensurethe proper conduct of such personnel. Second, the fact that a foreman would feel free tobreach a company safety policy is strong evidence that implementation of the policy waslax. (Emphasis in original.)National Realty & Construction Co. v. OSHRC, 489F.2d 1257, 1267, fn. 38 (D. C. Cir. 1973).Especially significant was the lack of safetytraining regarding rigging and the operations involving cranes.Any safety training Joint Venture’s employees weregiven was counteracted by the failure of the supervisory personnel to enforce it, or tofollow it themselves. Joint Venture was in serious violation of ? 1926.21(b)(2).The foregoing decision constitutes findings of factwithin the meaning of the Federal Rules of Civil Procedure. ADDITIONAL FINDINGS OF FACT1. Archer-Western Contractors, Limited, and GilbertCorporation of Delaware formed a partnership known as Archer-Western Contractors, Limited,and Gilbert Corporation of Delaware, a Joint Venture. Joint Venture, in whichArcher-Western is the managing partner with a 60 percent share of the partnership,contracted to build the new terminal at the Palm Beach International Airport in Palm BeachCounty, Florida.2. The airport project is a 30-40 acre site withbuildings encompassing about 1,500,000 square feet including a three-story terminal withfour levels of parking above the terminal and three concourses (two 2-level concourses andone single-level concourse).3. Joint Venture did not own any of the cranes usedat the airport project.4. Joint Venture did not employ any of the crane operators at the airport project.5. Joint Venture rented cranes with operators fromConstruction Equipment International (\”CEI\”), one of the largest crane companieswith over 100 available cranes in Florida alone.6. CEI is a wholly-owned subsidiary of CombustionEngineering, Inc., and specializes in supplying manned and maintained cranes.7. Under this arrangement, CEI supplied Joint Venturewith 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 was approximately 15 feet by 27 feet by 9 feet. It consisted of outer portions,which are not relevant to this action, and the inner four-sided form. This four-sidedBurke form weighed approximately 20,000 pounds.9. The Burke forms used at the airport project hadtwo walkway platforms, 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 formswas to remove the taper 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 during which employeesphysically rode the load for a short amount of time as the form dropped one to two inches.13. On April 28, 1987, respondent’s management,knowing that the Burke form exceeded the capacity of the Manitowoc 4000-W tower crane,ordered the crane company to lift the Burke form.14. Crane Operator Dickey initially refused to makethe lift, stating that the load exceeded the lifting capacity of his crane.15. Lead Crane Operator Walters suggested thatsuperintendent Link had a \”way out\” to get the lift if Link would state inwriting that the form weighed only 12,000 pounds.16. Superintendent Link made a written note that theform-weighed 12,000 pounds and authorized the lift through the jib of Dickey’s Manitowoc4000-W tower crane.17. Joint Venture did not use the Manitowoc 4000-Wtower crane to make the lift which had adequate capacity and was available at the site.18. Link and Walters instructed Dickey to make thelift. 19. Joint Venture’s management, including Foreman Dave Stuart, Project Superintendent TomLink and Safety Official Burt Ford were aware of the hazardous situation at Stairwell No.4 on April 28, 1987.20. As a direct result of the actions by JointVenture’s management personnel, 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 atthe workplace had the 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-Wtower crane which collapsed on April 28, 1987, was supplied to Joint Venture by the BurkeCompany.23. Henry Siegel, a Burke Company representative,provided a Burke Company diagram of the lifting beam which showed 7\/8-inch slings orspreaders above the beam.24. Frederick Popovic, a structural engineer with theconsulting firm of Wiss, Janney, Elstner, Associates, Inc., in Northbrook, Illinois,inspected the airport site after the boom collapsed. Mr. Popovic inspected the liftingbeam, measured the dimensions of all the plates to the beams and measured the distancebetween the lift points on the beam.25. The distance between the lift points on the beamwas 11 feet.26. OSHA Inspector Neale did not measure the distancebetween the lift points on the beam.27. OSHA Inspector Neale did not weigh the liftingbeam.28. OSHA Inspector Neale based his calculations forthe total weight of the lift on the weight of the lifting beam provided on the generalBurke Company diagram.29. OSHA Inspector Neale did not measure the angle from the spreader to the lifting beambut rather used a \”rule of thumb\” of a 45 degree angle.30. Joint Venture’s crane expert, Donald Markwardt,calculated the angle between the lifting beam and the spreaders based on 11 feet betweenthe lift points on the beam as measured by Mr. Popovic and 20 feet as the length of eachspreader.31. The vertical spreader angle on the spreader abovethe lifting beam was 16 degrees.32. The spreader used by the Manitowoc 4000-W towercrane which collapsed on April 28, 1987, was independent wire rope core.33. OSHA Inspector Neale did not measure the rigginglength used by the Manitowoc 4000-W tower crane which collapsed on April 28, 1987.34. OSHA Inspector Neale did not record the length ofthe spreaders used by the Manitowoc 4000-W tower crane on April 28, 1987.35. OSHA Inspector Neale measured the diameter ofonly one of the spreaders used by the Manitowoc 4000-W tower crane which collapsed onApril 28, 1987.36. Seven-eighths inch diameter spreaders wereregularly used on the Manitowoc 4000-W tower cranes at the airport project.37. A special mancage-type platform was attached tothe concrete bucket used while pouring concrete columns.38. This platform attachment had guardrails.39. The platform attachment was used to liftpersonnel attached to the platform with safety lines and lanyard lines. 40. CEI Lead Operator Walters made the platform attachment used on the concrete bucket.41. CEI Lead Operator Walters told Project managerPayne that he had used 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 theconcrete bucket had to be raised 18 feet above the column.43. Death or serious injury would likely result fromthe violative conditions described above.44. Archer-Western Contractors, Ltd.(\”Archer-Western\”) is the general contractor for the Sunny Isles project.45. Archer-Western purchased the cranes used at theSunny isles project.46. The Sunny Isles project is located on Sunny IslesBoulevard and intercostal waterway, Route 826 in North Miami Beach.47. The project is approximately a mile long and runsfrom the west side of the intercostal waterway to the east side over the intercostal andup to Route 81A or Collins Avenue at the ocean.48. The project involves the construction of twobridges, each approximately 1300 feet long, and the removal of the existing bridge androadwork.49. At the Sunny Isles project, Archer-Western owned two small Grove rough terrain cranes,one 150-ton crawler crane and two 60-ton crawlers.50. On December 3, 1986, an Archer-Western employeewas electrocuted when a crane got too close to electrical wires while it was unloadingfrom a truck.51. The employee’s death resulted in a citation fromOSHA.52. In an attempt to abate the citation,Archer-Western requested a safety presentation by the OSHA office.53. The presentation was held on December 11, 1986.54. Archer-Western also requested the State ofFlorida to conduct a mock inspection of the Sunny Isles project.55. On February 10, 1986, the OSHA inspector returnedfor a follow-up inspection and noted that the problems at Sunny Isles were \”fullyabated.\”CONCLUSIONS OF LAW1. Respondent, at all times material to thisproceeding, was engaged in a business affecting commerce within the meaning of section3(5) of the Occupational Safety and Health Act of 1970 (\”Act\”).2. Respondent, at all times material to thisproceeding, was subject to the requirements of the Act and the standards promulgatedthereunder. The Commission has jurisdiction of the parties and of the subject matter.3. Respondent was in willful violation of 29 C.F.R. ? 1926.550(a)(1) for exceeding thelift capacity of a crane’s boom, resulting in the boom’s collapse. Respondent was aware ofthe load’s excessive weight yet ordered the lift to go forward.4. Respondent was not in willful. violation of 29C.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) for allowing 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) for failing to barricade the swing radius of a crane’s rotatingsuperstructure.7. Respondent was in serious violation of 29 C.F.R.?1926.21(b)(2) for failing to instruct its employees in the recognition and avoidance ofunsafe conditions.ORDERIt is ORDERED:1. That Citation Number Two, Item one, which allegesa willful violation of 29 C.F.R. ? 1926.251(c)(1), is vacated. 2. That Citation Number Two, Item Two, which alleges a willful violation of 29 C.F.R. ?1926.550(a)(1), is affirmed and a penalty of $10,000 is assessed.3. That Citation Number Two, Item Three, which a willful violation of 29 C.F.R. ?1926.550(b)(2), is affirmed as a serious violation and a penalty of $1,000 is assessed.4. That Citation Number One, Item One, which allegesa serious violation of 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 allegesa serious violation of 29 C.F.R. ? 1926.550(a)(9), is affirmed and a penalty of $1,000 isassessed.6. That Citation Number One, Item Three, whichalleges a serious violation 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 the other items and theyare not before us on review.[[2\/]]The record does not indicate whether CEI wastrying to ensure that the 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 the operation of any and allcranes and derricks. Where manufacturer’s specifications are not available, thelimitations assigned to the equipment shall be based on the determinations of a qualifiedengineer competent in this field and such determinations will be appropriately documentedand recorded. Attachments used with cranes shall not exceed the capacity, rating, or scoperecommended by the manufacturer.[[4\/]]The Secretary argues that under Commission rule92(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 without merit. The matter wasclearly raised in Respondent’s post-hearing brief before the judge. It is, therefore,properly before the Commission.[[5\/]] Respondent argues that, under the citedstandard, only when an applicable load chart is unavailable may the Secretary adduce thetestimony of \”competent engineers\” to establish the capacity of the crane.Because the Secretary failed to prove the unavailability of an applicable load chart,Respondent claims that she could not present expert testimony on the crane’s capacity.This argument is rejected. The cited standard imposes a duty on an employer to comply withthe crane manufacturer’s specifications and limitations. When a load chart is unavailable,the employee is obliged to use a competent engineer to determine the capacity of thecrane. However, the duties imposed on the employer by the standard do not limit themethods the Secretary relies on to establish that the employer failed to comply with thisobligation.[[6\/]] Respondent’s culpability does not necessarilyexcuse CEI for its responsibility in this matter. Under pressure from the Joint Venture,CEI’s operator made the lift with full knowledge that the form exceeded the lift capacityof the crane. However, the record does not reveal whether CEI was cited for any possibleviolation.[[7\/]]Respondent also argues that the judge erred byrelying in part upon another crane accident for his finding that the violation waswillful. In that incident, an Archer-Western employee was electrocuted when a crane hit anoverhead power line. Even though Gilbert was not part of that project, the judge foundArcher-Western’s previous experience to be imputable to the Joint Venture becauseArcher-Western was the Joint-Venture’s managing partner. Given our finding that events atthe site of the accident were sufficient to establish that the violation was willful, itis unnecessary for us to decide whether the judge properly relied, in part, on the SunnyIsles Project incident.[[8\/]] The standard states:?1926.21 Safety training and education. (b) Employer responsibility.(2) The employer shall instruct each employee in the recognition and avoidance ofunsafe conditions and the regulations applicable to his work environment to control oreliminate any hazards or other exposure to illness or injury.\u00a0[[1]] A third item, 29 C.F.R. ?1926.550(b)(2) forfailure to provide signal men for moving cranes carrying loads, was the subject of amotion to dismiss made by Joint Venture at the close of the Secretary’s case. The motionwas taken under advisement (Tr. 630-631). Subsequently, the Secretary withdrew the item inher posthearing brief (Secretary’s brief, pp. 2-3). Accordingly, the third item ofCitation Number One is dismissed and will not be considered in this decision.[[2]] Willful Citation Two, Item One, alleges thefollowing violation:29 CFR 1926.251(c)(1): Single leg and two (2) leg bridle slings were used in excessof safe walking loads as determined by Tables H-3 through H-14:(a) On or before April 28, 1987, at the West Palm Beach International AirportProject, stairwell #4. A lifting beam used to raise \”Burke Forms\” weighingapproximately 20,000 lbs. was attached to the crane hook by a 5\/8\” diameter I.W.R.C.two (2) legged bridle sling, with a S.W.L. of 9600 # (by table H-8). The lifting beam wasthen attached to the \”Burke Form\” by four (4) 5\/8\” diameter. I.W.R.C.single leg slings with a S.W.L. of approximately 8800#. (Table H-3). (S.W.L. limited to 2leg sling maximum. [[3]] Willful Citation Two, Item Two, alleges thefollowing violation:29 CFR 1926.550(a)(1): The employer did not comply with the manufacturer’sspecifications and limitations applicable to the operation of cranes or derricks:(a) On or before April 28, 1987, at the West Palm Beach International AirportProject, stairwell #4. A Manitowoc 4000-W tower crane was loaded in excess of themanufacturers rated capacity for the 40-0′ jib.[[4]] Foreman Stuart’s testimony was unequivocal asfollows (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 CEIalso violated the standard as it was not charged by the citation at issue.[[6]] Payne testified that, after speaking withLothian, he instructed Link not to make the lift using Dickey’s crane (Tr. 379). In viewof the serious concerns discussed previously, this testimony is not deemed credible as itis highly unlikely that Link would have ordered the lift in contravention of instructionsfrom Payne and against the advice of all crane operators. [[7]] Willful Citation Two, Item Three, alleges thefollowing violation:29 C.F.R 1926.550(b)(2): Section 5-3.2.3.e. American National Standards Institute,B30.5-1968, Safety code for Crawler Locomotive and truck cranes, as adopted by 29 CFR1926.550(b)(2):(a) Crane operators were permitted to Hoist lower swing, or travel, while employeeswere on the load or hook: On a before April 18, 1987, at the West Palm Beach InternationalAirport Project, employees were permitted to ride \”Burke forms\” and\”Concrete Buckets\” while they were raised to working locations, 20- 0 to 50-0’height, by mobile cranes.[[8]] Serious Citation One, Item Two, alleges thefollowing violation:29 CFR 1926.550(a)(9): Accessible areas within the swing radius of the rear of therotating superstructure of cranes were not barricaded in such a manner as to preventemployees from being struck or crushed by the crane:(a) On or about May 5, 1987, at the terminal building north and south sides, aManitowoc 4000-W Tower Crane, did not have the area between the counter-weight swingradius and scaffolding, Porti-Potti, form work and other building material protected.[[9]] Serious Citation One, Item One, alleges thefollowing violation:29 CFR 1926.21(b)(2): The employer did not instruct each employee in the recognitionand avoidance of unsafe conditions and the regulations applicable to his work environmentto control or eliminate any hazards or other exposure to illness or injury:(a) On or about May 5, 1987, at the West Palm Beach International Airport, employeeswere not given safety training or instructions, including but not limited to thefollowing:I.A. Hand and radio signaling of the Cranes. 1. Proper signals, and radio procedures.B. Flagging cranes when they are relocating or travelling.1. Proper signals and precautions.II.A. Proper and accepted industry practices rigging material to be hoisted by a crane.1. How to properly calculate or determine material weights.2. What size and type rigging hardware, and components to use for various lifts.3. How to find S.W.L. of components: 4. Who is designated competent person charge ofcritical lifts, and has authority to abort improperly rigged lifts:III.A. Accepted manufacturers specifications recommendations for proper use of crane and theircomponents.1. Maximum loads allowed at various radiuses with different crane configurations, such as:a.towers b.jibsc.conventional booms d. Hydro-cranes.”