Paschen Contractors, Inc.

Plain-English summary

Paschen built a device to lift concrete bridge segments weighing more than 200 tons during construction of the Sunshine Skyway Bridge. The device collapsed on its first use and injured four employees, after which OSHA cited Paschen for willfully failing to load test what it characterized as a modified gantry crane. An ALJ found the crane standard applicable and affirmed the citation with a $2,500 penalty. The Commission held that the device was not a gantry crane because its supporting structure did not travel on rails and it was not designed to move a suspended load horizontally. It more closely resembled an overhead hoist governed by a different OSHA standard. Because the cited gantry-crane standard did not apply, the Commission vacated the citation and penalty.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1926.550(d)(4), 1926.554, 1926.554(a)(2), 1926.554(a)(3), and 1926.554(a)(6)
• Outcome: Willful citation vacated; $2,500 penalty eliminated.
• Key point: Crane-standard applicability turns on the machine's defined configuration and travel characteristics, not its label or general lifting function.

Full text (OSHRC public release)

Docket No. 84-1285

SECRETARY OF LABOR,

Complainant,

v.

PASCHEN CONTRACTORS, INC.,

Respondent.

OSHRC Docket No. 84-1285

DECISION

Before: FOULKE, Chairman; MONTOYA and WISEMAN, Commissioners.

BY THE COMMISSION:

Paschen Contractors, Inc., contracted with the Florida
Department of Transportation to build the Sunshine Skyway Bridge across Tampa Bay from St.
Petersburg to Bradenton. To accomplish this task, Paschen had an engineering firm design a
device to lift prestressed concrete slabs weighing over 200 tons. Paschen built the
device, but the first time the lifting device was used it collapsed, injuring four
employees. The Occupational Safety and Health Administration of the Department of Labor
("OSHA") investigated the incident and cited Paschen for a willful violation of
the standard at 29 C.F.R. � 1926.550(d)(4).[[1/]]

Paschen was charged with willfully failing to load test the device, which the Secretary
alleged to be a modified gantry crane, in violation of the requirements set out in the
American National Standards Institute ("ANSI") standard incorporated by
reference into 29 C.F.R. � 1926.550(d)(4). Paschen contested the citation, and a hearing
was held by an administrative law judge of this Commission.

At the hearing, the primary issue tried by the parties was
whether the device was a "gantry crane" and therefore subject to the
requirements of the cited standard. Although the judge did not agree with the Secretary
that the device was a gantry crane, he nevertheless concluded that Paschen's machine was
governed by the cited standard because, under the scope provision of the ANSI standard,
devices are covered if they have "the same fundamental characteristics" as a
gantry crane.[[2/]] In the judge's opinion, Paschen's machine met this test for coverage
under the ANSI and OSHA standards. The judge also found that Paschen had committed a
willful violation of the cited standard, and he therefore affirmed the citation. The case
was directed for review and is before the Review Commission pursuant to section 12 (j) of
the Occupational Safety and Health Act of 1970, 29 U.S.C. � 661(j).

In order to establish a violation, the first element of the
Secretary's burden of proof is to show that the cited standard applies to the cited
working conditions. Dun-Par Engineered Form Co., 12 BNA OSHC 1962, 1986 CCH OSHD �
27,651 (No. 82-928, 1986). The citation alleged that the device was a gantry crane. For
the reasons set forth below, we find that Paschen's machine is not a gantry crane as
defined by the standard and we conclude that 29 C.F.R. � 1926.550(d)(4) the standard
cited, does not apply. We therefore reverse the judge's decision and vacate the citation.

The largest single component of Paschen's lifting device was a
steel framework, a "gantry," approximately 15 feet high, 13 feet wide, and over
300 feet long, which sat on the concrete piers that later would be the permanent supports
of the bridge. The piers were approximately 140 feet apart, so that the gantry was
supported approximately in the middle and near each end. After it had been lifted onto the
piers by a water-borne crane, the "gantry" could be moved into position on the
next pier, as sections of the bridge were completed.

On the top of the "gantry" were rails along which a
trolley could be moved. Mounted on the trolley were two lifting devices, one on each side.
Although the trolley could be moved into position over a load before it made a lift, it
would not move while the load was suspended. Once a concrete segment was raised to the
appropriate height, cables would be attached to the bottom edge and the segment would be
lifted into position rather than transported horizontally by moving the trolley.

The OSHA standard under which Paschen was cited does not define
either "crane" or "gantry crane." It does, however, incorporate by
reference ANSI B30.2.0-1967, which does define those terms. Section 2-0.2.1.1 defines the
term "crane:"

A machine for lifting and lowering a load and moving it
horizontally, with the hoisting mechanism an integral part of the machine. Cranes whether
fixed or mobile are driven manually or by power.

The term "gantry crane" is defined in section
2-0.2.1.6:

A crane similar to an overhead crane except that the bridge for
carrying the trolley or trolleys is rigidly supported on two or more legs running on fixed
rails or other runway.

That definition is complemented by section 2-0.2.1.8, which
sets out the definition of an "overhead crane:"

A crane with a movable bridge carrying a movable or fixed
hoisting mechanism and traveling on an overhead fixed runway structure.

Based on our review of the record and the ANSI standard, we
conclude that Paschen's machine does not fit within the definitions in ANSI B30.2.0-1967.

Because those definitions give us very little guidance
concerning the characteristics of cranes generally and gantry cranes in particular, we
view the information that is provided by the ANSI committee as being particularly
important. We are therefore unwilling to treat any part of the ANSI definitions lightly.
In particular, we place significance on the language in the definitions that specifies
that the legs of a gantry crane travel along rails and that a crane is a machine "for
moving a load horizontally".

The first question before us is whether Paschen's machine was a
"gantry crane," as the Secretary alleged. Under the ANSI definition, it is the
ability of the bridge to travel because its supporting legs are mounted on rails, not the
presence of a bridge or "gantry," that makes a crane a gantry crane. Paschen's
device did not have legs mounted on rails. Instead, the bridge of the machine remained
stationary on the permanent concrete piers.

Our conclusion that Paschen's machine does not fall within the
definition of "gantry crane" is reinforced by the illustrations in ANSI B30.2
depicting the types of cranes covered by the standard and showing the directions they can
travel. As stated in the ANSI scope provision, supra at note 2, all of the cranes
depicted in these illustrations are "grouped" together because they all have
"similar travel characteristics." Specifically, the illustrations reveal that
each of the cranes depicted has the same three lines of travel: the load can be raised and
lowered; it can be transported horizontally as the lifting mechanism travels back and
forth across the bridge; and the bridge itself can move along rails in a direction
perpendicular to the path of the trolley. By contrast, Paschen's machine was able only to
lift a load; its trolley was not designed to move in any direction while the machine was
supporting a load. Paschen's machine therefore had only one of the three paths of travel
characteristic of the cranes covered by the ANSI standard, although the trolley was
capable of moving across the bridge when the crane was not supporting a load. Based on the
wording of the definition and the illustrations, we conclude that Paschen's machine is
clearly not a gantry crane, because it lacks the ability to travel on rails in a direction
perpendicular to the gantry.

Reading the ANSI definitions, we question whether the cited
machine was a crane at all. It appears from ANSI's definition of the term
"crane" that the primary function of a crane is to transport a load horizontally
and that the ability to lift may merely be a necessary incident to that function. In
contrast, Paschen's machine was not intended to transport a load; it was designed merely
to lift its load to a height where it could be moved into place by other means. It
therefore was not a machine "for moving [its load] horizontally" within the ANSI
definition.

For these reasons, we disagree with the administrative law
judge's conclusion that Paschen's machine was governed by the crane standard because it
has the "same fundamental characteristics" as the cranes governed by the
standard. The judge misread the scope provision of ANSI B30.2, which says that the
standard applies to "overhead and gantry cranes, including semi-gantry, cantilever
gantry, wall cranes, storage bridge cranes, and others having the same fundamental
characteristics". We read that provision to say that the standard applies to those
cranes specifically mentioned and to other cranes having the same fundamental
characteristics. Our conclusion that the judge and the Secretary have erroneously
interpreted this provision is further supported by the sentence that follows it:
"These cranes are grouped because they all have trolleys and similar travel
characteristics." That sentence makes clear that the emphasis of the scope provision
is on the travel characteristics of the machine, characteristics which Paschen's device
does not share. The ability of a gantry structure to travel along rails must be one of the
most fundamental characteristics of an overhead crane or a gantry crane, since it is the
only characteristic mentioned in the definitions. Contrary to the Secretary's arguments,
the language of the ANSI scope provision reinforces our view that the cited standard does
not apply. Paschen's machine is not a crane, and it does not have the same characteristics
as the cranes described in the standard. It therefore cannot be brought within the purview
of the standard by the scope provision.

Because we find that Paschen's machine was not designed
"for moving a load horizontally," we conclude that it is not a crane at all.
Although it is not necessary that we determine what the machine is in order to decide this
case, we note that Paschen's expert witness opined that the machine was an "overhead
hoist," and Paschen has maintained that position throughout the course of this
litigation. OSHA has a standard governing overhead hoists, which is published at 29 C.F.R.
� 1926.554. One of the provisions of that standard, subsection (a)(3), mandates that the
hoist's supporting structure must not impede free movement of the hoist and must not
restrict the hoist from lining itself up with the load. This indicates that an overhead
hoist has at least limited ability to travel horizontally, as did Paschen's device. The
ANSI standard governing overhead hoists, ANSI B30.16-1973, indicates that the hoist
mechanism may be mounted on a trolley that travels on overhead beams. See �
16-0.2.31. This information almost exactly describes Paschen's device. We therefore
conclude that the cited machine most closely resembles an overhead hoist governed by ANSI
B30.16. Consequently, the applicable OSHA standard appears to be 29 C.F.R. �1926.554, and
the Secretary probably should have cited Paschen under that standard if any of its
provisions were violated.[[3/]]

It is easy to see how the OSHA compliance personnel in this
case mistakenly characterized Paschen's device as a gantry crane. Even the engineers who
designed the device called it a "launching gantry," and a number of Paschen's
own employees referred to it as a "crane." This confusion underscores the
difficulties an employer unfamiliar with the standards may experience in trying to
determine the requirements with which it must comply.

It is precisely because of uncertainties like this that the Commission has in the past
encouraged pleading in the alternative when there is a question or controversy over which
standard governs the cited conditions. E.g. , McWilliams Forge Co., 11 BNA
OSHC 2128, 2131, 1984 CCH OSHD � 26,979, p. 34,671 (No. 80-5868, 1984). We take this
opportunity to repeat that recommendation.

In conclusion, because the standard cited does not apply to
Paschen's machine, we reverse the decision of the administrative law judge and vacate the
citation.

Edwin G. Foulke, Jr.

Chairman

Velma Montoya

Commissioner

Donald G. Wiseman

Commissioner

Dated: August 29, 1990

SECRETARY OF LABOR,

CompIainant,

v.

PASCHEN CONTRACTORS, INC.,

Respondent.

OSHRC Docket No. 84-1285

APPEARANCES:

Curtis L. Gaye, Esquire, Office of the Solicitor, U. S.
Department of Labor, Atlanta, Georgia, on behalf of complainant.

Davisson F. Dunlap, Esquire, George Barford, Esquire, and James
R. Wiley, Esquire, Cariton, Fields, Ward, Emmanuel, Smith and Cutler, P.A., Tampa,
Florida, on behalf of respondent.

DECISION AND ORDER

BRADY, Judge:     This proceeding is
brought pursuant to section 10 of the Occupational Safety and Health Act of 1970 (Act) to
contest a citation issued by the Secretary of Labor (Secretary) pursuant to section 9(a)
of the Act.

The underlying facts in this case are not in dispute. Paschen
Contractors, Inc., (Paschen), contracted to build spans on the Sunshine Skyway Bridge, a
structure of approximately four miles which connects St. Petersburg and Bradenton,
Florida. A portion of the bridge was to be constructed with pre-cast roadway segments
being placed alternately on either side of a pier until a span between two piers is
closed. The machine used by respondent to lift the roadway segments into place is the
subject of the dispute in this proceeding. Variously referred to in the record as a crane,
a gantry, gantry crane and launching gantry, it was over 300 feet long and rested on
supports at three piers. On July 30, 1984, certain portions of the machine collapsed while
attempting to lift a roadway segment to the top of pier five north injuring four
employees. An investigation by the Occupational Safety and Health Administration (OSHA)
resulted in issuance of the citation.

Respondent is charged with violating the regulation at 29
C.F.R. � 1926.550(d)(4) which provides as follows:

(4) All overhead and gantry cranes in us shall meet the
applicable requirements for design, construction, installation, testing, maintenance,
inspection, and operation as prescribed in the ANSI B30.2.0 - 1967, Safety Code for
Overhead and Gantry Cranes.

Section 2-1.3.5 of the American National Standards Institute
(ANSI) B30.2.0-1967 states:

Cranes may be modified and rerated provided such modifications
and the supporting structure are checked thoroughly for the new rated load by a qualified
engineer or the equipment manufacturer. The crane shall be tested in accordance with
Paragraph 2-2.2.2. New rated load shall be displayed in accordance with Paragraph 2-1.1.1.

Section 2-2.2.2 in turn provides that:

Prior to initial use all new, extensively repaired, and altered
cranes should be tested by or under the direction of an appointed or authorized person and
a written report furnished by such person, confirming the load rating of the crane. The
load rating should not be more than 80 percent of the maximum load sustained during the
test. Test loads shall not be more than 125 percent of the rated load unless otherwise
recommended by the manufacturer. The reports shall be placed on file where readily
available to appointed personnel.

The alleged violation is described in the citation as follows:

(a) On or about 7/30/84, the Gantry Crane, located atop piers 7n, 6n, and 5n of the new
Sunshine Skyway Bridge, had not been thoroughly checked as to the field modifications that
differed from the Certified detail drawings that had been provided by the design
engineers. In addition, the crane had not been load tested prior to operational use in
accordance with the provisions of Paragraph 2-2.2.2.

The Commission has held that in order to establish a violation
under section 5(a)(2) of the Act as alleged, it is necessary for the Secretary to show by
a preponderance of the evidence that (1) the cited standard applies; (2) there was a
failure to comply with the standard; (3) employees had access to the violative condition;
and (4) the cited employer either knew or could have known of the condition with the
exercise of reasonable diligence. Astra Pharmaceutical Products, Inc., 82 OSAHRC
55/E9, 9 BNA OSHC 2126, 1982 CCH OSHD � 26,251 (No. 78-6247, 1985); Daniel
International Corp., 81 OSAHRC 71/D6, 9 BNA OSHC 2027, 1977-78 CCH OSHD � 21,679 (No.
76-181, 1977).

A primary issue in this case relates to the applicability of
the standard. The Secretary maintains that the machine used by respondent was a crane
subject to the Overhead and Gantry Crane Standards. This contention is based primarily on
the scope of the ANSI standard at B30.2.0-1967. The general scope of the standard set
forth at 2- 01 states it "applies to overhead and gantry cranes, including
semi-gantry, cantilever gantry, wall cranes, storage bridge cranes and others having the
same fundamental characteristics. These cranes are grouped because they all have trolleys
and similar travel characteristics." It is alleged, therefore, that the machine in
question is a crane subject to the standard in that it has the fundamental characteristics
of overhead and gantry cranes, including a bridge that moves, which in turn supports a
movable hoisting mechanism capable of lifting a load and moving it horizontally. In
addition, the machine, supported at piers 5n, 6n, and 7n, was capable of moving itself
from pier to pier (Joint Ex. 6).

Respondent points out that section 1926.550(d)(4) does not
define a gantry crane but only references the ANSI standard in that regard. It, therefore,
adopts a position based on the Commission's reasoning in Lisbon Contractors, Inc.,
_ OSAHRC __,11 BNA OSHC 1971, 1972-73, 1981 CCH OSHD � 25,222 (No. 80-97, 1984). In that
case, the Commission was faced with a situation where a backhoe was used to perform the
function of a crane in lifting a trench box and lowering it into a trench. The Commission
overruled several prior decisions which upheld the functional argument based on a
machine's use, and stated that the crane standards "were tailored instead to
particular configurations and mechanisms of cranes and derricks rather than to the
machine's functions." Accordingly, it found the backhoe was not a crane, because it
did not have a "boom" within the meaning of the ANSI standard. Respondent,
therefore, asserts that its machine did not have the configuration and mechanism of a
gantry crane as defined in section 2-0.2.1.6 which states:

A crane similar to an overhead crane except that the bridge for
carrying the trolley or trolleys is rigidly supported on two or more legs running on fixed
rails or other runway.

In addition, reference is made to the scope clause of ANSI
B30.2 which indicates the cranes "... all have trolleys and similar travel
characteristics." Thus, it is argued that although the hoist mechanism was mounted on
a trolley and capable of horizontal travel on a truss, the truss was incapable of
perpendicular movement. In support of its position, respondent points out that the
examples depicted under "Types of Cranes" in joint exhibit 10 all have three
directions of movement:

(1) vertical lift by a hoisting mechanism;

(2) horizontal travel by a trolley along a bridge; and

(3) transverse travel of the entire structure perpendicular to the bridge and the travel
of the trolley along the bridge.

Essentially respondent maintains that all B30.2 cranes are
capable of three directions of movement while supporting a load and there is nothing to
indicate cranes covered by the standard can move in only one or two directions at a time.

In determining the applicability of the standard, it must first
be shown that respondent's machine is a crane. A crane is defined in section 2-0.2.1.1 of
ANSI B30.2 in pertinent part as follows:

A machine for lifting and lowering a load and moving it
horizontally, with the hoisting mechanism an integral part of the machine . . . .

The record discloses that respondent's expert witness
questioned whether the machine was a crane because he did not believe the hoisting
mechanism was an "integral part of the machine" (Tr. 467). Complainant's
argument is adopted for the purpose of determining this issue. It is pointed out that
"in Webster's New World Dictionary of the American Language, (2d ed. D.
Guralnik 1972), 'integral' is defined as necessary for completeness; essential. The
launching gantry was erected for the purpose of lifting bridge segments and setting them
into position. The hoisting mechanism is absolutely necessary to perform this function and
a launching gantry would be incomplete without it."

The question which now must be decided is whether respondent's machine, meeting the
definition of a crane, is an overhead or gantry crane within the meaning of section
1926.550(d)(4). It is concluded from the evidence of record, Commission precedent and the
scope provisions of ANSI B30.2 that the standard does apply in this case.

Since a definition for overhead and gantry cranes is not found
in the standard, clarification is sought in the scope provision of ANSI B30.2. Section
2-0.1 identifies certain types of overhead and gantry cranes which are included and then
states that B30.2 also applies to "others having the same fundamental
characteristics." Without setting forth what specific features or attributes such
cranes must possess, the drafters obviously intended the standard's application to those
cranes with varying but basic characteristics. The machine in question has been shown to
possess the "fundamental characteristics" of the identified overhead and gantry
cranes. These characteristics include a movable bridge carrying a movable hoisting
mechanism and possessing the capability of moving itself from pier to pier. The fact that
it could not move perpendicular to the horizontal travel while mounted on a fixed runway,
or perform three moving functions at the same time is not deemed dispositive in light of
the machine's basic components and its lifting capacity.

Mr. Robert De Benedictis, the Secretary's expert, testified
that "it is very, very, very, very seldom and in fact practically never that you
perform more than one function at a time" when making heavy lifts with a gantry crane
(Tr. 245). Respondent's expert, Mr. Matthew Burkhart, agreed in stating "it is not
usually advisable to perform more than one function at a time." He also agreed that
the operational characteristics of the machine as to load lifting and potential hazards
are the same as for a typical gantry crane (Tr. 488-490).

The Commission, as seen in Lisbon Contractors, supra,
and the cases discussed therein, has dealt with the question of applying the crane
standards to various machines performing lifting functions. Those cases were concerned
with machines performing lifting functions, whether they were designed for that function
or not. The machine in the instant case, however, was designed and used exclusively for
the purpose of lifting for a specific job and was even characterized by respondent on
several occasions as a gantry crane (Joint Ex. 6; Tr. 84). For the purpose of this
decision, it is also pertinent to note that the Commission in discussing the standard at
29 C.F.R. � 1926.550, captioned "Cranes and Derricks" stated:

Given the purpose of the Act, any ambiguity in the standard
should be resolved in favor of eliminating the hazard to which the standard is addressed
.....

........ Respondent's argument would lead to the incongruous
result that machinery designed and manufactured specifically to perform a given function
should be held to more stringent requirements than shop built equipment improvised to
perform the same function .....

.......we believe that this interpretation affords employees
the greatest protection from the dangers of improvised equipment that may be inadequate
for the task to which it is put. Gil Haugan, 79 OSAHRC 107/A2, 7 BNA OSHC 2004,
1979 CCH OSHD � 24,105 (Nos. 76-1512 & 76-1513, 1979).[[*/]]

Clearly, from the evidence respondent's crane does not fit the precise definition of an
overhead or gantry crane. But in light of the scope provision of B30.2 and consistent with
the interpretation placed on 1926.550 by the Commission, the standard applies in this
case.

Complainant having shown that the cited standard applies, the
question of whether respondent failed to comply must now be resolved. The record is clear
that no load tests were made as described in section 2-2.2.2 of ANSI standard B30.2 (Tr.
123). Respondent, however, maintains that the section is only advisory and cannot of
itself provide the basis for a citation, and it was justified in relying on the
consultants who designed the machine to ensure its capability for lifting the
predetermined load. Also, it had met the requirements of section 2-1.3.3 in that all
modifications to the crane were checked thoroughly by the properly designated persons.

There is no dispute that extensive modifications had been made
to the crane in question (Tr. 119, 156, 157, 208, 297). Since it was previously used in
the construction of a similar bridge to lift roadway segments weighing approximately 65 to
70 tons, the modifications were necessary to enable it to lift the 220-ton segments at the
Skyway Bridge.

While section 2-1.3.5 recognizes that cranes may be modified,
it also makes it mandatory that such cranes are to be tested and the new rated load must
be displayed. Complainant accurately points out that reference to paragraph 2-2.2.2 only
describes the manner in which such load testing is to be conducted but in no way negates
the mandatory requirements for testing under 2-1-3.5. The standard was, therefore,
violated as alleged in the citation.

The Secretary has classified respondent's failure to load test
the modified crane as a willful violation. The Commission has interpreted the term
"willful" in Asbestos Textile Co., _ OSAHRC,__, 12 BNA OSHC 1062,
1984 CCH OSHD � 26,101 (No. 79-3831, October 31, 1984), as follows:

To establish that a violation was willful, the Secretary must
show that it was committed with intentional, knowing or voluntary disregard for the
requirements of the Act or with plain indifference to employee safety. e. See,e.g. D.
A. & L. Caruso, Inc., 84 OSAHRC_,11 BNA OSHC 2138, 2142, 1984 CCH OSHD �
26,985, p. 34,694 (No. 79-5676, 1984); Duquesne Light Co., 84 OSAHRC__,11 BNA
OSHC 2033, 2040, 1984 CCH OSHD � 26,959, p. 34,603 (No. 79-1692, 1984), pets. for rev.
filed, Nos. 84-3520 & 84-3538 (3d Cir. Aug. 20 & 28, 1984). It is not enough
for the Secretary simply to show carelessness or a lack of diligence in discovering or
eliminating a violation; nor is a willful charge justified if an employer has made a good
faith effort to comply with a standard or eliminate a hazard even though the employer's
efforts are not entirely effective or complete. Marmon Group, Inc., 84
OSAHRC,_,11 BNA OSHC 2090, 1984 CCH OSHD � 26,975 (No. 79-5363,1984), pet. for rev.
filed, No. 84-2193 (8th Cir. Sept. 17, 1984), citing Mobile Oil Corp., 83
OSAHRC_,11 BNA OSHC 1700, 1983 CCH OSHD � 26,699 (No. 79-4802, 1983).

Application of the Commission's interpretation to the instant
case warrants the conclusion that respondent's decision not to load test the crane was
"willful."

The record is clear that respondent had actual knowledge of its
obligation under the Act, because it was bound by contract to comply with Federal Safety
and Health Standards (Ex. C-3. Tr. 352, 353, 441). The evidence also shows that respondent
was aware of its responsibility to perform load testing as required by the standard.

On June 20, 1984, a meeting was held between Paschen, representatives of two engineering
consultant firms, and the Florida Department of Transportation. As a result of the
discussion, several points were resolved, one of which was that (Joint Ex. 13):

9. Prior to attempting lifting any precast Superstructure
   Segments, Paschen Contractors have a comprehensive testing schedule to check out all
   lifting and jacking equipment.

A representative of the engineering firm that designed the
bridge and who attended the meeting, testified that, in his opinion, testing in this
context would involve load testing (Tr. 217, 221). It is clear from the record that
respondent made a conscious decision not to conduct the testing referred to in the letter,
designated joint exhibit 13. In a letter dated July 10, 1984, Mr. William Roach, Project
Manager, responded by stating, "...We do not anticipate any comprehensive testing
schedule before actual erection ..." (Joint Ex. 14). Although Mr. Roach did not
testify, his letter indicates that testing of the equipment would be performed prior to
lifting. The facts show, however, that obviously no "comprehensive testing
schedule," or load testing was intended to check out the equipment.

Mr. Andrew King, Assistant Project Engineer, testified that the
need to conduct a load test prior to July 30, 1984, had been discussed. He did not recall,
however, details of the discussions and who was present (Tr. 171-172) Mr. King did not
know if the load rating of the gantry crane had been determined but did stencil "150
Tons" on the load blocks of the movable crane. He stated the 150 tons had nothing to
do with the lift in question, but "I got those numbers from the maximum lift that
those blocks would see due to another mode of erection" (Tr. 162-165). Mr. Howard
Kronis, Gantry Foreman, testified that he discussed load testing with his superiors and
made some suggestions in that regard. He stated, "At first, it met with favorable
response but it never actually came off" (Tr. 207, 209).

In addition to respondent's knowledge of its responsibility,
the record discloses actual knowledge of the hazard created by noncompliance. There is no
dispute that in the course of making the initial lift of a roadway segment on July 30,
1984, employee concerns caused it to be put down (Tr. 175). It was determined that part of
the support structure of the gantry began to give way (Tr. 200). Mr. King decided to
install two additional tie-downs without further corrective action (Tr. 177). During the
second attempted lift "everything broke loose" according to Mr. Kronis, and
several employees were injured as a result of the crane's collapse (Joint Ex. 2; Tr.
203-207).

The decision to proceed with the second lift with full
knowledge of the hazard created by the failure to load test is deemed a voluntary
disregard for the requirements of the Act and employee safety.

The next question for determination concerns the amount of
penalty to be assessed for the violation. Under section 17(j) of the 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 violations in determining the assessment of an appropriate penalty. The gravity
of the offense is the principal factor to be considered. Nacirema Operating Co., 72
OSAHRC 1/B10, 1 BNA OSHC 1001, 1971-73 CCH OSHD � 15,032 (No. 4, 1972). The Commission
stated in Secretary v. National Realty and Construction Co., 72 OSAHRC 9/A2, 1 BNA
OSHC 1049, 1971-73 CCH OSHD � 15,188 (No. 85, 1971), that the elements to be considered
in determining the gravity are: (1) the number of employees exposed to the risk of injury;
(2) the duration of exposure; (3) the precautions taken against injury, if any; and (3)
the degree of probability of occurrence of injury.

Weighing all the foregoing factors in light of the
circumstances, it is concluded that a penalty in the amount of $2,500.00 is deemed
appropriate.

FINDINGS OF FACT

1. Paschen Contractors, Inc., at all times hereinafter
   mentioned, was a contractor engaged in construction of the Sunshine Skyway Bridge
   connecting St. Petersburg and Bradenton, Florida.

2. Commencing July 31, 1984, authorized representatives of the
   Secretary conducted an inspection of the aforesaid work site resulting in issuance of the
   citation.

3. A portion of the bridge was to be constructed with the
   placement of pre-cast roadway segments alternately on either side of a pier until a span
   between two piers was closed.

4. On July 30, 1984, the crane collapsed while lifting a
   220-ton segment to the top of pier five north. Four employees were injured.

5. The crane, with a movable bridge; movable hoist mechanism;
   and capable of moving itself; possessed the fundamental characteristics of overhead and
   gantry cranes.

6. The Commission has applied the crane standards to various machines which perform
   lifting functions whether they were designed for that purpose or not.

7. The crane had been used in the construction of another
   bridge but lifted roadway segments weighing only 65 to 70 tons. It, therefore, had
   undergone extensive modification prior to use in this case.

8. Following modification, the crane and supporting structure
   were not checked for the new rated load. It also had not been load tested prior to
   operational use.

9. Through meetings, discussions and correspondence,
   respondent's officials were fully aware of the need to check the modified crane and
   supporting structure. This included the need for load testing prior to operational use of
   the crane.

10. After the crane's first pickup of a roadway segment on July
    30, 1984, it was noticed that the support at pier five north had started to give way. Upon
    the installation of two additional tie-downs, the second lift was attempted which resulted
    in the crane's collapse and employee injuries.

CONCLUSIONS OF LAW

1. Paschen Contractors, Inc., at all times pertinent hereto,
   was an employer engaged in a business affecting commerce within the meaning of section
   3(5) of the Occupational Safety and Health Act of 1970, and the Commission has
   jurisdiction of the parties and subject matter herein pursuant to section 10(c) of the
   Act.

2. Respondent is, and at all times pertinent hereto, required to comply with the safety
   and health regulations promulgated by the Secretary pursuant to section 6(a) of the Act.

3. Respondent, at the time of the aforesaid inspection, was in
   violation of 29 C.F.R. � 1926.550(d)(4).

ORDER

On the basis of the foregoing findings of fact, conclusions of
law, and the entire record, it is hereby ORDERED:

The citation is hereby affirmed and a penalty in the amount of
$2,500 is hereby assessed.

Dated this 15th day of October, 1985.

PAUL L. BRADY

Judge

FOOTNOTES:

[[1/]] That standard provides:

�1926.550  Cranes and derrricks.

(d) Overhead and gantry cranes

(4) All overhead and gantry cranes in use shall meet the applicable requirements for
design, construction, installation, testing, maintenance, inspection, and operation as
prescribed in the ANSI B30.2.0-1967, Safety Code for Overhead and Gantry Cranes.

[[2/]] That provision says:

Section 2-0.1 Scope of B30.2

Within the general scope, defined in Section I, B30.2 applies
to overhead and gantry cranes, including semi-gantry, cantilever gantry, wall cranes,
storage bridge cranes, and others having the same fundamental characteristics. These
cranes are grouped because they all have trolleys and similar travel characteristics.
(emphasis added)

[[3/]] The parties did not litigate whether there were
violations of any requirements in section 1926.554, and we will not adjudicate issues not
before us. We mention, however, if the Secretary should encounter this situation again,
that there may have been a violation of section 1926. 554(a)(2) here, as it was not the
lifting mechanism that failed, but the support structure. Depending on the manufacturer's
requirements, there also may have been a violation of 1926.554(a)(6).

[[*/]] This decision was not overruled in Lisbon, supra,
based upon the dissimilarity of the machines used as cranes.