“SECRETARY OF LABOR.Complainant,v.TAMPA SHIPYARDS. INC.,Respondent.OSHRC Docket Nos. 86-0360 and 86-0469*DECISION *Before: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:These cases are before the Commission based on the petition of TampaShipyards, Inc. (\”Tampa\”) for discretionary review of the decision ofAdministrative Law Judge James D. Burroughs. The portion of the judge’sdecision directed for review is his finding that Tampa willfullyviolated the general duty clause, section 5(a)(1), of the OccupationalSafety and Health Act (\”the Act\”), 29 U.S.C. ? 654(a)(1).[[1]] TheSecretary alleged that one of Tampa’s cranes was used to hoist a loadthat was known to be in excess of the crane manufacturer’s recommendedload limitation (\”rated load capacity\”). While hoisting the load, thecrane had collapsed and killed two employees. For the reasons set forthbelow, we affirm the judge’s finding of a willful violation, and the$8,000 penalty that he imposed.*BACKGROUND*Tampa operates a large shipping facility in Tampa, Florida. Atapproximately 6:15 p.m. on October 4, 1985, a Tampa crane operator wasusing tower crane no. 6 to lift and then horizontally move part of aship deck called the \”0-1 section.\” [[2]] In his decision, JudgeBurroughs described the circumstances that led to the accident:An eyewitness and participant in the lift, Wendell Croft, testified tothe facts surrounding the lift. His testimony is undisputed. As riggerleaderman for the second shift, he received the turnover sheet from theday shift leaderman as to what was expected to be completed thatevening. He was told by Joe Seither, the day shift leaderman, to setthe 0-1 section on the bow of a ship under construction. He was notgiven any instructions as to how the lift was to be made. Heunderstood the load weighed 33 tons. This weight was recorded on hispaperwork. He told William Caulley, leaderman of the crane operators,and James Morgan, the crane operator, what the load weighed. The threeof them discussed the load that evening. Croft assigned two riggers,Michael Sicich and Ezekial Bains, to assist in hooking up the load andreceiving it on the bow.After discussing the lift and assigning riggers to assist, Croft went tothe supervisor’s office. He returned to the crane site when they wereready to make the lift and was in radio communication with Caulley.There was concern over the weight of the load to be lifted. Caulley hadthe boom angle of the crane set for a 21-ton lift. Caulley, Croft andMorgan were aware that a lift of 33 tons was being attempted. Croftagreed to watch the rollers of the cab and to notify Caulley by radio ifthe rollers commenced to raise off the turntable. Caulley lifted theload a height of approximately 6 to 18 inches and held it while Croftobserved that the wheels were firmly on the turntable. The load wasthen lifted to a height of 10 feet above the dry dock and held forapproximately 90 seconds to make sure the crane would handle the load. The wheels remained on the turntable, and Caulley indicated he was goingto place the load. He commenced swinging the load to the north and thewheels started to rise from the tracks. Croft told him that the wheelswere coming up. As the load was being swung horizontally to the north,the crane toppled.(Footnotes and citations to record omitted). Following an investigationof this incident, the Secretary issued a citation alleging that Tampahad willfully violated the general duty clause in that \”[o]n or aboutOctober 4, 1985, and at other times, tower crane(s) were used to hoistloads, or boom out with hoisted loads, in excess of the cranemanufacturer’s recommendation.\”[[3]] As a feasible abatement method,the citation stated that Tampa should \”comply with the manufacturer’sload rating indicator, which is located inside the cab of each crane,formulate a crane safety policy and institute a system of enforcement ofthat policy.\”Judge Burroughs found that the practice of \”[u]tilizing a crane to hoistloads in excess of the crane manufacturer’s recommendation\” was\”‘recognized [as a hazard] by officials of Tampa Shipyards.\” He heldthat such \”overloading of a crane can cause it to overturn and result indeath or serious physical harm to employees.\” The judge further foundthat Tampa had no clearly defined policy for preventing overlifts and,in particular, that it lacked procedures for accurately determining theweights of the loads to be lifted. Judge Burroughs concluded that thehazard could be abated by better communication and enforcement ofdetailed safety instructions prohibiting overloading. Theseinstructions would include procedures to ensure that accurate weightsare provided to the crane operators.*DISCUSSION *In order to prove a violation of section 5(a)(1) of the Act, theSecretary must show that: (1) a condition or activity in the workplacepresented a hazard to an employee, (2) the hazard was recognized, (3)the hazard was likely to cause death or serious physical harm, and (4) afeasible means existed to eliminate or materially reduce the hazard. E.g., United States Steel Corp., 12 BNA OSHC 1692 1697-98, 1986-87 CCHOSHD ? 27,517, p. 35,669 (No. 79-1998, 1986). The evidence must showthat the employer knew, or with the exercise of reasonable diligencecould have known, of the violative conditions. Id. at 1699, 1986-87CCH OSHD at p. 35,671, citing Getty Oil Co. v. OSHRC, 530 F.2d 1143,1145 (5th Cir. 1976).The direction for review is limited to the issues of whether the judgeerred in holding that the Secretary proved: (1) that Tampa failed to usefeasible means to materially reduce the hazard, (2) that Tampa had therequisite knowledge of the violation, and (3) that the alleged violationwas willful. [[4]]*I. Whether there were feasible means to materially reduce therecognized hazard*As mentioned above, the Secretary bears the burden of establishing thatfeasible and useful means existed to eliminate or materially reduce therecognized hazards. Matthew Burkart, an expert on crane safetyoperations, testified to various feasible and useful measures that wouldminimize the hazard of a crane overload such as the one that occurred onOctober 4, 1985. Those measures included installing a load indicator oneach crane, creating a written crane safety policy, and monitoringpotential overlifts. We find that the Secretary met her burden ofproof based on Burkart’s testimony and other evidence.*a. Load indicators*The Secretary presented evidence as to six tower cranes (nos. 1 to 6)that were operated on adjacent piers in one area of Tampa’s vastfacility. Tampa had attached a weighing device called a load indicatorto the boom of only one of the six cranes (crane no. 3), and that devicehad been inoperable for at least six weeks before the accident.Tampa had no effective system for weighing the cranes’ loads. Tampa’sGeneral Superintendent Ewell Rhoden testified that Tampa had adynamometer which leadermen could use to determine the weights of loadsabout which they were concerned. However, there was no evidence thatTampa required the use of the dynamometer, and the evidence clearlyshows that no accurate weighing device was used consistently forpotential capacity loads. For example, crane operator Joseph Mosseytestified:when you make a lift, it’s general knowledge, and the way I was taughtwas if they told you one weight, you try to give yourself approximatelyfive times [sic] more towards your favor because a lot of times [the]weights are not correct, ….There was additional testimony about numerous specific occurrences offailure to accurately weigh potential capacity loads on the cranes atissue during the weeks and months before the accident. The recordestablishes that the 0-1 section involved in the accident had not beenweighed beforehand. A Tampa plant engineer testified that, after theaccident, the load was determined to weigh 38.099 tons. Croft hadunderstood that it weighed 33 tons, and had passed on this erroneousinformation to both Caulley and Morgan. Thus, although Caulley andCroft knew that crane no. 6 was overloaded before the fatal lift, theydid not know the full extent of the overload. Crane operator Mosseytestified that he lifted the same load that was involved in theaccident, earlier on the day of the accident, using crane no. 3. Hetestified that \”the only proper way of weighing is with the scales thatare in the crane, and those were not working at the time.\” Craneoperator Johnny Lee testified without contradiction that, a few weeksbefore the accident, a rigger leaderman misinformed him as to the weightof a piece comparable to the one involved in the accident. Craneoperator Sims testified that he did not know the weight of certaingrandstands that he lifted a few weeks before the accident, and which hebelieved approached or exceeded the crane’s capacity. Crane operatorCharles Christie testified that in approximately August, 1984, he arguedat length that it was unwise to lift a front-end loader whose weight wasunknown. He finally agreed to lift it, utilizing an extra safetyprecaution — an electrician to check the limit switches. (A limitswitch is designed to prevent hazardous overtravel of the load block.)Crane operator Burton Ashmore testified that in early 1984 or late 1983,the weight of a sand hopper he was lifting was underestimated by 20tons, resulting in an overlift.In addition, crane operator Lee Hansen testified that many times duringthe years preceding the accident, the weights provided to him on craneno. 3 were incorrect. He explained that he knew this because crane no.3 had a load indicator, and he had checked the weights. Hansentestified that he thought the weights given to him on other cranes werealso wrong, because he would notice himself leaning forward in the cab,which would feel light, and he would observe unusual stress on thecrane. He stated that this occurred with the sand pots he routinelylifted as part of Tampa’s ship sandblasting operation.The testimony of these crane operators establishes that Tampa did nothave an effective system for weighing, or even identifying, potentiallyexcessive loads. Burkart, the Secretary’s expert witness, testified asto the measures that were needed:if you don’t know the weight of the load, you either have a loadindicating device on the machine as you pick it up so you can get anaccurate reading before you attempt to lift it, or you make an effort tocalculate the load as accurately as possible through engineeringcalculations.He testified that load indicators could be attached to each of thecranes in question, and that doing so would materially reduce theproblem of inaccurate or unknown weights that crane operators werelifting. Burkart further testified that load indicators, which havebeen on the market for a number of years, are quite common and accurate.His testimony establishes the feasibility and likely utility ofinstalling load indicators on each of the six cranes, to materiallyreduce the risk of overlifts.*b. Written crane safety program*Tampa recognized the feasibility and utility of a written program fortraining crane operators. Its contract with the employees’ unioncontained the following provision:a learner or apprentice program will be instituted at the Employer’syard. Each program shall be reduced to writing as mutually agreed bythe parties and such program shall be governed by the terms of thoseagreements and not [by] the terms hereof.Searle Walton, Tampa’s safety director, testified that \”how we train theoperators is really an apprenticeship program.\”However, Walton acknowledged that Tampa had no written crane safetypolicy. Its general employee safety manual did not relate directly tocrane operators, but only to the duties of other employees when dealingwith crane operators. The only instruction course discussed in theevidence was one given by the union.[[5]] Crane operator Barry Simstestified that he had trained new operators on behalf of Tampa, that hehad received no guidance from the company as to what to tell thetrainees, and that the trainees were not tested before they became craneoperators. Sims further testified that there was no writtenapprenticeship program at Tampa. Crane operator Ashmore testified thathis basic instructions on crane safety were to \”use your best judgment.\”Burkart testified that Tampa’s oral, on-the-job training for craneoperators \”appears to be good,\” but that the lack of written safetyinstructions specific to crane operators was a defect in Tampa’s safetyprogram. The evidence overwhelmingly establishes that Tampa did nothave the kind of written apprenticeship program that it knew wasnecessary. Furthermore, Burkart testified that Tampa’s training ofoperators was deficient in numerous other ways, including: (1) thefailure to tell operators what to look for during the required dailyinspections of cranes;[[6]] (2) the failure to prohibit the operators’practice of lifting a load of unknown weight off the ground, with theboom angle set, to test the crane’s capacity to transport the load; (3)the apportionment of a trainee’s instruction to several differentoperators; and (4) the lack of a formal evaluation system to determine atrainee’s qualifications.Burkart described major improvements that could be made to Tampa’straining program. He testified that Tampa could readily develop anoutline of what it needed to teach the operators, and a formal method ofevaluating whether the operators were qualified. He added that havingsuch a program in place would result in a much safer operation becauseTampa would know that its crane operators were qualified. We concludethat the Secretary established that Tampa could have made numerousfeasible and useful improvements to its crane safety program that wouldhave materially reduced the risk of operators attempting overlifts onthe cranes.*c. Monitoring Lifts*At the time of the crane collapse, Tampa had no system for monitoringcompliance with the weight limitations of its cranes.[[7]] Burkartdescribed a monitoring program that would effectively enforce theprohibition against overlifts. He testified that in such a program, thecompany’s management instructs the crane operators and \”front linesupervision\” (here, leadermen) never to attempt an overlift, and theleadermen’s supervisors monitor lifts \”to see that it doesn’t happen.\”Burkart testified that most lifts need not be monitored, because theywill not approach the crane’s rated capacity. Thus, monitoring \”a verysmall portion of [total lifts] soon gets the message across to theemployees that overloads are not going to be tolerated … [and] createsan awareness\” which results in eliminating overloads. Burkart discussedvarious nuclear power plant construction sites where effective cranesafety programs had been instituted along the lines that hesuggested.[[8]] We find that Burkart’s testimony establishes thefeasibility and likely utility of a lift monitoring program in reducingthe risk of overlifts.Based on the discussion in section I, we find that the Secretaryestablished the feasibility and likely utility of several abatementsteps that would have materially reduced or eliminated the recognizedhazard of hoisting loads in excess of the crane manufacturer’srecommendations. Those steps included installing and using a loadindicator on each crane, developing a written crane safety program, andimplementing a monitoring program for potential capacity lifts.*II. Whether Tampa had the requisite knowledge of the violative conditions*As mentioned above, the test of an employer’s knowledge of a violationis whether the employer knew, or with the exercise of reasonablediligence could have known, of the violative conditions. The actual orconstructive knowledge of a foreman or other supervisory employee can beimputed to the employer. E.g., A. P. O’Horo Co., 14 BNA OSHC 2004,2007,1991 CCH OSHD ? 29,223, p. 39,128 (No. 85-369,1991). An employeewho has been delegated authority over other employees, even if onlytemporarily, is considered to be a supervisor for the purposes ofimputing knowledge to an employer. Id. Therefore, the Secretary mayestablish the requisite employer knowledge by showing that a supervisorknew or with the exercise of reasonable diligence could have known ofthe violative conditions. The employer can rebut that showing byoffering evidence that the supervisor’s failure to follow properprocedures was unpreventable. Id.*a. Whether the leadermen were supervisors*Here, the judge found that leadermen such as Croft and Caulley weresupervisors, and that their knowledge of overlifts should be imputed toTampa. Tampa argues that imputing the leadermen’s knowledge here isimproper, because they were not supervisors. For the reasons set forthbelow, we reject this argument.[[9]]Tampa’s collective bargaining agreement with its employees’ unionsstated that leadermen were first-line supervisors, and that the unionhas no right to interfere with the supervisory functions ofleadermen.[[10]] The leadermen were directly responsible to Tampa’smanagement. There was no level of supervision between the leaderman andTampa’s superintendents, Rhoden and Jim Baker. In particular, theleadermen were responsible for informing the superintendents of safetyproblems reported to them by employees. As noted above (note 8), theunion contract clearly stated that an employee \”will initially raiserequests, complaints, or questions concerning his work\” with theleaderman. We find that where leadermen such as Caulley and Croftexercised this type of authority over the work being performed, theywere supervisors whose knowledge is imputable to Tampa. See O’Horo.*b. Whether the leadermen’s knowledge should be imputed to Tampa*It is undisputed that, when the accident happened on October 4, 1985,leaderman Croft had been informed that the crane’s load weighed 33 tons,that he told leaderman Caulley the weight, and that Caulley neverthelessproceeded with the lift, with the boom angle set for a load of only 21tons. Under the principles discussed above, that evidence makes a primafacie showing that Tampa, with the exercise of reasonable diligence,could have known of the violative conditions.To rebut that prima facie showing, Tampa argues that on October 4, 1985,Caulley and Croft committed misconduct that was contrary to its safetypolicy and was unpreventable. As mentioned above, to rebut theSecretary’s prima facie proof that the knowledge of company supervisorsshould be imputed to it, the company must offer evidence that it hadestablished work rules designed to prevent the violation, had adequatelycommunicated those work rules to its employees (including supervisors),had taken reasonable steps to discover violations of those rules, andhad effectively enforced the rules in the event of infractions. E.g.,O’Horo. See Jones & Laughlin Steel Corp., 10 BNA OSHC 1778, 1782, 1982CCH OSHD ? 26,128, p. 32,887 (No. 76-2636, 1982) (comparable evidencerequired to rebut Secretary’s prima facie case of violation under ?5(a)(1)).In order to prevent overlifts, Tampa needed work rules designed toensure that its crane operators and leadermen received accurate weightestimates for all potential capacity loads, and that they attempted nolift unless the weight estimate was safely within the crane’s ratedcapacity. Tampa, however, had no such rules. Tampa notes that many ofits crane operators and riggers were aware of an unwritten ruleprohibiting crane overloads, because they were told by Anselmi, Tampa’sPresident, not to make an overload and to come to him if there was anoverload. The crane operators recognized that it was a matter of commonsense not to overload a crane.However, that general understanding was inadequate to correct thelongstanding, hazardous practices that led to so many overlifts. Asfurther discussed below, Tampa’s leadermen and crane operators oftenmade lifts based on inaccurate weight estimates, and they had a practiceof testing the crane’s ability to make a potential capacity lift byseeing how far off the turntable the rollers came. These practiceswere not contrary to any of Tampa’s work rules. Burkart, the Secretary’sexpert witness, testified that if the rollers came off the turntable, itindicated a \”severe overload.\” Thus, Tampa did not have the necessarywork rules to deal with the root causes of the overlifts. For thisreason alone, Tampa has failed to rebut the Secretary’s prima facieevidence that its leadermen’s knowledge of the violative conditionsshould be imputed to it.Even if Tampa had created adequate work rules, there is no evidence thatit attempted to discover violations of crane safety rules. Thus, itcould not have enforced its work rules effectively. We thereforeconclude that Tampa has failed to rebut the Secretary’s prima facieshowing that the knowledge of leadermen Croft and Caulley of theviolative conditions on October 4, 1985, should be imputed to it. Tampa had the requisite knowledge of the violation. See 29 U.S.C. ? 666(j).*Ill. Willfulness*A willful violation is one committed with intentional, knowing orvoluntary disregard for the requirements of the Act, or with plainindifference to employee safety. E.g., Williams Enterp., 13 BNA OSHC1249, 1256-57,1986-87 CCH OSHD ? 27,893, p. 36,589 (No. 85-355, 1987). The employer is responsible for the willful nature of its supervisors’actions to the same extent that the employer is responsible for theirknowledge of violative conditions. E.g., Donovan v. Capital CityExcavating Co., 712 F.2d 1008 (6th Cir. 1983) (finding of willfulviolation required where crew foreman knew that trench was not supportedas OSHA compliance officer had said was required, yet foreman orderedcrew to continue work in trench before protective equipment arrived);Central Soya de Puerto Rico, Inc. v. Secretary of Labor, 653 F.2d 38,39-40 (1st Cir. 1981) (willful violation found because two first-levelsupervisors had received repeated warnings of serious fall hazard, andit was not corrected); Western Waterproofing Co. v. Marshall, 576 F.2d139, 144-45 (8th Cir.) (employer is responsible for willful nature offoreman’s disregard of instructions, where foreman’s action ispreventable), cert. denied, 439 U.S. 965 (1978) (cited in GeorgiaElectric Co. v. Marshall, 595 F.2d 309, 320 n.27 (5th Cir. 1979)). Forthe reasons that follow, we find that Tampa is responsible for the plainindifference to employee safety that Caulley displayed in permitting theoverlift on October 4, 1985.Caulley was Tampa’s chief leaderman for the crane operators. He had alongstanding, reckless practice of allowing lifts in excess of thecrane’s capacity to proceed with the rollers off the turntable, as hedid on October 4, 1985. Crane operator Barry Sims, who had been acrane operator for Tampa for about 2 1\/2 years before the accident,testified that Caulley came up to watch the rollers on his crane a \”lotof times,\” and that \”[g]enerally when he would come up in the crane, itwas going to be an over lift….\” Sims specifically recalled one suchlift with crane no. 3, a month or less before the accident. A smokestackwas being lifted that ultimately was determined to weigh about 40 tons.In order to place it where another crane could handle it safely, Sims’crane was boomed down to about 25-ton capacity. This resulted in a15-ton overlift.Sims testified that at about the same time, he was directed to lift somegrandstands to be used for the dedication of a ship. Sims asked Caulleyto come up, and told him, \”We’re booming down too far to pick them up.\” Sims testified that Caulley told him to proceed with the lift, and thatCaulley watched the rollers while he completed it. Sims testifiedwithout objection that, \”I think my rollers were off … two inches.\”[[11]]Caulley was not the only leaderman who permitted lifts without ensuringthat the rollers would rest firmly on the turntable. For example, craneoperator Burton Ashmore testified that once, when he brought hisleaderman’s attention to the fact that the rollers on crane no. 5 wereoff the turntable during a 33-ton lift, the leaderman told him, \”Well,you know, he’s done it; everybody has done it. That’s practice.\”[[12]] Ashmore’s testimony about that leaderman’s statement is notchallenged. There is no evidence that Tampa’s safety practices changedbetween the time of the leaderman’s statement to Ashmore, and the 1985accident.The testimony demonstrates that, specifically during the weeks andmonths before the accident, supervisors other than Caulley were informedof lifts proceeding with the rollers off the turntable. Mechanic DonLeske testified that, during a lift on crane no. 6 in mid-September1985, a few weeks before the accident, he saw the rollers in the back ofthe cab come up off the rail. At that time, he brought the situation tothe attention of the operator of the crane, James Screws. Lesketestified that he then informed the garage foreman of his observations.Screws testified that the next morning, he informed his immediatesupervisor, leaderman Marshall Abrams, of the overlift. He alsotestified that it was the leaderman’s job to inform GeneralSuperintendent Rhoden of such matters. Tampa called Rhoden as a witnessto testify on other matters, and he did not refute Screws’ testimony inany respect.Crane operator Ashmore testified that he informed rigger leadermanSeither, during a lift in mid-1984, that the rollers were not firmly onthe turntable, and that after Seither held a discussion with Rhoden,Rhoden directed Ashmore to proceed with the lift. The lift involved aship section that Ashmore was sure exceeded the rated capacity of craneno. 5, which he was operating. The load was the same kind of 0-1section that was involved in the 1985 accident. Ashmore testified thathe felt the rear of the crane come up when he initially picked up the0-1 section. He then \”yelled down\” to Seither that the piece was tooheavy, and specifically that the rear end of the crane had come up.Ashmore then set the load down. He observed Seither talking withRhoden, after which Rhoden walked over, pointed his finger up atAshmore, and indicated vehemently that he wanted him to lift the loadagain. Ashmore got the impression from Rhoden’s attitude on thatoccasion that he could be fired for failure to make an overlift asdirected. Ashmore did not know whether Rhoden actually knew that thecrane was overloaded. However, Ashmore believed that Rhoden was withinearshot when Ashmore yelled down to Seither about the apparentoverlift. Ashmore’s testimony about that specific incident was notcontradicted.The leadermen’s practice of attempting lifts with the rollers off theturntable was reckless. As mentioned above, crane operations expertBurkart testified that if rollers come off the turntable during a lift,it indicates \”a severe overload.\” The crane operators who testified hadthe same understanding.[[13]] Burkart explained that the maximumcapacity of a crane is rated at only 75 percent or 85 percent of theload that could cause the rollers to leave the turntable. He gave theopinion that the type of crane involved in the accident was not designedso that the rollers may leave the turntable safely.[[14]]The evidence demonstrates that none of the cranes at issue were designedto operate safely with their rollers off the turntable. The craneinvolved in the accident was crane no. 6, which was a Clyde \”whirly\”crane. Crane nos. 1, 2, 4, and 5 also were Clyde \”whirly\” cranes, asTampa’s Safety Director testified. [[15]] Burkart testified that cranenos. 5 and 6 were identical \”except for a few small details …. \” CraneOperator Lee testified that crane no. 3 was a Diamond crane. Tampapresented no evidence that crane no. 3 was designed to operate safelywith the rollers off the turntable.Under the principles set forth at the outset of this section, Tampa isresponsible for its leadermen’s longstanding, well-known and recklesspractice of attempting lifts with the rollers off the turntable. Tampais equally responsible for the well-known, reckless practice of allowinglifts to proceed without an accurate weight estimate, includingpotential capacity lifts. Despite the knowledge among supervisors ofthese reckless practices, Tampa’s crane safety program remained lax.For example, as discussed above, Tampa failed to develop a systemcalculated to ensure that the crane operators received accurate weightestimates. Tampa’s employee training was haphazard, with no work rulesdesigned to prevent crane operators from lifting loads that did not havean accurate weight estimate safely within the crane’s rated capacity. Tampa failed to take steps to create the written apprenticeship programfor crane operators that it was contractually obligated to prepare. Nor did it develop a monitoring program to detect violations of cranesafety requirements.Tampa’s failure to provide accurate weighing methods is particularlydifficult to understand in light of crane operator Hansen’s testimonythat Tampa actually had load indicators lying on the floor of the cabson crane nos. 4, 5 and 6 when those cranes were being assembled duringhis first two years with Tampa, starting in 1980. Hansen did not knowwhether the load indicators were actually part of those cranes. However, Tampa did not suggest any other reason why they were in thecabs, and failed to explain why it never installed load indicators onthose cranes.The evidence establishes that Tampa is responsible for the plainindifference to employee safety that its leadermen showed by theirreckless crane lifting practices, including Caulley’s actions on October4, 1985. See, e.g., Mineral Industries & Heavy Constr. Group, Brown &Root, Inc. v. OSHRC, 639 F.2d 1289, 1295 (5th Cir. 1981) (failure toinstitute and enforce procedures known to be required constituteswillful violation). The evidence shows \”such reckless disregard foremployee safety … that one can infer that if the employer had known ofthe [legal provision], the employer would not have cared that theconduct or conditions violated it.\” Williams Enterp., 13 BNA OSHC at1257, 1986-87 CCH OSHD at p. 36,589. The Secretary has made theconcrete evidentiary showing required to establish that Tampa willfullyviolated section 5(a)(1). Cf., e.g., United States Steel Corp., 12 BNAOSHC at 1703, 1986-87 CCH OSHD at p. 35,675 (citing, inter alia, St. JoeMinerals Corp. v. OSHRC, 647 F.2d 840, 846 (8th Cir. 1981)) (moreconcrete evidentiary showing is required to prove violation of generalduty clause than of more specific standard).[[16]]Tampa attempts to minimize the significance of the overlifts by arguingthat there were ten million lifts at the shipyard during the seven yearsbefore the accident. There is no basis in the record for thatassertion, however. Its apparently rests on the representation byTampa’s counsel, not supported by evidence, that all the cranes on itsvast worksite were used for two shifts a day for seven years, makingabout 100 lifts a day. However, this case relates only to tower cranenos. 1 through 6, and crane nos. 1 and 2 were not operated during 1985. The large number of reckless lifts on those cranes during the weeks andmonths before the accident establishes that a widespread, severe, andwell-known safety hazard of overlifts way ongoing on the worksite.Tampa argues that its safety efforts were made in good faith, thusprecluding a finding of willfulness. If an employer has made a goodfaith effort to comply with the Act’s requirements, a finding ofwillfulness is not justified, even though the employer’s efforts are notentirely effective or complete. However, the test of good faith in thisregard is an objective one — whether the employer’s efforts to complywere reasonable under the circumstances. See Calang Corp., 14 BNA OSHC1789, 1792-93, 1987-90 CCH OSHD ? 29,080, p. 38,872-73 (No. 85-319,1990) (employer’s use of certain safety measures does not constituteobjective good faith effort to comply with standard, where employerprovides no reasonable basis for failing to use other required safetymeasures). Tampa fails this test. Its lack of response to the widelyknown problem of overlifts was unreasonable. For example, as discussedabove, Tampa has given no reasonable basis for failing to provide anoperable load indicator on each crane, written training materials forcrane operators, and a monitoring program to detect overlifts.[[17]]Accordingly, Tampa’s violation on October 4, 1985, was willful.*PENALTY *The hazards caused by overloading cranes were severe, as the fatalitiesdemonstrate. Tampa had a vast shipyard with a large number of cranesand employees. Its safety program was deficient in crucial respects. In light of the willful nature and high gravity of the violation, andhaving considered the other relevant considerations set out at 29 U.S.C.? 666(j), we find that the $8,000 penalty proposed by the Secretary andassessed by the judge is appropriate.*CONCLUSIONS*For the reasons set forth above, we affirm a willful violation of thegeneral duty clause of the Act, as alleged in Item 1 of the willfulcitation in Docket No. 86-360. We assess a penalty of $8000 for thatviolation.Edwin G. Foulke, Jr.ChairmanDonald WisemanCommissionerVelma MontoyaCommissionerDated: March 10, 1992————————————————————————SECRETARY OF LABOR,Complainant,v.TAMPA SHIPYARDS, INC.,Respondent.OSHRC Docket Nos. 86-0360 and 86-0469(Consolidated)APPEARANCES:Curtis L. Gaye, Esquire, and James L. Stine, Esquire, Office of theSolicitor, U. S. Department Of Labor, Atlanta, Georgia, on behalf ofcomplainantRobert D. Moran, Esquire, Washington, D. C., on behalf of respondent_DECISION AND ORDER_Burroughs, Judge: Tampa Shipyards, Inc., contests a serious citation,alleging a violation of section 5(a)(1) of the Occupational Safety andHealth Act of 1970 (\”Act\”), and a willful citation, alleging fourviolations of section 5(a)(1), issued to it on March 3, 1986. Thecitations emanated from an investigation of two fatalities occurring onOctober 4, 1985, as a result of a crane falling at respondent’s shipyardin Tampa, Florida. Tampa Shipyards also contests a serious citationissued to it on March 14, 1986, as the result of an accidentinvestigation of a fire and explosion occurring on board the ship_Robert G. Matthiesen._A proposed decision was forwarded to the parties on June 18, 1987. Counsel for the Secretary filed a motion for reconsideration on June 30,1987, requesting that this Judge reconsider that portion of the decisionholding that 29 C.F.R. ? 1910.179 was applicable to the cranes used byTampa Shipyards. The proposed decision concluded that provisions of ?1910.179 were applicable to three of the alleged 5(a)(1) violations. Since a specific standard was determined to apply to the facts, theSecretary was precluded from relying on section 5(a)(1) of the Act. Themotion to reconsider was granted by an order issued on July 6, 1987, andthe proposed decision mailed to the parties on June 18, 1987, waswithdrawn. On reconsideration, it is concluded that no standards areapplicable to the cranes in question._The Crane Case (Docket No. 86-0360)_On October 4, 1985, at approximately 6:15 p.m. during the second shift,a crane accident occurred at Tampa Bay Terminal shipyards. The number 6crane, operated by James J. Morgan, the crane operator, and William, F.Caulley, the crane operator leaderman, fell to the surface of the number2 dry dock while lifting a part of a ship deck referred to as an 0-1section (Tr. 36, 41-42, 165). Both employees were killed. All of thealleged 5(a)(1) violations pertain to conditions regarding cranes,referred to as numbers 1, 2, 3, 4, 5 and 6, used by Tampa Shipyards inits operations._Preemption Defense_Tampa Shipyards argues that it has been improperly charged withviolating section 5(a)(1) of the Act. It contends that section 5(a)(1)is inapplicable to the facts because OSHA has adopted standards whichaddress the subject matter of the alleged violations. This argumentrelies on the principle established by the Commission \”that theSecretary cannot rely on the general duty clause when a specificstandard applies to the facts.\” _Kastalon, Inc.,_ 86 OSAHRC___, 12 BNAOSHC 1928, 1929, 1986 CCH OSHD ? 27,643, p. 35,971 (Nos. 79-3561 &79-5543, 1986), _appeal_ _filed_, September 16, 1986 (7th Cir., No.86-2528), withdrawn December 16, 1986. Where no occupational safety orhealth standard is applicable, the Secretary can rely on the generalduty clause to obtain correction of a workplace hazard. _Kastalon_,_Inc._, _supra_.The Secretary argues that section 5(a)(1) is appropriate because nospecific standards deal with the particular cranes and conditions inissue. The standards cited by Tampa Shipyards as being applicable,according to the Secretary, are limited in scope. While some standardsmay cover similar situations with certain types of cranes, the Secretarycontends that they are not applicable to the cranes cited in this case.Tampa Shipyards refers to standards in Subpart G of Part 1915, amongothers, as being applicable to the cranes in issue. Part 1915 of 29C.F.R. contains specific standards applicable to all repairing,shipbuilding and shipbreaking employments. 29 C.F.R. ? 1915.2(a).There is no dispute that Tampa Shipyards is engaged in the shiprepairing and shipbuilding business. The standards referred to by TampaShipyards in Subpart G are directed toward gear and equipment forrigging and material handling. Section 1915.111 provides for inspectingof gear and equipment used for rigging. Section 1915.112 applies toropes, chains and slings. Section 1915.113 applies to shackles andhooks. Section 1915.114 applies to chainfalls and pull-lifts. Subsections (a) and (c) of section 1915.115 apply to derricks and cranesbut are limited to those \”which are part of or regularly placed aboardbarges, other vessels or on wingwalls of floating drydocks\” and mobilecrawler or truck cranes used on a vessel. Section 1915.116 applies tothe use of gear. While section 1915.117 is entitled \”Qualification ofoperators,\” no specific provision of that standard covers the conditionsin issue. There are no specific standards in Subpart G of Part 1915that are applicable to the conduct allegedly in violation of section5(a)(1) in this case.Where there are no specific standards, a general standard which mightotherwise be applicable to the same condition will prevail. 29 C.F.R.? 1910.5(c)(1) and (2). Tampa Shipyards submits that the generalindustry standards, Part 1910 of 29 C.F.R., apply to all users of cranesincluding those engaged in maritime operations. In _Dravo Corporationv. OSHRC_, 613 F.2d 1227, 1234 (3d Cir. 1980), the court concluded:. . . . even in areas properly citably under specific maritimestandards, the Secretary my hold an employer to the general industrystandards in those situations where no specific standard is applicable.The Secretary does not contend that the general industry standards arenot applicable in the absence of specific maritime standards, [[1\/]] hedoes contend that the general industry standards pertaining to cranesare inapplicable to the tower or portal cranes used by Tampa Shipyards. The Area Director is directed to issue citations under the general dutyclause \”in appropriate circumstances where employees are exposed tohazards which are covered by neither shipyard employment (Part 1915) norGeneral Industry Safety and Health Regulations (Part 1910).\” SectionD.3, OSHA Instruction STD.2 issued November 4, 1985.While OSHA Instruction STD.2 makes reference to the applicability of ??1910.179 and 1910.180 to shipyard employment, the instruction is clearin section D that the standards are to be enforced \”in a mannerconsistent with their respective scopes and definitions.\” They apply inappropriate circumstances. Their inclusion in Appendix A of theinstruction is not interpreted to mean that they apply to all cranesused in a shipyard regardless of design, operation and other fundamentalcharacteristics.One of the difficulties in determining if the general industry standardsapply concerns the proper classification of cranes 1 through 6. Counselfor the Secretary and the numerous crane operators testifying in thismatter referred to the cranes as gantries (Tr. 147, 163, 172, 218, 239,244-245, 267, 328, 578, 588-589, 732). The citations refer to thecranes as tower cranes. Matthew Burkhart, a crane expert testifying onbehalf of the Secretary, classified the cranes as portal cranes whichrun on rails with a revolving structure on top (Tr. 850, 1024, 1038). According to Burkhart, the difference between a portal and tower craneis that the portal crane has an opening at the bottom of the structuresupporting the crane; whereas, the tower crane has lacework from the topto the bottom of the support structure (Tr. 850, 1024, 1038). The cabof the crane that fell was situated on a turntable or rail circle on topof a tower approximately 80 feet high. The turntable allowed the craneto turn by means of rollers underneath the cab. The tower configurationhad a mobile base that allowed it to move along rails (Ex. 12; Tr. 81,173, 457, 710, 1117). The crane could move to any point along therails. It had a rotating superstructure with operating machinery and boom.Section 4-0.2 of the ANSI Standard for Portal, Tower, and Pillar Cranes,B30.4-1981, defines a gantry as \”[A] movable structure frame consistingof columns and bracing capable of supporting a crane with its workingand dynamic loads.\” The cranes in this case were on \”a movablestructure frame.\” Section 4-0.2 of ANSI B30.4-1981 defines a portalcrane and tower crane as follows:_crane_, _portal_. A crane consisting of a rotating superstructure withoperating machinery and boom, all of which is mounted on a gantry. Thecrane and gantry assembly may be fixed or mobile. An opening fortraffic is normally provided between the gantry columns or legs. (Fig. 4)_crane_,_tower_. Similar to a portal crane, but with a tower betweenthe rotating superstructure and gantry or fixed foundation and noprovision is normally made for traffic (Figs. 1 and 2). To resistoverturning moments, the assembly may be counterweighted, fixed to afoundation, or a combination of both. The gantry (tower) and crane maybe fixed or mobile (horizontally or vertically).A portal crane is mounted directly on a gantry. A tower crane has atower between the rotating substructure and the gantry. The cranes inthis case had a tower between the rotating substructure and the gantry(defined as a \”movable structure frame\”). A tower crane is illustratedin Figure 1 of ANSI B30.4-1981 as follows:*The pictorial referred to above is not available in this format.Please telephone the Review Commission Public Information Office,202-606-5398, to request a paper copy; TTY: 202-606-5386; FAX:202-606-5050; e-mail: [email protected] The configuration of Figure 1 is similar to Exhibit 12, which is aphotograph of crane number 5, and to Exhibit 17, which is a drawing of acrane resembling crane number 6 (Tr. 455, 822). The bottom portion ofthe crane in Figure 1 is referred to as the gantry. It supports thetower and rotating superstructure of the crane at the top of the tower. It is called a gantry since it moves along the rails.The record contains little evidence as to the characteristics andconfiguration of cranes 1 through 4. Burkhart, who observed cranes 1through 5, testified that they were basically portal cranes \”running onrails with a revolving structure on top\” (Tr. 850). He stated thatcranes 5 and 6 were similar (Tr. 1031). The safety manager for TampaShipyards, Searle Walton, also testified that cranes 5 and 6 weresimilar (Tr. 455). Crane operator Barry Sims thought cranes 5 and 6were identical (Tr. 678). The crane operators and counsel for theSecretary referred to all the cranes as gantries. According toBurkhart, people in the trade often refer to tower cranes as gantries(Tr. 1034). There is no evidence indicating that cranes 1 through 4were any different than those described by Burkhart, and there is noreason to assume or believe they should be classified differently thancranes 5 and 6. Accordingly, it is concluded that crane numbers 1through 6 are properly classified as tower cranes.Burkhart’s statement that the cranes were \”basically a portal crane\” isnot inconsistent with the classification of the cranes as tower cranes. He stated that the cranes could be called a portal or a tower crane,depending on how one interprets the definition (Tr. 1033). Thedefinition of tower crane in ANSI B30.4-1981 states that it is \”similarto a portal crane.\” Figure 1 refers to the portal area. It is furthernoted that the 1973 edition of ANSI B30.4 defined a tower crane as follows:4-0.2.1.2 _Tower Crane_. A portal crane, with or without an openingbetween the legs of its supporting structure, adapted to hoist and swingloads over high obstructions and mounted upon a fixed or mobiletower-like gantry. The revolving crane may be supported on the tower bya revolving mast or by a turntable.This definition refers to a tower crane as a portal crane, whereas the1981 edition of the standard uses the phrase \”similar to a portalcrane.\” It is clear that a tower crane can be referred to as a type ofportal crane.In arguing that general industry standards are applicable to the cranesin question, Tampa Shipyards makes particular reference to theprovisions of 29 C.F.R. ? 1910.179 and 29 C.F.R. ? 1910.180. The law isclear that the general industry standards, Part 1910 of 29 C.F.R., canapply to users of cranes engaged in maritime operations if there are nospecific standards covering the factual allegations of the cranes inissue. Since Part 1915 does not cover the conduct in question, adetermination must be made as to the applicability of ? 1910.179 and ?1910.180.Section 1910.179 pertains to overhead and gantry cranes. Itsapplication is set forth under ? 1910.179(b) as follows:(b) _General requirements_–(1) _Application_. This section applies tooverhead and gantry cranes, including semigantry, cantilever gantry,wall cranes, storage bridge cranes, and others having the samefundamental characteristics. These cranes are grouped because they allhave trolleys and similar travel characteristics.While the cranes in issue were commonly referred to as gantries byemployees, they do not fit the definition of a gantry crane as definedby ? 1910.179(a)(6), which states:\”Gantry crane\” means a crane similar to an overhead crane except thatthe bridge for carrying the trolley or trolleys is rigidly supported ontwo or more legs running on fixed rails or other runway.The tower cranes have no bridge or trolley but do have a movablestructure frame, referred to as a gantry, [[2\/]] that can travel onfixed rails. In a technical sense, the tower cranes in issue andgantry cranes have at least one similar travel characteristic since theyboth move on fixed rails.Subsection (b) of ? 1910.179 specifically states that the listed cranesare grouped because \”they _all_ _have_ _trolleys_ and similar travelcharacteristics \”(Emphasis added). Even if it is concluded that thephrase \”similar travel characteristics\” refers to travel along fixedrails rather than to the travel of the trolley, the tower cranes have notrolleys [[3\/]] and different operating characteristics. The towercranes have no bridge rails which carry the hoisting mechanism. Theyhave a rotating superstructure with operating machinery and boom. Theboom can rotate 360 degrees. A gantry crane has no rotatingsuperstructure and has a hoisting mechanism in lieu of a boom. It has aflat bridge between two towers or supports. A trolley runs across thebridge. The hoisting mechanism travels along the bridge rail ratherthan rotating on a turntable like the superstructure of a tower crane.Gantry cranes are defined by ? 1910.179(a)(6) as being \”similar to anoverhead crane except that the bridge for carrying the trolley ortrolleys is rigidly supported on two or more legs running on fixed railsor other runway.\” The trolley moves at right angles to the cranerunway.[[4\/]] The tower cranes in use by Tampa Shipyards do not havetrolleys that move at right angles to the runway. They have rotationalmovement of the boom. The configuration and operating characteristicsof tower cranes are different from gantry cranes. While both types ofcranes have travel characteristics along rails, tower cranes have notrolleys and no trolley travel. Gantry cranes are depicted in ANSIB30.2.0-1967, _Overhead and Gantry Cranes_, as follows:*The pictorial exhibit referred to above is not available in this format.Please telephone the Review Commission Public Information Office,202-606-5398, to request a paper copy; TTY: 202-606-5386; FAX:202-606-5050; e-mail: [email protected] Tower cranes do not meet the general requirements specified for gantrycranes set forth at ? 1910.179(b). Section 1910.179 is not applicableto crane numbers 1 through 6.The provisions of ? 1910.180 pertain to crawler locomotive and truckcranes, \”wheel mounted cranes of both truck and self-propelled wheeltype, and any variations thereof which retain the same fundamentalcharacteristics.\”[[5\/]] The definitions of \”crawler crane,\” [[6\/]]\”locomotive crane,[[7\/]] \”truck crane\”[[8\/]] and \”wheel mounted crane\”[[9\/]] indicate that cranes grouped under ? 1910.180 are those which areequipped for travel. While the tower cranes used by Tampa Shipyards canbe pushed or pulled along a railroad track, they are not equipped withany type of powerplant for independent travel or movement. Their travelis limited to a path along rails laid in a particular direction. Eachof the cranes referred to in ? 1910.180(b)(1) has a power source for travel.The crawler crane has crawler treads for travel. A locomotive crane ismounted on a base or car equipped for travel on a railroad track. Itmay be self- propelled or propelled or propelled by an outside source. A truck crane is mounted on an automotive truck equipped with apowerplant for travel. A wheel mounted crane is mounted on a base orplatform equipped with axles and rubber-tired wheels for travel. Thetower crane has no such methods for travel even though it sits on arailroad track. Section 1910.180 is deemed inapplicable to cranenumbers 1 through 6 used by Tampa Shipyards. They do not have the \”samefundamental characteristics\” specified for cranes under ? 1910.180(b)._Serious Citation_The serious citation issued on March 3, 1986, alleges that TampaShipyards violated section 5(a)(1) by allowing tower cranes to beoperated by \”employee(s) who were not qualified by extensive knowledge,training and experience.\” Tampa Shipyards argues that \”[t]here arespecific OSHA standards regulating the qualification of crane operators,29 C.F.R. ?? 1915.117 (b)-(d), ? 1910.179(b) (8) and ? 1910.180(b)(3).\” Assuming _arguendo_ that the cited standards apply to towercranes, they contain no specific provisions concerning thequalifications for crane operators alluded to by the Secretary.[[10\/]]Since there are no specific standards applicable, the Secretary may relyon section 5(a)(1) if the facts support such determination.The burden is on the Secretary to prove all elements of a section5(a)(1) violation. _Cerro Metal Products Division, Marmon Group,Inc.,_ 86 OSAHRC _______, 12 BNA OSHC 1821, 1822, 1986 CCH OSHD ? 27,579(No. 78-5159, 1986), _appeal_ _filed_, July 7, 1986 (3d Cir., No.86-3397), withdrawn July 31, 1986. In order to establish such aviolation, the Secretary must prove: (1) the employer failed to renderits workplace free of a hazard, (2) the hazard was recognized either bythe cited employer or generally within the employer’s industry, (3) thehazard was causing or was likely to cause death or serious physicalharm, and (4) there was a feasible means by which the employer couldhave eliminated or materially reduced the hazard. _Phillips PetroleumCo._, 84 OSAHRC 2\/E7, 11 BNA OSHC 1776, 1779, 1984 CCH OSHD ? 26,783(No. 78-1816, 1984), _aff’d_, F.2d ___, 1985 CCH OSHD ? 27,428 (10thCir. 1985).Tampa Shipyards contends that the evidence is insufficient to sustainthe allegation that the operators were not qualified. It has anunwritten program of on-the-job training for crane operators which wasfound lacking by the Secretary (Tr. 55-57, 60-61, 163-164, 483-484, 490,589, 591, 647). A considerable number of deficiencies was determined inthe training program. This type of evidence does not establish that aparticular individual is unqualified to perform the duties of a craneoperator. One of the obvious abatement methods for unqualifiedoperators may be a written training program and proper supervision;however, the hazard is still the use of unqualified operators. It isnot the lack of a proper training program and supervision thatconstitutes the hazard. There is no evidence to indicate any particularcrane operator was unqualified. There is also no evidence establishinghow the operators as a group or individually were unqualified.Most of the operators testifying in this case had considerable years ofexperience operating a crane. While some of them received theirtraining at Tampa Shipyards, others were trained through the unionapprentice program or by other employers. Crane operator Johnnie Leetestified that he had been a crane operator for 20 years prior toworking for Tampa Shipyards (Tr. 233). Crane operator Charles Christiehad completed five years of union apprenticeship before commencing workat Tampa Shipyards (Tr. 730). Each of the crane operators testifying inthis matter believed that he and the other operators were fullyqualified to operate the cranes to which he had been assigned. (Tr.192, 233, 416-418, 535-536, 633-634, 698, 701, 702, 704, 729, 736). There is evidence to indicate that Caulley and Morgan were bothqualified operators (Tr. 112-113, 654-655, 703-704). There is nodiscrete evidence to the contrary. Counsel for the Secretary stipulatedthat Caulley was qualified (Tr. 702-703).Burkhart testified that Tampa Shipyards needed to develop an outline asto what has to be taught to a crane operator and a system of formalevaluation to determine if an operator is qualified (Tr. 943). Henoticed a deficiency in the \”training of operators on some of theprocedures and theories so that all the operators are operating in thesame framework\” (Tr. 942-943). Even if there were deficiencies in thetraining program, the deficiencies do not _per_ _se_ establish anyparticular operator to be unqualified. This is especially true sincemany of the operators had years of experience as crane operators withother employers or had gone through the union apprentice program forCrane operators. Tampa Shipyards secured crane operators from the unionhall (Tr. 480). While Burkhart testified concerning qualification ofcrane operators, he conceded that he could not identify any unqualifiedcrane operator at Tampa shipyards (Tr. 1019-1020). While section4-3.1.2, of ANSI B30.4-1973 states that \”[o]perators shall be requiredto pass a practical operating examination,\” no evidence was introducedto show that any crane operator working for Tampa Shipyards failed topass such an examination.Tampa Shipyards was not cited for deficiencies in its training program. The issue for decision involves the qualifications of the craneoperators. The Secretary has failed to meet its burden on the issue. The alleged section 5(a)(1) violation is vacated._Willful Citation_Item one of the willful citation alleges a violation of section 5(a)(1)for hoisting loads in excess of the manufacturer’s recommendation. There is no dispute over the fact that crane number 6 was involved in alift of at least 33 tons [[11\/]] at a boom angle which gave the crane alifting capacity of 21 tons. Tampa Shipyards concedes that \”[t]hereseems to be no question that Caulley and Morgan were wrong in makingthis lift at the boom angle they selected\” (Brief, pg. 20).An eyewitness and participant in the lift, Wendell Croft, testified tothe facts surrounding the lift. His testimony is undisputed. As riggerIeaderman for the second shift, he received the turnover sheet from theday shift Ieaderman as to what was expected to be completed thatevening. He was told by Joe Seither, the day shift leaderman, to setthe 0-1 section on the bow of a ship under construction (Tr. 105-106). He was not given any instructions as to how the lift was to be made (Tr.106). He understood the load weighed 33 tons. This weight wasrecorded on his paperwork (Tr. 106, 112, 132). He told William Caulley,leaderman of the crane operators, and James Morgan, [[12\/]] the craneoperator, what the load weighed (Tr. 106, 112, 113, 142). The three ofthem discussed the load that evening (Tr. 106-107). Croft assigned tworiggers, Michael Sicich and Ezekial Bains, to assist in hooking up theload and receiving it on the bow (Tr. 107, 141-142, 145).After discussing the lift and assigning riggers to assist, Croft wentthe supervisor’s office. He returned to the crane site when they werereally to make the lift and was in radio communication with CauIley. There was concern over the weight of the load to be lifted (Tr. 108). Caulley had the boom angle of the crane set for a 21-ton lift. Caulley,Croft and Morgan were aware that a lift of 33 tons was being attempted(Tr. 108). Croft agreed to watch the rollers of the cab and to notifyCaulley by radio if the rollers commenced to raise off the turntable(Tr. 107, 122, 144). Caulley lifted the load a height of approximately6 to 18 inches and held it while Croft observed that the wheels werefirmly on the turntable (Tr. 108, 114). The load was then lifted to aheight of 10 feet above the dry dock and held for approximately 90seconds to make sure the crane would handle the load (Tr. 109, 114,115). The wheels remained on the turntable, and Caulley indicated hewas going to place the load. He commenced swinging the load to thenorth and the wheels started to rise from the tracks. Croft told himthat the wheels were coming up. As the load was being swunghorizontally to the north, the crane toppled (Tr. 109, 115). [[13\/]]The accident occurred around 6:15 p.m. on October 4, 1985, a Friday. Immediately after the accident, Tampa Shipyards employees commencedinvestigating to ascertain the cause of the accident. The safetydirector, Searle Walton, [[14\/]] testified that he arrived at the yardwithin a half hour of the accident and that employees had alreadycommenced the investigation. The investigation continued late into thenight (Tr. 427). Searle continued the investigation through Saturdayand Sunday (Tr. 430). On Monday, October 7, OSHA inspectors arrived tocommence an investigation (Tr. 430). The company investigation ceasedwhile OSHA personnel were conducting their inspection (Tr. 430, 435). When the company initiated its investigation, there was concern that theaccident may have been caused by a crane failure (Tr. 434, 435).After a few hours of investigation, company officials concluded thatthere was not a crane failure but that the accident was caused by theway the load was lifted (Tr. 435, 542). The boom angle and the weightof the 0-1 section were not compatible to make a safe lift (Tr. 435-436,542, 543). The lift was not beyond the 40-ton capacity of the crane butwas beyond the capacity for the particular boom angle at which the loadwas being lifted (Tr. 436). Morgan and Caulley were lifting a loadthought to weigh 33 tons with a boom angle set for a safe lift of 21tons. When the Iift was made, Caulley, Morgan and Croft were aware thatthey were lifting at least 33 tons with the crane set at a boom angle topick up 21 tons (Tr. 108). Croft acknowledged that the boom angleresulted in an overload of the crane (Tr. 108).Tampa Shipyards argues that there can be no section 5(a)(1) violationbecause specific standards apply to the undisputed facts. Reference ismade to ?? 1915.111(b), 1915.115(c)(2), 1915.116(b), 1915.117(a),1918.51(a), 1910.179(b)(5), (m) and (n), and 1910.180(h) (Brief,pg.19). Part 1915 sets forth safety and health standards specificallyapplicable to shipyard employment but, as previously discussed, containsno provisions applicable to the conditions cited in this case. Part1918 applies to longshoring and is not applicable to the operationsconducted by Tampa Shipyards involving shipbuilding and repair. Sections1910.179 and 1910.180, for reasons previously discussed, areinapplicable to the allegation since those sections do not apply totower cranes.There is no dispute over the fact that the lift attempted by Caulley andMorgan on October 4, 1985, exceeded the manufacturer’s recommended loadcapacity. The Secretary contends that this was a recognized hazard. The evidence fully supports this determination. Utilizing a crane tohoist loads in excess of the crane manufacturer’s recommendation is ahazard of common knowledge to those who operate or are familiar with theoperation of cranes. The hazard was so recognized by officials of TampaShipyards and its crane operators. The crane operators, in general,recognized that the crane’s rated load capacity should always beobserved (Tr. 51, 251, 567-570, 598, 637, 769). Crane operator BarrySims stated: \”It’s general knowledge don’t overload a crane\”(Tr. 705). The president of Tampa Shipyards, Ralph Arselmi, recognized the hazardby personally advising the crane operators that cranes should never beoverloaded (Tr. 188-190, 263, 347, 705, 771). Respondent’s safetydirector, Searle Walton, acknowledged that the boom angle and weightlifted were not compatible with a safe lift (Tr. 436). He would notpermit someone to make a lift that he knew was an overload; however, healso pointed out that he is not consulted by the crane operator when alift is being made (Tr. 558). Burkhart testified that the lifting ofloads in excess of the rated load capacity is a hazard (Tr. 944-945) andshould never be done (Tr. 853). There was general agreement among allwitnesses that lifting loads in excess of the crane’s rated loadcapacity presents a hazard. This type of workplace hazard is alsorecognized by section 4-3.2.1a of ANSI B30.4-1973 and promulgatedstandards applicable to other types of cranes and is specificallyprohibited. [[15\/]]Two employees in the crane and an unknown number of employees on theground were exposed to the recognized hazard. The evidence fullysupports the additional two elements necessary to establish a section5(a)(1) violation. The overloading of a crane can cause it to overturnand result in death or serious physical harm to employees. This isespecially true where the crane sits on an 80-foot tower. The safetyprogram of Tampa Shipyards with respect to enforcement of crane safetyprocedures was somewhat lax. The safety program for crane operatorswas oral (Tr. 476-477, 480). There was no written rule regardingoverloading of cranes. There is no evidence that training amongoperators was consistent or that all necessary elements for a successfulsafety program were included. The hazard can be abated by utilizingconsistent and detailed safety instructions, better communication ofthose instructions to employees, better supervision of employees anduniform enforcement. Tampa Shipyards was deficient in all these areaswith respect to its crane operators.Tampa Shipyards argues that it had no knowledge of the overloadcondition and that the condition was not reasonably foreseeable (Brief,pgs. 20-21). It points out that Caulley and Morgan were qualifiedcrane operators with many years of experience in crane operations. Neither of them had ever been involved in an accident. It is furtherargued that there is no evidence showing Tampa Shipyards was aware thateither Caulley or Morgan had lifted a load in excess of a crane’s ratedload capacity (Brief, pg. 21). It points out that eight full-timesafety specialists are employed to search for unsafe conditions and thatthe safety director would fire any supervisor who tried to make anyoperator hoist an overload. The statement by the safety director thathe would be fired if be did not fire the supervisor (Tr. 559) ishypothetical and meaningless since be concedes that he is not consultedabout lifts (Tr. 558) and that if he does not know about a situation, hedoes not get involved (Tr. 559).While Tampa Shipyards argues that it had no knowledge of the overload,it is an undisputed fact that William Caulley, leaderman for the craneoperators, and Wendell Croft, leaderman for the riggers, were both awareof the overlift and, in fact, were both directly involved in making thelift. They were both employed by Tampa Shipyards as leadermen, andtheir supervisor was Elwell Rhoden, general superintendent for TampaShipyards (Tr. 201-202, 1108). Unlike other crafts, there was noforeman between them and the general superintendent (Tr. 1108). Theargument that Croft and Caulley were not part of management and theirknowledge imputable to Tampa Shipyards ignores reality. If they werenot part of management for supervision purposes, then Tampa Shipyardshad insufficient supervision of crane operators and riggers. The onlyperson with supervision over Caulley and Croft was the generalsuperintendent. In commenting on the duties of the generalsuperintendent, counsel for respondent stated (Tr. 71):MR. MORAN: WelI, Your Honor, this is a mammoth operation. There areprobably 25, maybe a hundred cranes there. This testimony presumes thathe knows every lift made by every crane for every man on every day ofthe operation. _This man is the general superintendent. He is notinvolved in the operations. He sits in an office._ (Underlining added)The duties of the general superintendent are too large to allow him todo any significant direct supervision of crane operators and riggers.The evidence is clear that crane operators and rigger leadermen werepart of the supervision team of Tampa Shipyard. Sections 1 and 2 ofArticle 7 of the agreement between Tampa Shipyards and the Tampa MetalTrades Council, which represents several different unions with workersemployed at Tampa Shipyards, makes the following statement concerningleadermen (Ex. 3):SECTION 1.–_Leadermen are the first line of supervision_ and areresponsible to higher supervision for the progress and execution of thework. Leadermen do not have the right to hire or discharge employeesunder their jurisdiction, but may make recommendations to highersupervision concerning disciplinary actions and promotions ofemployees. It is further agreed that no interference will be exercisedby any Unions or their officials with respect to the supervisoryfunctions of any leaderman. It is recognized by the Company thatleadermen are bargaining unit employees covered [sic] by the terms andconditions of this agreement. (Emphasis added)SECTION 2.–_It is the intent of management that an employee willnormally have only one direct craft leaderman at a time from whom heshall take direction and be responsible, and with whom he will initiallyraise requests, complaints, or questions concerning his work_. However,this does not excuse an employee from taking directions from anysupervisor in cases of emergency or compelling production situations. In such situations, the workmen’s leaderman will be immediatelynotified. (Emphasis added)Searle Walton, safety manager for Tampa Shipyards, testified that thecompany generally followed Section 2 of Article 7 (Tr. 575-576). Respondent’s director of Iabor relations, George Turner, testified thatthe foreman over the crane operator leadermen and rigger leaderman hadnot been replaced and that the leadermen in those two crafts takesupervision directly from the general superintendent (Tr. 1108, 1111). While the crane and rigger leadermen are part of the bargaining unit,Turner indicated that the company was trying to remove them from thebargaining unit and include them as part of management (Tr. 1106-1107,1109). Removing them from the bargaining unit would give them authorityto answer grievances, to adjust grievances and to effect disciplinedirectly (Tr. 1110). They do not presently have such authority.General superintendent Rhoden testified that the leaderman is in chargeof the lift that has been assigned to him. The day leaderman turns overthe orders to lift to the night leaderman (Tr. 35, 42). A leaderman hasbetween 5 and 14 employees under his supervision (Tr. 104-105). Craneoperators Screws, Tucker, Sims and Heisserer testified that theleaderman was the immediate supervisor who told them what to do (Tr.177, 199, 201, 206, 602, 713, 746-747). The leaderman is the person whogoes to the next line of supervision, which in the case of craneoperators and riggers was the general superintendent (Tr. 1152). Thecrane operator and rigger leadermen were the immediate supervisors ofmembers of their group. Where leadermen have exercised substantialauthority over the work being performed, they have been deemed to besupervisory employees. _Todd Shipyards Corporation_, 84 OSAHRC 39\/A2,11 BNA OSHC 2177, 1984 CCH OSHD ? 27,001 (No. 77-1598, 1984), _appealdismissed_ in unpublished opinion (9th Cir. 1985, No. 84-7643). In viewof their particular responsibilities, Caulley and Croft are held to besupervisors and their knowledge attributable to Tampa Shipyards.The facts are undisputed that Caulley, Morgan and Croft were all awarethat the lift involved at least 33 tons and that the boom angle was setfor a lift of 21 tons. In order to prevail on the defense that theviolation resulted from employee conduct which was not reasonablyforeseeable, Tampa Shipyards must show that it \”has establishedworkrules designed to prevent the violation, has adequately communicatedworkrules to its employees, has taken steps to discover violations ofthe rules, and has effectively enforced the rules in the event ofinfractions.\” _Jones & Laughlin Steel Corp._, 82 OSAHRC 34\/A2, 10 BNAOSHC 1778, 1782, 1982 CCH OSHD ? 26,128 (No. 76-2636, 1982).The employee handbook (Ex. 13) utilized by Tampa Shipyards contains asmall section on crane safety. It does not contain a workrule toprevent the violation in issue. No evidence was introduced by TampaShipyards to show that it had a written rule prohibiting the use of acrane in making an overlift. There was adequate evidence to show thatsuch a rule existed and had been orally communicated to most craneoperators who testified. In any event, the crane operators recognizedsuch a rule as a matter of common sense. Since there is no requirementthat the rule must be written, the first element has been established.There has been an inadequate showing that Tampa Shipyards tookreasonable steps to enforce the rule. The fact that it had eightfull-time safety specialists does not reveal its enforcement procedure. There is no evidence as to how the rule was reinforced upon the minds ofthe crane operators or how violations were detected. Waltonacknowledged that his department was not consulted on lifts (Tr.558-559). He had no way of determining whether the lifts were beingproperly made until a mishap occurred. The only realistic enforcementof the rule had to be through supervisors who were familiar with thelifts being undertaken. While Caulley and Croft were acting in asupervisory capacity, there is no evidence of steps taken to enforce therule against overlifts. The record contains several instances ofprevious overlifts.[[16\/]] Most of the overlifts occurred because of alack of determining the weight of an object before it was lifted [[17\/]](Tr. 180, 183-184, 593, 723-724).The knowledge of Caulley and Croft of the violation is imputed to TampaShipyards for the purpose of providing employer knowledge of theviolations unless it \”establishes that it took all necessary precautionsto prevent the violation[s], including adequate instruction andsupervision of the two leadermen. _Daniel Construction Company_, 82OSAHRC 23\/A2, 10 BNA OSHC 1549, 1552, 1982 CCH OSHD ? 26,027, p. 32,672(No. 16265, 1982). The fact that supervisors were involved in themisconduct is strong evidence that Tampa Shipyards was lax. _DanielConstruction Company_, _supra_; United Geophysical Corp., 81 OSAHRC77\/D6, 9 BNA OSHC 2117, 2123, 1981 CCH OSHD ? 25,579, p. 31,907 (No.78-6265, 1981), _aff’d_ in unpublished opinion (5th Cir. 1982, No.81-4342), \”[w]here a supervisory employee is involved in the violationthe proof of unpreventable employee misconduct is more rigorous and thedefense is more difficult to establish since it is the supervisor’s dutyto protect the safety of employees under his supervision.\” _DanielConstruction Company_, _supra_, 10 BNA OSHC at 1552, 1982 CCH OSHD at p.32,672. _See also Floyd S. Pike Electrical Contractor, Inc.,_ 78 OSAHRC50\/E1, 6 BNA OSHC 1675, 1978 CCH OSHD ? 22,805 (No. 3069, 1978). TampaShipyards has failed to establish that Croft and Caulley were adequatelytrained or supervised with regard to safety matters. In addition,instances of previous overloads are too numerous to conclude that safetyprocedures were effectively enforced to prevent overloads from occurringat the workplace.While Walton testified that Tampa Shipyards had an oral safety policyfor crane employees, the extent of this policy is unknown. There wereobvious problems concerning procedures used in determining the weight ofobjects being lifted. There is considerable evidence concerningoverlifts which resulted from ignorance as to the weight of the objectto be lifted. Crane operator Hansen testified that the weight of theload was usually furnished to the crane operators by the department forwhom they were making the lift (Tr. 592). Crane operator Lee testifiedthat the rigger informs the operator as to the weight of the load (Tr.251). Any well developed policy for preventing crane overlifts has toinclude procedures for accurately determining weights of the objects tobe lifted. Tampa Shipyards has not shown that it had a clearly definedpolicy in this regard, and there is no evidence that such a policy wasenforced if it did exist. Advising crane operators not to make overloadlifts is a useless gesture if action is not undertaken to insure theyhave accurate information as to the weight of the object to be lifted. The alleged violation is sustained._Nature of Violation_The Secretary alleges that the violation was willful. \”To establish thata violation was willful, the Secretary must show that it was committedwith intentional, knowing or voluntary disregard for the requirements ofthe Act or with plain indifference to employee safety.\” _AsbestosTextile Company,_ _Inc._, 84 OSAHRC 48\/B12, 12 BNA OSHC 1062, 1063, 1984CCH OSHD ? 24,763 (No. 79-3831, 1984). Caulley and Morgan were awarethat the boom angle of the crane was set to make a safe lift of 21tons. They were told the 0-1 section weighed 33 tons. In spite ofthese facts, they commenced to lift and swing the load in totaldisregard of the manufacturer’s rated load capacity. They knowinglytried to swing and place the load. A willful violation has beenestablished._Penalty Determination_A penalty must be determined for the violation. Pursuant to section17(j) of the Act, the Commission must find and give \”due consideration\”to the size of the employer’s business, the gravity of the violation,the good faith of the employer, and the history of previous violationsin determining the assessment of an appropriate penalty. The gravityof the offense is the principal factor to be considered. _NaciremaOperating Co.,_ 72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ?15,032 (No. 4, 1972). Caulley, Croft and Morgan had knowledge that thepiece to be lifted weighed at least 33 tons. They knew the rated loadcapacity of the crane at its boom angle at the time of the lift was 21tons. They chose to ignore the facts. The gravity is consideredsevere. The cab of the crane was 80 feet in the air. A penalty of$8,000 is assessed for the violation._Item Two_Item two of the willful citation alleges that on October 4, 1985, and atother times, the weight of loads was not determined and the operatorswere not notified of the weight prior to hoisting. The description ofthe alleged violation raises two specific acts of omission: (1) theweight of loads was not determined, and (2) the operator was notnotified of the weights prior to hoisting. Tampa Shipyards argues thatthe same standards it referenced as applicable to item one are alsoapplicable to item two. According to Tampa Shipyards, the \”citedcondition is virtually indistinguishable from item 1 of this citation\”(Brief. pg. 32).Rhoden testified that Tampa Shipyards had a policy of determining theweight of loads before they made a lift (Tr. 47). According to him, theweight is determined by the use of a dynamometer (Tr. 47). He testified(Tr. 49):A. When they’ve got a section that they are concerned with, they put thedynamometer on it, and that’s the leaderman of that particulardepartment who puts the dynamometer on it with the operators and theother riggers with him and determines the weight.The number three crane has a load indicator, but it was not operationalat the time the lift in issue was made on October 4 (Tr. 47, 235, 240).Tampa Shipyards argues that the Secretary produced no evidence to provethat the weight of the 0-1 section was not determined or that theoperator was not notified of the weight prior to hoisting (Brief, pg.33). In view of the discrepancies in the weight the operators were toldand the actual weight of the 0-1 section, it is clear that such anargument must be rejected. While Croft testified that his paperworkshowed the 0-1 section weighed 33 tons, there is no evidence as to howthat figure was determined. The same section had been lifted by cranenumber 3 around 9:00 a.m. to 10:00 a.m. on the morning of October 4. Crane operator Joseph Mossey testified that he was told by the riggerthat the section weighed 30 tons (Tr. 733-734). He did not weigh thesection (Tr. 733). He set his boom at 32 tons to make the lift (Tr.733-734). No evidence was presented by Tampa Shipyards to show how theweight of the 0-1 section was supposedly determined or even if it hadbeen determined prior to the accident. The weight of the section wasdetermined after the accident to be 38.099 tons (Tr. 1132).Burkhart testified that the failure to determine the weight of loadsbefore lifting them could constitute a hazard (Tr. 945). This isparticularly true on heavy loads that have the potential to exceed thecrane’s rated load capacity for a particular boom angle. Failure toaccurately determine the weight of a load can lead to overlifts. WhileRhoden stated Tampa Shipyards had a policy of determining the weight ofloads being lifted, the extent of that policy is unknown.Tampa Shipyards had no written procedures for determining the weight ofloads to be lifted by cranes. If the oral policy was communicated toemployees, it was not very well followed. There is no evidence as tohow the policy was orally communicated to all employees or what attemptswere made to enforce it. The evidence discloses numerous instances wherelifts were made when the crane operator did not know the weight of theload or the weight given to him was erroneous (Tr. 168, 592-593, 596,667-672, 723-724, 745). The policy had little substance.Tampa Shipyards argues that this condition, i.e., failure to determinethe weight of the load, is indistinguishable from item one concerningthe allegation that the rated load capacity of the cranes was exceeded. There is merit to this argument. The hazard presented to employees forfailing to weigh a load, if one exists, is the overload of the crane. There is no hazard present in an unweighed load that is less than therated load capacity of the crane. The weight of the load must be knownif an overload is to be avoided. The objective of weighing a load is toavoid an overload. Determining the weight of the object to be lifted isone of the procedures necessary in the abatement process of preventingoverloads. It is part of the information essential to preventingoverloads and cannot be cited as a separate violation. The allegedviolation is vacated._Item Three_Item three alleges that \”[o]n or about October 4, 1985, and at othertimes, operation of tower crane(s) were permitted with known hazardousdefects in numerous functional operating mechanisms, control systems,and clutches.\” Tampa Shipyards submits that the \”cited conditions areregulated by the OSHA standards codified at 29 C.F.R. ?? 1910.179(j),1910.179(1), 1910.180(d)( 3) and (4), 1910.180(f), 1915.111(a),1915.115(a), 1915.116(k) and 1915.117(a)\” (Brief, pgs. 41-42). Aspreviously pointed out, ? 1910.179 and ? 1910.180 are inapplicable totower cranes. Those provisions of Part 1915 referred to by TampaShipyards are not applicable to the conditions alleged in the citation.Several operators testified that they used a piece of wood behind thecrane friction levers to prevent them from disengaging. [[18\/]] Thisapplied only to cranes 4, 5 and 6 (Tr. 628). Crane operator Simstestified that while he used a piece of wood, he did not think there wasanything wrong with the lever. He testified that some of the operatorsused the piece of wood and some did not use it. He thought it was saferto use the piece of wood (Tr. 679-680, 708-709). He has not used apiece of wood since October 4, 1985 (Tr. 680). Crane operator DonHeisserer testified that he did not use the piece of wood butacknowledged that some operators used it (Tr. 744-745). Burkharttestified that the use of the piece of wood indicated that the normallocking device was not functioning properly (Tr. 921). In his opinion,the cranes should not have been operated in that condition (Tr.921-922). Sims thought the friction levers were designed to be easilydisengaged (Tr. 679). Burkhart testified that the levers \”are designedto be operated with relative ease but when you pull them into detent,they should stay there for the normal operation of the crane\” (Tr. 923).There is no substantive evidence to support the conclusion that thecranes had defective friction levers during the time period relevant tothis proceeding. Hansen testified that he had trouble in 1980, 1981 and1982 (Tr. 607). He testified that he reported the problems with thedifferent cranes, and they were fixed within a period of time (Tr.629-632). Mossey testified that he had used a piece of wood but did notstate that he had any trouble with the friction lever disengaging (Tr.735). Sims testified that he used a piece of wood but did not statewhen or if he had trouble with the friction lever (Tr. 674). Christietestified that he used a piece of wood but did not state when or if hehad trouble with the friction lever (Tr. 725-729). It appears the pieceof wood was being used by some operators as a precaution against aproblem they believe had existed in the past. Charles Dowless, theplant manager, testified that if the friction lever jumped out while thecrane was traveling, it would be of particular concern to the craneoperator (Tr. 1134). He had no knowledge of seeing such a conditionreported for repair (Tr. 1135). Burkhart’s assumption that thefriction lever was defective because a piece of wood was used was basedon a practice that evolved from past difficulties with the frictionlever. The preponderance of the evidence does not support theallegation the friction levers were defective at the time of theinspection. There is also insufficient evidence to conclude thatmanagement officials were aware that the piece of wood was being used bythe crane operators.Evidence was presented with respect to defective limit switches and anemergency shutoff switch. No evidence of the specific nature of thealleged limit switch problem or how long it existed was presented. Hansen testified that he had problems with limit switches on cranes 4, 5and 6 and that they were fixed (Tr. 632). He had a problem on cranenumber 1 that was not fixed, but the crane was removed from service in1984 (Tr. 633). The problem occurred in 1980 and 1981 (Tr. 633). Hestated that he had problems with the emergency shutoff switches oncranes 4 and 5 (Tr. 634). A switch was placed on crane number 4, and hewas not aware if the switch had been fixed on crane number 5 (Tr.634-636). He believed there was no emergency shutoff switch on cranenumber 5 in October, 1985 (Tr. 603). There was no evidence that anyoneof authority for Tampa Shipyards was aware of the defects or that theywere not fixed once they were reported.The Secretary includes the fact that the load indicator in crane number3 was inoperable for a period of time in late September and October,1985, as a defect. However, his own expert, Matthew Burkhart, made itclear that the fact that the load indicator was not operable was not ahazard to the operation of the crane (Tr. 946-947). The crane operatorcan compensate for the inoperable load indicator by having the weight ofloads determined by other means (Tr. 946). No evidence was presentedwhich showed any risk to the mechanical operation of the crane resultingfrom the claimed defect. No evidence was presented that load indicatorswere required on cranes.The other alleged defects are reflected on craft turnover forms enteredinto evidence as Exhibit 14. The forms cover the period from September3, 1985, to October 4, 1985 (Tr. 466). These forms were turned over bythe first shift leaderman to the second shift leaderman. The firstshift recorded on the form what they wanted the second shift to do (Tr.465, 1144). The forms indicate that maintenance items were recorded bythe second shift. A copy was sent to the maintenance department toindicate the need for repair (Tr. 1144). The Secretary points toseveral of these items and charges that the cranes were operated withknown defects. While the forms indicate some need for repairs, there isno evidence that the cranes were operated under unsafe conditions. Thereis no evidence that the repairs were not made within a short orreasonable period of time. All the forms show is that at a particularperiod of time maintenance was needed. There is no evidence to indicatewhat was done once the item was noted on the form. The listing of aproblem on the form does not per se prove that the crane was operatedwith such a defect. The allegations were based on Burkhart’s opinionas to what he thought was meant by the entries on the craft turnoversheets. Burkhart assumed hazards existed as a result of the entries onthe sheets (Tr. 1023). He had no knowledge that the cranes wereoperated with hazardous defects.A company that operates as many cranes as Tampa Shipyards will certainlyexperience a number of maintenance problems over a period of time. Simply because a limit switch, emergency shutoff switch or othermechanical items become broken or inoperative does not establish aviolation. There is no evidence that any item reported was noteventually repaired once it was reported. There is also no evidencethat Tampa Shipyards required its crane operators to operate cranes withhazardous conditions or that the cranes in issue were operated withhazardous defects. Crane operator James Screws testified (Tr. 191):Q. If you don’t find anything properly working, do you know what to do?A. Yes, sir. You report it and don’t run the crane if it is somethingthat is unsafe until the problem is checked into.The alleged violation is vacated._Item Four_Item four alleges that \”[o]n or about October 4, 1985, and at othertimes, tower crane(s) were operated without conducting frequent andcomplete periodic inspections to insure safe operations.\” TampaShipyards argues that \”[t]here are a number of OSHA standards regulatingthe inspection and maintenance of cranes which would preempt this ?654(a)(1) charge,\” citing 29 C.F.R. ?? 1910.179(j)(1)(ii), (j)(2),(j)(3), 1910.179(1), 1910.180(d)(3) and (4), 1910.180(f), 1915.111(a),1915.113(b), 1915.114(b), 1915.115(a)(1), and 1915.181 (Brief, pg. 52). It further argues that item four is no different from the allegations ofitem three and is multiplicious. Sections 1910.179 and 1910.180 andPart 1915 are inapplicable for the reasons previously stated.The Secretary argues that Tampa Shipyards lacks an effective inspectionschedule for daily, weekly, monthly and quarterly inspections. Hesubmits that there is no policy as to who is in charge of conductinginspections and that this results at times in inspections being made by\”whoever is available.\” He states that \”[W]hile some operatorsconduct ‘inspections’ of their own, there are no guidelines as to whatto inspect or when to inspect\” (Brief, pg. 8).Frequent and periodic inspections for tower cranes are required bysection 4-2.1 of ANSI B30.4-1973, _Portal, Tower and Pillar Cranes_. Crane standards, particularly ?? 1910.179 and 1910.180, generallyrequire frequent and periodic inspections. Frequent inspections arerequired to be made from daily to monthly intervals, while periodicinspections must be made from 1 to 12-month intervals.[[19]] Intervalof inspections are dependent upon the degree of exposure to wear,deterioration or malfunction of the critical components of the crane. Assuming frequent and periodic inspections are required, thepreponderance of the evidence supports the determination that TampaShipyards was in compliance. The evidence fails to show that daily,frequent or periodic inspections were not conducted.Crane operator James Screws, when asked if he knew how cranes wereinspected, testified that he had a crane report that is filled out oncea month (Tr. 169). According to him, the operators are supposed to fillout the reports but that sometimes the leaderman fill them out (Tr.169). Daily checks are made by operators (Tr. 169, 191, 727). Craneoperator Johnnie Lee testified he was not aware of crane inspections butthat the maintenance people might have conducted inspections (Tr. 234). Crane operator Charles Christie testified that he did not know whochecked the cranes but that he checked his crane daily before hecommenced his shift (Tr. 727). While the crane operators appeared toknow little about inspections performed by others, there was no evidencethat any of them neglected to do their own inspection on a daily orfrequent basis.Rhoden testified that Tampa Shipyards has a maintenance program thatincludes crane inspections (Tr. 62-63). The plant engineer, CharlesDowless, testified that crane inspections are performed once a month(Tr. 1126). No one person performs the inspections. Inspections areperformed by the maintenance foreman, assistant supervisor, or whoeveris available (Tr. 1126). Copies of the monthly forms used were placedinto evidence as Exhibits 22 and C. They show inspections of listeditems (checklist) for cranes that were conducted for a specific month. The form contains the heading:*TAMPA SHIPYARDS INCORPORATEDMAINTENANCE DEPARTMENTMONTHLY CRANE CONDITION INSPECTION*The inspection forms show that some of the inspections were performed bya crane operator leaderman (Ex. 22; Tr. 1140). Dowless furthertestified that the cranes were serviced at least once a month and moreoften if the frequency of operation so requires (Tr. 1142-1143). Thecranes are usually also looked over during the servicing (Tr. 1142).The allegation pertains to the failure to conduct frequent and completeperiodic inspections. The record shows that periodic inspections weremade by some individual on a monthly basis. While the individual makingthe inspections may have varied from month to month, the Secretary didnot offer evidence to indicate that any particular crane was notinspected. There is no support in law for the position that oneparticular individual must do the inspection. The Secretary furtherfailed to show that the monthly inspection form, which contains a listof several items to be inspected, was deficient in any manner.The Secretary acknowledges that \”[T]here is evidence that some operatorsmade inspections of the cranes which they operated\” (Brief, pg. 18). In an equally true manner, it can be stated that the evidence fails toshow any operator that did not make a daily inspection of his crane. The argument is made that there were no guidelines by which theseinspections were conducted. Burkhart testified that he saw no dailyinspection checklists (Tr. 939) and that, in his opinion, writtenchecklists were needed (Tr. 1014-1015).[[20\/]] No evidence was offeredto indicate what items should be included on a written checklist or thatthe operators failed to check any of the items that might be included onsuch a checklist.Tampa Shipyards lacks a cohesive and detailed policy of conductinginspections. However, it is charged with not \”conducting frequent andcomplete periodic inspections.\” While inspection procedures may havebeen slipshod, frequent and periodic inspections were made by employeesof Tampa Shipyards. No evidence was introduced to reflect that thoseinspections were incomplete or deficient in any manner. The allegedviolation is vacated._Docket No. 86-0469_On January 29, 1986, employees of Tampa Shipyards were welding in a roomapproximately 30 feet by 45 feet on the deck level of the vessel _RobertG. Matthiesen_. The welding took place in the \”fan\” room where theship’s air conditioning was located (Tr. 1087). During the weldingoperations, a fire and explosion occurred that resulted in three personsbeing burned. At the time of the explosion, six employees of TampaShipyards were in the room. An employee of a subcontractor was also inthe room. An investigation of the accident by Compliance Officer FredCarpenter disclosed that a can of paint thinner in the room had beenignited when a welder’s rod touched it while the welder was crawlingaround in the room.The citation issued on March 14, 1986, as a result of the fire andexplosion, cited alleged violations of three standards. During thehearing, the Secretary withdrew item two of the citation (Tr.1068-1069). Items one and three remain in issue. Item one alleges aviolation of 29 C.F.R. ? 1910.106 (e)(2)(iv)(d) because \”paint thinnerwas drawn from or poured from the original containers.\” Item threealleges a violation of 29 C.F.R. ? 1915.52(b)(2) for failure to have asuitable fire extinguishing equipment available in work areas whereweIding, cutting or heating operations were being performed._Item One_Tampa Shipyards argues that the Secretary failed to establishnoncompliance with 29 C.F. R. ? 1910.106(e)(2)(iv)(d).[[21\/]] Itsubmits the standard \”regulates only a specified activity: the manner,or method, by which certain liquids may be ‘drawn from’ or ‘transferredinto’ containers\” (Brief, pg. 82). There is no evidence that the paintthinner had been drawn from or transferred into the particular can foundin the room. The testimony of Compliance Officer Carpenter indicatesthat the can of paint thinner was cited for a violation because it wasnot in a safety can (Tr. 1075-1076).There is no dispute over the fact that paint thinner was in the can. The can was not a safety can. It contained a label indicating thecontents were flammable. The can was sitting in the room. There is noevidence to indicate that Tampa Shipyards had transferred the paintthinner into the can. The thinner was probably in the same can in whichit was purchased by Tampa Shipyards. The can was similar to that inwhich paint thinner is sold (Exs. 20, 21; Tr. 1074).The Secretary’s brief does not comment on the applicability of 29 C.F.R.? 1910.106(e)(2)(iv)(d) to the facts in issue. His brief simply makesthe assumption that the standard is applicable. Why the Secretarybelieves the standard is applicable to the facts of this case isunknown. As pointed out by respondent, the \”standard is specificallylimited in scope and application to those portion [_sic_] of an’industrial plant’ where the use and handling of flammable orcombustible liquids is only incidental to the plant’s principalbusiness\” (Brief, pg. 83). The alleged violation occurred on a ship.In order to prove a violation of a standard, the Secretary must showthat the cited standard applies to the cited condition. _Clement FoodCompany_, 84 OSAHRC 26\/A2, 11 BNA OSHC 2120, 2123, 1984-85 CCH OSHD ?26,972 (No. 80-607, 1984). The Secretary has failed to show how thestandard is applicable to the facts. The alleged violation is vacated.Even if the standard was applicable, the Secretary has failed toestablish that respondent had actual or constructive knowledge of thecondition. Compliance Officer Carpenter testified that he did not knowwho put the paint thinner can in the room, that there was no reason forit to be there, and that he did not know who knew it was there (Tr.1089). The can was similar to cans of mastic in the room, and it wasnot readily discernable by anyone as containing paint thinner (Tr.1076-1077). Carpenter conceded that the cans blended together and that\”nobody noticed the distinct difference between them which was not verygreat\” (Tr. 1077). He further stated (Tr. 1090):As I said, nobody knew before the explosion that it was there. It wasonly afterwards that they realized they had seen it._Item Three_The Secretary alleges a violation of 29 C.F.R. ? 1910.2(b)(2) [[22\/]]because there was allegedly no firefighting equipment in the immediatevicinity of the fire. The standard requires suitable fire extinguishingequipment be available in the work area and maintained in a state ofreadiness for instant use.Compliance Officer Carpenter arrived at the jobsite on January 30, theday following the accident. He went to the room where the fire hadoccurred. There were fire extinguishers in the room when he arrived atthe site (Tr. 1077). His investigation disclosed that there was nofire extinguisher in the room at the time the fire commenced (Tr.1078-1079). Two fire extinguishers were located over 25 feet from theroom. The fire extinguishers were not in sight but were located behindclosed doors. The employees had no indication of where they werelocated (Tr. 1079). One of the fire extinguishers was located inside ofthe stairs on the next deck; the second extinguisher was on the samedeck inside a door that led to the engine room (Tr. 1079). At the timeof the fire, employees had difficulty in locating fire extinguishers. They had to use insulating material to smother the flames (Tr. 1080).The fire hose in the area of the room had been removed the previous dayin order to paint the deck (Tr. 1079, 1089). The nearest hose was onthe other side of the ship. It was not hooked up (Tr. 1079-1080).The standard requires that suitable fire extinguishing equipment beavailable in the work area \”in a state of readiness for instant use.\” The standard makes reference to \”suitable fire extinguishingequipment.\” While the standard does not state what precise equipment isrequired for firefighting purposes, it is clear that some fireextinguishing equipment is required. Since there was no fireextinguishing equipment located in the work area, it is unnecessary todefine or interpret what is suitable fire extinguishing equipment.Tampa Shipyards argues that the evidence does not include anyclarification of what was meant by the terms \”immediate vicinity\” or\”instant use.\” The standard does not use the words \”immediatevicinity.\” The equipment is required to be immediately available in thework area. The work area is construed to be the room in which thewelding operation was being performed. The fire extinguishers werelocated at least 25 feet from the room in which the work was beingperformed. The violation has been established._Nature of Violation_The Secretary contends that the violation of 29 C.F.R. ? 1915.52(b)(2)is serious within the meaning of section 17(k) of the Act. Under section17(k) of the Act, a serious violation exists where there is asubstantial probability that death or serious physical harm could resultfrom the condition and the employer has knowledge of the condition, orcould have discovered the violation with the exercise of reasonablediligence. The Secretary need not prove that an accident is probable;it is sufficient if an accident is possible and its probable resultwould be serious injury or death. _Brown & Root, Inc., Power PlantDivision_, 80 OSAHRC 17\/B8, 8 BNA OSHC 1055, 1980 CCH OSHD ? 24,275 (No.76-3942, 1980); _Niagara Mohawk Power Corp.,_ 79 OSAHRC 36\/A2, 7 BNAOSHC 1447, 1979 CCH OSHD ? 23,670 (No. 76-2414, 1979).The Secretary must further prove that the employer knew or with theexercise of reasonable diligence should have known of the existence ofthe violation. The knowledge element is directed to the physicalconditions which constitute a violation of section 5 of the Act. _Southwestern Acoustics and Specialty, Inc.,_ 77 OSAHRC 25\/E7, 5 BNAOSHC 1091, 1977-78 CCH OSHD ? 21,582 (No. 12174, 1977). It is difficultfor an employer to prevail on the defense that he had no knowledge ofthe violation since he has an obligation to inspect the work area, toanticipate hazards to which employees may be exposed, and to takemeasures to prevent their occurrence. _Frank Swidzinski Co.,_ 81 OSAHRC4\/E14, 9 BNA OSHC 1230, 1981 CCH OSHD ? 25,129 (No. 76-4627, 1981);Automatic Sprinkler Corp. of America, 80 OSAHRC 47\/E4, 8 BNA OSHC 1385,1980 CCH OSHD ? 24,495 (No. 76-5089, 1980). Had Tampa Shipyardsinspected for suitable fire extinguishing equipment in the room prior tocommencing work, it would have discovered its noncompliance with thestandard. It should also have known that the fire hoses in the area hadbeen removed the previous day in order to paint the deck. Sincesuitable fire equipment was unavailable, employees had to use insulatingmaterial to smother the flames. The violation was serious since a firein the room could and did result in the burning of employees._Penalty Determination_A penalty must be determined for the violation of ? 1915.52(b)(2) sinceit has been classified as a serious violation. Under section 17(j) ofthe Act, the Commission is required to find and give \”due consideration\”to the size of the employer’s business, the gravity of the violation,the good faith of the employer, and the history of previous violationsin determining the assessment of an appropriate penalty. The gravityof the offense is the principal factor to be considered. _NaciremaOperating Co.,_ 72 OSAHRC 1\/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD ?15,032 (No. 4, 1972).Tampa Shipyards exposed six of its employees and an employee of asubcontractor to welding operations in a room approximately 30 feet by45 feet without providing for suitable fire extinguishing equipment. Employees had been working in the room for several hours prior to theexplosion and fire (Tr. 1081). At the time of the fire, Tampa Shipyardsemployed in excess of 800 employees (Tr. 1082). A penalty of $800 isassessed for the violation._FINDINGS OF FACT_1. Respondent is a corporation engaged in shipbuilding and repair at aplace of business located at 1130 McCloskey Boulevard, Tampa, Florida(Tr. 1084).2. On October 4, 1985, crane number 6 fell onto the number 2 dry dock(Tr. 36, 41-42). The accident occurred around 6:15 p.m. (Tr. 429). Thecrane fell during a lift of an 0-1 section at a boom angle with a ratedload capacity of 21 tons (Tr. 108, 113, 143).3. The crane sat on a turntable on top of an 80-foot tower. Rollersunderneath the cab rotated on the turntable to allow the crane topivot. The tower sat on a gantry that moved along rails (Ex. 12; Tr.173, 710, 850, 1117).4. CompIiance Officer SaIvatore Jimenez commenced an investigation ofthe accident on October 7, 1985 (Tr. 430, 530).5. After the accident, the 0-1 section wreckage was cut into threepieces and weighed by Charles Dowless, plant engineer. The combinedweight of the three pieces was 38.099 tons (Tr. 165, 509, 1112, 1132,1143). At the time of the lift, the 0-1 section was believed to weigh33 tons (Tr. 106).6. James Morgan was the operator of crane number 6 at the time of thelift. William Caulley was the leaderman for crane operators. He wasin the crane with Morgan at the time of the lift (Tr. 42, 260, 564, 565,655-656). Caulley and Morgan were informed by Wendell Croft, the riggerleaderman, that the 0-1 section weighed 33 tons (Tr. 106-107).7. Caulley usually went up in the crane with the operator when a heavyor maximum lift was to be made (Tr. 118, 656, 661-662, 666-667). Therewas concern over the weight of the load to be lifted (Tr. 108).8. Caulley, Morgan and Croft were all aware that the lift involved atleast 33 tons and that the boom angle was set for a lift of 21 tons (Tr.106-107).9. The accident occurred because the boom angle of the crane and theamount of weight being lifted were not compatible for a safe lift (Tr.435, 436, 532).10. Crane operator leadermen and rigger leadermen perform supervisoryduties at Tampa Shipyards. There is no foremen between them and thegeneral superintendent (Ex. 3; Tr. 201-202, 1108). They are assignedbetween 5 and 14 employees under their supervision and are the immediatesupervisor of those employees (Tr. 104-105, 177, 199, 201, 206, 602,713, 746-747).11. The manufacturer of a crane rates the load capacity of a crane atvarious boom angles (Tr. 854). The operator makes the decision as towhat boom angle is necessary to handle a load (Tr. 555-557, 769, 984-985).12. When the operator is given the weight of a lift, he is expected toset the boom angle at the necessary angle in order to make a lift (Tr. 558).13. The crane operator has the authority to refuse to make a lift if heconsiders the lift to be an overload (Tr. 262, 566, 567, 637).14. Crane number 6 had a rated lifting or load capacity of 40 tons (Tr.46, 50, 113, 508). This means that the crane could lift loads up to 40tons with the proper boom angle (Tr. 50).15. As the boom angle increases, the load lifting capacity decreases(Tr. 46, 50). The safe lifting range for a load depends on the boomangle and the weight (Tr. 53).16. An overload occurs when the load is more than the boom angleindicates as being the maximum safe load at that angle (Tr. 53).17. One of the job responsibilities of the rigger leaderman is tocalculate the weight to be lifted by the crane (Tr. 135, 316). Thecrane operator is told the weight (Tr. 135, 249-250). Riggers have inthe past been misinformed as to the accurate weight (Tr. 252).18. The president of Tampa Shipyards informed crane operators that hedid not want the cranes overloaded (Tr. 188-190, 263, 347, 705,770-771). He further informed them that if anyone ordered them to makean overlift that they could come to him (Tr. 354).19. Tampa Shipyards trains its crane operators by on-the-job training. Generally, they work as an oiler in the shipyard for a period of threeyears and then are trained by the crane operators (Tr. 55-56, 60-61,163-164, 268-269, 483-484, 589, 591, 645-647, 653, 683-684). Thegeneral superintendent, leaderman and operators determine when an oileris ready to become an operator (Tr. 57).20. There have been overlifts made on previous occasions by employeesof Tampa Shipyards. Most of the overlifts occurred because of a lack ofdetermining the weight of an object before it was lifted (Tr. 167-168,173-174, 178, 183-185, 593, 723-724, 745-746, 766-768).21. Tampa Shipyards has a crane inspection program. Frequent andperiodic inspections of cranes were conducted by Tampa Shipyards (Exs.22, C; Tr. 62-63, 169, 191, 234, 727, 1126).22. Tampa Shipyards has an unwritten safety policy (Tr. 476-477, 480). It employs a safety director with a staff of eight people (Tr. 501).23. In April, 1978, Tampa Shipyards was cited for violations pertainingto cranes 1 through 6 under 29 C.F.R. ? 1910.179 (Tr. 891-898).24. On January 30, 1986, Compliance Officer Fred G. Carpenter conductedan investigation of a fire occurring on the premises of Tampa Shipyardson January 29, 1986 (Tr. 1069).25. The fire and explosion occurred in a room on the vessel Robert G.Matthiesen. A can of paint thinner in the room had been ignited andexploded when a welder’s rod touched the can when he was crawling aroundin the space (Ex. 19, 20; Tr. 1071-1073, 1085). The paint thinner had aflash point of 73 degrees (Tr. 1073).26. At the time of the fire and explosion, six employees of TampaShipyards were in the room. An employee of a subcontractor was also inthe room (Tr. 1077, 1080). They had been working in the room forseveral hours prior to the fire (Tr. 1081).27. The employee of the subcontractor and two employees of TampaShipyards were seriously burned (Tr. 1077).28. Two fire extinguishers were located approximately 25 feet from theroom but were behind closed doors. One fire extinguisher was located onthe next deck inside the stairs. The second fire extinguisher was onthe same deck as the work area but inside a door that led to the engineroom (Tr. 1079).29. At the time of the fire, employees were unable to locate the fireextinguishers (Tr. 1080). They used insulating material to smother theflames on the employees (Tr. 1080).30. The fire hoses had been removed from the vicinity of the work areain order to paint the deck and were not hooked up at the time of thefire. The nearest hose was on the other side of the ship. It was notconnected to a water source (Tr. 1079-1080, 1088-1089, 1094).31. The label on the can of paint thinner indicated the contents wereflammable (Tr. 1074).32. The can which the thinner was found was not a safety can. It was asingle-layered can (Tr. 1075).33. The white metal can which contained the paint thinner lookedsimilar to three cans of mastic that were in the room. It was difficultto notice the differences between the cans (Tr. 1076-1077).34. At the time of the fire and explosion, employees were not awarethat the can contained paint thinner (Tr. 1088). Employees had observedthe can but confused it with the mastic cans in the room (Tr. 1088).35. None of the employees in the room were doing any kind of work thatwould require the use of paint thinner (Tr. 1088). There was no knownreason as to why the paint thinner can should have been in the room (Tr.1089)._CONCLUSIONS OF LAW_1. Tampa Shipyards, at all times material to this proceeding, wasengaged in a business within the meaning of section 3(5) of the Act.2. Tampa Shipyards, at all times material to this proceeding, wassubject to the requirements of the Act and the standards promulgatedthereunder. The Commission has jurisdiction of the parties and of thesubject matter.3. Cranes 1 through 6 are tower cranes. There are no standardsapplicable to tower cranes which regulate the specific type of conductfor which Tampa Shipyards was cited.4. The secretary has failed to meet his burden of proof in establishinga violation of section 5(a)(1) for allegedly allowing unqualified craneoperators to operate tower cranes located in the shipyard. The allegedviolation and proposed penalty are vacated.5. Tampa Shipyards was in violation of section 5(a)(1) for liftingloads with tower cranes in excess of the crane manufacturer’srecommended load capacity. The violation was wiIIfull. A penalty of$8,000 is assessed for the violation .6. Tampa Shipyards is not in violation of section 5(a)(1) for failingto determine the weight of loads prior to hoisting. The need todetermine the weight of a load is part of the procedure essential toavoiding overloads. The alleged violation and proposed penalty are vacated.7. The Secretary has failed to meet his burden of proof in establishinga violation of section 5(a)(1) for allegedly allowing tower cranes to beoperated with known hazardous defects. The alleged violation andproposed penalty are vacated.8. Tampa Shipyards was not in violation of section 5(a)(1) forallegedly allowing tower cranes to be operated without conductingfrequent and complete periodic inspections to ensure safe operation. Frequent and periodic inspections were made by employees of TampaShipyards. The alleged violation and proposed penalty are vacated.9. Tampa Shipyards was not in violation of 29 C.F.R.?1910.106(e)(2)(iv)(d). The Secretary failed to meet his burden inestablishing the applicability of ? 1910.106(e)(2)(iv)(d). The proposedpenalty is vacated.10. Tampa Shipyards was in violation of 29 C.F.R ? 1915.52 (b)(2) forfailure to have fire extinguishing equipment available in a work areawhere welding was being performed. The violation was serious. Apenalty of $800 is assessed for the violation._ORDER_Based upon the foregoing findings of fact and conclusions of law, it isORDERED:(1) That the serious citation issued to Tampa Shipyards on March 3,1986, and the penalty proposed for the alleged violation are vacated;(2) That items 2, 3 and 4 set forth in the willful citation issued toTampa Shipyards on March 3, 1986, and the penalties proposed for thealleged violations are vacated;(3) That item 1 of the willful citation issued to Tampa Shipyards onMarch 3, 1986, is affirmed and a penalty of $8,000 assessed for theviolation;(4) That items one and two of the serious citation issued to TampaShipyards on March 14, 1986, and the penalties proposed for the allegedviolations are vacated; and(5) That item three of the serious citation issued to Tampa Shipyards onMarch 14, 1986, and the penalty proposed for the violation are affirmed.JAMES D. BURROUGHSJudge————————————————————————FOOTNOTES:[[1]] That section provides:Each employer…. shall furnish to each of his employees employment anda place of employment which are free from recognized hazards that arecausing or are likely to cause death or serious physical harm to hisemployees.[[2]] The crane involved in the accident is one of six tower cranes atthis location. A tower crane consists of a rotating superstructure,made up of operating machinery, cab and boom, that rests on a circulartrack atop a tower that sits on rails. The tower of crane no. 6 was 80feet high.[[3]] The only alleged violation on review is the hoisting of the loadthat led to the accident on October 4, 1995. The judge struck from therecord evidence of overlifts that occurred after that date. The allegedoverlifts that occurred before that date, which are discussed below, amrelevant to whether Tampa had the requisite knowledge of the violativeconditions on October 4, 1985, and whether the alleged violation willful.[[4]] The direction for review specified only these issues, all of whichinvolve only Docket No. 86-0360. Despite this limitation, Tampa’sbriefs on review address a number of other issues that it raised in itspetition for review but that are not within the scope of the directionfor review, including arguments involving Docket No. 86-0469. In herbrief, the Secretary stated that she would not address these issuesbecause they were not \”fairly within the direction for review.\”In its reply brief, Tampa argues that the Commission must address allmaterial issues presented on the record, regardless of whether they fallwithin the scope of the direction for review. The Commission does havejurisdiction over all the items and issues in a case that it directs forreview. Hamilton Die Cast, Inc., 12 BNA OSHC 1797, 1800, 1986-87 CCHOSHD ? 27,576, p. 35,822 (No. 83-308, 1986). However, the Commissionalso has discretion to limit the scope of its review. E.g., Bay StateRefining Co., 15 BNA OSHC 1471, 1476, 1992 CCH OSHD ? 29,579, p. 40,025(No. 88-1731, 1992). See 29 U.S.C. ? 661(j). Ordinarily the Commissiondoes not decide issues that are not directed for review. 29 C.F.R. ??2200.92(c), 93(a). We find no reason to depart from that policy here. The only objections that Tampa raised to the judge’s decision that havesufficient support to merit review are those directed for review. Accordingly, we do not address the arguments by Tampa that are outsidethe scope of the direction for review. Because no issue involvingDocket No. 86-469 is within the scope of the direction for review, thatcase is now a final order of the Commission.[[5]] Crane operator Ashmore testified that a safety book for craneoperators was kept on crane no. 3. However, the record indicates thatthe book was not required reading, and was not a regular part of anysafety program for Tampa’s crane operators. Further, crane no. 3, towhich that book related, was manufactured by a different manufacturerthan the other crane at issue here. Moreover, there was no testimony asto the contents of the safety book, or whether it covered all the safetyprecautions necessary to prevent the kind of overlifts that occurred onTampa’s worksite.[[6]] Tampa asserts that it \”has eight full-time safetyspecialists…who search for conditions that may be unsafe[.]\” However,that figure included paramedics and first aid personnel. The evidenceindicates that none of its safety personnel took the initiative toinspect cranes unless a safety problem was reported to them. Forexample, crane operator Christie testified that \”[t]hey report what Ireport to them, sir. That’s all I’ve seen done.\”[[7]] Rhoden testified that when an operator told him that anear-capacity lift would be attempted, he consulted with the operatorabout the load and even \”had the president of the company out there,\”and that be never knowingly overloaded a crane. However, suchconsultations did not constitute a monitoring system. In a satisfactorymonitoring system, Tampa’s superintendents would make active attempts todetect hazardous lifts that had not been brought to their attention byoperators in advance.[[8]] As Tampa notes, Burkart acknowledged that he could not state howmany supervisors and how much monitoring would be required at itsworksite without knowing the number of employees Tampa bad there, andthe number and timing of lifts that it made. He did not have thatinformation. However, be testified that Tampa would be able todetermine how many supervisors and how much monitoring would berequired, because it had the necessary information.[[9]] Tampa argues that the Secretary submitted evidence, an this andother issues, that varied from her counsel’s responses to itspre-hearing interrogatories. It seems to argue that, as a result, theCommission should rely on those answers to interrogatories and not onthe sworn evidence submitted at the bearing. However, Tampa does notcite any objections it made to the introduction of the evidence. Theproper time to object to the introduction of evidence, on the groundthat it is inconsistent with answers to interrogatories, is at thehearing. Power Fuels, Inc., 14 BNA OSHC 2209, 2214, 1991 CCH OSHD ?29,304, p. 39,347 (No. 85-166, 1991), and cases cited therein. Evenwhere answers to interrogatories are stipulated into evidence, as here,they generally have no binding effect if they are contradicted by otherevidence introduced at the hearing. Id. The mere fact that certainevidence submitted by the Secretary at the hearing varied from heranswers to interrogatories is no basis for failing to consider theevidence, or for failing to give it appropriate weight.[[10]] Article 7 of the union contract provided:SECTION 1. – Leadermen are the first line of supervision and areresponsible to higher supervision for the progress and execution of thework. Leadermen do not have the right to hire or discharge employeesunder their jurisdiction, but may make recommendations to highersupervision concerning disciplinary actions and promotions ofemployees. It is further agreed that no interference will be exercisedby any Unions or their officials with respect to the supervisoryfunctions of any leaderman. It is recognized by the Company thatleadermen are bargaining unit employees covered by the terms andconditions of this agreement.SECTION 2. – It is the intent of management that an employee willnormally have only one direct craft leaderman at a time from whom heshall take direction and be responsible, and with whom he will initiallyraise requests, complaints, or questions concerning his work.[[11]] Tampa’s assertion that Sims did not know whether \”anyone in thecompany\” knew about the overlifts is incorrect. Sims specificallytestified that leadermen were supervisors for the company.[[12]] Ashmore joined Tampa in August 1980.[[13]] Crane operator Johnnie Lee explained why the cranes could not beoperated safely with the rollers off the turntable:When that roller comes off that turntable, it’s right under thatcounterweight, and you have lost the ability of the counterweight moreor less. When that roller comes off there, your counterweight isalready off set.[[14]] There was hearsay testimony to the contrary, but it was notsubstantiated. Mechanic Don Leske testified that when he reported theoverlift to the garage foreman, a few weeks before the fatal accident,as discussed above, the foreman told him that the crane was designed tooperate with the rollers off the turntable. Leske then testified thathe would have to take the foreman’s word for it, because the foreman issupposed to know this kind of thing. However, Leske later testifiedthat he still didn’t believe that the crane was designed that way. Thegarage foreman did not testify, and Tampa presented no other evidencethat the cranes were designed to operate safely with the rollers off theturntable. The testimony of Burkart and of the crane operators clearlyestablished that the cranes were not designed to operate in that manner.[[15]] Tampa’s counsel represented that crane nos. 1 and 2 were not inoperation at all during 1985.[[16]] It can also be argued that Tampa acted with conscious disregardfor the general duty clause. It it did, that would be an independentground for finding the violation willful under Williams Enterp., suprap.12. Tampa apparently was aware, long before the accident, of thegeneral duty imposed by section 5(a)(1) of the Act. That provision hadbeen brought up by a Commission judge in a previous decision apparentlyinvolving the same company. Tampa Ship Repair and Dry Dock Co., 79OSAHRC 52\/A2, A14 (No. 78-1907, 1979). (There, section 5(a)(1) wasreferred to in the judge’s decision regarding proof of a repeatedviolation. The section was cited merely as \”section 5(a) of the Act,\”but, in context, the judge was clearly referencing section 5(a)(1).)Tampa has argued vigorously that section 5(a)(1) does not cover theparticular violation involved here. However, it was aware that, as ageneral matter, it was required to free the workplace, to the extentfeasible of recognized hazards that were likely to cause seriousphysical harm. Thus, it could be argued that Tampa showed consciousdisregard for whether its actions violated section 5(a)(1).[[17]] Tampa has not asserted or shown that a willful violation isprecluded here by any reasonable belief on its part that it was incompliance with ? 5(a)(1). Cf., Williams Enterp., 13 BNA OSHC at 1259,1986-87 CCH OSHD at p.36,591 (employer may defend on grounds that itbelieved in reasonable good faith the violative conditions conformed torequirements of cited provision).[[1\/]] OSHA Instruction STD.2, issued November 4, 1985, identifiedgeneral industry safety and health standards (29 C.F.R. Part 1910)having applicability to shipyard work. Appendix A identifies generalindustry standards applicable to shipyard work. Included among theidentified standards are 29 C.F.R. ?? 1910.179 and 1910.180 pertainingto cranes.[[2\/]] Defined by section 4-0.2 of ANSI B30.4-1981 as \”[A] movablestructure frame consisting of columns and bracing capable of supportinga crane with its working and dynamic loads.\”[[3\/]] A trolley is defined at ? 1910.179(a)(63) as follows:(63) The \”trolley\” is the unit which travels on the bridge rails andcarries the hoisting mechanism[[4\/]] Section 1910.179(a)(64) states:(64) \”Trolley travel\” means the trolley movement at right angles to thecrane runway.[[5\/]] Section 1910.180(b)(1) provides:(b) General requirements–(1) Application. This section applies tocrawler cranes, locomotive cranes, wheel mounted cranes of both truckand self-propelled wheel type, and any variations thereof which retainthe same fundamental characteristics. This section includes only cranesof the above types, which are basically powered by internal combustionengines or electric motors and which utilize drums and ropes. Cranesdesigned for railway and automobile wreck clearances are excepted. Therequirements of this section are applicable only to machines when usedas lifting cranes.[[6\/]] Section 1910.180(a)(1) states:(1) A \”crawler crane\” consists of a rotating superstructure withpowerplant, operating machinery, and boom, mounted on a base, equippedwith crawler treads for travel. Its function is to hoist and swingloads at various radii.[[7\/]] Section 1910.180(a)(2) states:(2) A \”locomotive crane\” consists of a rotating superstructure withpowerplant, operating machinery and boom, mounted on a base or carequipped for travel on railroad track. It may be self-propelled orpropelled by an outside source. Its function is to hoist and swingloads at various radii.[[8\/]] Section 1910.180(a)(3) states:(3) A \”truck crane\” consists of a rotating superstructure withpowerplant, operating machinery and boom, mounted on an automotive truckequipped with a powerplant for travel. Its function is to hoist andswing loads at various radii.[[9\/]] Section 1910.180(a)(4) states:(4) A \”wheel mounted crane\” (wagon crane) consists of a rotatingsuperstructure with powerplant, operating machinery and boom, mounted ona base or platform equipped with axles and rubber-tired wheels fortravel. The base is usually propelled by the engine in thesuperstructure, but it may be equipped with a separate engine controlledfrom the superstructure. Its function is to hoist and swing loads atvarious radii.[[10\/]] Sections 1910.179(b)(8) and 1910.180(b)(3) are identical andprovide as follows:Designated personnel–Only designated personnel shall be permitted tooperate a crane covered by this section.The Secretary made no allegation that someone other than designatedpersonnel were allowed to operate cranes.Sections 1915.117(b)-(d) provide as follows:(b) Only those employees who understand the signs, notices, andoperating instructions, and are familiar with the signal code in use,shall be permitted to operate a crane, winch, or other power operatedhoisting apparatus.(c) No employee known to have defective uncorrected eyesight or hearing,or to be suffering from heart disease, epilepsy, or similar ailmentswhich may suddenly incapacitate him, shall be permitted to operate acrane, winch or other power operated hoisting apparatus.(d) No minor under eighteen (18) years of age shall be employed inoccupations involving the operation of any power-driven hoistingapparatus or assisting in such operations by work such as hooking on,loading slings, rigging gear, etc.The Secretary does not contend that crane operators did not understandthe signs, notices, and operating instructions for cranes, were under 18or had any physical impairment.[[11\/]] Wendell Croft, the leaderman rigger for the second shift,testified that his paperwork listed the weight as 33 tons (Tr. 106,133-135). After the accident, the wreckage was cut into three sectionsand weighed. The three sections weighed 38.099 tons (Tr. 509. 1132).[[12\/]] Caulley and Morgan were experienced crane operators. Each ofthem had considerable years of experience in operating cranes (Tr. 112,113). Caulley had a policy of assisting operators on lifts approachingthe maximum of the rated load limits of a crane (Tr. 118, 656, 661-662,666-667).[[13\/]] The crane was more stable in a direction along the longer axisor down the rails. When the load was raised, it was over the northeastcorner of the support structure to the line of the rails. This is oneof the more stable configurations for the crane. While the crane wasoverloaded, it was able to sustain the weight while the boom was in thatconfiguration. As the load was swung from the longer axis, the liftingcapacity diminished. The lifting capacity is not the same throughoutthe 360-degree radius (Tr. 877-880, 882-883).[[14\/]] As safety director, Searle takes the lead in investigatingaccidents that occur in the shipyard (Tr. 428, 505). He took the leadin investigating the October 4 accident (Tr. 428, 521).[[15\/]] Section 4-3.2.1a of ANSI B30.4-1973, applicable to tower cranes,states that no crane shall be loaded beyond the rated load, except fortest purposes. See 29 C.F.R. ? 1910.179(n)(1) and 29 C.F.R. ?1910.180(h) which state that no crane shall be loaded beyond the rated load.[[16\/]] See testimony of crane operators Douglas Tucker (Tr. 580), BarrySims (Tr. 706), Don Heisserer (Tr. 745-746, 766, 767-768), and JamesScrews (Tr. 167-168, 173-174, 178, 185). The operators could tell therewas an overload because wheels of the crane raised off the turntable.This condition is an indication of an overload (Tr. 169, 174, 232-233,657, 710, 746, 767, 874-875).[[17\/]] An overload lift can occur in either of two ways. In onesituation the operator lifts a heavy load without knowing the weight,and this could result in an overload. A guess can easily be wrong. Thesecond way occurs when the operator is aware the weight exceeds therated load but goes ahead and makes the lift (Tr. 859).[[18\/]] See the testimony of crane operator Joseph Mossey (Tr. 735), LeeHansen (Tr. 609, 610, 627, 628, 630), Barry Sims (Tr. 674, 708) andCharles Christie (Tr. 725-729).[[19\/ ]] See 29 C.F.R ? 1910.179(j)(1)(ii), 29 C.F.R. ? 1910.180(d)(2),and section 4-2.1 of ANSI B30.4-1973, Portal, Tower and Pillar Cranes.[[20\/]] Section 4-2.1 of ANSI B30.4-1973, Portal, Tower and PillarCranes, lists items of tower cranes that are subject to frequent andperiodic inspections. The standard does not specify that there must be awritten checklist, although this is one way of assisting the personmaking the inspection to be certain something is not overlooked duringan inspection.[[21\/]] Section 1910.106(e)(2)(iv)(d) states:(d) Flammable or combustible liquids shall be drawn from or transferredinto vessels, containers, or portable tanks within a building onlythrough a closed piping system, from safety cans, by means of a devicedrawing through the top, or from a container or portable tanks bygravity through an approved self-closing valve. Transferring by meansof air pressure on the container or portable tanks shall be prohibited.[[22\/]] Section 1915.52(b)(2) states:(2) Suitable fire extinguishing equipment shall be immediately availablein the work area and shall be maintained in a state of readiness forinstant use. In addition, when hot work is being performed aboard avessel and pressure is not available on the vessel’s fire system, anauxiliary supply of water shall be made available where practicable,consistent with avoiding freezing of the lines or hose.”