WCI Steel, Inc.

Plain-English summary

A 40-ton overhead crane collapsed at WCI Steel's Ohio plant while moving steel slabs, but no one was injured. OSHA cited WCI for failing to inspect the crane's runway support structure, maintaining an improperly set hoist limit switch, and overloading the crane. The judge held that a complete periodic crane inspection includes the runway beams, girders, brackets, and framework, and affirmed that item as serious with a $2,000 penalty. He vacated the limit-switch item because WCI's inspections, training, and response to an earlier adjustment did not establish actual or constructive knowledge of the later setting. He also vacated the overload item because WCI proved unpreventable employee misconduct through a clear rule, recent training, monitoring, and actual discipline.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.179(j)(3), 1910.179(l)(3)(ii)(b), and 1910.179(n)(1)
• Outcome: The periodic-inspection item was affirmed with a $2,000 penalty, while the limit-switch and overload items were vacated.
• Key point: A periodic inspection of an overhead crane must include the fixed runway support structure that carries the crane.

Full text (OSHRC public release)

               UNITED STATES OF AMERICA
   OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

Secretary of Labor,
Complainant
v. OSHRC Docket No. 08-1237
WCI Steel, Inc.,
Respondent.

Appearances:

      Linda M. Hastings, Esquire, Office of the Solicitor, U.S. Department of Labor, Cleveland, Ohio
              For Complainant

      Tod T. Morrow, Esquire, Buckingham, Doolittle & Burroughs, LLP, Canton, Ohio
              For Respondent

Before: Administrative Law Judge Ken S. Welsch

                                      DECISION AND ORDER
      WCI Steel Inc. (WCI), a steel producer in Warren, Ohio, was inspected by the Occupational

Safety and Health Administration (OSHA) after the #2 overhead crane collapsed on January 31,
2008. As a result, WCI received a three-item serious citation for alleged violations of OSHA’s
“Overhead and gantry crane” standards on July 25, 2008. WCI timely contested the citation.
The serious citation alleges WCI violated 29 C.F.R. § 1910.179(j)(3) (Item 1) for failing to
conduct periodic inspections of the overhead crane’s runway support structure; 29 C.F.R. §
1910.179(l)(3)(ii)(b) (Item 2) for failing to maintain the correct function of the hoist limit switch on
the #2 overhead crane; and 29 C.F.R. § 1910.179(n)(1) (Item 3) for loading the #2 overhead crane
beyond its rated load capacity. The citation proposes penalties of $2,500.00 for Items 1and 2 and
$5,000.00 for Item 3.
The hearing, designated for Simplified Proceedings under 29 C.F.R. § 2200.200 et. seq., was
held on November 21, 2008 in Akron, Ohio. Two witnesses testified; OSHA Compliance Officer

                                                      1

Aaron Priddy and WCI Safety Director Tim Headrick. The parties stipulated jurisdiction and
coverage (Tr. 4). The parties filed post-hearing position statements.
WCI denies the violations. WCI asserts as to Item 1, the standard does not require periodic
inspections of the crane’s runway support structure; Item 2, the improper setting of the hoist limit
switch does not constitute a failure to “maintain” the switch; and Item 3, the overloading of the crane
was the result of unpreventable operator misconduct.
As discussed, Item 1 is affirmed and a penalty of $2,000.00 is assessed. Items 2 and 3 are
vacated.
The Crane Collapse
Until September 2008, WCI was a fully integrated producer of steel at a plant in Warren,
Ohio. WCI employed approximately 1,300 employees. The Warren plant, under various owners,
has been producing steel since the late 1800's. The plant is currently owned by Severstal (Tr. 124,
127-129, 131).
In WCI’s Slab Processing Area (SPA), steel slabs were carried by three overhead cranes
including the #2 crane to the rolling department where the slabs were turned into coils of steel. The
three overhead canes traveled on elevated rails for several hundred feet. The #2 overhead crane had
a 40-ton rated capacity (Exh. C-13; Tr. 38, 101, 105).
On January 30, 2008, at approximately 4:40 p.m., the #2 overhead crane collapsed. No one
including the crane operator Gerald Mathieson was injured. WCI’s internal investigation concluded
the crane was moving (bridging) four slabs with a weight of almost 80 tons and the collapse at a
runway girder was due to the excessive weight of the load (Exhs. C-1, C-3, C-4; Tr. 11, 148, 153,
156, 176).
After receiving several complaints, OSHA investigated the crane collapsed on February 1
and 13, 2008. Compliance safety and health officer (CSHO) Aaron Priddy was the primary
inspector. OSHA’s investigation was limited to the #2 SPA overhead crane involved in the collapse.
WCI informed Priddy the crane’s hoist limit switch was set at 660 amps instead of the proper 489
amps. According to calculations provided by WCI, any two slabs found in the area where the crane
collapsed weighed 43.6 to 45.2 tons. The union told Priddy the crane was not bridging but hoisting
two slabs at the time of the collapse (Tr. 45, 50, 90, 99, 107).

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On July 25, 2008, WCI was issued three serious violations of OSHA’s overhead crane
standards involving periodic inspections, the limit switch, and overloading the crane.
DISCUSSION
The Secretary has the burden of proving a violation of the cited standards.1 There is no
dispute the overhead crane standards at § 1910.179 applied to the #2 SPA overhead crane involved
in the accident. An overhead crane is defined at “a crane with a movable bridge carrying a movable
or fixed hoisting mechanism and traveling on an overhead fixed runway structure.” Section
1910.179(a)(8). WCI does not dispute (1) it did not inspect the crane’s support structure as part of
its crane inspections, (2) the hoist limit switch was improperly set at 660 amps, and (3) the crane was
overloaded at the time of the collapse. Also, WCI does not dispute that employees were exposed
to the hazard of a possible crane collapse if the cited violations are affirmed.2
WCI denies the violations. WCI asserts the overhead crane standards do not require periodic
inspections of the runway support structure. With regard to the improper setting of the limit switch,
WCI argues it was not a failure to “maintain” the switch as contemplated by the standard. Finally,
WCI claims the overloading of the crane was the result of the operator’s unpreventable misconduct.
Alleged Violations
Item 1 -Alleged Violation of § 1910.179(j)(3)
The citation alleges WCI failed to conduct periodic inspections of the overhead crane’s
runway support structure. Section 1910.179(j)(3) provides:
Periodic inspection. Complete inspections of the crane shall be
performed at intervals as generally defined in paragraph (j)(1)(ii)(b)
of this section, depending upon its activity, severity of service, and
environment, or as specifically indicated below. These inspections
shall include the requirements of paragraph (j)(2) of this section and
in addition, the following items. Any deficiencies such as listed shall
be carefully examined and determination made as to whether they
constitute a safety hazard:

     1
       In order to establish a violation of an occupational safety or health standard, the Secretary has the burden

of proving: (a) the applicability of the cited standard, (b) the employer’s noncompliance with the standard’s terms,
(c) employee access to the violative conditions, and (d) the employer’s actual or constructive knowledge of the
violation (i.e., the employer either knew or, with the exercise of reasonable diligence could have known, of the
violative conditions). Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).

     2
     Issues not briefed are deemed waived. See Georgia-Pacific Corp., 15 BNA OSHC 1127, 1130 (No. 89­

2713, 1991).

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The Secretary identifies subsections (i) and (ii) which involves “deformed, cracked, or
corroded members” and “missing bolts or rivets” as applicable to the crane’s support structure
(Tr. 34, 123).
Under § 1910.179(j), an employer must conduct “frequent” and “periodic” inspections of its
overhead cranes. A “frequent” inspection requires an employer to examine for defects or
deficiencies the crane’s functional operating mechanisms; lines, tanks, valves, drain pumps and other
parts of air or hydraulic systems; hooks; hoist chains; and ropes. Section 1910.179(j)(2). During a
“periodic” inspection, an employer is required to examine for defects or deficiencies those items
identified for the “frequent” inspection as well as examining for deformed, cracked or corroded
members; bolts or rivets; sheaves and drums; parts such as pins, bearings, shafts, gears, rollers,
locking and clamping devices; brake system parts, load, wind and other indicators; gasoline, diesel,
electric or other powerplants, chain drive sprockets; and electrical apparatus. Section 1910.179(j)(3).
WCI performed daily and monthly inspections of its overhead cranes (Tr. 140). WCI’s daily
inspections performed by the crane operators included, according to the written checklist, hoist
cables, limit switches, brakes, cab, lights, and crane hooks and cables (Exh. C-9). The Secretary
agrees WCI’s daily inspections met the requirements of OSHA’s “frequent” inspections (Tr. 64).
WCI’s monthly inspections3 performed by maintenance employees included,
according to the written checklist, the superstructure, bridge, trolley, main hoist, auxiliary hoist,
runway, and accessories (Exh. C-10; Tr. 76). Under “runway” the checklist specifies the “runway
rails and fastenings” (Tr. 68-69).
WCI does not dispute that neither its daily nor monthly inspections included an inspection
of the overhead crane’s elevated runway support structure (Tr. 77, 161). WCI considered the
support structure part of the building and not the overhead crane (Tr. 154-155). Several support
columns were tied by steel “tie backs” to the structure support of the building (Exh. R-8).
During the OSHA investigation, Priddy identified several corroded areas and missing bolts
and rivets on the #2 crane’s runway support structure (Exhs. C-5, C-6). Priddy testified that WCI
had performed comprehensive inspections of the crane’s support structure until it changed from

    3
     Depending on the circumstances, the standard requires “periodic” inspections at intervals of one to twelve

months. Section 1910.179(j)(1)(ii)(b).

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annual to monthly inspections in the mid 1990's (Tr. 40, 73). Priddy was given two documented
inspections of the support system structure performed in October 1993 and July 1989 (Exhs. C-11,
C-12). These inspections had found missing grout, sheared or missing anchor bolts, torn and bent
flanges, and loose bolts rivets within the cross bracing in the support structure.
Although not part of its “periodic” overhead crane inspections, safety director Headrick
testified that plant engineers had inspected the support structure as part of the building’s general
inspection (Tr. 166). Although such building inspections may have been conducted, there is no
showing the inspections were performed at least annually as required by OSHA’s periodic inspection
criteria. Such inspections were admittedly not part of WCI’s crane inspections. WCI’s contention
that because of the tie backs, the crane’s structural support is intertwined with the building structure
is rejected. Clearly, the steel structure supports the overhead crane and not the building.
The issue raised by WCI is whether OSHA’s “periodic” overhead crane inspections require
an inspection of the runway support structure. In support of its position, WCI cites former Judge
DeBenedetto’s decision in Jones & Laughlin Steel Corp., 7 BNA OSHC 2148 (No. 78-5558, 1979).
The Jones case involved an alleged violation of § 1910.179(l)(3)(i) for failing to repair missing and
loose bolts on the corner of a bridge end truck discovered during an inspection under § 1910.179(j).
The judge concluded the missing bolts were not an unsafe condition and the inspection standard did
not apply to the structure support.
The judge’s reasoning in the Jones case regarding the scope of the crane inspection standard
is rejected. The decision is an unreviewed judge’s decision and is not binding authority. Also, the
decision fails to recognize the standard’s intent and limits its scope in requiring a complete crane
inspection. Although § 1910.179(j) does not specifically identify the structure support, it provides
no exemption or exception for such components.
In interpreting § 1910.179(j)(3), it is noted “Periodic inspection” specifically requires “a
complete inspection of the crane.”4 The definition of an “overhead crane” includes the “overhead
fixed runway structure.” Section 1910.179(a)(8). “Runway” is defined as “an assembly of rails,
beams, girders, brackets, and framework on which the crane or trolley travels.” Section

     4
       In interpreting a standard, consideration is given to the language and structure of the specific standard, the

legislative history, and, if the drafters’ intent remains unclear, the reasonableness of the agency’s interpretation.
Arcadian Corporation, 17 BNA OSHC 1345, 1346 (No. 93-3270, 1995) aff’d 110 F.3d 1192 (5 th Cir. 1997).

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1910.179(a)(53). Under § 1910.179(j)(3)(i), a periodic inspection includes examining for
“Deformed, cracked or corroded members” which would be the beams, girders, and framework of
the support structure. The periodic inspection needs to include an inspection of the crane’s runway
support structure to be complete. The fixed runway structure supports the rails and overhead crane.
The support structure makes it an overhead crane. Corrosion and damaged or missing bolts and
rivets in the support structure could make the crane’s bridge unsafe. The #2 overhead crane was
operated daily and made numerous lifts (Tr. 143). The crane collapse, here, occurred at a runway
girder.
WCI’s violation of § 1910.179(j)(3) is established and was properly classified as serious.
A violation is “serious” under § 17(k) of the Occupational Safety and Health Act (Act), if there is
a substantial probability of death or serious physical harm that could result from the cited condition
and the employer knew or should have known with the exercise reasonable diligence of the presence
of the condition.
WCI’s failure to at least annually inspect the overhead crane’s runway support structure
could have resulted in an overhead crane collapse. In this case, it is unknown whether the crane
collapse was the result of overloading or a failure in the support structure (Tr. 109). Also, WCI
knew such inspections were not conducted based on its belief such inspections were not required
by the standard.
Item 2 -Alleged Violation of § 1910.179(l)(3)(ii)(b)
The citation alleges WCI failed to maintain the correct function of the limit switches.
Section 1910.179(l)(3)(ii)(b) provides, in part:
(ii) Adjustments shall be maintained to assure correct functioning of
components. The following are examples:

      One such component is “(b) Limit switches.” A “limit switch” is “a switch which is operated

by some part or motion of a power-driven machine or equipment to alter the electric circuit
associated with the machine or equipment.” Section 1910.179(a)(60).
There is no dispute that at the time of the crane collapse, the hoist limit switch was not
properly set. The #2 SPA 40-ton overhead crane has a number of limit switches including two for
the hoist motor. The limit switch on the crane’s hoist motor restricts the amount of power the crane
hoist can pull and prevents the operator from overloading the hoist (Tr. 44, 89, 103). The hoist limit

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switch is manually set (Tr. 47). For the #2 SPA 40-ton crane, the hoist limit switch’s proper setting
is 489 amps (Tr. 45).
At the time of the crane’s collapse, there is no dispute the hoist limit switch was set at 660
amps (Exh. R-5; Tr. 45, 106). Priddy did not determine who had improperly adjusted the limit
switch or how long it had been misadjusted. Also, Priddy did not actually see the limit switch. The
information was provided by WCI (Tr. 83, 104-105).
Approximately six months (August 2007) prior to the collapse, WCI discovered another
incident where the limit switch had been improperly set (Tr. 46, 105). After discovery, WCI reset
the limit switch to 489 amps (Tr. 77, 105). According to Priddy, there was no indication WCI
retrained the operators or maintenance technicians as to the proper setting of the limit switch and
the associated hazard (Tr. 47).
WCI’s argument that the improper setting of the limit switch does not constitute a failure to
“maintain” the switch is rejected. The parties agree the limit switch was not malfunctioning (Tr. 88,
161). As noted by WCI, §1910.179(l) is entitled “Maintenance.” However, in addition to
preventive maintenance, the standard addresses “Adjustments and repairs” to the crane and requires
the correction of “any unsafe conditions.” Section 1910.179(l)(3). An unsafe condition includes
adjustments to maintain the correct functioning of components, i.e., correcting the hoist limit switch
to reflect the loads to be hoisted within the crane’s capacity.
The remaining issue for determination is whether WCI knew or should have known of the
improper setting of the hoist limit switch at the time of the crane’s collapse. In order to establish
employer knowledge, the Secretary must show the employer knew, or with the exercise of
reasonable diligence could have known of a hazardous condition. Dun-Par Engineered Form Co.,
12 BNA OSHC 1962, 1965-66 (No. 82-928, 1986). In this case, there is no evidence WCI had
actual knowledge the limit switch was improperly set.
An employer can have constructive knowledge of a violation if the employer fails to use
reasonable diligence to discern the presence of a violative condition. Pride Oil Well Serv., 15 BNA
OSHC 1809, 1814 (No. 87-692, 1992). An employer is expected to make a reasonable effort to
anticipate the particular hazards to which its employees may be exposed during the course of their
scheduled work. Automatic Sprinkler Corporation of America, 8 BNA OSHC 1384, 1387 (No 76­
5089, 1980).

                                              7

In this case, WCI was aware the hoist limit switch had been improperly set to 660 amps on
a prior occasion in August 2007. Also, WCI was aware crane operators had an incentive to hoist
loads in excess of the crane’s rated capacity in order to quickly finish their work and take a rest
brake (Tr. 143).
The record shows WCI’s efforts under the circumstances were reasonable to prevent a
recurrence through employee training and regular inspections of the limit switch. Prior to the
collapse, the record shows only one incident of an improperly set limit switch despite having
numerous overhead cranes which were in constant use (Tr. 99). In response to the August 2007
incident, WCI reset the limit switch to 489 amp and instructed crane operators not to change the
setting. At the time of the collapse, there is no showing how long the limit switch of the #2 crane
was improperly set. Also, the limit switch was not shown to be located where it was readily visible
to supervisors.
WCI’s daily and monthly inspections by operators and maintenance technicians included
specifically examining the cranes’ limit switches (Exhs. C-9, C-10; Tr. 87, 141). WCI’s safety rules
and training instructed operators to not overload the crane which would include maintaining the
proper function of the limit switches (Exhs. R-1, R-2; Tr. 78, 132-133, 153).
These efforts do not equate to WCI’s knowledge that five months later the hoist limit switch
was again improperly set to 660 amps. WCI’s violation of § 1910.179(l)(3)(ii)(b) is not established.
Item 3 -Alleged Violation of § 1910.179(n)(1)
The citation alleges WCI permitted the #2 SPA 40-ton overhead crane to hoist and carry
loads beyond its rated load capacity. Section 1910.179(n)(1) provides:
The crane shall not be loaded beyond its rated load except for test
purposes as provided in paragraph (k) of this section.

   There is no dispute that at the time of the collapse, the #2 SPA overhead crane was loaded

beyond its rated capacity of 40-tons. Based on information, Priddy believed the crane was lifting
two steel slabs weighing approximately 43.6 to 45.2 tons (Tr. 50). WCI, based on its investigation,
determined the crane was lifting four slabs weighing 80 tons (Tr. 90, 153). In a memorandum dated
February 3, 2008, WCI’s superintendent of Operations Support stated:
I believe it can be deduced that by carrying two slabs that the weight
carrying capacity of the crane has been compromised unless all

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employees follow the JSA S8005, which all employees were
contacted on 09/27/07. This JSA as you can see, gives the
mathematical formula for calculation of the weight of the slabs.
*******
From the best I can determine there has never been a formal system
developed to identify slab weights (writing the weights on the slab or
something more sophisticated). Since the Blooming Mill days and
continuing the past 17 years of the Spa, employees used their
experience to determine what the lift weight was. (Exh. R-8).

   It was common practice for operators to carry two steel slabs at a time with the crane (Tr.

49-50, 89). The weight of a steel slab, however, depended on its width which various from 26 to
40 inches and its length which various from 20 to 30 feet. The thickness of a slab was 9 inches (Tr.
50-51, 53, 91, 107, 149).
According to Priddy, it was difficult for an operator to determine the slab’s weight. It was
not written on the slab and the company did not maintain a record of the weight. As noted, WCI’s
own investigation, found that it lacked a formal system to identify slab weights and that operators
had used their experience to determine a lift’s weight.
According to Safety Director Headrick, crane operators could determine a slab’s weight by
checking a computer in the office or calculating the weight by using a mathematical formula
provided by WCI (Exh. R-8; Tr. 36). After the crane collapse in January 2008, WCI began marking
the weight on each steel slab (Tr. 55).
The Secretary failed to call any witnesses from WCI including the crane operator to support
its claims of recurring overloading. Instead the Secretary relied on the testimony of Priddy who
could provide only limited support for her position. Initially Priddy claimed WCI officials told him
they permitted overloading if it was within the crane’s safety factor. On cross examination, Priddy
conceded it was the union that provided this information. Similarly, Priddy claimed WCI tolerated
overloading because employees told him that they were permitted to lift two slabs at once.
However, on cross examination, Priddy conceded slabs are cut to various lengths and widths. The
mere fact a crane routinely lifted two slabs at once is meaningless unless one knows the size of the
slabs (Tr. 92). Priddy’s assumption that two slabs always exceeded the 40-ton lifting capacity is
incorrect. He conceded “the Company lifts slabs where two slabs would easily fall under the crane’s
rated capacity (Tr. 92).

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The issue is whether WCI knew or should have known with reasonable diligence the #2 SPA
crane was overloaded at the time of the collapse. WCI through its supervisors was aware the SPA
overhead cranes generally transported two slabs at a time. As evident by the calculations provided
to Priddy, two steel slabs can exceed the crane’s 40 ton capacity. The weight of any two of the four
slabs found where the crane collapsed was 43.2 to 45.6 tons (Tr. 50).
Other than on the day of the crane collapse, there is no evidence the overhead cranes carried
loads beyond their rated capacities. The record fails to show crane overloading was a regular and
a recurring problem. There is no showing WCI through its management knew or should have known
the #2 crane was overloaded when transporting two steel slabs.
However, if the #2 overhead crane was carrying four steel slabs as claimed by WCI, the
weight of four slabs would clearly exceed the 40-ton crane capacity and should have been obvious
to any WCI supervisor in the SPA. Such constructive knowledge is imputed to WCI unless it is
shown the operator’s conduct was unpreventable misconduct.
Unpreventable Employee Misconduct
WCI asserts the violation of § 1910.179(n)(1) was the result of the operator’s misconduct.
As an affirmative defense, it is WCI’s burden to show the misconduct was unpreventable. In order
to establish unpreventable employee misconduct, an employer must show it has (1) established work
rules designed to prevent the violation, (2) adequately communicated these work rules to its
employees, (3) taken steps to discover violations, and (4) effectively enforced the rules when
violations are discovered American Sterilizer Co., 18 BNA OSHC 1082, 1087 (No. 91-2494, 1997).

1. WCI’s Work Rule
   As essential element of the misconduct defense, the employer needs to establish it has work
   rules designed to prevent the unsafe condition or violation of an OSHA standard. Pride Oil Well
   Serv., 15 BNA OSHC supra at 1816. A work rule is defined as “an employer directive that requires
   or proscribes certain conduct, and that is communicated to employees in such a manner that its
   mandatory nature is made explicit and its scope clearly understood.” J.K. Butler Builders, Inc.,
   5 BNA OSHC 1075, 1076 (No. 12354, 1977).
   WCI’s safety program included a detailed manual on crane safety that contained specific
   rules against overloading the crane. WCI’s safety rules if followed would have prevented the unsafe
   condition and a violation of § 1910.179(n)(1) (Exh. R-2).

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   2. WCI’s Communication of its Work Rules
   WCI communicated its safety rules through periodic safety training and monthly “safety
   contacts.” The training was provided to employees including operator Mathieson (Exh. R-1). In
   the four months preceding the January 30, 2008 accident, crane operator Mathieson received at least
   two safety contacts regarding crane overloading. The contacts occurred on September 27, 2007 and
   January 18, 2008; less than two weeks before the accident. The JAS/SOP S6005 safety contact
   plainly discussed the rule against overloading; “Never, under any circumstances, lift a load that
   exceeds the equipment’s capacity.” Employees were told how to calculate the weight of each slab
   to avoid overloading. The JSA specifically instructed operators of the lift capacity of each overhead
   crane and warned operators that “going over hoist limitations could result in a dropped crane block
   causing serious personal injury from lift itself or flying debris” (Exh. R-8).
   3. WCI’s Steps to Discover Violations
   Although an employer is not required to provide constant surveillance, it is expected to take
   reasonable steps to monitor for unsafe conditions. Ragnar Benson, Inc., 18 BNA OSHC 1937, 1940
   (No. 97-1676, 1999).
   As discussed, WCI had a system of daily and monthly inspections of the crane. Its safety
   staff regularly walked throughout the plant looking for unsafe conditions.
   4. WCI’s Enforcement of Safety Rules
   Adequate enforcement of safety rules by an employer is also viewed as a critical element of
   the misconduct defense. To show an employer’s disciplinary system is more than a paper program,
   an employer must have evidence of having actually administered the discipline outlined in its policy
   and procedures. Rawson Contractors, Inc., 20 BNA OSHC 1078, 1081 (No. 99-0018, 2003).
   Headrick testified WCI had a zero tolerance policy against overloading a crane (Tr. 172).
   Though he was eventually reinstated with a one-month unpaid suspension after his union intervened,
   Mathieson was initially fired as a result of the January 2008 crane collapse (Tr. 145). Additionally,
   as a result of the August 2007 limited switch incident, supervisor Foos issued a verbal reprimand
   to the crane operator. Foos was disciplined for not suspending the operator.
   WCI’s unpreventable employee misconduct defense is established. A violation of §
   1910.179(n)(1) is not established.

                                            11
   

   Penalty Consideration for Item 1
   OSHA proposes a penalty of $2,500.00 for WCI’s violation of § 1910.179(j)(3). Section
   17(j) of the Occupational Safety and Health Act requires that when assessing penalties, the
   Commission must give “due consideration” to four criteria: (1) the size of the employer’s business,
   (2) the gravity of the violation, (3) the good faith of the employer, and (4) the prior history of
   violations. 29 U. S. C. § 666(j).
   WCI was a large company with approximately 1,300 employees. WCI is not entitled to
   credit for history because it has received serious citations within the preceding three years (Tr. 43).
   WCI is given credit for good faith based on maintaining a safety program consisting of safety rules,
   training and a safety department with four safety professionals (Tr. 130).
   A penalty of $2,000.00 is reasonable for WCI’s serious violation of § 1910.179(j)(3). The
   failure to periodically inspect the overhead crane’s rail support systems exposed the operator and
   other employees to a crane collapse hazard as experienced on January 31, 2008. Priddy identified
   areas on the support columns and girders which showed evidence of corrosion and missing or
   deformed bolts and rivets.
   FINDINGS OF FACT AND
   CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in accordance
   with Rule 52(a) of the Federal Rules of Civil Procedure.

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   ORDER
   Based upon the foregoing decision, it is ORDERED:
   1. Serious violation of § 1910.179(j)(3) is affirmed and a penalty of $2,000.00 is
   assessed;

   2. Serious violation of § 1910.179(l)(3)(ii)(b) is vacated and no penalty is assessed; and

   3. Serious violation of § 1910.179(n)(1) is vacated and no penalty is assessed.

                                                       /s/Ken S. Welsch
      

      Date: January 8, 2009 KEN S. WELSCH
      Administrative Law Judge

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